There are hot discussions on other blogs on petition asking the APA to treat institutions that discriminate on the basis of sexual behavior as violators of the APA's policy against discrimination on the basis of sexual orientation. There is also a counter-petition to maintain current APA practice and arguing that there is a distinction between orientation- and behavior-based discrimination.
It seems obvious to me that one can discriminate on the basis of a behavior without thereby discriminate on the basis of the tendency towards that behavior. Consider three cases:
- Institution A prohibits its employees from engaging in same-sex sexual activity, because on Christian religious grounds it believes such activity to be immoral.
- Institution B prohibits its employees from having sex, because on gnostic religious grounds it believes sex to be always immoral.
- Institution C prohibits its employees from having intercourse with members of the opposite sex, because they are convinced by Andrea Dworkin's arguments that opposite-sex intercourse is always wrong.[note 1]
A policy is not discriminatory against a group G simply because it is harder, though still possible (and maybe even if impossible), for members of G to follow the rules, unless the rules were put in place precisely to make things harder for members of G. It is easier for those raised in an English-speaking family to speak English well. But requiring that faculty speak English well does not discriminate against those who were not raised in an English-speaking family, unless the rules on English speech were put into place precisely to make things harder for such people.
Now Institution B probably did not act in order to make things specifically harder for persons of non-asexual orientation. The concern seems very directly to be with behavior. Nor is Andrea Dworkin wishing to penalize heterosexuals; she just thinks that the geometry and social meaning of heterosexual intercourse is derogatory to women. Likewise, the traditional Christian arguments are not against homosexual orientation (while there are hints that some traditional Christian authors were aware of the phenomenon of homosexual orientation, they are much more concerned with behavior) but against behavior, and so, barring evidence of insincerity on the part of the institution, Institution A is probably not discriminating against people of homosexual orientation in this policy. (There may be discrimination based on homosexual orientation on an informal level, but that's a different question.)
So, none of the three institutions discriminates on the grounds of sexual orientation. There is a further question to ask, namely whether what they are doing is reasonable. But that would require examining the actual arguments against homosexual behavior, sex in general, and heterosexual intercourse, respectively. And the answer would not be directly relevant to the question whether there is discrimination on the grounds of sexual orientation.
Here is a quick test for whether x discriminates on the grounds of Y. If x's subjective reasons for her action would be no different were x not to know about the existence of Y, then x is not discriminating on the grounds of Y. Discrimination is an intentional behavior. Now, in Case A, it seems very likely that this test applies: the subjective reasons for discriminating on the basis of homosexual behavior would be equally present if the people running the institution didn't know about sexual orientation. Thought experiment: Would a Christian institution at a time when people didn't generally have the concept of sexual orientation be any less likely to discriminate on the basis of sexual behavior? Surely not. If anything, the contrary seems true.
8 comments:
I think your analysis is correct with respect to intentional discrimination. The trouble I see is that, legally, discrimination does not have to be intentional. A court can find discrimination in a policy or law that is neutral on its face, but discriminatory when applied to a given situation.
This matters because battles are often fought in the courts if they lose in the public square. And even when they are fought in the public square, they are often fought using legal language and legal tests.
Thus, for a complete defense, one would need to construct two additional arguments. First, one would need an argument supporting the policies that purposely discriminate (that’s a loaded term, better is “favor”) certain sexual behavior over others. As you mention, “But that would require examining the actual arguments against homosexual behavior, sex in general, and heterosexual intercourse, respectively.”
Given that purposive discrimination based on behavior obviously has a non-intentional discriminatory impact on orientation, one would need an argument that the non-intentional discriminatory impact is supported by some “rational basis,” which would likely be the legal test.
1. I don't grant the claim that completely unintentional "discrimination" really is discrimination. If I walk around awkwardly and absentmindedly, and unintentionally and unknowingly keep on bumping into people, I do not thereby discriminate against the weak (who, unlike the strong, get knocked over). What I do may be indefensible (I have no right to walk so absentmindedly) but it is not discrimination.
Insofar as the courts disagree, they are wrong. But you're right to point out that this is how the matter is often thought about.
2. It's worth noting that in all my three cases, whether the policy actually adversely impacts the relevant groups depends on whether the institutions' metaphysical and/or ethical views are right or not. If the gnostic institution's metaphysics is right, then sex is bad for us--it causes us to become too closely bound up with matter, thereby sullying the divine spark that is our inmost being, or something like that. So the gnostic institution's rules, by strongly encouraging faculty to refrain from sex, are benefiting the allegedly discriminated against faculty (i.e., the non-asexuals), if the institution's metaphysics is right. Similarly, for the case of the Christian institution which believes that homosexual acts are sinful.
3. On the question of rational basis, I think it is a really, really bad idea for courts to get into this in religious cases. Here's one reason. Take the case of the gnostic university. Let's suppose that there is no decent neutral secular argument directly giving a rational basis for the blanket prohibition of sex (though there are some things in Kant that one might try to use). Then whether or not there is a rational basis for that prohibition will depend on whether there is a rational basis for believing the gnostic metaphysical and ethical system. And to figure that out, it would be necessary to examine all the best arguments that the gnostic apologists give for the truth of their religion. That surely isn't the sort of thing courts should get into. Similarly, we really don't want the courts to be trying to figure out just how good are the apologetic arguments for things like the inerrance of Scripture, the infallibility of the Catholic Church or the divine authorship of the Qu'ran.
Maybe the courts could have a quick look to see whether there is any prima facie rational force to the apologetic arguments, though I am rather uncomfortable with that idea. But in the case of the revealed religions (I don't actually know what gnostic apologetics was like), the answer is clearly affirmative simply because some of the arguments rest on testimony (e.g., Mohammed's testimony that he got the text from an angel of God), and testimony does have prima facie rational force.
4. Anyway, if something like the above is what is at stake in the debate, then those who say that policies prohibiting same-sex sexual behavior are indefensibly discriminatory are committed to the claim that there is no rational basis for, say, Catholicism. Now that is a far-reaching claim, one outside the province of most philosophers' scholarly work (most philosophers do not keep up on the latest developments in the philosophy of religion), and also surely one that the APA should institutionally remain neutral on.
"It's worth noting that in all my three cases, whether the policy actually adversely impacts the relevant groups depends on whether the institutions' metaphysical and/or ethical views are right or not."
To an extent - assuming that e.g. homosexual sex is something that can be taken care of just by confessing (is it?), it may be more harmful on the whole to deny someone a job because often finding a job (especially a satisfying one) is much harder than confessing. You can then add in risk-based calculations based on how bad things would be for a person to die without having confessed, etc. and so on, but it's not necessarily a binary.
Maybe a little off-topic...
At the time I am writing this comment, there are 49 signatures on the counter-petition. Of those, 26 are not listed in the APA member database and 8 are anonymous. Should the APA, a private organization supported by membership dues, pay attention to the wishes of non-members over members?
[Alex, are you not a member of the APA? You didn't come up in the database.]
Larry:
The badness of an immoral activity is not the same as the badness of having to confess or the risk of not going to heaven. Socrates thought it was worse to do wrong than to suffer wrong done to one, and he did not have in mind any supernatural consequences--only the natural deterioration of character. And over and beyond the deterioration of character, there is the badness simply of doing the wrongful act.
Wes:
I guess I need to renew. At Georgetown, this was handled by the Dept office--we just handed in the renewal form, and the Dept took care of the rest. (One of the nice perks there.) And I'm behind on so many tasks, in part because of hiring earlier this year.
No, of course, but you didn't say that the wrongness of the act depends on the metaphysics of the situation, you said the impact of the act on the person doing it depends on the metaphysics of the situation. So, we could talk about degradation of character as one such impact - although, on the Christian account, doesn't this basically just reduce in the long term to a question about heaven vs. hell? - but it's not the only such impact.
The long run is not all that matters. :-) Better to live a life of torment and go to heaven than to live of joy and go to hell. But that does not mean that a life of torment isn't bad.
I've been looking over the Wheaton application, and I can't find anything that says employees cannot engage in homosexual behavior. It says that Wheaton is a community that seeks to live according to biblical standards. The applicant must acknowledge a call to pursue holiness in thought and behavior. And s/he must affirm that scripture condemns homosexual behavior.
One might think that seeking to live according to biblical standards and affirming that scripture condemns homosexual behavior would entail that the applicant promises not to engage in such behavior. But pride, gossip, vulgar language, and envy are all on the same list. Surely Wheaton does not expect all of their employees to completely refrain from such behavior. Such an expectation is beyond most of our capacities. Thus, a particular behavior's being a member in the set of those behaviors condemned by scripture is not sufficient to make that behavior forbidden by the policy.
At most, the application requires one to intend not to engage in these behaviors. The behaviors themselves and any disposition that might make one prone to such behaviors are not mentioned. It does seem to prohibit an employee from having or consuming alcohol and/or tobacco on school grounds or at school functions.
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