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).

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8 Responses to Anti-discrimination laws and marriage

  1. Name says:

    Why does the Sutherland “Institute” always put “gay rights” and “sex orientation” in quotation marks? Is the “Institute” trying to be snarky?

  2. Shaun says:

    What a hackjob of “scholarship”.

    1) There’s nothing that says “sincere religious beliefs” can’t ultimately be based on hatred or bigotry, the author has failed to make a case for why we should consider the two separate. After all, back in the era of the Civil Rights movement, many held “sincere religious beliefs” that blacks were inferior to whites and that any legislation that permitted any mixing of the races was a violation of God’s will.

    2) Where in the Supreme Court ruling for Hastings Christian Fellowship v. Martinez et al. did it conclude that discrimination based on sexual orientation is “presumed to be motivated by hatred or bigotry”? I read pages 22-23 both of the Court’s opinion and that of the dissenting opinion and could find no such thing. Or is the author dishonestly putting words in the Justices’ mouths to help make his point?

    3) Heterosexuality is also a sexual orientation and thus would be protected under any anti-discrimination statute that included sexual orientation under its definition. So if a heterosexual individual was discriminated against because of their sexual orientation, they would have claim under the law. All the statute is saying is that sexual orientation is not a valid criteria for consideration, just like race.

    What the author is suggesting isn’t a society in which a person’s “religious liberty” is preserved. Nothing about anti-discrimination laws, or marriage equality as the author talks about at the end, makes illegal the belief that homosexuality is wrong. After all, the KKK and other similar groups still legally exist even with the civil rights legislation. Instead, he’s arguing for a society in which open discrimination is permissible and one need only claim “sincere religious beliefs” to justify it.

    • Derek H Monson says:

      Shaun,

      To your first point: actually, the very meaning of “sincere” or “sincerely-held” religious beliefs is that they are not simply spiritual window dressing to hide an individual’s deep-seated hatred or bigotry for other people. If you do your legal research, you will find that the Supreme Court has long distinguished between professed religious beliefs and “sincerely-held” religious beliefs (http://supreme.justia.com/cases/federal/us/380/163/case.html). The phrase “sincerely-held religious beliefs” has real meaning in legal and policy terms, and by its very definition excludes the problem you raise of using your religion to prosecute irrational or bigoted discrimination.

      To your second point: as I said in my post, the purpose of anti-discrimination laws is to protect specific groups of people from actions motivated by irrational or hateful prejudice – i.e. from “discrimination,” in the legal sense of the word. Therefore, by presuming actions taken because of an individual’s “sexual orientation” are discriminatory, the law and the courts that rule on such laws are by definition presuming that these actions are motivated by hatred or bigotry.

      To your third point: that is a wonderful illusion that would make sense if it were not for the fact that, in reality, we enact anti-discrimination laws and courts apply such laws in order to give special protections and privileges to minorities (homosexuals), not majorities (heterosexuals). In this case, what the statute says in the abstract is not really important compared to what the statute means in the broader context of how such laws have been used and applied to real-life scenarios.

      This last sentence can be applied to your final point as well. To say that “nothing about anti-discrimination laws…makes illegal the belief that homosexuality is wrong” misses and distracts from the point. Anti-discrimination laws – especially those that label “perceptions” as discriminatory, like those protecting “sexual orientation” do – tag beliefs that view homosexuality as morally wrong as “hateful” or “bigoted” (i.e. discriminatory), and by so doing marginalize by making them socially unacceptable and unworthy of reasonable consideration.

      In fact, the KKK that you mention proves this point. Because we reasonably and rightly decided long ago as a society that prejudice against blacks was hateful and bigoted by enacting policies like racial anti-discrimination laws, the KKK and everything they say and stand for is automatically marginalized in society and presumed to be not worth serious consideration…and rightly so. To attempt to put people’s sincere religious beliefs into the same mold as the racial thinking of the KKK by enacting anti-discrimination laws that protect “sexual orientation” is repugnant as a political strategy, and even suggests (ironically) a deep-seated hatred for religious thinking from those in the “gay rights” movement.

  3. Bmwalter26 says:

    In 30 years when the debates on gay rights have long been
    settled, the author of this article will be seen for what it is, a hateful bigoted self righteous coward that justifies their cancerous beliefs behind the guise of religion. Enjoy your legacy

    • Coolman says:

      Gay marriage is primarily opposed because it could potentially force churches to change their doctrine, practices, and scripture. The LGBT community has done nothing to settle these concerns. This is unfortunate since the problem could be solved if we stopped giving legal privileges to a participant in a religious ceremony and simply required everyone to get a civil union if they want legal privileges.

      • Adison says:

        1. This is not be the primary reason it is opposed. (It can be your primary reason)

        2. When has this government ever forced someone to change their beliefs or scriptures. (they have forced some to change their practices)

        3.Protection of religion is an entirely different issue. One that is protected by the first amendment not by the LGBT community.

        4. No male-female couples up to this point in history have forced religions to perform their marriage so why would you think a male-male couple or female-female couple would try. If your religion does not believe that gay marriage is good in the sight of God why would they want that.

        5. I am fine with the last point but how about we call them “legal marriage” and “religious marriage,” instead of a civil union and a marriage. Because spirituality has not been a requirement for marriage up to this point. Why should religion have a monopoly on the name. One would give you protection under the law and one protection under God.

    • LDScowboy says:

      Exactly! Also Utah might as well scream at the wind to make it stop blowing as end marriage equality in the state. It just aint gonna happen.

  4. Rick O. in Douglas County, CO says:

    Derek Monson’s article was posted Nov. 2012 and is still fresh, relevant, and a good read, so I’m commenting – as one half of a newly wedded same sex couple, who “came out” late in life (1997) and has watched the gay marriage issue development with a great deal of doubt and curiosity before taking the plunge. As always with controversial issues there are fundamental differences of opinion, and language problems.

    With regard to “hate” and “bigotry”, I heartily agree they are thrown around willy-nilly. Having once been a Christian church member myself, I saw much of religion is concerned with the Golden Rule and ordering life for the good of humanity. There is real hatred against homosexuals,even amongst the religious, but not generally. Bigotry, however, is rampant if you bother to look up the definition in the OED: “obstinate and unenlightened attachment to a particular creed, opinion, system or party”. If the word fits, use it.

    “Lifestyle” is a belittling, dismissive word, as it always implies mere choice and doesn’t address deeper issues of true identity. It’s superficial. Is a Catholic priest not a heterosexual because he is celibate? A childless, single Mormon living in Manhattan, voting Democratic, and attending cocktail parties for a social life may not be living a LDS “lifestyle”, but are they any less LDS?Mormon?

    I led a fiercely heterosexual lifestyle, including marriage and children, for 42 years but it never changed the unavoidable fact the fact I’m a flaming homosexual. For a while I enjoyed a gay lifestyle. Now, I wear ugly plaid shirts, live on a dirt road with more guns than people, haven’t been to a bar or dance club or movie theater in years… and just married a man.

    The next word I’ll pick at is “special”, a favorite propaganda word in a society always striving for equality under the law. Remember the anti-gay campaign of the 80′s claiming gays were after “special rights”, and we eventually discovered that no, they just argued for the same rights? That same goal of equality is the cause for the admittedly somewhat tortured “protected classes” reasoning of discrimination cases. The courts found that without being forced to require rational reasons, society and the courts were NEVER going to give certain minorities equal status.

    As to whether traditional marriage is “foundational” to our society, I can’t say. It is NOT foundational to the U.S. Constitution. The words “marriage” and “god” appear nowhere, and it’s purpose is to promote life, liberty, and the pursuit of happiness in as free a manner as possible. Written by men who had escaped the brutal violence of several hundred years’ religious wars in Europe (far more fatalities than anything the Muslim world has ever experienced), they had the radical brilliance to require laws to have rational, human-based – reason.

    The last two nails in the coffin of anti-gay-equality laws and tradition? First, the Lawrence decision of 2003, in which, as the most brilliant Justice Scalia noted, reaffirmed that “moral disapproval” alone was not sufficient basis for law; there has to be demonstrable harm to somebody to limit our freedoms. Second, the 10 year history of gay marriage in the U.S., which has produced no harm (ask anybody on either side of the issue in Massachusetts, and be prepared to watch the Regnerus study on child-rearing be blown out of the water as bogus in Michigan Federal Court in 2014).

    Moral disapproval is fine – I practice it every day. Just keep your disapproval out of my life and I’ll do the same for you.

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