Anti-discrimination laws and marriage

Many people wonder why conservatives who speak up for traditional marriage and the natural family also often oppose fundamentally flawed laws that would add “sexual orientation” to anti-discrimination laws. If you ask some “gay rights” advocates, the answer is simple: Conservatives are motivated by bigotry and simply hate homosexuals. But for reasonable, thinking individuals who like to consider an issue before attacking and condemning those who disagree with them, there are answers. What follows is one of those answers.

First, a quick thought exercise. Imagine a world where religious individuals are attacked as “bigots” because they maintain and express sincere religious beliefs on sexual behavior and relationships. Imagine a world where their livelihoods and their worship services are publicly targeted and disrupted because they take legitimate political action grounded in their religious values. Imagine a world where justifiable social/political/policy views on issues like marriage and the family are dismissed offhand as “hateful,” with little to no thoughtful consideration.

This is a world grounded in anti-discrimination policies based on “sexual orientation.”

Anti-discrimination law and “sexual orientation”

Anti-discrimination laws are based on the idea that society ought to give special protections to groups who have been subject to irrational or hateful prejudice. In other words, their purpose is to protect specific groups of individuals from actions toward them motivated by hate or bigotry. Hence, characteristics listed in anti-discrimination law (e.g., race, sex and religion) are called “protected classes.”

What this means is that members of protected groups receive special legal protections that others do not have. For example, in a racial discrimination lawsuit filed against an employer that makes it to court, the employer will have to prove that he did not discriminate against the racial-minority individual, as opposed to being presumed innocent of discrimination until proven guilty.[1] Naturally, this mind-set has bled from the courts into society at large, to the point that when we hear charges of racial discrimination, we often take it for granted that they are true. Further, in the specific context of protecting “sexual orientation,” the U.S. Supreme Court has ruled that there is no difference between discriminating against homosexual conduct and an individual’s “sexual orientation” – they are the same thing in terms of discrimination, and are presumed to be motivated by hatred or bigotry.[2]

What does this mean for adding “sexual orientation” to anti-discrimination laws? It means that lifestyle decisions clearly connected to “sexual orientation” – any lifestyle choice clearly connected to a homosexual’s sexual relationships – will likely receive special protections that treat encumbering actions from others as hateful or bigoted discrimination. In other words, adding “sexual orientation” to anti-discrimination policies will lead to a presumption in the law, and hence in society, that actions which do not accommodate the homosexual lifestyle are motivated by hatred or bigotry, even if the real motivation is otherwise.

How does this impact marriage policy?

The addition of “sexual orientation” and “gender identity” to anti-discrimination law has become a prerequisite of sorts to establishing same-sex marriage. For instance, all of the four state high court decisions that redefined marriage (including California, though that was overturned by voters) referenced their state’s inclusion of “sexual orientation” in anti-discrimination law to help support and justify their decision.[3] Given the foundational idea behind anti-discrimination law and its implications, it is easy to understand why this is the case.

With the presumption firmly established in law and society, via anti-discrimination policies, that choosing not to accommodate the homosexual lifestyle is an expression of bigotry and hate, it is a simple matter of logical extension to view marriage policy through this lens. Policies which protect the traditional definition of marriage become mere expressions of irrational loathing of homosexuals, as those policies do not accommodate the lifestyle decisions of homosexuals who choose to live in a “committed, marriage-like” relationship. Sincere and legitimate social views – concerns about the welfare of children, which traditional marriage policy is designed to protect, and views of those whose opinions are grounded in religious values – get publicly denigrated and dismissed because, in the world of heightened protection of “sexual orientation,” they simply become justifications of hate against homosexuals.

So while adding “sexual orientation” to anti-discrimination laws does not directly change marriage policies, it undermines the foundation of ideas and social views in which traditional marriage policy is grounded and justified – couching them as irrational, hateful, or bigoted discrimination against homosexuals. Further, advocates for “same-sex marriage” understand this, and it is one reason why they often dismiss any reasoning of their political opponents as hateful or bigoted. It is also one reason why they are so intent on pushing anti-discrimination policies based on “sexual orientation” at federal, state, and local levels. Not only do such policies accomplish “gay rights” advocates’ ostensible discrimination goals, but they also become a tool for accomplishing their larger goals in marriage policy.

The ramifications of anti-discrimination laws based on “sexual orientation” do not end there. If a lack of accommodation for homosexual lifestyle choices is presumed to be motivated by hatred and bigotry, what does that mean for religious views and values which consider such behavior to be sinful? Can society tolerate public expressions of such religious beliefs (i.e., religious liberty) while simultaneously condemning related actions by religious believers as hateful and discriminatory? Further, what are the consequences for public policies intended to protect and support the primary social interest in the institution of the family – the bearing and raising of children – when anti-discrimination laws provides the highest and most strict legal protections to biologically childless homosexual relationships?

Few Utahns, if any, support hatred and bigotry against others. Many Utahns do, however, reasonably seek to protect and uphold the fundamental ideas and principles on which civilization’s social institutions – traditional marriage and the family – are based. By undermining these foundational ideas with presumptions of hateful motivations against homosexuals – ironically in the name of tolerance – anti-discrimination policies based on “sexual orientation” have proven to be (and are continuing to prove) incompatible with such ideas. There is little compelling evidence to suggest that both can co-exist for any long period time, and so conservatives choose to fall on the side of marriage and the family.


[1] If an employer is able to provide non-discriminatory reasoning for their decision, the burden of proof shifts back to the racial-minority individual to prove that such reasoning is simply a “pretext” for racial discrimination. For more detailed explanation and examples, see http://corporate.findlaw.com/human-resources/race-discrimination-recent-cases-about-shifting-burdens-of-proof.html.

[3] See Goodridge v. Department of Public Health, page 27 (Massachusetts); Kerrigan v. Department of Public Health, page 25 (Connecticut); Varnum  v. Brien, page 38 (Iowa); and In re Marriage Cases, page 68 (California).