[Presented at a debate at Gonzaga Law School, September 30, 1999]
I want to present two types of arguments for voting in favor of I-99-2. The first is on the basis of principle, and the second is prudential.
On principle, this ordinance is about society's attitude toward homosexuality. When I sent around e-mail that contained the catechism's statement on this issue, I did so not to suggest that everyone would be bound to follow this, but rather to point out that this is the way lots of people see the issue. An orientation toward homosexual activity is no different in principle from an inclination toward adultery or toward the abuse of alcohol. I happen to be afflicted by two of these inclinations, but not the other. Every person suffers from a unique set of weaknesses brought about by the effects of original sin. Whether these are biologically or environmentally or socially driven is not decisive. The point is that these are inclinations we are bound in conscience to resist.
The sponsors of the "sexual orientation" feature of the City's Human Rights Ordinance were proceeding from a different assumption, namely that sexual orientation is less like an inclination toward abusing alcohol and more like race, sex, age, and other characteristics that are neutral. In fact, our diversity with respect to race, sex, and age is something to be celebrated rather than regretted.
So one of the points at stake in this debate is which of these two philosophical principles is the correct one. By adopting an ordinance that places sexual orientation alongside characteristics that are legitimate subjects of positive diversity, we obscure the truth of the matter. Now I want to make clear that, since I suffer from a wide variety of weaknesses I certainly don't want to be excluded from employment or housing because of that mark of original sin. But I wouldn't favor an ordinance that prohibited discrimination on the basis of alcoholic orientation. Why? Because it would suffer from the same flaw that this ordinance does, namely that it doesn't distinguish between the orientation or inclination and the behavior that may or may not result from that inclination.
Another problem is that it does, contrary to the assertions of the opponents of the initiative, set up special rights for one group of citizens. That is, there are lots of arbitrary reasons for which an employer can fire (or refuse to hire) an employee -- let's say, being a Cougar fan. If I choose not to rent my apartment to WSU fans, or I refuse to hire them, the law won't protect those who suffer from this prejudice. The law retains for the most part the freedom to hire and fire at will. It only restricts me as an employer if I tread on certain protected areas, like age, or sex, or race, or religion, or comparable categories. Other than that, employees and renters are at the mercy of the irrational prejudices of their landlords. Regrettable that might be, but it is the law. To elevate one category of disfavor -- based upon sexual orientation -- is to give certain prospective employees or renters an advantage that others don't have.
A second reason of principle to favor this initiative is the way in which it will stigmatize those who believe what is contained in the catechism (see the end of this document) and the CDF document. Again, we are treating the attitude about homosexuality that is expressed in the catechism as the same thing in effect as prejudice on the basis of race, gender or religion. It is frequently referred to in the same terms. And it has real world effects. We have made it clear that if you want to participate in the management of business or public institutions, you must share the social conviction that prejudice on the basis of race or sex is irrational and immoral. The same logic is being applied to those who believe that a homosexual orientation is, as the CDF puts it, is "an objective disorder." Imagine applying for a job as a city attorney or school principal or some other job where this ordinance is in force. Expressing the views I am enunciating will be viewed as a disqualifying feature, as someone who doesn't share the vision of the organization, who subjects the organization to the potential of expensive and embarrassing litigation. I would say that it is already true that someone holding my views would have a tough time getting a majority of the law faculty to accept their candidacy on equal terms with those who share the view represented by the ordinance. Thus, the issue of principle, of deciding which view is the correct one, may have a profound influence on the way we continue to think about this issue. It is not true that, by prohibiting this form of discrimination, we are erring on the side of caution. We are replacing one set of social attitudes with another.
My second set of reasons for supporting this initiative are prudential. That is, even if you were disposed in principle to create legal protection for sexual orientation, you might choose to do so in a way other than through this ordinance. It is no secret that this issue is hotly debated in our society. It is not unique to Spokane. The voters of the state of Washington have rejected such protections by a substantial majority, almost 2 to 1. There is no federal protection, and in fact federal legislation protecting marriage suggests a climate that disfavors the proponents of the ordinance.
Spokane will incur needless litigation and expense attempting to resolve on a local level the conflicts that are statewide and even national in scope. The local ordinance was very badly drafted the first time it was presented to the City Council, and though the most egregious problems were removed when it was presented again, it still contains many ambiguities and constitutional flaws. The most serious ambiguity is with respect to what "sexual orientation" means -- does it refer to the condition of being inclined toward homosexual activity, or does it protect the activity itself? What are the boundaries of the exemption granted to those who refuse to accede to it for religious reasons? Would Gonzaga University be entitled to adopt policies in hiring that some would consider discriminatory? In a recent case, Thomas v. Anchorage Equal Rights Commission, 165 F.3d 692 (1999), the 9th Circuit struck down a city ordinance that attempted to force owners to rent to unmarried couples when for religious reasons they declined to do so. Spokane would certainly invite similar litigation that will test the validity of this ordinance. Let's have our debates on the subject, but leaving Spokane in the mainstream, rather than putting it on the cutting edge of a cultural conflict, is a prudent restraint on the ability of local resources to address this issue.
In short, I recommend that you vote YES on Initiative 99-2.
[Excerpts from the Catechism of the Catholic Church
Chastity and homosexuality
¶2357 Homosexuality refers to relations between men or between women who experience an exclusive or predominant sexual attraction toward persons of the same sex. It has taken a great variety of forms through the centuries and in different cultures. Its psychological genesis remains largely unexplained. Basing itself on Sacred Scripture, which presents homosexual acts as acts of grave depravity, tradition has always declared that "homosexual acts are intrinsically disordered." They are contrary to the natural law. They close the sexual act to the gift of life. They do not proceed from a genuine affective and sexual complementarity. Under no circumstances can they be approved.
¶2358 The number of men and women who have deep-seated homosexual tendencies is not negligible. They do not choose their homosexual condition; for most of them it is a trial. They must be accepted with respect, compassion, and sensitivity. Every sign of unjust discrimination in their regard should be avoided. These persons are called to fulfill God's will in their lives and, if they are Christians, to unite to the sacrifice of the Lord's Cross the difficulties they may encounter from their condition.
¶2359 Homosexual persons are called to chastity. By the virtues of self-mastery that teach them inner freedom, at times by the support of disinterested friendship, by prayer and sacramental grace, they can and should gradually and resolutely approach Christian perfection.