Friday, June 4, 2010
A question for Eduardo about discrimination
In his recent post, regarding the bishops' opposition to ENDA, Eduardo writes:
[The question is] precisely what sort of discrimination the bishops believe to be “unjust.” The letter doesn’t say, but it would be nice to know what they think. Would it be unjust for a Catholic school to fire a gay janitor simply because he is gay, even if he is celibate? . . . I guess I’d like to hear what would, in the bishops’ view, constitutes unjust discrimination (since it is a category that seems to include less than it excludes)? The letter is silent on this point. It’s far more eager to carve out room for “just” discrimination than it is to specify where discrimination goes too far.
I think Eduardo is right to remind us of the important distinction between "unjust" discrimination and the kind of discrimination that -- in my view, anyway -- probably should not be called "discrimination", because everyone today thinks "discrimination" is wrong when there are, in fact, some instances of "discrimination" that are not wrong-but-tolerable, but utterly unremarkable and not wrong at all (e.g., "discriminating" against boring people, or vegetarians, when putting together a list of dinner-party invitiees). For me, this distinction is often muddied in discussions of, e.g., "discrimination" on the basis of religion by "faith-based" social-service agencies or by religiously-themed student groups.
I wonder if Eduardo agrees with me that an appropriate appreciation for the church-autonomy principle should lead us to say that, with respect to some decisions by religious authorities, institutions, and employers, the question whether a particular employment-related action in question is "unjust" or "just" discrimination (or, as I would prefer, "discrimination" or not) is not a question that should be submitted for resolution to the civil or political authorities? (Identifying these decisions, and identifying the authorities and employers we are talking about, will not be easy in every case, of course.) Thoughts?
https://mirrorofjustice.blogs.com/mirrorofjustice/2010/06/a-question-for-eduardo-about-discrimination.html
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The bishops, it seems to me, are making a small (if meaningless) step forward here in offering to discuss ways to legally protect those with a homosexual inclination (but who do not engage in homosexual behavior) from "unjust discrimination." As I read "Some Considerations Concerning the Response to Legislative Proposals on the Non- Discrimination of Homosexual Persons" (23 July 1992) by the Congregation for the Doctrine of the Faith, even legislation protecting those with a homosexual orientation is to be resisted by the Church, and even when the Church itself is exempt from such legislation.
See http://www.ewtn.com/library/curia/cdfhomol.htm
But what are we to make of the kind of legislation which the bishops seem to envision -- legislation that protects people from discrimination because of "inclinations" that they do not act upon? I am not a lawyer, so I have to ask those here to weigh in in whether there exist any other civil rights laws that protect individuals purely on the basis of an "inclination" to do something that they do not, in fact, do? Currently, as best I can tell, the EEOC protects against discrimination on the basis of the following: age, disability, gender (on the issue of equal pay), genetic information, national origin, pregnancy, race, and religion. I do not see how any of those can be interpreted to be "inclinations" that are not acted upon.
It does seem to me ironic that the bishops are offering to help congress devise a law that protects against discrimination based on homosexual inclination but not homosexual behavior, and at the same time apparently wish themselves to be exempt from the law. If they want to replace ENDA with meaningless legislation that meets with their approval, they should at least be willing to be bound by whatever they approve.