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Published online by Cambridge University Press: 01 January 2024
In many jurisdictions the list of factors for which anti-discrimination law applies has been expanded to include sexual orientation. As a result, moral and legal difficulties have arisen for religious organizations whose basic beliefs include the belief that sexual acts between persons of the same sex are immoral. In light of these difficulties, is anti-discrimination law of this sort unjust? Recently John Finnis has argued that, as commonly applied, such anti-discrimination law is disproportionate and therefore unjust. In this essay, I critically examine Finnis's argument, and argue that, on account of the conception of disproportionateness that is employed, it does not succeed. So as to enable the argument from disproportionateness to succeed, I develop and defend a modified conception of disproportionateness.
1 Colleen Theresa Rutledge, “Caught in the Crossfire: How Catholic Charities of Boston Was Victim to the Clash between Gay Rights and Religious Freedom,” Duke Journal of Gender Law and Policy 15(2008); Maggie Gallagher, “Banned in Boston: The Coming Conflict between Same-Sex Marriage and Religious Liberty,” Weekly Standard, May 15, 2006.
2 John Finnis, “Equality and Differences,” American Journal of Jurisprudence 56(2011). It needs to be noted that Finnis briefly addresses the question of the justice of what I have termed exemption-less anti-discrimination law, and does so within an essay that focuses on what could be seen as broader issues. The brevity of his argument is such that it could be misunderstood easily. That said, I sincerely hope that the sketch of his argument I offer is true to the intent and spirit of his argument. It also needs to be pointed out that Finnis's essay itself is offered by him not as his considered views but rather to “open . . . up further reflection . . . .” I hope that my analysis will be recognized as being offered with gratitude to Finnis for opening up this line of inquiry (and additionally, for the extraordinary philosophical work he has produced over the years).
3 “Equality and Differences,” American Journal of Jurisprudence 56(2011): 36Google Scholar.
4 Ibid.
5 Ibid.
6 Ibid.
7 I will assume that Finnis also accepts an implicit assumption that, in order to be just, the means employed are not in and of themselves intrinsically immoral.
8 Finnis, “Equality and Differences,” 39.
9 “Equality and Differences,” 35.
10 “Equality and Differences,” 35, internal citation omitted.
11 “Equality and Differences,” 35.
12 “Equality and Differences,” 36.
13 “Equality and Differences,” 36–44.
14 “Equality and Differences,” 38, internal citation omitted. As noted above, such a closure has also occurred in the United States.
15 “Equality and Differences,” 35, internal citation omitted.
16 “Equality and Differences,” 35.
17 Ibid.
18 “Equality and Differences,” 38.
19 “Equality and Differences,” 35.
20 While the morally important values that I am specifically concerned with in this essay are fundamental rights, it does not follow that they are fundamental or “basic” values (or goods) – values (or goods) that have value for their own sake (that is, intrinsic value). While these fundamental rights are morally important, I am in agreement with Robert P. George that such fundamental rights, while morally important are nevertheless only of conditional and instrumental value – of value by virtue of the instrumental connection they have with fundamental or basic values. See George, Robert P., Making Men Moral: Civil Liberties and Public Morality (New York: Oxford University Press, 1993), 189–229Google Scholar.
21 Personally, I do not believe that refusing to place children in the homes of homosexuals is immoral. I believe that one critical mistake made by those who believe that it is is to fail to distinguish discrimination based on sexual orientation and discrimination based on sexual activity. Discriminating against a couple due to its sexual activities (and the impact that such activities would have on the moral development of the children in their care) does not entail discriminating against them based on their sexual orientation. For instance, we can distinguish between a couple comprised of a male and a female, both of whom believe that they are homosexual in sexual orientation but who do not act on such sexual desires and a couple comprised of two women or two men both of whom believe that they are homosexual in sexual orientation and act on such sexual desires.
22 This is not a right that is accepted only by liberal political philosophers (such as Ronald Dworkin). Natural law theorists can accept a right of this sort. See George, Making Men Moral: Civil Liberties and Public Morality, 203.
23 For arguments that invoke and defend such ideas, see, for instance: Bradley, Gerard V., “What's in a Name? A Philosophical Critique of ‘Civil Unions’ Predicated Upon a Sexual Relationship,” Monist 91, no. 3 & 4 (2008)CrossRefGoogle Scholar; Finnis, John, “Law, Morality, and ‘Sexual Orientation’,” Notre Dame Law Review 69(1994)Google Scholar; “The Good of Marriage and the Morality of Sexual Relations: Some Philosophical and Historical Observations,” American Journal of Jurisprudence 42(1997)Google Scholar; “Marriage: A Basic and Exigent Good,” Monist 91, no. 3–4 (2008)Google Scholar; Girgis, Sherif, George, Robert P., and Anderson, Ryan T., “What Is Marriage?,” Harvard Journal of Law and Public Policy 34, no. 1 (2010)Google Scholar; Girgis, Sherif, Anderson, Ryan T., and George, Robert P., What Is Marriage? Man and Woman: A Defense (New York: Encounter Books, 2012)Google Scholar; Lee, Patrick, “Marriage, Procreation, and Same-Sex Unions,” Monist 91, no. 3 & 4 (2008)CrossRefGoogle Scholar; Lee, Patrick and George, Robert P., “What Male-Female Complementarity Makes Possible: Marriage as a Two-in-One-Flesh Union,” Theological Studies 69, no. 3 (2008)CrossRefGoogle Scholar.
24 This distinction between tolerance as recognition and tolerance as non-interference, as well as the further analysis of tolerance in this paragraph has been set forth by Anna Elisabetta Galeotti. Galeotti, Anna Elisabetta, “Relativism, Universalism, and Applied Ethics: The Case of Female Circumcision,” Constellations 14, no. 1 (2007): 96–8CrossRefGoogle Scholar; Toleration as Recognition (Cambridge, UK: Cambridge University Press, 2002)Google Scholar.
