Religious and social conservatives have been hobbled in defending and advancing Biblical doctrine and morality, and the classical liberal freedoms that legally protect it, not only by adverse court decisions, but also by a corruption of language, particularly the language of rights. Any attempt to advance or defend Christian (and similar religious) sexual morality in law is attacked as “discrimination.” At the heart of this is the conflation of people with their behavior and inclinations. It is thus not only persons, but their behavior, which have rights.
As this writer explained more than a year ago, what the cultural Left has done has been to make sins into rights. The Christian response (and that of other traditional religious believers) to the “license to discriminate” accusation ought to be “we must discriminate against behavior on the basis of conscience.” This would be obvious to people were it not for their recent conditioning by mass media to believe otherwise.
The path to this predicament has been slowly developing, but picked up speed in the 1960s. The Supreme Court began moving from strict concern for categorical rights stated in the Constitution to concern for policy in the early twentieth century. In the 1960s it began to interpret the freedom the Constitution guarantees as rights to specific things the Constitution does not mention. The Constitution never mentions sex, marriage, or the family. But sexual rights were contrived by the court on a largely intuitive basis, which then could be advanced as real constitutional rights in the public mind, if not reasonably derived from it.
An unsuccessful attempt to declare laws against contraception unconstitutional in the Poe vs. Ullman case in 1960 was important. Justice John Marshall Harlan’s dissent from the denial of appeal declared that the Constitution should be interpreted not as guarantee of particular freedoms (such as religion or speech), but freedom which is a “rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints.” The Griswold vs. Connecticut decision in 1965 then did declare laws against contraception unconstitutional on an intuitive basis, appealing to a “law older than the Bill of Rights” (and presumably the Constitution).
More strained arguments (also with a heavy appeal to intuition) were advanced by liberal justices to begin to build a constitutional right to autonomous sexual behavior. Justice Arthur Goldberg claimed in agreeing with the Griswold decision that the Ninth Amendment guarantees enumerated individual rights, which the Supreme Court could make explicit (while Justice Hugo Black in his dissent explained that the amendment only guaranteed that the federal government did not possess all the powers not denied it by the Bill of Rights). Justice William Brennan repeatedly advanced the concept of “dignity” (nowhere mentioned in the Constitution) as the heart of the values that the Constitution was advancing, and began an activist jurisprudence of individual autonomy on that basis.
Proceeding in this vein, he seems to have simply inferred that the right to contraception announced in the Griswold decision was an individual right, possessed by all persons, not a marital right, as it was originally formulated. This revolutionary decision gave legal respect to non-marital intercourse, a radical departure from Christian and other traditional sexual morality. But with this legal respect, partisans of the sexual revolution were then into a position to make categories of sexual behavior and inclination into anti-discrimination categories.
As this writer pointed out in a spring 2019 article, the anthropology that many people in the Western world assume has shifted from a classical and Christian one in which humans are rational creatures to the anthropology of David Hume. In the Humean doctrine, human beings are bundles of sensation and desire. It can then easily be seen why discrimination against personal behavior is discrimination against the person. But liberty and equality cannot possibly require freedom for and acceptance of personal behavior. If they did, then all behaviors would be equal and all crimes legal. It is only on the basis of sensibility that particular personal behavior and inclinations can be made into anti-discrimination categories.
Sexual orientation and gender identity (SOGI) laws refer to persons, not their behavior, but courts commonly interpret them as meaning behavior, since behavior and inclination are the distinguishing features of people protected by these laws. How are Christians and other social conservatives to respond to the claim that discrimination against behavior is discrimination against persons? That will be examined in a subsequent article.