The Discrimination Debate

A friend of mine who works at the EEOC sent me this very interesting statistic-- "53 percent of the U.S. population now lives in a jurisdiction with a law prohibiting discrimination based on sexual orientation or gender identity." 20 states have laws prohibiting discrimination on the basis of sexual orientation in both public and private employment; another 12 just in public employment. There are 170 municipalities that provide protection at the local level, even though it's lacking at the state level. Plus, most major corporations have policies prohibiting discrimination on the basis of sexual orientation.

Indeed, the American Philosophical Association (APA) has a policy prohibiting discrimination on the basis of sexual orientation, and it's been the subject of a huge debate on the blogosphere (fully tracked here). The question being discussed is whether ithe policy is consistent with a practice at a handful of Christian colleges. The colleges expect all faculty to live a "Christian life," which they see as excluding sex outside of marriage. Gay people aren't directly excluded from employment, but are expected to live as if they weren't gay.

These colleges raise (at least) two questions--(1) What does is it mean to prohibit discrimination "on the basis of sexual orientation"? Can a college comply with such a policy, yet prohibit a gay way of life? And (2) is there some sort of exemption from the anti-discrimination policy for religious institutions? The APA's policies are fairly clear on (2) (no exemption) but could be clearer.

But as to (1). Acres and acres of cyberspace have been taken up with scholastic debates about the distinction between sexual orientation and behavior, betweein being gay and living as gay. If the pious Christians at these colleges want to invite the sinner into their midst, but prohibit the sin, are they being discriminatory?

Given the statistics my friend sent me, it occurs to me that this debate shouldn't proceed in such an insular way. Whatever interpretation you give to the APA's policy, it's the interpretation you've got to give to the myriad policies out there. "No discrimination on the basis of sexual orientation" can't mean one thing here, another thing there. A very wide range of cases ought to be coming into play.

Here in Dallas, Texas, we have a lot of Christian businesses. You can get a plumber out to fix your toilet, and discover on the side of his truck that he runs a Christian plumbing company. If we had a law against orientation-based discrimination in Texas (as if!), would the company be able to hire gay plumbers, but stop them from bringing their partners to company events? If the law pertained to housing, could a landlord with Christian apartment complex be required to rent to gays and lesbians, but allowed to prohibit gay behavior on the premises?

The insular philosophy debate can't help but be about the whole picture, since the policy reads like all the other policies. Whatever position the APA takes on the meaning of its anti-discrimination policy, it's effectively taking a position on a whole body of anti-discrimination law.

Then again, does the APA actually need to come forth with its own interpretation? These policies are already on the books in all those states, municipalities, and corporations. What do they already mean? Wouldn't it be important to find out?

The issue the APA does need to address is (2). Does its anti-discrimination policy apply in just the same way to religious and non-religious schools, or should there be an exemption for religious schools, or some modification of the policy? In the US, religious institutions are permitted to discriminate. A church can refuse to hire a Jewish choir director. Of course, the APA is not the federal government. There's no "separation of church and APA" like there's a separation of church and state. But the APA could still want to give extra freedom to colleges that have some principled reason for preferring faculty of some stripe (even if the principle is implausible).

But a policy that says "no discrimination on the basis of sexual orientation" already has a meaning. The good people at the APA just need to look around and find out what it is.

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