Given the ongoing, irrational rage being vented over the passage of Amendment One in North Carolina, I’ve thought more and more that the foundational issues and questions weren’t being pointed out or questioned. One thing is clear from the campaigns around Amendment One in North Carolina – the one who frames the debate is the one who wins it.
In this case the foundational question is really quite simple: “Do homosexuals have civil rights?” You see, the question turns on how we are defining a “civil right”. Discussions of freedom and justice in society inevitably lead to a consideration of rights, for the concept of a right is basic to the concepts of freedom and justice.But when we talk about civil rights, we must remember that the term itself is used in at least three senses:
- First there is what we might call a “freedom right”. In such cases a person is free to act without coercion, others have the duty of forbearance toward his decisions, and the state refrains from interfering with his behavior.
- Second there is what we might call a “benefit right”. In these cases a person has the right to receive something from others, who correspondingly have a duty to provide it and thereby satisfy that right. An example would be the alleged rights of the elderly or the disabled to welfare provisions.
- Finally, there is what I’ll call a “nondiscrimination right”. To possess such a right means that others are obligated not to regard adversely something about you when you desire employment, housing, education, public accommodations, and so forth. For instance, if a person has a civil right pertaining to skin color, nationality, or sex it means that these considerations may not be used to discriminate against him when it comes to extending opportunities or services.
Because we don’t make the different senses of “civil right” explicit very often, any discussion of homosexuality and civil rights tends to become confused very quickly. To maintain that homosexuality is a civil right might mean one of three things:
- People have a right to pursue homosexual relations, and the state ought to refrain from bringing sanctions against that pursuit. (Homosexuality as a “freedom right.”)
- People have a right to receive homosexual favors, and others have the duty to provide them. (Homosexuality as a “benefit right”, which I very thankfully don’t hear people arguing for.)
- People have a right to be granted housing, employment, etc., without discrimination against their homosexuality, and others have a duty not to regard adversely sexual preference in such situations. (Homosexuality as a “nondiscrimination right”.)
Since a civil right in the second sense isn’t the subject of any current debate or the aim of those defending homosexuality, I won’t be discussing it any further. What needs to be observed, however, is the logical connection between the first and third meanings for “civil right”. To say that homosexuality is a nondiscrimination right clearly must presuppose that homosexuality is also a freedom right, because it would completely contradictory to say that the law must protect (in employment, housing, etc.) what it does not allow as a freedom (that is, what it prohibits as a crime).
While I am loathe to use this as an example for fear of being labelled callous, a good illustration here would be child molestation. It would be perfectly insane for a child molester to go to his local police department and say, “Those nasty people down at Popeye’s Fried Chicken wouldn’t hire me just because I like to rape little boys.” If child molestation is a crime in civil law, then others have no duty to disregard the known sexual activities of child molesters when they apply for employment. If child molestation is not a freedom right, it cannot be a nondiscrimination right either. Simply put nondiscrimination presupposes non-criminality. Thus nondiscriminatory laws in favor of homosexuality must presuppose that homosexuality ought not to to be a crime with civil sanctions against it.
And it is to this question that we will turn in tomorrows post…
- Anti-Gay: Measure Passes in North Carolina Banning Gay Unions (mishie1.wordpress.com)
- Bloomberg: NC marriage vote sets back civil rights (wcnc.com)
- North Carolina last southern state to ban same-sex marriage (examiner.com)