Discrimination on Moral Grounds?

As I mentioned in an earlier blog, I have a friend who has asked me about my position on homosexuality in specific situations going on in society today.  He is asking for a "Catholic" response, and I said I would oblige.  I've also invited co-bloggers, cathmom5 and Nathan to add to this article and I have posted the same or similar questions to a group of Catholic friends and will include some of their comments too.  For the most part, the responses have been written without pre-reading what others have to say.  This article/blog has become truly a group project, and I invite those reading along to add their comments as well in the combox section.

First question:  On Dec. 20, 2013 Uganda passed a law criminalizing homosexuality.  Persons found guilty of homosexuality could be sentenced to life in prison (which previously it was a death sentence, they dropped that provision before passing the law).  Is it right for a country to make it a criminal offense (with a life sentence) for someone's choice in sexuality?

Scott's response:  Well, first off does a country have the "right" to set its own laws?  Yes.  Now, when those laws may impinge upon the human rights of their citizens, is it our responsibility to speak out?  I would say yes to that too.  So, to directly answer the first question, I do not believe it is "right" for a country to criminalize homosexuality.  At the same time, I reiterate my (already known) position - that homosexual acts are "wrong" and considered an abomination to our Lord.  In my opinion such morality should not be subjected to civil law, it is covered in divine law.  For those who do not share our Judeo-Christian belief system is it "right" to force our morality upon them?  I would say "No."

CathMom5's response:  No, I do not believe it is "right" for a country to make homosexuality a criminal offense; but I agree that we cannot control the legislature or laws of other countries.  In light of the Christian tradition, every person is made in the image of God and deserves to be treated with respect.  While I believe that the homosexual act is against God's law also, I don't believe that someone should spend the rest of their life in jail (let alone lose their life) for it.  We, America, Christians, etc.,  have no business in foreign laws; however, we should speak out when human rights and human dignity are violated.  We cannot force them to change their laws but we can speak out against such laws that strip humans of their dignity.

Nathan’s answer to the first question:
Although countries have a right to make their own laws, as any sovereign country has, I personally disagree with these Uganda laws and as a country built on freedom I agree on its population to lobby their government to change those particular laws. 

In case you didn’t know, the Catholic Church actively lobbied the Uganda government against instituting these laws ever since they declared its intentions about this proposed law.  A Wikileaks headline tells us that a U.S. diplomatic cable dated December 15, 2009, reveals that the U.S. Embassy to the Vatican lobbied the Catholic church to oppose the proposed Ugandan Anti-Homosexuality Bill.  According to the cable:

Embassy Vatican has actively lobbied Holy See officials to take a stand against pending legislation in Uganda that would criminalize homosexuality and in extreme cases, even punish it with death (reftel). On December 11, after the Ambassador raised USG (U.S. Government) concerns, Cardinal Antonelli Ennio, President of the Pontifical Council for the Family, reaffirmed the Church’s position that legal approaches to homosexuality are inappropriate. Antonelli admitted that he had not followed the Uganda controversy closely, but agreed that Catholic bishops there or anywhere should not/not support the criminalization of homosexuality. The Ambassador urged the Cardinal to make sure bishops in Uganda understood this.

And so we can see that not only do the US representatives of the Church but also the Vatican as well agreed that these laws should not be instituted because we can read later on in that same cable:

…The Vatican likely will not want bishops in Uganda to support the criminalization of homosexuality, so Embassy efforts may well translate into Vatican officials communicating with bishops in Uganda to reaffirm the Church teaching that homosexuality is a personal moral decision, which should not be penalized in any way by judicial authorities. The Vatican, however, likely will shy away from instructing the bishops directly to denounce the bill, as bishops everywhere are given a lot of leeway in deciding how to conduct pastoral work in their own dioceses.

On December 10, 2009, the Vatican confirmed this stand when it released a statement which opposed “all grave violations of human rights against homosexual persons,” particularly “the murder and abuse of homosexual persons are to be confronted on all levels, especially when such violence is perpetrated by the State.” The statement didn’t reference Uganda by name, but that last statement was taken as an oblique reference to the proposed Anti-Homosexuality Bill. Shortly before Christmas Day that year, the Roman Catholic Archbishop of Uganda, Cyprian Lwanga, denounced the proposed Anti-Homosexuality Bill in his annual Christmas message from Rubaga Cathedral. That message was broadcast over several Ugandan television channels.

These responses make sense since they are perfectly aligned with official Catholic Church teaching on homosexuality.  Here is a copy/paste from our official teachings of the Church, the Catechism of the Catholic Church on how we as Christians are to treat those with same-sex attraction:

From the Catechism of the Catholic Church.

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,¹⁴¹ tradition has always declared that "homosexual acts are intrinsically disordered."¹⁴² 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. This inclination, which is objectively disordered, constitutes for most of them 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.

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.

Responses from other friends: 
"F" wrote:  I think the Uganda situation is indicative of what's wrong with our country. The people in any society have the right to decide for themselves what their society should stand for and what it will reject. Where the issues concerning homosexuality are put to the voters in our country, the homosexual agenda usually loses, which is why they go to the courts and legislatures.  Uganda and other African countries do not want homosexuality polluting their society, so they pass laws insuring it won't. I see nothing wrong with that.

And before anyone says homosexuality in itself is no sin, just remember what happens when you let the camel get its nose under your tent flap.

"A" wrote:   My personal view is that this law is on the same level as the repressive laws in the Islamic theocracies, those of pagan Rome and now of many other places.
Even after reading F's reply, I still would argue that the civil authorities - and that is who makes these laws and pretends to grant special rights  - whether in agreement or opposition to Divine Natural law - has no authority to do so.
IMO, civil authority is limited to control and regulate the safety and security of its citizens.  In all instances and matters where civil institutions have both authority and the duty to legislate the civil laws must coincide with natural and Divine laws.
Civil authorities may have the power and means to enforce laws, they have no right to impose sanctions nor to grant rights outside of their delegated authority - restrictions and punishments such as the 'law' you referred to, nor 'rights' to abortion, same sex marriages etc.
One can argue that civil laws which agree and coincide with Divine law are good, and I would grant that, but these laws would still be 'ultra vires' for the government, unless _all_ citizens agreed to live under that government - i.e I think that citizens can agree to abide to restrictions over and above what the strictest
minimum demands, but the government cannot impose extra duties or restrictions on its own, nor an a minority or even a large majority.
For, if we grant the majority that power, we have no reason to complain about the current state of affairs in the world.
OTOH, WWJD?

John 8:11 Who said: No man, Lord. And Jesus said: Neither will I condemn thee.
Go, and now sin no more.

Ultimately, in none of these cases do the human courts have full knowledge of all the circumstances related to these 'transgressions', nor will the transgressors escape judgment altogether.  For Catholics we have confession for the rest, I would leave them to the 'just judge'.
While I am sure there is much more to this, these are the ideas I would base my argument on.

"O" (responding to "A")

"...this [Ugandan] law is on the same level as the repressive laws in the Islamic theocracies, those of pagan Rome and now of many other places."

I think a law may be described as repressive if, and only if, the law constrains a natural human desire to act. Laws which constrain unnatural human acts are in principle just laws. Such laws may denounce, prohibit, or punish unnatural behavior; these are matters of degree.  I think the severity of the law ought to be  restricted to that level necessary to protect or promote the commonweal.  The severity of the law is a matter of prudence for the governing body of the community.

People living in community, assuming they possess suffrage and political freedom, give up personal autonomy and submit to the restraints of justice as reflected in the community's expressed values (norms) and evidenced in the community's laws.

If Ugandans as a community believe homosexual activity is unnatural human activity and believe that tolerating such activity is contrary to the promotion of the commonweal then, it seems to me, the governing authority is obligated to evidence those beliefs in the community's laws.  Whether the law merely denounces or punishes is a matter of degree and prudence, but I think not principle.

"A" responds to "O" with:

"Whether the law merely denounces or punishes is a matter of degree and prudence, but I think not principle."

Point well taken, but:
If it is not a matter of principle, then would reasoning according to the same 'rules' not also give the 'community/government' the 'right' to confer 'rights' on its citizens, rights which promote " unnatural human acts ", 'rights' which condone/facilitate abortion, euthanasia etc, etc. ?? 

"O" replies:

I think not.

If the positive statement is true then so is its contrapositive.

Positive:

If a law constrains a natural human desire to act then the law is unjust.

Contrapositive:

If the law is [not un] just then the law allows [not constrains] a natural human desire to act.

Abortion and euthanasia are not natural human acts.

Scott says:
I would add, abortion and euthanasia are acts which do harm to others.  I believe laws should protect others, especially those who cannot protect themselves.  I tend to be on the side of saying we should not be legislating an act between two consenting adults which (other than to their eternal soul) is doing no direct harm.  

Nathan replies:
But Scott, the Ugandans could very well believe that homosexual behavior is an actual danger to their society as a whole seeing as even with less than 7% of the US population of men having sex with men but account for more than 78%% of new HIV infections among males in 2010. A good case can be made for Uganda to punish  homosexual behavior as a method of protecting Ugandan society as a whole. (Source)

"O" responding to Scott:

" ... we should not be legislating an act between two consenting adults which (other than to their eternal soul) is doing no direct harm."

May I interpret the above to the following conditional statement?

"If an evil act does no immediate harm to the actors then society ought not prohibit the evil act."

Since "immediate harm" does not include the universe of "harms," the following conditionals can stand with the above as equally true.

"If an evil act does non- immediate harm to the actors then society may prohibit the evil act."

"If an evil act does harm to the commonweal then society ought prohibit the evil act."

I would agree with all the conditionals stated above as true.  Society's prudence would  determine the immediate and  future states of "harm" as used above.

Second question:  Should states be allowed to establish in law that it is permissible to refuse business to homosexuals.

Scott's response: I would not necessarily be in favor of a law specifying that a business may be permitted to refuse business to any "class" of people.  I think we get into shaky territory when we legislate morality on one side or the other.  The fact is, businesses already may "reserve the right to refuse service to anyone."  Using the law to beat people into submission over personal choices is a bit crazy.  The New Mexico case, where a photographer refused to shoot pictures of a same-sex union should not have been taken to court over this - the judge should have thrown this out as a frivolous case, but since he did not and even ruled in favor of the homosexuals, this story still (as of this writing) isn't over.

CathMom5's response:  Yes.  This is a different situation.  What happened to "We reserve the right to refuse service to whomever we choose?"  I don't believe that any Christian should be forced to, say, bake and decorate a "wedding" cake for a homosexual couple if they feel that it means that they are implicitly approving of such a union when that union is against their Christian morals.  Or, a woman who owns a home that she rents rooms from as a Bed and Breakfast.  She was going to give the two women who showed up at her door a room until they told her that the were a couple.  She said that she did not want them in her home.  I would also say that it is a rare thing that there is only one business, a bakery, a B and B, etc. in the area.  So, why can't that homosexual couple find a baker, or a B and B, or whatever business, that will provide that service for them--I'm sure that they are out there.  I'm sure that in the cases that have gone to court and hit the news, the homosexual couple was not only looking for trouble but happy to have found it.   I don't believe someone should be sued out of business because they refused to provide a service for a homosexual couple. A business should have the "right to refuse service."  I believe that laws are overdue that uphold a business owner's right to refuse service.  Our laws, our courts, our society is bending over backwards to give this very small minority of our population not equality but privilege.

Please make sure that the argument does not start to go the "that is exactly what happened to African Americans" route.  This false similarity keeps popping up.  I remember arguing about the "rights" of homosexuals in a 90's philosophy class and this came up.  "This is just like what happened to blacks before the civil rights movement."  While there may be parallels on the surface, it is not the same.  African Americans and those of other races in this country should, and now do, have the same rights--heterosexual or homosexual.  Our society was biased against Blacks because of their skin color, not biased on moral grounds. In my opinion, homosexuals would not have much bias against them if their sex life didn't become their whole identity.  They get away with bullying people because they cry "prejudice," and our society lets them be bullies because of a guilt complex over the despicable things people have done in the past.  

Nathan's response:  States should not institute laws that permit some to refuse service to homosexuals PROVIDED that the government does not COMPEL business owners to perform actions that directly go against their deeply held religious beliefs.  A bakery owner cannot refuse to bake a cake for a homosexual individual simply because the owner disagrees with his lifestyle BUT the owner shouldn’t be compelled to bake a wedding cake for a homosexual couple if he feels that to do so would be a public expression of agreement with ‘same-sex marriage’.  It’s not that business owners want to “refuse service” to gays simply because they’re gay; it’s that some business owners — particularly people who work in the wedding industry — don’t want to be forced to employ their talents in service of something that defies their deeply held religious convictions.

Cathmom5 responds to Nathan: I think you expressed what I meant to say better than I.  I don't believe any business should be "compelled" to do business with anyone.   I agree that a business (like a bakery) should not refuse service solely upon a person's sexual or perceived sexual orientation.  However, the owner of  a bakery may feel that baking a wedding cake crosses the line into condoning or participating in the celebration of a ceremony, and they should neither be compelled to make the "couple" a cake nor be sued out of business because they refused to do so.  And as I said--Why can't they go to another bakery?  I doubt there are many towns where there is one, single bakery (especially in a place large city like Seattle where a small business is having a tough time surviving after being sued by a homosexual couple for refusing to make them a wedding cake).  It seems that some homosexual couples go out of their way to make trouble for business owners who take a stand on moral principles.  

Responses from other friends:
"A" replies:
Based on my previous comments, my answer would be 'No.'

"M" answers:
This is a double edged question because what gives anybody the right to discriminate against another person just because of sexual orientation. However, having a law in place to protect such individuals harms others because those same individuals have the propensity to make vexious law suits. 

Third question:  Should states be allowed to define "marriage" as the union between a man and a woman, only - directly excluding the possibility of "same sex marriages?"

Scott's response: While I do believe states have the right to define marriage for which they grant licenses to, for those states which are permitting same sex unions, they should not use the term "marriage."  The term "marriage" should be reserved to what it has always stood for, the union of a man to a woman, period.  Like it or not, in our Judeo-Christian based society, "marriage" has scriptural roots, not secular.  Even in most non-Judeo-Christian societies, the norm is that marriage takes place within religious ceremonies.  The term "marriage" should be reserved for those who partake in Holy Matrimony.  By the same token, those who are non-religious and are contracted by the state and have that union overseen by non-religious magistrates should refer to their contract the same way homosexuals should - as civil unions, not marriages.  I realize that it is commonplace to refer to any such union as a "marriage," but in reality, without the witness of God's representatives, it is just a civil union.

CathMom5's response:  Yes.  I do believe that should be up to the states.  If the vast majority of the people in that state want "marriage" defined as only a union between a man and a woman, than they should have the right to vote that into state policy or law.  After all, our country was founded on Judeo-Christian principles which includes the efficacy and morality of marriage.  However, it seems the politically correct minority of the moment gets to make laws in their favor.

Nathan's response:  Should states have a right to define marriage as between one man and one woman?  Since marriage has been defined as between one man and one woman for many millennia, the question should be ‘should states have a right to define marriage in any way they choose?’  And I believe we ought not change what has been tried and true for thousands of years.   The States have no right to change the definition of any word, especially at the whim of what is popular at the moment.  The best they can do is possibly invent a new word, like ‘civil union’ and give the individuals in such a union the same rights as a married couple has with whatever exception the States population might deem exclusionary (like adoption for example).

Responses from other friends:
"F" responds:
Of course they should. States, i.e., the people, have a right to define the moral and cultural parameters of their society.  Above all, they should not be subject to the deviant behavior and questionable morals of minorities who live in their jurisdictions.

"A" posits:
While I do wish the state's laws always agreed with my own convictions, it seems an inescapable conclusion for me, that if we give the state the 'right' to define morality, how will we argue against any law which defines something against our convictions, something we consider immoral?

"M" writes:
Homosexuals are a minority group and they are intent upon imposing their values on the rest of us.   I disagree with the Dalai Lama on this matter since I do not believe that the state can redefine marriage so that deviants can destroy what we have.

HOWEVER, that being said, maybe we need to look at the whole picture of marriage. At the present time the act of marriage is carried out according to the civil law.   If we were to rely upon the Scripture then we might view marriage in a different way because in the ancient times there was no ritual, just a coming together with the consent of the parents, and a brief ceremony where the marriage took place.   When we marry we say vows to each other and this is in fact the act of marriage.  The celebrant is nothing more than a witness to those vows that the bride and groom say to each other, the rest is just ritual.  There is a lot more to marriage than that ceremony and I think we all know this to be the truth. It is a coming together and it is a commitment to each other to live the rest of our lives together.

Our civil authorities are out of control and this is true because the wrong kind of people get elected to the Parliament. These are the people with an agenda to destroy our civil society in order to rebuild according to their vision, and heaven forbid that they should ever get the chance to carry out their plans.

Homosexuals had a legitimate complaint regarding discrimination that they have faced because their relationships have not been legally recognized.  The question is: do they need marriage to have those relationships recognized.  There has been a shift in how they are expressing their angst about the discrimination that they have faced from insurance companies etc. as well as hospitals.  Yes, they have legitimate concerns, but do they need the institution of marriage to remove those legitimate issues?   Some of what the homosexuals are doing to formalize their relationships is absolutely ridiculous, and that includes two women dressing up as brides, or one woman dressed as a groom and the other as a bride.

If they want to have a commitment ceremony then fine… let them have their ceremony.  The State can recognize the partnership by simply recognizing that these couples have the same relationship as two heterosexual people living together who do not have that piece of paper that is called a marriage certificate.  I see no reason as to why homosexuals could not have a civil union agreement. It seems that they want more for their own devious reasons.

Scott rewords Question 3:

Rewording that a bit.... Is a state allowed to define *civil* marriage to allow for unions that could never be considered sacramental by the Church? (e.g., granting civil marriages to divorced persons; civil marriages to someone who has not been released from a religious vow or is a priest; or, in this case granting a civil marriage to 2 people of the same sex?

"O" replies:

... if we give the state the 'right' to define morality ..."

The state's  right to define morality is, I think, a sine qua non.

• To be effective, a state must assume to itself a monopoly on violence. 
• To insure domestic tranquility, the state must provide a civil means for citizen redress.
• Morality is defined as the principles concerning the distinction between right and wrong or good and bad behavior
• Therefore, the state must set moral standards.   

" Is a state allowed ... ?

When can one state judge another state's morality -- its definition of human rights?  Legal positivism, I think, prevents ever making such  judgments.

The philosophy of legal positivism prevents arguing for human rights outside the legal system per se.  Legal systems cannot criticize each other.  Other than lacking in internal consistencies, legal positivism does not allow argument regarding another state's jurisprudence.

If legal system A, claims that legal system B is immoral it must do so only from a reference to itself.  System B does not recognize the validity of system A, so the criticism by system A of system B is correctly disregarded as baseless by system B.

The Nazis leaders used legal positivism to defend themselves at Nuremberg. The only reason, the Nazis claimed, that they found themselves in the defendants' chair at Nuremberg was that they had the misfortune of losing the war.

The Nazis granted that their legal system was different than the Allies, and granted that fundamental German values were different than the Allies, one of which was the supremacy of the Aryan race. They incorporated their values into their laws that included the de-valuing of Jews relative to Aryans. The Nazis argued, therefore, that the systematic elimination of Jews was, in the German legal system, entirely valid. And, since, under legal positivism, the Allies could not judge the Nazis legal system as invalid, the Allies could not judge the defendants acts as criminal.

Jackson, the lead prosecutor, had to depart from the philosophy of legal positivism and proceed to a higher authority, a new and higher vantage point to prosecute the legal system of another country. He appealed to the basic principles of civilization in order to prosecute the jurisprudence of the Nazi legal system. To transcend human law, Jackson successfully took recourse to natural law -- the Creator's law. 
One, I think, cannot appeal this particular Ugandan law to natural law successfully because the natural law and the Ugandan law are harmonious.