UCCSB Letter on Discrimination Against Homosexuals

I know I’m a little late to the party on this one.  On May 19, the USCCB wrote a letter setting out its reasons for opposing the proposed Employment Nondiscrimination Act, which would prohibit discrimination against homosexuals in employment.  The crux of its position appears to be that it is opposed to the law because (1) it might be applied to the Church in ways that interfere with its religious autonomy and (2) it might be used by litigants and courts to promote successful constitutional challenges to prohibitions on same-sex marriage.

I don’t know enough about the proposed legislation to comment on the Bishops’ specific claim that the religious exemptions built into the law are insufficient to protect the Church’s autonomy, but there were a number of troubling features of the letter that may shed some light on the hierarchy’s views on homosexuality and the law.  

First, the bishops repeatedly insist that, while they oppose the proposed legislation, the Church continues to oppose “unjust discrimination” on the basis of “homosexual inclination.”  I found the two qualifications within this statement to be troubling.  First, the word “unjust” seems to be doing a lot of heavy lifting for the bishops, both in this letter and in other statements.  We know that at least one bishop thinks its not “unjust” discrimination to prohibit the child of a gay couple from attending Catholic school.  And the Catholic Church openly engages in at least some exclusion of even celibate homosexuals from the priesthood.

So the question that this raises 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?  Could a Catholic small-business owner do the same?  Is an antidiscrimination law unjust because it penalizes the small-business owner who refuses to employ a gay janitor for religious reasons?  What if the small-business owner is not religious but merely refuses to hire the gay janitor because he opposes homosexuality because he has read Robby George’s work and is convinced by it?  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.

The potential capaciousness of the first qualification is brought into relief by the second: the letter’s emphasis on homosexual inclination.  The bishops open their letter by distinguishing homosexual inclination from homosexual conduct.  The letter’s affirmation of the Church’s opposition to “unjust discrimination against people with a homosexual inclination” suggests that the bishops do not object to discrimination on the basis of homosexual conduct.  In other words, they seem to think that you are morally entitled to fire someone for having homosexual sex, even if it would be unjust to fire him merely for being gay.  Not only that, in order to protect the right to discourage (through employment discrimination) gay conduct, the bishops seem to be opposed to any legal prohibitions of discrimination against homosexuals that do not expressly protect the right to discriminate against those who engage in homosexual conduct.  The problem, for them, seems to be that a broad prohibition might be interpreted as encouraging homosexual conduct even if such broad protection is necessary to protect people with homosexual inclinations.   I’m left wondering whether there is any way to craft legislation protecting homosexuals from employment discrimination that would not either (1) prohibit discrimination targeted narrowly against those who engage in homosexual sex or (2) be totally ineffective in protecting gay people from employment discrimination?  I can’t think of any, since the person doing the discrimination could always just say that he fired (or refused to hire) a gay person not because he was gay but because he suspected the person was sexually active.  And, if that’s the case, why do the bishops insist on using this pinched language?  Why not just come out and say that they that, by and large, they think it’s OK to discriminate — as they themselves do in selecting priests — against those with homoseuxal inclinations?  They’ve narrowed the category down so much that the invocations of the language about “unjust discrimination” feel like historical baggage more than sincere worries for the well-being of gay people.  That is, they’ve said it so many times that they can’t just get rid of it, but it now seems to mean something much narrower than it used to.

A couple of other interesting tidbits in the letter.  First, the bishops compare the success of gay marriage to Roe v. Wade.  This is a particularly hard one for me to swallow whole.  In the Church’s official view, Roe v. Wade opened the door to legally sanctioned murder of millions of  innocent children.  Nothing, we keep hearing, compares to this evil or justifies supporting politicians or political parties that support it.  It’s mass murder.  A holocaust.  On the same level as legal slavery.  Nothing compares to it, I guess, except gay marriage, which is a “moral disaster comparable” to mass murder.  Interesting.

Finally, the proposed law is no good because it fails to include a “bona fide occupational qualification” exception “for cases in which it is neither unjust nor inappropriate to consider an applicant’s sexual inclination.”  This is interesting because it appears to stand apart from the concerns, voiced earlier in the letter, with Church autonomy.  I’m curious, apart from religious work that would be protected by a broad provision protecting religious groups’ autonomy, which jobs would justly require the power to discriminate against people on the basis of “sexual inclination” (not conduct, remember).  I’m drawing a blank on this one.  Truly.