Skepticism is the chastity of the intellect, and it is shameful to surrender it too soon or to the first comer: there is nobility in preserving it coolly and proudly through long youth, until at last, in the ripeness of instinct and discretion, it can be safely exchanged for fidelity and happiness. -- George Santayana
In opposition to civil rights for LGBTQ people, conservatives often advance the argument that, whereas civil rights legislation for African-Americans is justified on the basis that one is not free to choose one’s race, civil rights legislation for LGTBQ people is not justified because homosexuality – at least, so the allegation goes – is something people choose. So, the argument proceeds, legislation prohibiting discrimination against African-Americans in matters of housing, public utilities (swimming pools, drinking fountains, etc.), employment, etc., is unjustified, because such discrimination is based upon a criterion over which African-Americans have no control and no choice – being black – whereas discrimination in the same areas against LGBTQ people is at least defensible, because it is based on a criterion over which LGBTQ people do have control – namely, being lesbian, gay, bisexual, etc., etc. This argument does have a certain superficial appeal, but it ignores two complementary “counter-justifications”: that in certain cases, discrimination is justified, based on circumstances the individual has not chosen; and in certain other cases, discrimination is not justified, based on circumstances the individual has chosen. Besides, as we shall see below, conservatives have been none too persnickety in the application of their own principle.
A moment’s thought will show that, sometimes certain circumstances, even circumstances that are not chosen, circumstances that are no more a matter of choice than race, justify pretty harsh discriminatory measures. I am old enough to remember the traumatic polio scares of the 1950s, prior to the development of the Salk vaccine. Children who showed the slightest symptoms of polio were rigorously quarantined and excluded from, say, participation in any kind of school activities. The kids’ susceptibility to polio was certainly not a matter of choice. Yet we were discriminated against and our freedom was severely curtailed for quite some time. As a matter of law, people of too close kinship are prohibited from (civilly) marrying. The decision to marry, of course, is a matter of choice, but their degree of consanguinuity certainly is not: the structure of their family tree was determined before they came on the scene. Yet their freedom to (civilly) marry is often curtailed. Other examples could be cited, but the point should be clear: if conservatives are lemmings-over-the-cliff consistent in their insistence that discrimination on the basis of non-chosen circumstances is not permissible, then they should not hesitate to allow people with a deadly infectious disease to remain at large, nor should they balk at allowing cousins to marry. But I would wager that even the most damn-the-torpedoes, Ayn-Rand- / Nathaniel-Branden- / Robert-Nozick-worshipping libertarian conservatives would blanch at the thought of allowing Typhoid Mary to wait tables at the local Olive Garden, constitutional considerations of “due process” notwithstanding.
By the same token, and in the complementary case, the mere fact that a form of behavior is chosen does not necessarily justify discrimination. Donald Trump’s decision to wear a Comb-Overs-R-Us hairpiece eerily reminiscent of a dead weasel would not justify a Four Seasons maître d’ seating him at a table by the kitchen – or even in the kitchen – even as a matter of choice on the maître d’s part, and least of all as a matter of law. My second-oldest god-daughter, a with-honors graduate of both Loyola Marymount University and Union Theological Seminary, is a great fan of “Dog”, the Bounty Hunter, but while I question her taste in TV shows, I would militantly oppose any de jure regulation seating Becky at the back of the bus because of her admiration for “Dog”. Clearly, there is a broad swath of life where the modes of expression and the kinds of behavior one voluntarily adopts simply do not matter and so properly are – or, anyway, should be – matters of indifference, and therefore not a legitimate basis for discrimination.
Conclusion: the propriety of discriminatory legislation is independent of the degree of choice – if any. The only criterion that matters is the degree of – actual or potential – damage one anticipates as a result of a refusal to discriminate. This potential for damage is the factor common to both the foregoing sets of examples. The dimension of voluntariness in conservatives’ arguments against LGTBQ civil rights is merely a red herring. That is why it is permissible – even morally and legally compulsory – to isolate people with potentially lethal diseases: the catastrophic harm from a pandemic justifies such measures, even though the people being quarantined have no choice in contracting the disease. The consequences to society from birth defects resulting from quasi-incestuous marriages similarly justify restrictions on who may (civilly) marry. (Even then, however, “due process” and “equal protection” restrictions would apply.) On the other side of the ledger, some behaviors, though freely chosen, do justify discrimination. Others do not. “The Donald’s” hairpieces are crimes only aesthetically, though not juridically. They harm no one. But it is entirely justifiable to discriminate against a convicted violent felon with a string of firearms violations by using such a criminal record to prohibit gun ownership, Second Amendment notwithstanding. (Even here, I would argue, first, that it is much more difficult to justify penalties like disenfranchisement of convicted felons, and secondly, that depriving even convicted “Masters of the Universe” loan sharks and Shylocks of Second Amendment rights is difficult to justify, though, if possible, deprivation of food, water, gravity, and ozone-layer protection would be more appropriate.) The relevant question -- the only relevant question -- is not “What choice?” but “What harm?”
On that basis – the only relevant basis – the cases of civil rights legislation for African-Americans and civil rights legislation for LGBTQ people are exactly, precisely comparable. Granted, merely being black is not a matter of choice. But that is beside the point. Rather, the relevant circumstance is that merely being black also works no harm to the community. But more to the point: even if LGBTQ were chosen, the only relevant circumstance is that merely being LGBTQ likewise works no harm to the community. Ditto gay marriage. The only quote-harm-unquote to society alleged by conservatives is predicated on purely religious objections vis a vis alternate sexual orientations that have no business being incorporated into the civil law, because, being purely religious and sectarian, such objections would constitute facial violations of the “establishment” clause of the First Amendment: writing religious doctrine into the civil law. In closing, let’s dispense with diplomacy for a moment and be quite blunt, shall we?
Irrespective of one's personal or sectarian theological beliefs, from the standpoint of the civil law, be the matter in question seating gay folks at lunch counters or baking wedding cakes for them or taking wedding pictures or doing any other type of business them with them in which the law forbids discrimination on any prior legitimate basis, if your only objection to full civil rights for LGBTQ folks is “It pisses off Jesus”, then you have no objection.
James R. Cowles