NOTE: I am trying to fix the links in a number of old posts, and have reproduced a number of essays from my now defunct blog in order to allow myself to create working links to them.
Sorry to all those whose comments I have not answered, but things came up which demanded my attention, mostly involving a three year old, wooden spoons and moon sand. However, while I was occupied, my wife read through my comments on the earlier post about homosexuality, and she argued, quite cogently that the whole purpose of the genetic (or biological) argument for many is to shoe horn the gay rights argument into the same model as black civil rights.
And, of course, she is right. The thinking for many is that, provided homosexuality is genetic, then the law cannot discriminate against homosexuals for the same reason it cannot discriminate against blacks. However, this argument is wrong on a number of fronts.
First of all, discrimination against blacks was largely because blacks were denied rights others were allowed, while homosexuals complain about being treated the same as everyone. For example, no one, gay or straight, can marry a member of the same sex. Similarly, in states where sodomy was outlawed, it was outlawed for everyone (barring those times when the marital right to privacy precluded enforcement). So the argument is not that homosexuals are being deprived of rights afforded others, but that homosexuals should be afforded additional rights, which is quite different from the black civil rights movement.
The second problem is that homosexuality is not the same as being black. If you are genetically black, then you are black and cannot help it. Even if there is a "gay gene" or some other biological cause, homosexuality still requires not just the gene but a volitional component, one must also engage in homosexual sex. So discriminating against blacks is discriminating against a status alone, whereas discriminating against homosexuals would mean discriminating against an act, which is a very different thing.
Let me draw an example that will offend some, but is intentionally extreme to make my point. Suppose we discovered that child molestation is genetic in origin. Would we then argue that we cannot prosecute child molesters as they are "born that way"? No, we would still say that the act itself merits punishment, if only to keep the rest of society safe.
Now, I do not suggest that homosexuality is anything like child molestation, I simply want to point out that thanks to the fact that it involves a volitional component, the choice to engage in homosexual sex, society has every right to judge those choosing to do so. I personally do not believe there should be any civil or criminal penalties for such acts, but genetics or biology have nothing to do with it.
Of course some will respond that "it's biological" so "they can't help it", but that is absurd. Heterosexuals are biologically inclined to have sex with members of the opposite sex, yet they can choose not to. There are celibate heterosexuals. So why would it be impossible for a homosexual to do so? Are those proposing this saying that homosexuals lack the self control of heterosexuals? Or do they believe in such a strong biological determinism that homosexuals simply cannot avoid having sex? Or, most likely, are they of that group that believes humans simply must have sex to be happy, and that all celibates are miserable? (I agree that sexuality is a part of existence, but I disagree that it is essential for everyone and that one cannot have a fulfilling life without sex. The pop psych argument that the vows of celibacy lead to molester priests is simply absurd. People in positions of power often are tempted to abuse that power, and such positions attract those who find such abuse tempting. That alone explains the wave of child molestation cases much better than any theorizing about celibacy.)
In any case, my point is simple. Whether genetic/biological or not, homosexuality is not simply a status, it is a status coupled with a choice to act, and, by incorporating a choice, it becomes a legitimate subject for government consideration. And such consideration is no longer "discrimination". Discrimination applies solely to status based crimes. You cannot prosecute blacks or people who are drug addicts. However choosing to punish actions is not "discrimination". You cannot jail someone for being an addict, you can punish him for buying drugs. Likewise you cannot prosecute someone for having the predisposition toward homosexuality, however sodomy can be made illegal. (Whatever our current crop of judges may think. Their attempt to call punishment of acts "discrimination" flies in the face of centuries of jurisprudence, but it gets them great coverage in the NYT.)
Now, I am not saying it is a good thing for the government to criminalize sodomy. In fact, my theory of the state calls for them to do very little in the sexual realm. (Child molestation and rape being pretty much the extent of sex crimes in my mind.) However, that does not make my point any less valid. We are far too inclined to call anything we dislike "discrimination", and the truth is that we misuse that term more often than use it correctly. Provided we are using it in the sense of "invalidly discriminating", then it really only applies to judgments based on status alone, and in every context I can imagine, the things about which homosexuals complain are not status related, but actual acts. Marriage, sodomy, and so on, all are actions, and thus not "discrimination". They may dislike the outcomes, the laws may affect homosexuals more than heterosexuals, or even homosexuals exclusively, but they are still not discrimination.
I am sure this post will draw as much ire as my last, so I will await the comments. My son is still up and running about, so it may be a while before I can reply, but feel free to tell me what you think.
Originally posted in Random Notes on 2008/12/14.
NOTE: Were I to write this today, I would probably word it differently, or at least make my case in somewhat different terms. For example, while it is true laws against homosexual practice were enforced uniformly, and thus not strictly discriminatory in the same way unequal enforcement was practiced in terms of, say, race, they were still well outside the proper role of government. (Marriage is another matter, but my position there is recorded elsewhere -- see "Solving the Gay Marriage Debate".) In other words, I believe government exceeded its proper role in policing sexual activity in the way it did. On the other hand, I do stand by the basic thesis of this essay, even if I find its wording clumsy and unclear.
NOTE: I also believe my final statement is a bit unclear, though, I believe, it is not incorrect, though worded quite badly. "Discrimination" is an unfortunately poorly defined word. In some uses, it can be something good, such as discrimination between food and poison. It is simply distinguishing between two things. In other uses, it implies making an improper distinction based upon status in cases where status is irrelevant, such as predicating laws upon race. And then, as in this case, it blurs that a bit, and mixes status and action. In this case, it resembles the modern laws preventing "discrimination" against drug addicts or alcoholics. I do not believe either of those statuses is a "disease" or has a genetic/biological component, but even if it did, it is still much like homosexuality, in that, to fit the category, one must not only possess the status, but also take a definite act to fit the category, making any distinction, not just status bases as with racial discrimination, but also action based, which is the proper realm of laws. Of course, laws based upon action can still be improper, but -- as I try to clumsily argue at the end of this essay -- they are not the type of status based discrimination that faced blacks and others. (As I said, "discrimination" is a horribly useless word, the meaning being so mutable. The point I was making, though not entirely clear in the original, was that there is a difference between simple, and improper, status based discrimination, and laws which have a disparate impact upon select groups. I do wish I had worded it better.)