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Homosexual Orientation versus Homosexual Behavior

Here’s a comment I posted at Prosblogion:

The distinction between “sexual orientation” and “sexual behavior” is
absolutely crucial, and I was thinking on blogging on this myself, so
I read this with interest. I see that the lawyer quoted above didn’t
understand the distinction. I too would like to know if city
regulations do.

Someone commented:

“If I owned a business, I’d discriminate in my hiring practices, quite
reasonably I think, against non-sober alcoholics. The view of those
who are supporting the original petition appears to be (and someone
please correct me if I’m wrong about this) that I would thereby
discriminate against an alcoholic who has been sober for ten years.
Isn’t this just absurd?”

That’s right. I’m sure Christian colleges are happy to hire people
with homosexual orientation who are strongly opposed to homosexual
behavior. The former alcoholic is the best crusader against drink, and
it is common to encounter reformed homosexual pastors who specialize
in work with homosexuals. If anybody finds a case where a strong
advocate of anti-sodomy laws is denied a job because he used to
practice sodomy, please let us know.

In fact, orthodox Christian belief is that everyone has a “sin
orientation”; it is just that some of us control our outward behavior
better than others do. This is really the same as the idea that we
are all potential criminals— murderers and thieves, for example—
but some of us, including most people with college degrees, are
better at restraining themselves in light of their material incentives
and the chance of getting caught.

There is something I don’t think any other commentor has mentioned:
the “legislative history” of anti-discrimination rules. If a judge
were to rule on whether the rule were literally against homosexual
orientation or were against orientation and behavior, he would first
look at the text. The text is clear— it’s just orientation— but
commonly even a fair-minded judge wouldn’t stop there. He would go
on to look at intent and at whether the words had a broader meaning
in the particular context. A big part of that is to look at
legislative history. If *everyone* in the debate over enactment– both
proponents and opponents— talked as if the words included behavior,
then it would be reasonable to read the words that way. If everyone
just talked about orientation, or, even better, proponents explicitly
said that the rule was written purposely to allow discrimination
based on sexual behavior, then the words ought to be read literally.
(If the legislative history is mixed, then it isn’t much use.)

I could be wrong, but I bet most anti-discrimination rules were
enacted by means of arguments based on orientation, not behavior. If
so, it’s not fair to switch the meaning afterwards to include
behavior. An argument such as “we shouldn’t allow discrimination on
the grounds of characteristics a person can’t alter” argues for a
rule against orientation, but implicitly concedes that discrimination
on behavior is okay.

To be sure, forbidding sodomy hurts people who are tempted by sodomy
more than those who are not, and in that sense discriminates on the
basis of orientation. But that is a false sense. It is equivalent to
saying that forbidding sexual harassment, or even rape, discriminates
against men, and so a university should not punish it if they have a
policy against sex discrimination.

In the courts, the “disparate impact” argument is treated in
complicated ways, and in ways that are different depending on the type
of discrimination. Race effects are scrutinized much more closely than
gender effects, for example.

I’ll repeat what earlier comments said: If anyone knows what courts
have said on whether the term “sexual orientation” includes “sexual
behavior” please let us know.

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