The sexual revolution surely has been the greatest threat to religious freedom America has ever known, and its power has been the confusion of people with their behaviors. A moment’s thought should tell anyone that people cannot be free from adverse judgment (discrimination) based on personal inclinations and behavior, yet that is exactly what is accomplished by sexual orientation and gender identity (SOGI) laws. The antidiscrimination criterion that these laws use is personal inclination and behavior, and this cannot possibly be derived from general principles of liberty and equality. Any behavior could be taken as the basis for personal identity. Personal behavior as such must be subject to both public and private judgment. Because these American ideals of liberty and equality have been celebrated as providing a good and satisfying life, restraints on what one wants are seen as a violation of them.
As noted in earlier articles by this writer, Supreme Court decisions in the second half of the twentieth century essentially declared sexual issues to be above public judgment. This was based not on the text of the Constitution, but on the extremely personal and private nature of sex, and the Constitution’s commitment to freedom. One might as well argue that because sex is such an important part of being human, it ought to be subject to public judgment. But there being no effective way to overcome judicial legislation, sexual autonomy became part of the idea of freedom for liberal Americans, but not conservative Americans. The next step has been to require acceptance of sexual autonomy by everyone via SOGI laws. More lately it has been urged that private judgment against abortion could be prohibited by defining it as discrimination against women. (There is no mention that this implies that women are determined by their biology). But essentially all of this legislation makes sexual autonomy an antidiscrimination category, and opposition to it “discrimination.”
From the standpoint of millions of religious Americans, this makes opposition to sin into discrimination. It might be thought that the clear priority the Constitution gives religious freedom as the first of rights would make this impossible. But since the Supreme Court maintained in overturning bans on contraception that sexual rights are “older than the Bill of Rights,” it is not surprising that sexual liberation seems to have a priority greater than religious freedom.
Yet there is no definite category of persons protected by the behavior based SOGI categories. Anyone can claim to be homosexual. Instead, the state has actually protected anyone’s homosexual behavior and inclination from public and private discrimination. We see the irrationality of protecting sexual behavior and inclination even more clearly with transgenderism, in which people define their sex independently of their bodies, and can require others to treat their delusions as true.
The confusion inherent in the SOGI categories is perhaps bound up with the confusion about what it means to be a person. Human beings historically were thought to have a fixed nature. In modern philosophy, the immutability of human nature has been questioned. Personhood was identified as the ability to plan and act, as evidenced by performance. More recently, this has been criticized as allowing even machines that seem to imitate human functioning to be considered persons. Contrary views of defining a person holds that he or she must place value on things, or belong to a class that has human abilities, whether that individual has them all or not. All individual human organisms, whatever their current capacities, then are fully persons. Claims about what a particular human group deserves by its special nature or circumstances are not claims to rights. But if the focus in assessing personhood is kept on mental life rather than membership the class of humans, it is easier to see why persons are understood to be what they say they are.
Perhaps a better understanding of the modern fluidity of personhood can be gained if we consider the anthropology of one of the great enlightenment philosophers, David Hume. According to Hume, a person is essentially a bundle of sensations. One can then easily see how attack on personal behavior and inclination is an attack on the person. But this simply is not workable.
Personal behavior cannot possibly be treated as equal. It must be judged, and in some cases, penalized by the state. The reflexive reaction of social liberals, that consensual sex is harmless, is at the very least arguable, in view of the decline of marriage and the family, sexually transmitted diseases, and the common conscience of humanity that sexual union outside of marriage is defiling. With the rise of transgenderism, there is the damage of sex change treatments (since one’s own reproductive organs cannot be replaced), and the threat to the conscience of professionals who do not want to damage healthy bodies. Indeed, the behavior based antidiscrimination doctrine that results from confusing people with their inclination and behavior violates the original understanding of the civil rights movement. And that was that people should be judged by their character and not the color of their skin. In fact, it represents the imposition of the sensibility of one part of society on another part.
One of the most destructive aspects of confusing people with their behavior and inclinations is the enshrining of what this writer has called “the sovereignty of the present.” Past responsibilities and future prospects (including loss of fertility or permanent damage to one’s body) are irrelevant. The rights – including the religious rights of others – to what are their ultimate commitments in life are set aside to satisfy immediate feelings and inclinations. But this is what one might expect from an anthropology holding that the true person is a bundle of sensations “in a perpetual flux.”
The confusion of people with their behavior and inclinations has entered the law via SOGI laws, and the interpretation given them by the courts (with rare exceptions, such as Masterpiece Cakeshop and the earlier Bakersfield, California case) that there may be no discrimination against the behavior of the protected identity. Logic doesn’t require this, and courts could distinguish between people in a behavior based category and the behavior itself, as was in fact originally promised, but this assurance was false. But Christians and anyone else who cares about the truth must never concede that the confusion of persons and behavior is proper, either in our actions (i.e., in facilitating sinful behavior) or in our speech. For Christians, at least, we regard this as our duty, as we know by the words of Jesus we may not be complicit in sin (Matt. 18:7).
Any claim that declining complicity in homosexual behavior is “discrimination against gay people” must be immediately corrected. It is conscientious objection against homosexual behavior. Any claim that a religious organization that bans homosexual behavior is “banning gay people” must be denied. It is prohibiting homosexual behavior, as its status as a religious organization requires it to do. Any claim that single sex restrooms deny “transgender persons” their rights must be immediately corrected. Sex should be determined by physical reality, not wishes or inclinations. And most basically, we must repeat over and over again, that those now called “LGBT people” do not need legal protection. They have the same legal protection everyone else does. Personal behavior must be subject to discrimination. The fact that homosexual and transgender behavior has historically been condemned and is still widely believed immoral is not a reason it should be privileged. However much anyone is pained, it must be is open to question and criticism. It should not be privileged from adverse judgment.