This article was originally published in my column at the Colson Center. It is republished here with permission. For a complete directory of all my Colson Center articles, click here.
Earlier this month the town of Coeur D’Alene became the fifth city in Idaho to pass laws forbidding discrimination against LGBT people in the areas of employment and accommodation.
Although the law does not apply to religious organizations or to people who are renting a room in their home, many Christians in the community fear that their freedoms could be under assault. (See the Spokesman review article ‘New CdA law opens rift over equality’ for a good summary of some of these concerns.)
As someone who lives in the town adjacent to Coeur D’Alene, I take a personal interest in this law. I know people whose family businesses could be affected by this change and who could be sentenced to six months in jail if they refuse to hire homosexual staff to work alongside their kids.
What it Looks Like in Practice
Let me give an example that is close to home of how this might play out in practice.
My wife and I own a small business selling essential oils. It’s just a family business, but next year we hope to expand to the point of being able to hire a secretary two days a week to work in our home alongside me and my children. Now suppose I advertised for this position and two people apply, James and Chris.
Imagine that after interviewing both applicants, I discover that Chris is a practicing homosexual. Now in principle I don’t mind my older children working alongside homosexuals in our family business because I want them to learn to be comfortable around others who have a different lifestyle, even as our Lord was comfortable eating beside tax collectors and sinners. However, I haven’t explained to my younger kids about homosexuality and I don’t want them to be exposed to it for another few years.
I know that my kids will all be working alongside whoever I hire, and I also know that if I hire Chris to work in our family business that something might easily come up that could create confusion for my children, such as if Chris referred to what he did on the weekend with his boyfriend. I am also aware that, as a general rule, homosexuals can often feel threatened by those who believe homosexuality is immoral, and I don’t want to be under the stress of having to hide the books and magazines in our house that might alert Chris to the fact that I am “homophobic.” Therefore, even though Chris is more qualified to do the work than James, I decide to hire James based on these considerations alone.
Now suppose that I share my thought processes with someone who I think is trustworthy but who actually goes and tells Chris that I discriminated against him because he is a practicing homosexual. In such a situation, Chris would be able to sue me for unlawful discrimination and I would be forced to either pay a heavy fine that could bankrupt the family business, or serve six months in jail and have a prison record for the rest of my life.
Racism, Segregation and Anti-Discrimination
To the Coeur D’Alene city council men tasked with making the decision, it was a very straight-forward matter: we don’t allow discrimination on the basis of race or religion, so why should we allow it in the case of sexual orientation? In their simplistic way of thinking, laws banning discrimination against homosexuals are no different in principle to the laws that banned slavery or segregation.
After my friend Pastor Stuart Brian went to the city council meeting to protest the new law, he recalled that he was asked on several occasions by Councilman Kennedy to give a description of the difference between discrimination on the basis of religion versus discrimination on the basis of sexual orientation.
As this question suggests, the debate is being framed in terms that seem to force Christians into a position that is arbitrarily inconsistent at best and bigoted at worst.
Bad Reasons to Oppose Anti-Discrimination Laws
To many conservative Christians it seems obvious that the laws banning discrimination on the basis of religion and race are appropriate, yet it seems equally obvious that religious liberty should permit us to discriminate against homosexuals. Faced with this seeming inconsistency, the best many Christians have been able to do is to simply assert that the latter type of discrimination is okay since homosexuality is bad and contrary to the public good. But didn’t the advocates of segregation and racism make similar arguments, namely that equal treatment of certain races was contrary to the public good?
Other Christians have taken refuge in the non-argument that the new law is unjust because it didn’t have the support of the majority of citizens. But again, it is hard to see how such an argument doesn’t open Christians up to the charge of inconsistency, since on other issues the Christians constituency castigates law-makers who simply follow majority opinion.
Still other Christians have argued that we should be able to discriminate against homosexuals because homosexuality is unnatural, leads to sexual diseases and is contrary to simple biology. The problem with this view – apart from committing the is-ought fallacy – is that for many people homosexuality seems natural, and unless we are prepared to invoke meta-ethical considerations rooted ultimately in the Christian worldview, it is far from obvious that homosexuality isn’t as natural for certain people as heterosexuality is for others. As for the argument from sexual diseases, heterosexuality can also lead to sexual diseases, so if this argument proves anything it proves too much.
Even so, I do think it is appropriate for Christians to oppose these types of anti-discrimination laws, but we need to think carefully about our justification in doing so. In particular, we need to stop letting the other side to dictate the terms in which the debate is framed.
The Burden of Proof
Let’s return to the question that Councilman Kennedy posed to Pastor Stuart Brian. If discrimination on the basis of religion or race is unacceptable, why should discrimination on the basis of sexual orientation be tolerated?
Framed as such, the burden of proof is made to rest with the Christians opposing anti-discrimination measures to show that there is a principled difference between discriminating against a homosexual vs. discriminating against a Jew, so that the former can be justified while the latter is not. But this is backwards. The burden of proof properly always rests with the affirmative – with those who are putting forward a case for something.
To give a basic example, if I assert ‘A is true because of X, Y & Z’ and you are arguing against me, it isn’t actually necessary for you to prove ‘non-A is true’ in order to undermine my argument: all you need to do is simply demonstrate how X Y and Z do not logically entail A.
Let’s take a real world example. If a politician argues that Obamacare is economically affordable because a similar program was economically affordable in Massachusetts, I don’t actually have to prove that Obamacare isn’t economically affordable in order to refute his argument: all I have to do is show that the evidence he is appealing to doesn’t support his conclusion – that, for instance, the example of Massachusetts is not sufficiently similar to Obamacare for the conclusion to be sound, or that what is true of a part is not necessarily always true of the whole.
In the case of anti-discrimination laws, the burden does not rest with those of us who oppose the creation of new offenses to demonstrate that discriminating against homosexuals is different from discriminating against blacks or Buddhists; rather, the burden properly rests with those who put forward such laws to themselves demonstrate that discrimination against homosexuals is equivalent to the types of discrimination we agree to be unjust, and then to show how such considerations are sufficient to justify the creation of new civil or criminal offenses.
The problem, of course, is that the debate about anti-discrimination laws rarely ever gets down to this level. Instead, it is simply assumed from the outset that all discrimination is bad. So we have what amounts to the following syllogism, in which the first premise is simply assumed without adequate reflection:
- All discrimination is unjust.
- X is a case of discrimination.
- Therefore, X is unjust.
The problem is the universal quality of the major premise. In the real world, only some types of discrimination are actually unjust. This may sound controversial, but it actually isn’t. In Part 2 of this series I will show that it is actually uncontested that certain types of discrimination are not only justifiable, but also rational and appropriate. Building on this, I will suggest that laws banning discrimination against homosexuals hinge on questionable notions concerning the role of the state.
For background into the controversy in Coeur D’Alene Idaho, see the following resources: