Legislative Proposals on the Non-Discrimination of Homosexual Persons
SOME CONSIDERATIONS CONCERNING THE RESPONSE TO LEGISLATIVE PROPOSALS ON THE NON-DISCRIMINATION OF HOMOSEXUAL PERSONS
The Congregation of the Doctrine of the Faith.
Revised statement issued on July 22, 1992.
Recently, legislation has been proposed in various places which would make discrimination on the basis of sexual orientation illegal. In some cities, municipal authorities have made public housing, otherwise reserved for families, available to homosexual (and unmarried heterosexual) couples. Such initiatives, even where they seem more directed toward support of basic civil rights than condonement of homosexual activity or a homosexual lifestyle, may in fact have a negative impact on the family and society. Such things as the adoption of children, the employment of teachers, the housing needs of genuine families, landlords' legitimate concerns in screening potential tenants, for example, are often implicated.
While it would be impossible to anticipate every eventuality in respect to legislative proposals in this area, these observations will try to identify some principles and distinctions of a general nature which should be taken into consideration by the conscientious legislator, voter, or church authority who is confronted with such issues.
The first section will recall relevant passages from the Congregation for the Doctrine of the Faith's "Letter to the Bishops of the Catholic Church on the Pastoral Care of Homosexual Persons" of 1986. The second section will deal with their application.
I. Relevant Passages from the CDF's "Letter"
1. The letter recalls that the CDF's "Declaration on Certain Questions Concerning Sexual Ethics" of 1975 "took note of the distinction commonly drawn between the homosexual condition or tendency and individual homosexual actions"; the latter are "intrinsically disordered" and "in no case to be approved of" (No. 3).
2. Since "[i]n the discussion which followed the publication of the (aforementioned) declaration ..., an overly benign interpretation was given to the homosexual condition itself, some going so far as to call it "neutral or even good," the letter goes on to clarify: "Although the particular inclination of the homosexual person is not a sin, it is a more or less strong tendency ordered toward an intrinsic moral evil; and thus the inclination itself must be seen as an objective disorder. Therefore special concern and pastoral attention should be directed toward those who have this condition, lest they be led to believe that the living out of this orientation in homosexual activity is a morally acceptable option. It is not" (No. 3).
3. "As in every moral disorder, homosexual activity prevents one's own fulfillment and happiness by acting contrary to the creative wisdom of God. The church, in rejecting erroneous opinions regarding homosexuality, does not limit but rather defends personal freedom and dignity realistically and authentically understood" (No. 7).
4. In reference to the homosexual movement, the letter states: "One tactic used is to protest that any and all criticism of or reservations about homosexual people, their activity and lifestyle, are simply diverse forms of unjust discrimination" (No. 9).
5. "There is an effort in some countries to manipulate the church by gaining the often well-intentioned support of her pastors with a view to changing civil statutes and laws. This is done in order to conform to these pressure groups' concept that homosexuality is at least a completely harmless, if not an entirely good, thing. Even when the practice of homosexuality may seriously threaten the lives and well-being of a large number of people, its advocates remain undeterred and refuse to consider the magnitude of the risks involved" (No. 9)
6. "She (the church) is also aware that the view that homosexual activity is equivalent to or as acceptable as the sexual expression of conjugal love has a direct impact on society's understanding of the nature and rights of the family and puts them in jeopardy" (No. 9)
7. "It is deplorable that homosexual persons have been and are the object of violent malice in speech or in action. Such treatment deserves condemnation from the church's pastors wherever it occurs. It reveals a kind of disregard for others which endangers the most fundamental principles of a healthy society. The intrinsic dignity of each person must always be respected in word, in action and in law.
"But the proper reaction to crimes committed against homosexual persons should not be to claim that the homosexual condition is not disordered. When such a claim is made and when homosexual activity is consequently condoned, or when civil legislation is introduced to protect behavior to which no one has any conceivable right, neither the church nor society at large should be surprised when other distorted notions and practices gain ground, and irrational and violent reactions increase (No. 10).
8. "What is at all costs to be avoided is the unfounded and demeaning assumption that the sexual behavior of homosexual persons is always and totally compulsive and therefore inculpable. What is essential is that the fundamental liberty which characterizes the human person and gives him his dignity be recognized as belonging to the homosexual person as well" (No. 11).
9. "In assessing proposed legislation, the bishops should keep as their uppermost concern the responsibility to defend and promote family life" (No. 17).
10. "Sexual orientation" does not constitute a quality comparable to race, ethnic background, etc. in respect to non-discrimination. Unlike these, homosexual orientation is an objective disorder (cf. "Letter," No. 3) and evokes moral concern.
11. There are areas in which it is not unjust discrimination to take sexual orientation into account, for example, in the placement of children for adoption or foster care, in employment of teachers or athletic coaches, and in military recruitment.
12. Homosexual persons, as human persons, have the same rights as all persons including the right of not being treated in a manner which offends their personal dignity (cf. No. 10). Among other rights, all persons have the right to work, to housing, etc. Nevertheless, these rights are not absolute. They can be legitimately limited for objectively disordered external conduct. This is sometimes not only licit but obligatory. This would obtain moreover not only in the case of culpable behavior but even in the case of actions of the physically or mentally ill. Thus it is accepted that the state may restrict the exercise of rights, for example, in the case of contagious or mentally ill persons, in order to protect the common good.
13. Including "homosexual orientation" among the considerations on the basis of which it is illegal to discriminate can easily lead to regarding homosexuality as a positive source of human rights, for example, in respect to so-called affirmative action or preferential treatment in hiring practices. This is all the more deleterious since there is no right to homosexuality (cf. No. 10) which therefore should not form the basis for judicial claims. The passage from the recognition of homosexuality as a factor on which basis it is illegal to discriminate can easily lead, if not automatically, to the legislative protection and promotion of homosexuality. A person's homosexuality would be invoked in opposition to alleged discrimination, and thus the exercise of rights would be defended precisely via the affirmation of the homosexual condition instead of in terms of a violation of basic human rights.
14. The "sexual orientation" of a person is not comparable to race, sex, age, etc. also for another reason than that given above which warrants attention. An individual's sexual orientation is generally not known to others unless he publicly identifies himself as having this orientation or unless some overt behavior manifests it. As a rule, the majority of homosexually oriented persons who seek to lead chaste lives do not publicize their sexual orientation. Hence the problem of discrimination in terms of employment, housing, etc., does not usually arise.
Homosexual persons who assert their homosexuality tend to be precisely those who judge homosexual behavior or lifestyle to be "either completely harmless, if not an entirely good thing" (cf. No. 3), and hence worthy of public approval. It is from this quarter that one is more likely to find those who seek to "manipulate the church by gaining the often well-intentioned support of her pastors with a view to changing civil statutes and laws" (cf. No. 5), those who use the tactic of protesting that "any and all criticism of or reservations about homosexual people ... are simply diverse forms of unjust discrimination" (cf. No. 9).
In addition, there is a danger that legislation which would make homosexuality a basis for entitlements could actually encourage a person with a homosexual orientation to declare his homosexuality or even to seek a partner in order to exploit the provisions of the law.
15. Since in the assessment of proposed legislation uppermost concern should be given to the responsibility to defend and promote family life (cf. No. 17), strict attention should be paid to the single provisions of proposed measures. How would they affect adoption or foster care? Would they protect homosexual acts, public or private? Do they confer equivalent family status on homosexual unions, for example, in respect to public housing or by entitling the) homosexual partner to the privileges of employment which could include such things as "family" participation in the health benefits given to employees (cf. No. 9)?
16. Finally, where a matter of the common good is concerned, it is inappropriate for church authorities to endorse or remain neutral toward adverse legislation even if it grants exceptions to church organizations and institutions. The church has the responsibility to promote family life and the public morality of the entire civil society on the basis of fundamental moral values, not simply to protect herself from the application of harmful laws (cf. No. 17).