Bostock v. Clayton County

In Bostock, the Supreme Court ruled that hiring discrimination against a gay person is discrimination on the basis of sex, and hence forbidden, because one wouldn’t refuse to, say, hire a woman who is attracted to men, and hence to refuse to hire a man who has the same “trait”, namely being attracted to men, is discrimination on the grounds of his sex.

Here is a clear counterexample to this line of reasoning. Consider an employer who refuses to hire a man who claims in a job application to be a woman on the grounds that this man is a liar. (Suppose this is a man in every socially accepted sense of the word: he is biologically male, he socially identifies as a man in every context other than this interview, etc.) Such an employer would not refuse to hire a woman with the same “trait”, namely claiming to be a woman. Hence by the Bostock reasoning, the employer discriminates on the basis of sex. But this is absurd: the basis for the discrimination is not the sex of the prospective employee, but lying about one’s sex. Similarly, discrimination against a white person who claims to be African American on the grounds of a mismatch between their claims and reality is not discrimination against white people.

In other words, the basis for the discrimination is not the sex of the candidate but the relationships between the candidate’s actual sex and the candidate’s claimed sex.

And logically speaking, this is all very much like the gay case, where the basis for the discrimination is not the sex of the candidate but the relationship between the candidate’s sex and the sex of the persons the candidate is attracted to.

I am not claiming that it is morally wrong to be attracted to persons of the same sex in the way in which it is wrong to lie (or in any any other way, for that matter). Nor am I claiming that it is reasonable or legal for an employer to discriminate on the basis of such attraction. All I am claiming is that such discrimination is not discrimination on the basis of the candidate’s sex.

Objection: There is an important difference between the trait of being attracted to men and the trait of claiming to be a man. Being attracted to men is essentially the same trait whether it is found in a man or a woman, while claiming to be a man is radically different when it is found in a man and in a woman, since it is truth-telling in the one case and lying in the other.

Response: This response would require the court to settle the question whether indeed the trait of being attracted to men is basically the same trait when found in men and when found in women, in a way in which the trait of claiming to be a man is not the same trait when found in men and when found in women. That is perhaps the real philosophical question here, and it is presumably precisely what the employer in question would dispute. The court cites the example of how discriminating on the grounds of interracial marriage is racial discrimination. Now, here I would say that the trait of marrying a person of race R is the same trait whether found in a person of race R or not. But clarifying exactly what it means to be basically the same trait is very difficult.

Disclaimer: I am no lawyer or legal scholar, just a philosopher with an eye for counterexamples.

The Trinity, sexual ethics and liberal Christianity

Many Christians deny traditional Christian doctrines regarding sexual ethics while accepting traditional Christian Trinitarian doctrine. This seems to me to be a rationally suspect combination because:

1. The arguments against traditional Christian sexual ethics are weaker than the arguments against the doctrine of the Trinity.

2. A number of the controversial parts of traditional Christian sexual ethics are grounded
   at least as well in Tradition and Scripture as the doctrine of the Trinity is.

Let me offer some backing for claims 1 and 2.

The strongest arguments against traditional Christian sexual ethics are primarily critiques of the arguments for traditional Christian sexual ethics (such as the arguments from the natural law tradition). As such, these arguments do not establish the falsity of traditional Christian sexual ethics, but at best show that it has a weak philosophical foundation. On the other hand, the best arguments against the doctrine of the Trinity come very close to showing that the doctrine of the Trinity taken on its own terms is logically contradictory. The typical Christian theologian is the one who is on the defensive here, offering ways to resolve the apparent contradiction rather than giving rational arguments for the truth of the doctrine.

There are, admittedly, some arguments against traditional Christian sexual ethics on the basis of intuitions widely shared in our society. But we know that these intuitions are very much shaped by a changing culture, insofar as prior to the 20th century, one could run intuition-based arguments for opposite conclusions. Hence, we should not consider the arguments based on current social intuitions to be particularly strong.
But the intuition that there is something contradictory about the doctrine of the Trinity does not seem to be as dependent on changing social intuitions. The merely socially counterintuitive is rationally preferable to the apparently contradictory.

Neither the whole of the doctrine of the Trinity nor the whole of traditional Christian sexual ethics is explicit in Scripture. But particularly controversial portions of each are explicit in Scripture: the Prologue of John tells us that Christ is God, while both Mark and Luke tell us that remarriage after divorce is a form of adultery, and Paul is clear on the wrongfulness of same-sex sexual activity. And the early Christian tradition is at least as clear, and probably more so, sexual ethics as on the doctrine of the Trinity.

I am not saying, of course, that it is not rational accept the doctrine of the Trinity. I think the arguments against the doctrine have successful responses. All I am saying is that traditional Christian sexual ethics fares (even) better.

Best explanation and sexual ethics

Consider three ethical claims about sexuality:

1. Rape is always wrong.

2. Incest is always wrong.

3. Bestiality is always wrong.

Take these claims in the strong sense: they hold genuinely always, no matter what the circumstances. Rape is wrong even if the victim is in a coma, is unharmed physically, permission is given by a proxy, and nobody (including the victim) ever finds out. Incest is wrong even between consenting adult relatives raised apart, with no chance of conception. Bestiality is wrong no matter whether the animal is aware of the event, and no matter how low on the evolutionary scale the animal falls or how much the animal wants the act. All these things are wrong even if much rides on them: they are wrong even to save multiple lives, including the life of the victim in case (1).

Now, although it is easy to find ethical views of sexuality that explain why rape, incest and bestiality are almost always wrong, it is hard to find coherent and well-developed views that explain why these are always wrong. But such views do exist. I know of two families of them: there are traditional natural law views and there are views like those of Karol Wojtyla which meld natural law with personalism (my One Body is in this category). However, these two families of views also entail highly controversial further prohibitions on unmarried sexuality, artificial contraception and same-sex sexual activity.

This yields an indirect inference to best explanation argument for the controversial further prohibitions: the best views we have that explain (1)–(3) also entail these further prohibitions.

Of course, one can try to turn the argument around. But I think generally speaking we have better epistemic access to what is forbidden than what is permissible, and so arguing from commonly accepted prohibitions to controversial prohibitions is better than arguing from commonly accepted permissions to controversial permissions.

I am not saying that those who deny the controversial prohibitions need to deny that (1)–(3) are exceptionlessly true to be consistent. I am just saying that they probably aren't going to have a good explanation for why (1)–(3) are exceptionlessly true.

Marriage and natural kinds

On a New York Times blog, Wedgwood has offered an interesting argument for same-sex marriage. The argument is focused on what he calls "the 'social meaning' of marriage", which "consists of the understandings and expectations regarding marriage that almost all members of society share." He notes that this meaning "cannot include any controversial doctrines", but rather must include only uncontroversial assumptions about the nature of marriage. He then argues that same-sex couples have the same interest in having access to an institution that yields the same understandings and expectations as heterosexual couples do. Therefore, the social meaning needs to be shifted in such a way as to give access to marriage to same-sex couples. (This quick summary doesn't do full justice to Wedgwood's rich piece.)

But now compare the social meaning of "marriage" to the social meaning of "water", defined by the understandings and expectations regarding water that almost all members of society share.

There is indeed such a social meaning of water. And this social meaning of water may well help fix the meaning of the word "water". But it does not fix the meaning on its own, as we see from Twin Earth cases. On Twin Earth, suppose, there are beings like us, with a language like ours, and they have a substance that behaves just as water does, and hence obeys the same ordinary understandings and expectations that water does, but its chemical structure is instead XYZ.[note 1] The Twin Earthers' word "water" does not refer to H₂O, but to XYZ, even though their word "water" has the same social meaning as our word "water" does. Thus, the meaning of the word "water" is not exhausted by the social meaning of water.

If we focus on social meaning as central to meaning, we're going to say something like: "The word 'water' refers to that natural kind in the vicinity of the word's users that best fits with the users' 'understandings and expectations.'" In other words, the meaning of "water" isn't fixed by the social meaning alone: it is fixed by social meaning plus facts about what natural kinds are really exemplified in the vicinity of the speakers. Moreover, water will have non-obvious essential properties, such as that its molecules are a union of two atoms with atomic number 1 with one atom with atomic number 8. We aren't going to find these properties by examining the social meaning of water.

Now go back to marriage. If "marriage" is analogous to "water", the social meaning of marriage does not by itself fix the meaning of the word "marriage". Rather, "marriage" refers to that natural kind of relationships in the vicinity of the speakers that in fact best fits with the language-users' understandings and expectations. But then we would expect marriage to have all sorts of essential properties that go beyond the social meaning. And it could turn out that the only natural kind of relationships in the vicinity that fits with our understandings and expectations also has the essential property of being a union of a man and a woman.

I take it that Wedgwood is assuming that marriage is unlike water, that the meaning of marriage is exhausted by its social meaning rather than there being a mind-independent natural kind for the word "marriage" to refer to. But whether this is so is the most fundamental question in the debate, and he gives no case his view on it.

A less deep problem with Wedgwood's line of thought is that, as he himself acknowledges, a part of the shared understanding of marriage is that sexual activity is a normal aspect of marriage. But if same-sex sexual activity is not permissible, then same-sex couples do not have the same interest in an institution that comes along with an assumption of normative sexuality, since it is generally not in one's interest that people assume one is doing something impermissible (whether or not one is actually doing it). Thus, Wedgwood's argument requires that same-sex sexual activity is permissible. But his typical philosophical or theological opponent will deny this permissibility.

A functional account of marriage vows

What does a couple have to validly promise each other, explicitly or implicitly, in order for those promises, when appropriately ratified by authority, to give rise to a marriage?

This is a hard question as to the specifics. But we can at least give a start of a functional characterization:

• Marriage vows are that complex of binding commitments that in fact makes it prima facie permissible for a couple to engage in intercourse.

One might want to add that the complex is natural, either in the David Lewis sense (in which case it is opposed to gerrymandered) or in the natural law sense (in which case it is that which is consonant with our nature).

Of course, this account can only have plausibility if uncommitted sex is wrong. I think that prior to the 20th century in the West, this functional characterization would have been seen as quite plausible, and I am still inclined to think it is correct.

A functional characterization is not, of course, a definition. Thus someone who disagrees with this characterization can still be talking about the very same thing when using the words "marriage vows" as someone who accepts this characterization.

Sex and the definition of marriage

Marriage is primarily defined by a solemn commitment and perhaps some related auxiliary conditions, like a psychological and physical ability to at least minimally fulfill the commitment. Here is a question one may ask about this commitment:

1. Is there any positive sexual content to the marital commitment?

By "positive sexual content", I mean a commitment to engage in, or at least be ready to engage in, some specified or unspecified form of sexual activity with one's spouse.

Question 1 is of both theoretical and practical interest. If the answer to 1 is negative, then it is hard to resist the suggestion that there is nothing problematic about same-sex marriage. After all, if there is no positive sexual content to the commitment, then it seems that same-sex couples can make exactly the same defining commitment that opposite-sex couples can. Moreover, Scriptural and philosophical arguments about the wrongness of same-sex sexual activity cease to be directly relevant to the question of same-sex marriage, since given a negative answer to question 1, same-sex marriage does not imply same-sex sexual activity or a commitment thereto.

On the other hand, if the answer to Question 1 is positive, then a natural second question is:

2. Does the sexual content concern a particular kind of sexual activity, and, if so, what kind?

For instance, emotionally intense romantic hand-holding may count as a sexual activity. If there is no specific restriction as to the kind of sexual activity, a willingness and readiness to engage in emotionally intense romantic hand-holding will suffice. I suspect that if we answer Question 1 in affirmatively, we will want to place some restrictions on the sexual content in the answer to 2. If we go all the way to specifying that the relevant kind of sexual activity is coitus, then we have an argument against the existence of same-sex marriage: Marriage involves some positive commitment to coitus; same-sex couples do not in fact commit themselves to coitus (bracketing complicated questions about "sex-change" operations); therefore, same-sex couples do not marry. And since the state should not recognize as a marriage what is in fact not a marriage, the state should not recognize same-sex unions as marriages.

I don't want to address question 2 here. I want to focus on question 1.

Suppose we answer question 1 in the negative. Then there is a sub-question:

3. Is there any negative sexual content to the marital commitment?

The standard form of negative sexual content is a commitment not to engage in sexual activity with anyone else.

Suppose first that we answer both question 1 and question 3 in the negative. Then there is no sexual content to the marital commitment at all. What, then, is the content of the commitment? It is presumably something about a kind of intense friendship. It is something like a commitment to love, care for and cherish through thick and thin. But now we have a problem: This kind of commitment fails to distinguish marriage from other relationships. It would be deeply controversial to say that it is permissible for two siblings to marry. But it would not be deeply controversial to say that it is permissible for two siblings to solemnly commit to love, care for and cherish through thick and thin. Hence, to solemnly commit to this is not the same as marrying. Moreover, many parents do, though typically not solemnly (e.g., they rarely make vows), promise their children to be there for them no matter what, even after the child is grown up. And we would neither be very surprised nor morally troubled if an adult child reciprocated that commitment—and we certainly would not think that this was tantamount to a marital commitment. Nor were the Three Musketeers married to each other.

But perhaps the marital commitment includes a commitment to a certain kind of deep emotional sharing, a sharing that goes beyond that which close siblings unproblematically engage in. But just as a view on which the commitment has coitus in its content would exclude same-sex couples from marrying, a view on which the commitment has deep emotional sharing as its content would exclude persons who are not very emotional or not capable of deep emotional sharing from marrying. And the latter exclusion is more problematic. We have a cultural stereotype that many men are not interested in deep emotional sharing with their wives. But if marital commitment included a commitment to such sharing, it would be a consequence of this stereotype that either they aren't married to their so-called wives or they are unfaithful to their marital commitment. This is not a plausible consequence. And stereotypes aside, there surely are very large numbers of people who are not interested in deep emotional sharing, and yet marry. And when they marry, it is implausible to suppose that they commit themselves to the deep emotional sharing they are uninterested in.

Moreover, given that some siblings (especially identical twins) are very close, and yet not at all incestuously involved, and we could imagine that the siblings commit themselves to that closeness, it would be very difficult to require a marital commitment to an emotional closeness that goes beyond those cases of fraternal closeness without requiring a commitment to something that few married couples have or are even capable of.

Supposing a commitment to deep intellectual communion would be even worse at distinguishing the marital relationship from other relationships.

There does not, then, appear to be much hope of specifying in an entirely non-sexual way what the marital commitment is. The view that the answers to both Questions 1 and 3 are negative is untenable.

Suppose, howevere, we allow that the answer to Question 3 is positive but that to Question 1 is negative. On this view, the marital commitment contains on the positive side a commitment to a certain kind of deep friendship, and on the negative side a commitment to abstaining from sexual activity with anyone else. But if a certain kind of deep friendship didn't do the job of defining the content of the marital commitment, neither will adding a commitment to abstinence from sexual activity with others. After all, plausibly, one way of committing oneself not to engage in sexual activity with anyone other than one's spouse-to-be is to commit oneself not to engage in sexual activity with anyone at all. But, surely, if a commitment to deep friendship was not sufficient for a marital commitment, adding vows of general sexual abstinence (I almost said "vows of celibacy", but "celibacy" in the traditional sense of the word means abstinence from marriage) will not help.

Perhaps, though, this is unfair. Maybe the content of the commitment needs to be, at least semi-explicitly, that one will abstain from sexual activity with anyone else, and to commit oneself to something that entails this (such as committing oneself to total abstinence) will not do. But I think this won't help. Take the case of two siblings who promise to always be there for each other, to love and cherish one another. And then they break up their promise of general celibacy into two: "Nor will we ever engage in sexual activity with anyone else. And certainly not with one other (ugh!)." That would be weird, yet surely they would not become married just because they broke up their promise of general celibacy in this way. But once they so broke it up, they did in fact explicitly commit not to engage in sexual activity with anyone else.

Thus, if a commitment to some deep friendship won't do the job for the content of the marital commitment, adding a commitment to abstain from sexual activity with others will not help. Therefore, the answer to Question 1 is positive, whether or not the answer to Question 3 is positive or negative. A marital commitment must include some sexual content or else we will either exclude some obvious cases of marriage (e.g., people incapable of deep emotional sharing) or count as marriage what is clearly not (people committing non-maritally to one another) or both.

This is not enough to answer questions about the possibility of same-sex marriage. To answer those questions, Question 2 would need to be addressed. My view is that the only fully defensible answer to Question 2 involves coitus, and hence excludes same-sex marriage, but I am not arguing for that in this post.

Sexual orientation

Suppose for the sake of the argument (and, I think, contrary to fact) that same-sex sexual relationships are on par with opposite-sex ones, except instrumentally vis-à-vis reproduction. I think if one accepts this, then one should not consider sexual orientation to be a significant aspect of one's identity.

If George legitimately loves Patrick, then that should be a significant aspect of George's identity. Likewise, if he legitimately loves Suzy, then he should understand himself in part in terms of that love. But sexual orientation is not love. It is not an interpersonal relationship per se. For instance, heterosexuality and homosexuality are tendencies to develop an attraction only to people satisfying a certain necessary condition (being of the opposite or of the same sex as oneself, respectively), and to be attracted to them in part because they satisfy that condition.

But why should one take a tendency to develop certain attractions to be a significant part of one's identity? Such a tendency is a second-order relational trait. But it is first-order legitimate relationships with other people that, I submit, are what really matters. Of course, if one of these attractions is to morally illegitimate relationships, then it may matter for one's moral development that one does or does not have that attraction. But I was assuming, for the sake of the argument, that both kinds of relationships are legitimate.

However, one might think that if one's sexual orientation is unjustly discriminated against, then it makes sense to identify with it, out of solidarity with other people who share that orientation. If so, then there is an extrinsic reason to identify with a sexual orientation in the face of discrimination. That said, I am not completely sure that unjust discriminators should be allowed to dictate what we identify ourselves with (I have some Danish ancestry, which I hardly identify with; if there were discrimination against Danes, should I start identifying with it?). Still, I feel the force of the idea. And, if this response to my argument works, then it makes sense for non-heterosexuals to identify with their sexual orientation to the extent that they are the subject of unjust discrimination.

Immoral contracts

Disclaimer: Being neither a legal philosopher nor a lawyer, I ask that the following be taken with a grain of salt.

Start with this argument as background:

1. There is never an on-balance reason to do something immoral.
2. It is immoral to press someone to do something immoral.
3. Therefore, there is never an on-balance reason to press someone to do something immoral.

Now, let's stipulate that a contract is performance-immoral if one of the contracted actions is immoral. There are other ways a contract could be immoral, of course. It could, for instance, be that one party contracts to do some work ignorant of the prevailing payscale while the other party severely underpays. But such a contract would not be performance-immoral—it would not be immoral to do the work and it would not be immoral to pay the money.

Now, add this observation:

4. Enforcing a contract is at least partly constituted by pressing the parties to perform the contracted action.

This is consistent with the fact that contemporary American civil jurisprudence tends not to force performance, but only requires monetary compensation. For it is, nonetheless, the case that such requirements when they go beyond merely refunding moneys paid exert pressure to perform, and indeed the institution of the enforcement of contracts is intended to exert such pressure.

Finally, let us add a very weak and uncontroversial liberal premise:

5. The exertion of pressure by the state on a citizen is only permissible given an on-balance reason to exert that pressure.

It follows from (1)-(5) that

6. It is not permissible for the state to enforce a performance-immoral contract.

While there used to be a common-law doctrine of immoral contracts that said this—so, for instance, you couldn't sue a concubine that you had made an advance payment to but who refuses to live with you—I am told that in the case where the immoral action is legal, the doctrine is no longer a part of current American jurisprudence. Be that as it may, if the argument is sound, it clearly ought to be.

This doctrine of the unenforceability of performance-immoral contracts would have some interesting and far-reaching consequences. For instance, if you're a pornographer, many of your contracts would end up being unenforceable. This would not destroy the pornography industry, but would make it significantly harder for larger pornographic businesses to operate. (That said, despite the value of small businesses, I do not know whether small pornographic businesses are preferable to large ones.)

Another interesting consequence of the argument would be the conditional that if same-sex sexual activity (SSSA) is immoral, then the state is not permitted to recognize a same-sex marriage (SSM). For a marriage is, among other things, an agreement to engage in a shared life of a sexual nature.[note 1] But if SSSA is immoral, then to engage in a shared life of a sexual nature with someone of the same sex is immoral. And for the state to recognize a contract always involves a measure of enforcement at least by means of public opinion. Thus, the recognition of a SSM would be an enforcement of a performance-immoral contract, and that is not permissible to the state. Of course, this is all predicated on the assumption that SSSA is immoral, an assumption that the proponents of SSM will not grant. However, the conditional that if SSSA is immoral, then SSM ought not be recognized is itself an interesting conclusion, since people like John Rajczi have argued that even if SSSA were immoral, the state ought to recognize SSMs.

I think the best way to challenge my argument is to challenge the conjunction of (3) and (4) by using Double Effect kind of reasoning. The pressure in (3) is either intended or not. If the pressure in (3) is not intended, then (3) is false. For it is permissible to do things that put pressure on others to act immorally, if the pressure is not intended to do that. For instance, by asking someone to whom we've lent money for our money back, which we may well have a right to do, we might put some pressure on them to steal the money. So the pressure in (3) must be intentional. But then for the validity of the argument, the pressure in (4) must also be intentional. However, one might argue that the state's enforcement of contracts is not intended to press for performance. It is, instead, intended to press for the disjunctive state of affairs of performance or compensation.

I am not sure about this response. But it does seem that if we agree with this, then we should distinguish, strictly speaking, the state's recognition of a contract from the state's enforcement of it. The enforcement consists, then, in pressing for performance or compensation. But the recognition presses by means of public opinion—contract-breakers are not well thought of—for performance. There is, I think, some reason to distinguish recognition from enforcement. We should not recognize a contract with a graphic designer to draw a square circle—the contract is null and void on grounds of impossibility. However, we could press for performance or compensation. If this is right, then the argument would show not that it is wrong for the state to enforce a performance-immoral contract, but that it is wrong for the state to recognize one.

Thus the state could still enforce contracts between pornographers and their printing or DVD pressing shops, without recognizing these contracts. However, if SSSA is immoral, the state still could not recognize SSM, though it could enforce marriage-like contracts between persons of the same sex. But by calling it a marriage, it would be recognizing such contracts, and this the state has no right to do if the contracts are performance-immoral. This could make it possible for one to have a principled reason to disallow SSM while allowing the state to enforce the contractual aspects of "same-sex unions". (This post is also an experiment: will everyone be put to sleep by the stuff on contracts before they get to the sex stuff.)

Sexual orientation

Consider the following two claims that some people seem to accept:

1. Same-sex and opposite-sex sexual relationships are on par.
2. Heterosexuality, homosexuality and bisexuality are on par, and persons of one orientation do not have reason to try to change to another.

I don't know what exactly "on par" here means—I think it's some combination of morally on par, should be treated equally by society, equally valuable and equally normal.

I will argue that (1) and (2) are in tension.

Suppose that George is sexually attracted to people, male or female, of a particular ethnicity, and not at all towards anybody, male or female, of any other ethnicity. We would think this weird and maybe just a little perverted even if we accepted (1) and (2). After all, why should George limit his romantic options to members of a particular ethnicity? Indeed, his attitude would border on racism. Granted, if George hadn't done anything to choose his pattern of sexual attraction, and couldn't overcome it, we would not morally criticize George for his limiting his sexual interest to that ethnicity. But there would still seem to be something wrong with George.

I am not talking here of a mere preference. Perhaps there is nothing wrong with an Elbonian preferring Elbonians. But to be unable to be sexually interested in anybody but Elbonians is limiting, unfortunate, not quite right. And it is particularly odd if one isn't Elbonian oneself. It is certainly sub-optimal, given that sexual relationships with Elbonians are on par with sexual relationships with non-Elbonians, and it is not a good idea to have artificial limits in the difficult task of finding a suitable romantic partner. Furthermore, if George were not in a relationship, and there were a pill that had no side-effects and could remove the limitation, it would be reasonable for George to take the pill, at least assuming (1).

But the heterosexual or homosexual is in a similar state to George. The heterosexual man and homosexual woman is limited in sexual attraction to to women. The homosexual man and heterosexual woman is limited in sexual attraction to men. If same-sex and opposite-sex sexual relationships are on par (as per (1)), then there is something sub-optimal in value here—an odd limiting of possible partners on the basis of a quality, maleness or femaleness, that is basically irrelevant to sexual relationships according to (1). So, if (1) holds, then there is something not quite right with homosexuality and with homosexuality—it is a limiting of the relational options. Moreover, there would be reason to change one's orientation to bisexuality if one could do so easily and with no side-effects, thereby removing that restriction.

Thus, if (1) holds, bisexuality has a privileged status among sexual orientations, and, in particular, (2) is false.

One can, of course, contrapose the argument—and I think one should. If bisexuality does not have a privileged status among sexual orientations, then (1) is false.

Final version of Mark Murphy's letter to the APA

Mark Murphy has closed the comments period on his letter to the APA (which follows a petition and a counterpetition), and he is collecting signatures by email. The final version of his text, together with a link to email him a signature, is here.

I would like to quote from the final paragraph of his letter:

The APA is a diverse association marked by deep pluralism. Its members can rightly expect that the APA will respect the deep differences among them in judgments about how it is reasonable for individuals to live and for communities to organize themselves, and it is far from clear that the suggested change in course does respect those differences. It has been correctly claimed by some who argue for the change in policy that any such respect has its limits: the APA of course would not respect colleges the common life of which was built on racist norms. In our view the appeal to this argument highlights what is involved in excluding or marking as beyond the pale the job advertisements from these Christian colleges. There is no serious reasoned disagreement on racist norms; the APA can rightly feel free to speak on behalf of its members to condemn any such. What would be involved in changing the APA's policy with respect to these Christian colleges is that the APA would be taking an official stand, speaking on behalf of all of its members, on what are still matters of deep and reasoned controversy among them: whether so-called traditional marriage has any privileged normative status and whether sexual activity outside such marriage is morally suspect. For the APA to take such a stand would be a grave error and an injustice.

Mark Murphy's Letter to the APA

First we had the petition, then the counterpetition. Now Mark Murphy, of Georgetown University, has drafted a sedate and carefully argued draft letter to the APA, also opposing the original petition. Murphy is asking for comments and criticisms by March 31 by email (see the link at the bottom of his post), at which point he will freeze his draft and collect signatures. (I am not enabling comments on this announcement--comments should be directed directly to Mark Murphy.)

APA petition

There are hot discussions on other blogs on petition asking the APA to treat institutions that discriminate on the basis of sexual behavior as violators of the APA's policy against discrimination on the basis of sexual orientation. There is also a counter-petition to maintain current APA practice and arguing that there is a distinction between orientation- and behavior-based discrimination.

It seems obvious to me that one can discriminate on the basis of a behavior without thereby discriminate on the basis of the tendency towards that behavior. Consider three cases:

• Institution A prohibits its employees from engaging in same-sex sexual activity, because on Christian religious grounds it believes such activity to be immoral.
• Institution B prohibits its employees from having sex, because on gnostic religious grounds it believes sex to be always immoral.
• Institution C prohibits its employees from having intercourse with members of the opposite sex, because they are convinced by Andrea Dworkin's arguments that opposite-sex intercourse is always wrong.[note 1]

Each of these three institutions has rules that differentially impact persons of different sexual orientations. Thus, it is easiest for asexuals and heterosexuals (I stipulatively use these terms, as well as "homosexual", to refer to orientation only) to follow the rules of A and hardest for exclusive homosexuals; it is easiest for asexuals to follow the rules of B, and hard for everybody else; and it is easiest for homosexuals and asexuals to follow the rules of C, and hardest for heterosexuals. (The asexuals have it easy all around!)

A policy is not discriminatory against a group G simply because it is harder, though still possible (and maybe even if impossible), for members of G to follow the rules, unless the rules were put in place precisely to make things harder for members of G. It is easier for those raised in an English-speaking family to speak English well. But requiring that faculty speak English well does not discriminate against those who were not raised in an English-speaking family, unless the rules on English speech were put into place precisely to make things harder for such people.

Now Institution B probably did not act in order to make things specifically harder for persons of non-asexual orientation. The concern seems very directly to be with behavior. Nor is Andrea Dworkin wishing to penalize heterosexuals; she just thinks that the geometry and social meaning of heterosexual intercourse is derogatory to women. Likewise, the traditional Christian arguments are not against homosexual orientation (while there are hints that some traditional Christian authors were aware of the phenomenon of homosexual orientation, they are much more concerned with behavior) but against behavior, and so, barring evidence of insincerity on the part of the institution, Institution A is probably not discriminating against people of homosexual orientation in this policy. (There may be discrimination based on homosexual orientation on an informal level, but that's a different question.)

So, none of the three institutions discriminates on the grounds of sexual orientation. There is a further question to ask, namely whether what they are doing is reasonable. But that would require examining the actual arguments against homosexual behavior, sex in general, and heterosexual intercourse, respectively. And the answer would not be directly relevant to the question whether there is discrimination on the grounds of sexual orientation.

Here is a quick test for whether x discriminates on the grounds of Y. If x's subjective reasons for her action would be no different were x not to know about the existence of Y, then x is not discriminating on the grounds of Y. Discrimination is an intentional behavior. Now, in Case A, it seems very likely that this test applies: the subjective reasons for discriminating on the basis of homosexual behavior would be equally present if the people running the institution didn't know about sexual orientation. Thought experiment: Would a Christian institution at a time when people didn't generally have the concept of sexual orientation be any less likely to discriminate on the basis of sexual behavior? Surely not. If anything, the contrary seems true.

Pleasure and same-sex sexual activity

1. Each kind of deeply humanly significant pleasure is a way of affectively relating to an independent deeply humanly significant kind of good in which the pleasure is taken. (Premise)
2. There is no deeply humanly significant good in same-sex sexual activity when the couple takes no pleasure in the activity. (Premise)
3. Climactic sexual pleasure is deeply humanly significant. (Premise)
4. Climactic sexual pleasure is a pleasure taken in sexual activity. (Premise)
5. If a kind P of pleasure is a way of affectively relating to an independent kind G of good, and an instance of P fails in this way to relate to an existent instance of G, then that instance is empty. (Definition)
6. It is wrong to deliberately induce an instance of a deeply humanly significant kind of pleasure when that instance is empty. (Premise)
7. If there would be no deeply humanly significant good in an activity were the activity done pleasurelessly, then the activity fails to realize an instance of an independently deeply humanly significant kind of good. (Premise)
8. Therefore, same-sex sexual activity fails to realize an instance of an independently deeply humanly significant kind of good. (By 2 and 7)
9. Therefore, taking climactic sexual pleasure in sexual activity is empty when the partners are of the same sex. (By 1, 5 and 8)
10. Therefore, climactic sexual pleasure between partners of the same sex is empty. (By 4 and 9)
11. It is wrong to deliberately induce climactic sexual pleasure between partners of the same sex. (By 3, 6 and 10)

If this argument is sound, then heterosexual sexual relations intended to induce climactic sexual pleasure are wrong when they fail to realize a deeply humanly significant independent good. What could be that independent good? Well, if it's a deliberate attempt at reproduction, then sex is wrong whenever a couple isn't trying to reproduce. But I think the the pleasure in sex is not affectively associated with a voluntary and deliberate attempt to reproduce—there is too much of the animal in the pleasure. Likewise, the couple is not simply taking pleasure in their loving relationship—they are taking pleasure in sex. (If they were taking pleasure in their loving relationship, the sexual nature of the pleasure would be unexplained, since one can have just as deeply loving non-sexual relationships, or at best explained circularly.) Rather, it is that, I think, there is a completing of a biological whole in uncontracepted heterosexual intercourse, and that is deeply humanly significant. If this completing of a biological whole is what is deeply humanly significant about heterosexual sex, then oral sex, masturbation, and the like are ruled out. Contraception may not be immediately ruled out, but is still wrong since it is contrary to integrity: the couple is acting against the biological union which constitutes the deeply humanly significant good in which the climactic pleasure is being taken.

A hypothesis about the origins of homophobia

Here is a hypothesis that, if correct, would explain many instances of male homophobia. Heterosexual men often objectify women, and they believe (often correctly) that other straight men do likewise. Consequently, they believe that men generally objectify those persons to whom they are sexually attracted. Therefore, such a man may believe that homosexually oriented persons objectify men, and in particular are apt to objectify him. But he has an aversion to being objectified, or at least to being objectified by persons he is not himself sexually interested in. Therefore, such a man exhibits a certain kind of aversion or even fear of men who are sexually attracted to men—he does not want to be lusted at.

The hypothesis would suggest the following predictions:

1. Homophobia is more often directed at men by men than at men by women, women by men, or women by women.
2. The incidence of homophobia is correlated with the incidence of the objectification of women (both individually and in a social circle; thus, even if x does not himself objectify women, if his friends do, this may correlate with increased homophobia).
3. Homophobic heterosexual men are likely to be averse to having a very unattractive women being sexually interested in them.
4. A significant amount of homophobia is also directed at sexually abstinent homosexual men.

I don't know if the predictions are true. I suspect on anecdotal grounds that (1) and (4) are true. I do not know if (2) and (3) are.

I should note that I do not equate homophobia with a moral disapproval of homosexual activity or with a disgust at homosexual actions, and hence I can consistently say that homophobia is irrational (or even that some homosexual actions are disgusting—just as some unnatural heterosexual actions are), while still holding that homosexual activity is wrong. It is, after all, possible to strongly disapprove of an action, but to have no aversion or fear towards the persons who perform the action. Thus, orthodox Catholics strongly disapprove of contraception, but I think are unlikely to feel an aversion or fear towards the large majority of fellow citizens who contracept. (The case is chosen carefully: The Christian tradition classifies homosexual activity and the heterosexual use of condoms in the same moral category of "unnatural acts", and both Catholics and Protestants traditionally called both sets of acts "sodomy".) Nor can one identify disgust at an action with an aversion to the person who does it. Thus, everyone on a daily basis does disgusting and morally unexceptionable things in private, but being disgusted at these actions is not equivalent to aversion to oneself and one's fellow man. Disgust at an action can sometimes give rise to an aversion to the doer, but the disgust and the aversion are still distinct.

Homosexuality in Leviticus 18

[The main two arguments in this post have been refuted by the first commenter, and so I no longer endorse this post, though I still accept the category A view on other grounds. I was thinking of deleting the post, but thought it better to stay, as an embarrassing testimony to my slip up. I had simply missed Lev. 18:19. So Lev. 18 as a whole is not just about morality, but also about ritual purity (given the incest prohibitions, it is clear that some of the purity rules are closely tied to moral rules). My inductive argument fails, thus. Moreover, on reflection there are alternate readings of Lev. 18:24-25, which verses have now become problematic. First, one might read verse 24 as saying that the nations that are being driven out defiled themselves by their practice of all the prohibited items, some of which (well, I still think all but one) clearly are a matter of morality. Second, we might suppose that the menstruation rule violated a purity rule that members of the relevant nations themselves accepted, and hence was a violation of conscience or something like that.]

The Old Testament prohibits homosexual activity. One of the challenges in regard to Old Testament prohibitions is to separate (A) those that are universally applicable, for instance because they are a matter of Natural Law, from (B) those that were only literally applicable to the Jewish people (and even there, only until such time as one should die with Christ in baptism), such as the prohibition on pork. In an earlier post, I argued that the God of Love would only give a complete prohibition on homosexual acts if these acts were always immoral, so the prohibitions on homosexual acts were in category A.

I was reading Leviticus 18 tonight. This contains prohibitions on incest, the sacrificing of children to Moloch, male homosexual activity and bestiality. Two items struck me (not in the order in which I list them). First, all the prohibitions other than of male homosexual activity can be easily read as having universal, or near-universal applicability (perhaps God made special provisions with respect to incest for the first humans; the duty of exogamy can perhaps be relative to the size of the gene pool). There is, thus, an inductive argument that the prohibition on male homosexual activity has universal or near-universal applicability as well. Second, we have the following text in verses 24-25 (in the JPS translation), after all the prohibitions have been given:

Do not defile yourselves in any of those ways, for it is by such that the nations that I am casting out before you defiled themselves. Thus the land became defiled; and I called it to account for its iniquity, and the land spewed out its inhabitants.

It is clear contextually that "those ways" include all the prohibitions of Leviticus 18. It appears, thus, that God held non-Jews responsible for violations of all the rules in Leviticus 18, and this would put the rules in Leviticus 18, including the prohibition on male homosexual activity, in category A.

It may be that I am missing something here.

Same-sex relations: The argument from the Old Testament

Occasionally, the Old Testament (OT) prohibitions on same-sex sexual activity are used as part of a Christian theological case for the impermissibility of same-sex sexual activity. There is one weakness in this argument that I want to address (I do not want to deny that there are other issues), and this is that some OT rules--most evidently dietary ones--have been sublated in New Testament times and are binding on the Christian in a non-literal form (e.g., the prohibitions on some foods that come into a person's mouth might be transformed into a prohibition on the speech that comes out of a person's mouth). The traditional answer is to distinguish between "ceremonial" and "moral" precepts, and to claim that the ceremonial ones no longer literally bind those who have died in Christ (though they may exist in a sublated form), but the moral ones are eternal. The opponent of the argument against same-sex sexual relations may well claim that the prohibition in question falls in the ceremonial category.

But I think there is a different way of fixing up the OT-based argument for impermissibility. I shall claim that it would be inappropriate for the God of love to prohibit same-sex sexual relations unless these relations are wrong. Here is the argument.

After all, there are persons whose sexual attraction is exclusively towards members of their own sex. Some highly motivated such individuals do apparently succeed in changing their attractions to opposite-sex ones, but it does not seem that the majority succeed (I've heard from a colleague that the best data indicates that about 30% of highly motivated same-sex attracted individuals can change to have an attraction for the opposite-sex). It is also plausible that same-sex attracted individuals unable to change to being opposite-sex attracted existed in not insignificant numbers in ancient Israel. The defender of same-sex sexual relations is unlikely to deny this.

Now, flourishing in a morally upright romantic relationship is one of the central parts of human flourishing (that does not deny that some might appropriately sacrifice this form of flourishing for the supernatural goals of celibacy), and it is particularly a flourishing in respect of our capacity to love. If same-sex sexual relations are morally permissible (apart from divine prohibitions), then same-sex romantic relationships will, surely, be a central part of the potential human flourishing of same-sex attracted individuals. Furthermore, sexual relations within marital commitment are the consummation of a romantic relationship. If same-sex sexual relations are morally permissible, then to prohibit same-sex sexual relations to an individual incapable of opposite-sex sexual relations is to prohibit the individual from exercising a central part of human flourishing. And this seems an inappropriate thing for the God who is Love to do, and whose purpose for us is to fulfill our love. (In fact, I think a number of the statements in this paragraph are standard parts of the case for the permissibility of same-sex sexual relations.)

In summary, if same-sex sexual relations are morally permissible (apart from divine prohibitions), they enter into the consummation of morally upright romantic relationships for people incapable of flourishing within opposite-sex romantic relationships. But if so, then it was inappropriate for our God to have forbidden them in OT times. But God did forbid them in OT times, and God does not do what is inappropriate. Hence, it was appropriate for our God to forbid these relations, and hence the relations were not morally permissible. But morality itself does not change (though ceremonies do), and hence even now they are not morally permissible.

Observe that a similar argument cannot be made in the case of clearly ceremonial precepts. E.g., ham is yummy, but eating ham is not central to the fulfillment of human individuals. Even if one were biologically constituted so that ham is the food that would taste best to one, it would be false that there is a central part of human flourishing to which the eating of ham would be essential. So even though eating ham is not morally wrong (in itself), it would not be inappropriate for our God to prohibit it to a segment of the human population.

Objection 1: Perhaps God had made a special blanket call for a segment of the Israelite population (namely, the same-sex attracted population, or at least the portion of it unable to change the attraction) to engage in the supernatural self-sacrifice of chaste celibacy.

Responses: This seems implausible. First, widespread celibacy for a supernatural reason seems to be a new thing in Christian times. Second, there is no indication of a special supernatural goal being given to this segment of the population, though it is possible that one was given, but no data survives about this.

Objection 2: God has absolute authority over us. He would be fully within his rights to prohibit blue-eyed people from engaging in sexual relations with anybody. We have no right to our human flourishing--it is all a gift of God.

Response: I think there is much to this objection. Indeed, I think it is the most powerful objection to my argument. However, even though such a prohibition would probably be permissible to God in the abstract, it does not seem to fit with God's plans for the human race as shown in Scripture. God gives us life, life to the full.

Objection 3: The objection proves too much, because it also shows that God is not within his rights to allow impotence to happen (since impotence makes the marital consummation of romantic relationships impossible). But impotence happens, and God is omnipotent, so God must be allowing it to happen.

Response: There is a difference between permitting and doing. God permits evils to happen to us, in order that a greater good might be instantiated, but that is not the same as positively doing evil. However, if God actually prohibited same-sex sexual relations, and these relations were a crucial part of the human flourishing of some individuals, then this would be a much more direction relation between God and the evil--it would be like God forbade us from breathing. A prohibition is an action.

Objection 4: The commands in the OT are not the word of God but the word of humans.

Response: I said I would be responding to a specific objection to the OT-based argument against same-sex sexual relations, not against every objection. Objection 4 applies to just about every Scriptural argument. Those like me who accept the divine inspiration of Scripture (without denying that the human authors were authors, along with God) will not find Objection 4 particularly compelling.