I am not convinced, as some have argued, that forbidding governmental discrimination against homosexuals would necessarily lead to societal stigmatization of organizations with anti-homosexual views.
The societal consensus today not only tolerates but often endorses many forms of discrimination practiced by private organizations that we would not permit the state to engage in. For example, we surely agree that it would be intolerable for the state to forbid intermarriage between Jews and non-Jews. However, it is perfectly acceptable for Jewish organizations to campaign against such intermarriage and urge rabbis not to sanction it. Similarly, religious and other organizations opposed to homosexuality will retain the option of refusing to recognize homosexual marriage (even if state governments do permit it), refusing to allow open homosexuals to join their denomination, and so on. Of course, if the vast majority of society comes to believe not only that the state should not discriminate against homosexuality, but that hostility to homosexuals is a invidious prejudice similar to racism, then of course the Catholic Church and other similar organizations will be viewed differently. But I think that Jack Balkin is right to suggest that, in such a scenario, these organizations themselves are likely to either change or moderate their positions. I believe that in time most of society will recognize that homophobia, if not precisely analogous to racism, is nonetheless similarly unjustified. But in this post I argue only that a regime of state nondiscrimination towards homosexuals does not entail such a strong conclusion and need not lead to stigmatization of organizations opposed to homosexuality. And the link to con law (I can hear Eugene sharpening his knife against me:)): the state action doctrine and much of our other law rests on the assumption that certain types of discrimination that are acceptable for private parties are unacceptable for the state because the latter has monopoly power over so many vital services and aspects of our lives. Thus, the state cannot discriminate against interfaith marriages and I would argue should not be able to exclude gays from the institution of marriage and other types of government benefits. On the other hand, private groups are and should be free to discriminate against interfaith marriages, gay marriages, and so on. Ilya Somin On Tue, 15 Jul 2003, Bryan Wildenthal wrote: > A more logical parallel would note the affinity between judicial protection > of the privacy and liberty of sexual minorities and similar protection of > religious minorities. Both are desirable and they are entirely consistent. > I am deeply puzzled by Professor Duncan's suggestion that there is some > radical inconsistency between them. > > The fact that America sadly failed to respect the religious liberty and > privacy of the Mormons in the 19th century certainly is not a good argument > not to protect the liberty and privacy of gay people in the 21st century. > > I (at any rate) happen to be one who thinks the Court was correct in both > Boy Scouts v Dale and Lawrence v Texas. It would be a serious mistake for > gay people (or anyone else) to promote efforts to restrict the freedom of > any individual or group to harbor and express "homophobic" or "racist" or > "anti-religious" or any other views, on any religious or other private > basis. Of course, when such views are given effect in commercial services > or employment (etc) otherwise offered to the public, that is an entirely > different matter. > > Bryan Wildenthal > Thomas Jefferson School of Law > > -----Original Message----- > From: Rick Duncan > To: [EMAIL PROTECTED] > Sent: 7/14/03 9:20 AM > Subject: Re: "Agenda" > > The analogy to the persecution of the LDS church is a > very apt one, I think. > > If "private homophobia" is at least as great an evil > as was polygamy, is society (or at least powerful > secular elites in society) prepared to treat Catholics > and traditional Christians the way it treated Mormans > in the 19th Century? Will Catholics and traditional > Christians (and orthodox Jews and the growing body of > Islam in America) passively submit to persecution and > to being treated as dirty and marginalized religions? > > This is why Scalia's suggestion of Kulturkampf is apt. > If you want to equate the homosexual revolution with > racial civil rights, be prepared for a very ugly > campaign of religious persecution, and for a > passionate ecumenical defense of religious liberty. > > Rick Duncan > > > > ===== > Rick Duncan > Welpton Professor of Law > University of Nebraska College of Law > Lincoln, NE 68583-0902 > > "Politics is not a bad profession. If you succeed there are many > rewards, if you disgrace yourself you can always write a book." Ronald > Reagan > > __________________________________ > Do you Yahoo!? > SBC Yahoo! DSL - Now only $29.95 per month! > http://sbc.yahoo.com >
