At The Gospel Coalition, Joe Carter (Senior Editor for the Acton Institute) does some speculating on whether or not “gay is the new black.” That is, can we equate sexual behavior and race when we are discussing questions about equality, marriage, adoption, and discrimination?
By now, most of us are familiar with the issues surrounding Christian business owners (such as bakers and photographers) who have declined to do business for a homosexual wedding. Our nation is currently struggling with whether or not a person with religious beliefs can be forced to violate those beliefs in the name of equality. If I (a Christian) own a hall that I rent out for parties, receptions, etc., can I refuse to rent to a Hispanic or black family? The law says no, and rightly so. Can I refuse to rent that same hall out to a gay couple celebrating their wedding? Carter dissects the issues:
The argument to make this comparison takes the following form:
Major Premise: A sexual orientation is analogous to the category of race.
Minor Premise: Race is a category protected by anti-discrimination laws.
Conclusion: Therefore, sexual orientation should have the same civil-rights protections as those afforded to race.
The question we will examine is whether the major premise is true. Is sexual orientation and its behavior analogous to race? Before we can answer that question, we we must consider what constitutes a justification for anti-discrimination laws.
Carter turns to the Notre Dame Law Review, and Richard F. Duncan:
Employers, landlords, business owners, and so on, have historically retained the moral and legal right to freedom of association, which allows them to choose whom they will or will not do business with. In the latter half of the 20th century, certain exemptions to this general principle became codified in the United States to protect categories such as race and gender.
It is important to remember that these anti-discrimination laws are exemptions to the general rule. Except for the protected classes, business owners, et al., are allowed to discriminate (i.e., refuse to do business) with people for a variety of reasons. For instance, a landlord is not required to rent to a pornographer or a Klansman. In general, sexual orientation (however it was made known to a business owner) has been one of thousands of factors that are unprotected by antidiscrimination laws.
People who claim that legislation to protect sexual orientation is merely seeking to provide the same protections that are afforded to other people are incorrect: they already have the same rights everyone else has, i.e., the right to be protected against discrimination on the basis of their race, gender, and other protected categories. It is necessary that we are clear that seeking to make sexual orientation a protected class are seeking a special exemption that is not afforded to millions of other criteria.
Who, under the law, is “protected” in such circumstances? Why is “race” is this category?
The three most common reasons for considering race as a protected class is because race is immutable, morally neutral, and that discrimination has a significantly detrimental economic and political impact. The only two that really matter, however, are the last two. Whether a characteristic is immutable (i.e., subject to change) is not all that important, and shouldn’t really factor into the question of antidiscrimination laws. As Duncan says, “Suppose, for example, that a drug were invented that would enable human beings to change their race. In other words, blacks could take a safe, inexpensive pill and become Caucasian. Would anyone argue seriously that civil rights laws should not cover blacks who declined the drug and thereby chose to remain black?”
The reason race is a category worthy of protection is not because it is immutable, but because it is a morally neutral characteristic that has proven to have a significantly detrimental economic and political impact. And based on these criteria, sexual orientation is not analogous to race.
A person cannot choose their race; even if they could, Carter argues, that is not enough to make race a protected class. A person may or may not choose sexual orientation (science has yet to figure that out), but a person does choose behavior. Carter argues that race then is “morally neutral” while sexual behavior is not. People whose religious beliefs inform them that homosexual behavior is a sin cannot therefore be compelled to participate in a sinful act. The government cannot compel those of faith to see what is immoral as moral.