Besides prejudice and discrimination because of ethnicity or race there is also discrimination because of religious beliefs. Much traditional discrimination against women and perhaps most discrimination against homosexuals is not necessarily predicated on beliefs about people's abilities or characteristics but on religious beliefs about the proper roles of the sexes and about the proper forms of sexual behavior. People may be becoming increasingly offended by the notion of separate roles in life for the sexes, and it has become quite common for gay rights advocates to bluntly call people who disapprove of homosexuality "bigots"; but the principle in these issues is different from those concerning ethnic stereotypes. The issue is often not one of matters of fact but of traditional moral beliefs about sex, usually based on religious moral commandments.
Homosexuality (at least for males) is clearly and strongly prohibited by Leviticus 18:22, which says "Do not lie with a man as one lies with a woman; that is an abomination" (or "an outrage," "detestable," "loathsome" -- tô'êbhâh, from the verb ti'êbh, to loathe). The seriousness of the offense is later driven home at Leviticus 20:13, where it is ordered that the offending parties are to be put to death. Islâm seems less worried about homosexuality, but at the same time has always strongly endorsed public separation for the sexes.
Some now say that it is merely an "interpretation" of Leviticus 18:22 to say that it condemns homosexuality, since to "lie with a man as one lies with a woman" is an ambiguous euphemism. However, if one is to be stoned to death for doing this, it must be pretty serious, and it is unclear what other such grave offense this could be referring to.
While all these strictures may be regarded as remnants of archaic societies, there are plenty of Jews, Moslems, and Christians who take them at face value as direct and unavoidable commands from God, for which they will be called to account hereafter. For all we know, they might be right; and certainly no one accuses Jews or Moslems of being bigots because they think they are commanded by God not to eat pork.
A current example of this involves radio personality Dr. Laura Schlessinger, whose planned television show has generated some protest. Curiously, "Dr. Laura" has changed her mind about homosexuality. I personally heard her say on the radio a couple of years ago that she didn't believe that God would give people homosexual desires without allowing them to act on them. I had heard that argument already. It is not a very good argument, since it could as easily be said that God would not give pedophiles a desire for children without allowing them to act on it.[note] Dr. Laura herself at some point evidently thought better of this, since her position now is strictly one of Biblical morality. This is what many gay political activists cannot accept. Even if Dr. Laura is willing to leave them alone to live whatever peaceful life they want, they now simply do not want to be judged as immoral -- and they smear this as "hate speech" that promotes gay-bashing violence.
Religious rules about diet or sexual behavior are often interpreted, not as necessarily accomplishing practical goods in life, but purely as signs of obedience to God, or as fulfilling a purpose for us that God has set beyond our comprehension. It is not unreasonable that abstention from homosexual or other sexual practices or separate spheres in life for men and women may be adopted purely as signs of obedience to God. Many aspects of such religious commands, of course, like forcing women, or anyone, into certain ways of life, or like putting homosexuals to death, violate the moral law as recognized here.
We therefore cannot have a general respect for all traditional or religious moral principles. Our question about these principles must be instead where we draw the line between what we must forbid as a matter of justice in public life and what we must respect as a matter of private choice as religious individuals govern their own affairs according to their beliefs. The answer is simple enough: Believers can adopt their religious rules, or any rules, for themselves if they wish, as matters of individual liberty and voluntary association; but if they try to impose their rules by force on us or others (including their own coreligionists, or their children [1]), we have every right to stop them; but if it is just that we don't like the way they live life because of these rules, we simply don't have to associate with them.
The problem for us arises now where believing employers, or landlords, might not wish to employ, or rent to, those who evidently transgress their religious laws. From the Civil Rights Act of 1964 women have been included in anti-discrimination legislation, and homosexuals are now commonly included also (while paradoxically several States still outlaw homosexual and other "unnatural" sexual acts). Many believe that the purpose of such laws is actually to assault religion, both by forcing believers to associate against the principles of their traditional sexual roles and by forcing them to accept homosexuals and associate with them as morally no different from anyone else. In a sense, they are right that their religion is being assaulted, since the laws do not allow them their proper liberties of association in the "ordinary commercial transactions" that the Supreme Court now regards as government business. The idea that people have a right not to be discriminated against by private individuals in private and voluntary transactions involves a fundamental and extremely dangerous confusion about the very nature of civil rights.
The moral law as presented here forbids both the judicial prohibition of mere sexual acts between competent (usually meaning, in this context, adult) persons and any attempt to abridge freedom of association by forcing people to accept homosexuality, or anything else, that may offend their private moral beliefs, whether religious or otherwise. When it comes to employment, we may feel certain that discrimination against women or homosexuals on religious grounds is deeply irrational, even offensive to our sense of the good (as a hortative), but it is, after all, the employers who pay the cost of that discrimination -- and they may be quite willing to pay it for the sake of obedience to God, even as Kosher eating or Moslem prayer imposes costs that seem burdensome to most non-Jews or non-Moslems. If we do not believe that somebody should be forced to work for a certain employer against their will, the same freedom of association allows that no employer should be forced to employ a certain person against their will. And if the employer happens to believe the Biblical command, "Everyone who does any of these detestable things -- such persons must be cut off from their people" (Leviticus 18:29), then it is a great moral wrong to force that employer to associate with someone in a way that will cause a breach of that command, when it does not involve any use of coercion, force, or fraud against anyone else.
An extreme example of the desire to judicially limit freedom of association based on religion, and to thereby restrict the free practice of religion, may be found in the following story:
Associated Press [Los Angeles Daily News, Saturday, February 11, 1995]:PHILADELPHIA -- Three large placards are posted on a tiny church in a rundown neighborhood. One says "All are Welcome," but a second, smaller one, adds that only those who have tested negative for the AIDS virus are welcome.
Bishop Nathan Giddings, leader of the 38-member Old Ship of Zion, said that people with AIDS aren't welcome in his congregation because "they suffer from a plague." Homosexuals aren't welcome either "because they have abandoned the way of the Lord."
Advocates fighting AIDS discrimination said they're troubled by the policy and are looking into possible remedies.
"They are causing a lot of harm with their signs," said Nan Feyler, executive direction of the Philadelphia-based AIDS Law Project of Pennsylvania. "To have that kind of sentiment that's vilifying to people, especially in that neighborhood, it runs against the message we're trying to send."
However, Feyler said that because of the separation between church and state, Giddings' congregation in North Philadelphia does not fall under federal and state laws barring discrimination against people with the disease.
But Kevin Vaughan, executive direction of the Philadelphia Commission on Human Relations, believes the church could be held accountable if it could be proved that Giddings excluded anyone with AIDS or HIV, which by laws is considered a disability. Vaughan said his group sent a letter to Giddings after reading about the church in Monday's Philadelphia Daily News.
Clearly, the "Old Ship of Zion" congregation, besides being mindful the of Biblical prohibition of homosexuality above, is also thinking of the passages requiring the isolation from the community of those with a "plague":
Leviticus (13:45, King James) And the leper in whom the plague is, his clothes shall be rent, and his head bare, and he shall put a covering upon his upper lip, and shall cry, Unclean, unclean. (13:46) All the days wherein the plague shall be in him he shall be defiled; he is unclean: he shall dwell alone; without the camp shall his habitation be.(Modernized, 13:45): And the diseased one who has the infection, his clothes must be torn, and his hair must be unkempt, and he must cover his lower face, and he must cry, "unclean, unclean." (13:46) All of the days that he has the infection, he is unclean. Unclean, he must live alone, with his dwelling outside of the camp.
Whether we approve of this or not, there is no doubt that Reverend Giddings takes his Old Testament seriously. Indeed, when the transmission of AIDS is largely associated with homosexual sex acts, Giddings' rejection of those with this "plague" more clearly relates to the rest of his moral convictions than did the original Biblical injunction, since it is hard to imagine what lepers, etc. could have done to have brought their disease upon themselves. Homosexual acts, however, especially the anal sex, often promiscuous, through which AIDS is most easily transmitted, qualify as "unclean" in both ancient ritual and modern hygenic senses. AIDS political activists hate to admit that this behavior was ever even imprudent, much less immoral.
The most troubling thing about the Associated Press story, on the other hand, is not Reverend Giddings' archaic religious attitude but that it is not "the separation between church and state" that enables this congregation to accept the members whom they wish: It is the separation between government and private life, or between political society and civil society, a much more fundamental, general, and important separation than that between church and state. Anti-discrimination laws only apply to business and commerce because of New Deal court decisions that, in effect, make businesses into branches of the government. This has already been applied to private clubs, which have been denied liquor licenses to force them to accept the kind of membership (women, minorities, etc.) that politicians and "civil rights" lawyers think they should have. If churches are to be branches of the government also, then there is certainly no form of private association that will truly be free of government regulation and control. Prosecuting people for practicing discrimination in friendships, dating, and marriage could not be far behind, as in politically correct Madison, Wisconsin, a woman has ready been found guilty of practicing "homophobic" discrimination by refusing to accept a Lesbian woman who answered her advertisement for a roommate. Advertising for a roommate, it seems, means that, as part of business and commerce, one no longer has freedom of association in chosing the roommate.
Several cases in this regard have concerned the Boy Scouts of America, which requires scouts to profess a belief in God and will not accept openly homosexual scoutmasters. On March 23, 1998, two such cases were decided by the California Supreme Court, which held that the Boy Scouts were not businesses and so were not covered by the California Unruh "civil rights" law. The majority opinion was that, "The Boy Scouts is an expressive social organization whose primary function is the inculcation of values in its youth members." The plaintiffs had argued that the Boy Scouts were businesses "because the group has retail shops and licenses the use of its insignia" (Los Angeles Times, March 24, 1998). The Court has previously held that a private country club and a "nonprofit boys' club" were businesses. Since most churches have some form of business dealings, like retail shops, a general ruling that this makes such organizations businesses could be used to forbid religions to "discriminate" against those who do not profess their doctrinal or moral teachings.
The reaction of the plaintiffs and some politicians is instructive. One of the atheist twin boys in one suit said, "The Scouts taught us to stand up for what we believe in, no matter what people say, but I guess it was just a bunch of words to them." This seems to mean that the Scouts themselves cannot stand for anything, since they should, presumably, tolerate anything that this boy happens to believe. Indeed, he should stand up for anything he believes worthy, but there are plenty of other organizations, atheistic or "humanistic," where he will not be denying the principles upon which the organization was founded. The homosexual would-be scoutmaster, likewise said that, "What they have done is create a regulation that now makes it necessary for people to lie." Necessary for them to lie to do what? Belong to an organization with traditional religious moral standards? Why would this gentleman want to belong to such an organization in the first place? What he wants, indeed, is to force other people by law to stop morally condemning him.
One Justice of the Court, Stanley Mosk, although concurring with the opinion on legal grounds, nevertheless expressed his opinion that the plaintiffs were worthy of being Scouts and that, "Regrettably, the situation will remain such until the law changes." In other words, Justice Mosk thinks it "regrettable" that a private organization should be able to exercise its own moral discretion. "There oughta be a law," was a sentiment echoed by some legislators, though they did not think it politically possible to pass such a law.
On August 5, 1999, the New Jersey Supreme Court, upholding a lower New Jersey court, unanimously decided that the Boy Scouts there violated a "public accommodations law" by excluding homosexuals. The opinions of the justices were that the disapproval of the Boy Scouts was mere "bigotry" and that "social science" has proven that homosexuality is not "immoral" because homosexuals can "contribute responsibly and positively to society." The justices do no seem to have heard of the principle that liberty allows people to do things for good reasons, bad reasons, or no reasons. Nor do they seem to understand that many people get their morality from the Bible. Whatever "social science" may or may not have done, its conclusions are not relevent to the legal issue. Clearly, the New Jersey justices are motivated by a belief that people should simply not be allowed, in any area of life, to "discriminate" on the basis of traditional religious beliefs or morality.
The New Jersey case went to the United States Supreme Court, which, although vulnerable to such dishonesty, is certainly no more radical than the Calfornia Supreme Court, and much less so than the New Jersey. On June 28, 2000, the Court overturned the New Jersey ruling. Only five Justices, however, upheld the right of private and voluntary association. The minority Justices were either seized with a sudden, and uncharacteristic, Tenth Amendment scruple, or agreed with the New Jersey holding that unfounded prejudices or a "habitual way of thinking" cannot be allowed to enjoy First Amendment protection.
Jon Davidson, an attorney for the "Lambda Legal Defense and Education Fund," says, of the California case in the Los Angeles Times story, that, "Scouting has just cut themselves off from a supply of talented leaders by taking this view." So what? Don't Jewish organizations cut themselves off from talented Christians and Moslems? What business is it of Mr. Davidson (or the New Jersey Supreme Court) what principle a private organization uses as the basis of its association? The problem is that Mr. Davidson has undertaken a totalitarian project to force involuntary associations on people who hold religious and moral beliefs that he doesn't like. He and his cause have no more right to do that than the religious would have to stone him to death, as the Bible requires, for his practices. Both sides, instead, must observe the "live and let live" principles of voluntary association. But "gay rights" activists, who once merely wanted to be left alone to live their lives, now frequently use politics and the law to force their views and practices on others.
Similar issues occur in a decision of a panel of the United States 9th Circuit Court of Appeal on January 14, 1999 (reported in the Los Angeles Times on Friday, January 15, 1999). In a 2 to 1 ruling on a case from Alaska, the Court upheld the right of landlords to practice "discrimination" by refusing to rent to tenants, like unmarried couples, whose practices violate the landlords' religious beliefs. The decision overruled both the Alaska and the California Supreme Courts. The Court held that the right to free exercise of religion under the First Amendment outweighed other considerations. The contrary argument, from the California Supreme Court and from Paula Haley, the "executive director" of the oddly named "Alaska State Commission of Human Rights," is that nobody has the right to exercise their religious beliefs in economic transactions. In other words, when people try to make a living, they can be forced by the state to do so by violating their religious beliefs. This is a very bizarre conception of "human rights." It was also argued that allowing the landlords to apply their religious principles would involve a forbidden "establishment of religion" -- which seems to mean that if the state does not prohibit the application of religious principles in private transactions, this creates an established religion. In those terms, the only way to avoid establishing a religion would be to prohibit religious practice altogether -- which is likely to be the agenda of those who don't want to be "discriminated" against by any religious judgments in any context.
Although this is the correct finding, it is for the wrong reason. The discretion of the landlords is not a First Amendment issue but a Fifth Amendment issue. As in the case of the Philadelphia Church above, private association is not just protected by freedom of religion but more fundamentally by privacy and private property rights. Thus, the right of the landlords to rent to whom they please is protected by the "Takings" clause of the Fifth Amendment, "nor shall private property be taken for public use without just compensation." Thus, landlords might be paid to rent to people they do not want to rent to, but they cannot simply be required to do so. The laws in question about renting involve unconstitutional "takings" of private property rights.
This decision is certain to be appealed to full 9th Circuit Court and then to the Supreme Court. Although the Supreme Court has somewhat expanded protections against "takings," it is unlikely that they would restore property rights so completely in a case like this. Instead, there is an excellent chance that the full 9th Circuit Court and even the Supreme Court will reverse the decision and hold, not just that the property can be "taken" for the public purpose of non-discrimination (a fully accepted practice at this point), but that religious scruples cannot be exercised in economic transactions. That is more consistent with the historic attack on privacy, private property, and freedom that really has continued with great regularity.
I am actually not aware of the Bible prohibiting pederasty. Also, Leviticus does not bother to prohibit a woman to "lie with another woman as with a man." Why pederasty is overlooked should be a matter of some interesting inquiry (and it would certainly comfort to those who actually advocate pederasty, like the late beat poet Allen Ginsberg). The failure to prohibit lesbianism, however, does not seem like an oversight, since the passage on homosexuality is immediately followed by one prohibiting bestiality for both men and women. This makes it look like lesbianism simply didn't matter. What women do with each other, especially in the privacy of a polygamous household, does not compromise their fertility or the legitimacy of their children. The modern idea that lesbians simply would not marry would not have been relevant in an ancient world where marriage could have little to do with love or sexual attraction. When Aristophanes in Plato's Symposium says that homosexual men make the best husbands, we know we are dealing with very different expectations. Marriage and children fulfill the duty to one's ancestors. Sexual attraction is nice, but not essential. Sexual "orientation" is not relevant.