The Dangers Presented by the "Gay Rights" Movement, and a Response

FATHER JOHN HARVEY

Father Harvey summarizes the basic claims put forth by the “Gay rights” movement, noting some of the dangerous judicial actions supporting it, and then presents a legal, moral, and philosophical critique of the homosexualist claims as found in the writings of leading Catholic authors.

Notice to Reader: "The Boards of both CERC Canada and CERC USA are aware that the topic of homosexuality is a controversial one that deeply affects the personal lives of many North Americans. Both Boards strongly reiterate the Catechism's teaching that people who self-identify as gays and lesbians must be treated with 'respect, compassion, and sensitivity' (CCC #2358). The Boards also support the Church's right to speak to aspects of this issue in accordance with her own self-understanding. Articles in this section have been chosen to cast light on how the teachings of the Church intersect with the various social, moral, and legal developments in secular society. CERC will not publish articles which, in the opinion of the editor, expose gays and lesbians to hatred or intolerance."




In the spring 1994 issue of First Things, the Ramsey Colloquium, a group of scholars from Protestant, Catholic, and Jewish institutions, presented its response to the homosexual movement. As the colloquium describes it, and I agree with their description, this movement is a collection of claims that groups of homosexual men and women (in their language, gays and lesbians) make against the current policies of local, state, and federal governments. This is the voice not of all homosexually oriented persons, but of a disproportionately small, but very articulate, group who, however, have very great influence on the decisions of legislators, judges, and presidents. The colloquium appraised the following claims:

Many homosexual persons believe that they had no choice in regard to their orientation and that they are not able to change it. Prescinding from the question of the origin of the orientation, the colloquium asks whether this predisposition should be acted upon or resisted. It asks pastors and therapists to help individuals to recognize the value of chaste living, resisting the impulse for homogenital gratification. "What is in accord with human nature is behavior which is appropriate to what we are meant to be appropriate to what God created and calls us to be." [1] It is true that we as individuals are subject to serious temptations to sin as the result of our fallen condition, but we retain our freedom to resist actions or a way of life contrary to God’s purpose. While helping people in their temptations, religious groups should consider as sinful homosexual intercourse or extramarital heterosexual behavior.

It is noteworthy that the above argument is from natural moral law. The colloquium continues with another natural moral law argument against the position, held by heterosexual as well as homosexual persons, that sexual actions are entirely private and no one else’s business. But these so-called private acts are very often highly publicized. The real reason for this position is not the right to privacy but the right to absolute personal autonomy. [2] If, however, everyone embraces that attitude, the common good is undercut. There are still other reasons for concern, such as the alarming rates of promiscuity, depression, suicide, and the spread of AIDS in the homosexual community.

Not to be overlooked, moreover, is that public policies that encourage a homosexual lifestyle (such as those of San Francisco and New York) lead to a weakening of normal family life, while the homosexual lifestyle in that locality increases. One cannot be indifferent to the harm that the proliferation of this lifestyle does to family life and the common good.

Thus, there is need for society to support social norms by which sexual behavior is controlled according to right order. In contrast:

the advocates of the gay and lesbian movement have the responsibility to set forth publicly their alternative proposals . . . . They must clarify for all of us how sexual mores are to be inculcated in the young, who are particularly vulnerable to seduction and solicitation. Public anxiety about homosexuality is preeminently a concern about the vulnerabilities of the young. This, we are persuaded, is a legitimate and urgent public concern. [3]

It is important to understand that the Ramsey Colloquium is a Judeo-Christian body using arguments from our shared humanity and concern for the common good. Its response also dissects the argument used so often by gays that they are a minority, like oppressed African Americans at the time of the civil rights movement, seeking justice. But the analogy does not hold: blacks are a minority because of race and the color of their skin but not because of their behavior, while homosexuals make themselves a minority by their behavior.

The colloquium argues against the notion that all discrimination against the homosexual lifestyle is wrong. In real life we all need to discriminate in forming social relationships. "Gay and lesbian `domestic partnerships,’ for example, should not be socially recognized as the moral equivalent of marriage." [4] In our present permissive society, the institution of marriage is in need of social support. The colloquium concludes on the hopeful note that through reflection on this declaration damage to our society and to families can be prevented.

Review of recent studies

Having presented the colloquium’s ecumenical arguments against the gay lifestyle, I think it will be useful to review arguments concerning homosexual rights and then to present Christian and Catholic arguments against so-called gay rights. Already in The Homosexual Person I examined the question at some length, and I refer the reader to that discussion. The work of Enrique Rueda in The Homosexual Network and of Edward Malloy in Homosexuality and the Christian Way of Life furnish a rich background for this chapter. [5] Rueda documents carefully and insightfully the beginnings of the homosexual movement and its impact upon religion in general and Catholicism in particular, while Malloy develops the various theological views of homosexual behavior, coming to the conclusion that the active homosexual lifestyle is incompatible with a Christian way of life.

When one checks data on psychological, sociological, and theological studies on the issue of gay rights, one notes immediately that most of the studies are overwhelmingly in favor of the position that the homosexual lifestyle should be regarded as an equal alternative to marriage, and that the political agenda of gays and lesbians must move in this direction. (I deliberately use the terms gay and lesbian to designate persons who are not only homosexual in orientation but also have adopted the active lifestyle.)

One of the arguments used by professed gays and lesbians is that they are an oppressed minority and that their situation is similar to that of African Americans before the civil rights movement of the 1960s. David Neff, however, denies that there is a valid analogy between African Americans and homosexual people in America, [6] and he is joined in this dissent by Lena Williams, who discusses gays in the black community. A distinction must be made between racism and antigay sentiment. Williams believes that black homosexuals are misappropriating the spirit and legacy of the black civil rights movement. [7] There is such a phenomenon as a "former homosexual," but there is no "former black American." This, of course, is the result of the fact that homosexuals are identified by behavior and blacks, as Martin Luther King often said, are identified by race and the color of their skin.

Neff goes on to point out that, at the present time, visible gays, in general, are not oppressed; and Andrew Sullivan, gay editor of The New Republic, agrees with him: "The civil rights approach is bound to perpetuate a sense of homosexual identity as the Vulnerable Victim," setting up, in Sullivan’s words, "a psychological dynamic of supplication that too often only perpetuates cycles of inadequacy and self doubt." [8] Neff also objects that the civil rights approach locks a person into a homosexual identity as some thing one must have permanently. [9]

Another gay author, Jonathan Rauch, in The New Republic, agrees that the gay community should abandon the oppressed minority argument. Granting that in specific instances there has been violence against homosexual persons, for the most part the oppression diagnosis is wrong. The standard political model is that gays are oppressed and that they must fight for liberation through political action, just like other minorities. But Rauch says that objective evidence indicates that, on the whole, the homosexual community is not oppressed. He provides five signposts of oppression to support his position:

  1. Are homosexual persons subject to direct legal discrimination? Yes, in some states that have antisodomy laws and prohibition of domestic partnerships.
  2. Are they denied the right to vote and to lobby for their cause? No.
  3. Are they denied opportunities for education? No. Various studies indicate that, on the whole, they are more highly educated.
  4. Are they in impoverished economic conditions? No. Indeed, they are very well off economically.
  5. Are they subject to human rights violations without recourse? Here they are no worse off than the general population. [10]

Rauch proposes a different strategy. Instead of presenting gays and lesbians as oppressed, present them as "an ostracized people seeking redemption through personal action." [11] In the same issue of The New Republic, Urvashi Vaid argues that the victories of the gay rights movement are limited in many places by local and state laws and that it is time for all gays to come out of the closet and organize into a political power into which they contribute their wealth. After all, no movement can be built by a people invisible to each other and to society. Obviously, a new agenda is in the process of development in the gay community, aiming to have their lifestyle accepted by the rest of the population. In his book Virtually Normal, [12] Andrew Sullivan presents arguments for the full acceptance of homosexual marriages. In his conception of natural moral law, he considers homosexuality as a natural variant from the heterosexuality that is the destiny of the vast majority of the human race.

While it is extremely doubtful that the majority of Americans will approve a homosexual lifestyle, it is more likely that so-called homosexual rights will be imposed upon the public by decisions of federal judges. In Colorado almost a million people opposed affirmative action for persons with homosexual orientation (and in many cases behavior), but the will of the people was thwarted by judicial decision. According to an editorial in National Review, this foreshadows how important decisions on homosexual rights increasingly will be made." Such decisions will be made by federal judges operating on the premise that the "equal protection" clause of the Fourteenth Amendment prohibits disparate treatment of gays and lesbians. A federal judge in New York State ruled that the state adoption laws were unconstitutional because they distinguished between married couples and homosexual couples. A federal judge in the Midwest overturned an insurance policy because it did not provide for the "spouse" of the deceased homosexual individual. [13]

In Minneapolis, a Minnesota civil rights panel voted 2 to 1 to require the city and the public library to pay a total of $90,516 in compensation and punitive damages to three lesbian library employees because the municipal authorities had refused to pay health benefits to the "spouses" of the employees. [14] The trend in these court decisions makes one wonder how both society and the Church can protect their lawful interests against what seem to be arbitrary judicial decisions.

I turn now to a theological opinion in favor of homosexual unions under difficult circumstances. Previously, in The Homosexual Person, [15] I had presented major dissenting theological views within the Roman Catholic Church," while not surveying the varied views of Protestant and Jewish theologians. [16] Continuing the same policy, I shall critique one other Catholic view, that of Father John Yockey.

Father Yockey proposes to go beyond the restatement of the Congregation for the Doctrine of the Faith concerning the immorality of homosexual activity by outlining a procedure for applying the ancient theological principle of oikonomia (economy) in cases in which the well disposed cannot meet the standards of Catholic sexual morality. He does not see this procedure as a dispensation from moral law held with certitude; it is rather Christ reaching out to the person in a difficult set of circumstances through a prudential decision dictated by pastoral wisdom. This procedure suspends the existing norm of faith and morals in favor of an alternative approach that can better help the individual, severely oppressed by the existing norm, to achieve ultimate union with God. [17]

While I commend Father Yockey for his genuine pastoral concern, I see no essential difference between his view and that of Father Charles E. Curran, which I have critiqued elsewhere. [18] Both theories assume that the given individual is usually not able to meet the standard moral norm. This assumption is directly contrary to the teaching of the Sixth Session of the Council of Trent on sexual abstinence. In essence, that teaching states that it is a matter of divine faith that each person receives sufficient grace to fulfill the commandments of God. In Yockey’s theory, however, the divine law of chastity, which the Church holds as binding on everyone, is seen as an oppressive burden on a particular individual with homosexual orientation. By what criterion do we know that Christ is directly exempting a given individual, or class of individuals, and not others from the divine law of chastity? [19] There is no such criterion. Once again, regarding sexual abstinence as oppressive or burdensome runs contrary to the faith experience of many chaste homosexual persons.

Arguments against "gay rights"

It is necessary now to examine the civil rights claims of gay organizations, because, if accepted by our federal and state governments through legal statutes or through Supreme Court interpretations, they will come into conflict with the free exercise of religion by all those who regard homosexual activity as immoral.

Michael Pakaluk, Richard F. Duncan, and John Finnis help us to see the ensuing conflict between the application of gay rights laws and the free exercise of religious beliefs? [20] First, I shall consider Pakaluk’s thought.

Michael Pakaluk

One wonders why gay leaders seek from the law kinds of protection that go beyond the fundamental rights that all Americans enjoy under our Constitution, such as freedom of conscience and religion, freedom of speech, freedom of association, and so on. When injustice is done to us, we have recourse to legal remedies. What claims does the homosexual movement make upon us? Pakaluk sees this group making claims in three distinct but related areas: 1. antisodomy laws should be repealed because they are unconstitutional, 2. discrimination against gays in housing and employment should be forbidden, and 3. same-sex unions should be given all the privileges that states have traditionally given to heterosexual marriage.

1. The homosexual movement argues that antisodomy laws should be repealed because they penalize persons for their private behavior, violating their putative right to privacy. They are an undue restriction upon one’s right to the kind of sexual activity in which he chooses to engage. In addition, such laws are unenforceable, creating more problems than they solve, such as blackmail and entrapments. [21] Thus, they should be overturned. Repealing these laws would not necessarily be an approval of homosexual acts, but simply a decriminalization of them. 2. To justify proposals to prohibit discrimination in employment practices and in public housing, the homosexual lobby claims that homosexual persons are an oppressed minority. Like African Americans, homosexuals should receive equal treatment by reason of the equal protection clause of the Fourteenth Amendment. Therefore, employers and owners of public housing may not refuse employment or housing to someone in the homosexual lifestyle, which in itself should be regarded as morally neutral. 3. Just as heterosexual persons in their marriage are granted special privileges by the state, so also should same-sex unions have the same benefits, says the gay rights movement, because gays regard their unions as equal to the state of marriage. They give no sound argument for this position or for their insistence on the right to adopt children or to care for foster children.

Pakaluk points out that in the prevailing political climate, where the act of heterosexual intercourse has been divorced from its procreative meaning and where it is claimed that all morality is culturally determined and constantly in flux, like the culture itself, it is not surprising that the civil law is blind to fundamental moral truths. That disordered homosexual desires lead to sodomy, and that we are moving toward a condition of moral anarchy, not only in this issue but also in others, like the "right" to abortion, is overlooked as legal authorities have resort to the so-called right to privacy—something not in the Constitution.

Although the "right to privacy" was invoked in Griswold v. State of Connecticut (1965) with reference to the "right" to use contraceptives and in Roe v. Wade (1973) with reference to abortion, the meaning of this "right" remains ill defined. It has become a kind of absolute value with no reference to the good of family or nation, or to the ultimate source of all rights, the Creator.

In 1961 Justice Harlan referred to certain basic moral principles that form the basis of our civil law regarding the welfare of the family and ultimately of the country. He said, for example, that adultery strikes at the heart of marriage. But, in the court decisions mentioned above and in gay rights legislation, the right of privacy of the individual has been expanded, and the impact of this legislation upon the soundness of family life ignored. The law has become blind to the morality of sexual acts, which, in their judgment, harm no one. Once sexual intercourse of husband and wife lost its procreative meaning in the minds of millions of Americans, any kind of sexual act done in private could be justified. The implicit assumption is that everyone has a right to some form of sexual intercourse, so long as it harms no one and does not offend public decency, and that sexual acts in themselves are neutral, having nothing to do with personal character. This assumption has led to anarchic subjectivism in judicial decisions concerning "private" sexual acts that presumably harm no one.

This view of sexual morality supports gay propaganda in the contention that homosexual orientation and behavior have nothing to do with character. [22] Pakaluk shows the absurdity of saying that sexual behavior has nothing to do with character, asking how society regards the habitual philanderer, the adulterer who wrecks a marriage, or the person who sexually harasses another. Why, then, should homosexual behavior be exempt from the moral norms of society?

Certainly, society does not approve of prostitution, because it symbolizes contempt for the human person whose body is bought; likewise, for thousands of years society has disapproved of sodomy as an act that in no way fulfills the purposes of human sexuality. But now it is regarded as a natural action for persons with homosexual desires. To be sure, the repeal of antisodomy laws does not constitute a legal right to sodomistic intercourse; nonetheless, it is the first step to the equalization of same-sex unions with heterosexual marriage, ultimately leading to the destruction of the traditional family.

Even if antisodomy laws are unenforceable, they have educational value, like the laws against prostitution, expressing society’s disapproval of activity contrary to family values. They make a statement that control over one’s sexual desires and consequent chaste behavior are intimately related to one’s moral character, just as lack of control gives another message.

Pakaluk distinguishes carefully between homosexual orientation and acts, seeing the orientation itself as a handicap, because such desires can lead to the moral disorder of sin. Many persons with this inclination, however, do not disclose it to the public, struggling with the help of support groups like Courage to lead a life of sexual abstinence out of love for God. There is no reason for the person with such an orientation to feel that he is a second-class citizen. As I have pointed out previously, the analogy between homosexuals as oppressed persons and African Americans before the civil rights marches is false. As a group, known homosexuals (gays) are economically better off than the average person—they are not an economically oppressed minority. [23]

Agreeing with the argument of Richard Duncan, Pakaluk points out that gay rights laws that fail to distinguish between homosexual orientation and practice and that assume that a person has a "right" to homosexual acts set up an unavoidable conflict between the civil law and the conscience of a landlord of an apartment house who believes that homosexual acts are gravely immoral. Duncan presents a hypothetical case similar to the facts of a recent one in California:

Margaret McCabe is a seventy-five-year old woman who was recently widowed and is supporting herself on Social Security and a little income generated by a five-plex apartment building she owns and manages. As a devout Roman Catholic, Mrs. McCabe believes that fornication and homosexual behavior are serious sins and that it is sinful for her to facilitate others who wish to commit these sins .... Therefore, although Mrs. McCabe is willing to rent to married heterosexual couples and to single men or women, she is unwilling to rent to unmarried homosexual or heterosexual cohabiting couples. [24]

Duncan points out that implementation of the gay rights law on housing leads to an unavoidable conflict with Mrs. McCabe’s free exercise of religion. In essence, the government is legislating its view on sexual morality and imposing it on Mrs. McCabe, thereby interfering with her right to follow her conscience in the exercise of religious freedom. Obviously, such laws restrict the exercise of religious freedom by institutions as well as by individuals. There is no middle ground. This leads Duncan to ask the question: "If this regulatory scheme is enacted, are religious objectors entitled to a free exercise exemption? [25]

Turning now to the rights of parents whose children are in public schools, Pakaluk sees the same conflict between the public immorality implicit in promoting the homosexual lifestyle and the parents’ concerns that their children are taught that this lifestyle is perfectly acceptable. If parents oppose this teaching at PTA meetings, they are characterized as bigoted by the professional educators and the media. [26]

Moreover, Pakaluk believes that the widespread attitude, fostered by professed gays and the media, that one may not discriminate in any way against the homosexual lifestyle will harm the mission of Courage. Its members who refuse to "come out of the closet" will be regarded as "Uncle Toms" (again the invidious comparison with the truly oppressed blacks of the past) for refusing to fight for "gay rights:" From my years of experience with Courage, I may add that our members are already the subject of contempt and derision from many Catholic homosexual persons actively involved in the homosexual lifestyle. We have our hate mail.

Speculating about why the public has been deceived by the false teaching that sexual behavior is independent of character, Pakaluk concludes that, in general, people do not examine the issue critically, listening instead to the slogan "don’t discriminate" and accepting uncritically the notion that various legal decisions in favor of gay rights are in accord with the Constitution, when, on the contrary, there is a discontinuity between earlier decisions of the Supreme Court defending basic principles of common law morality necessary for the common good and the decisions on contraception (1965), abortion (1973), and homosexuality (1985), which give unwarranted autonomy to the individual at the expense of family and society.

Concerning the third major claim of professed homosexuals, namely, that same-sex unions should have the same privileges as marriage, Pakaluk points out that there is no real comparison between heterosexual marriage and same-sex unions. Heterosexual marriage flows from the natural complementarity of man and woman, completing each in a permanent bond of love, leading to the procreation of offspring and family, and usually bestowing upon man and wife the rights and responsibilities of being father and mother. The natural meanings of human genital intercourse are in this way fulfilled. In sharp contrast, same-sex unions lack the power of procreation, making no real contribution to family or the human race. Their sexual activity involves a distortion of the physical complementarity of man and woman, because it cannot accomplish a true physical union. For these reasons such unions should not be called "marriages."" Unfortunately, however, the term marriage is applied to them, leading to uncritical thinking by the public. [27]

The claim that same-sex couples have a right to adopt children or to care for foster children is without foundation in the natural order of human sexuality. Both father and mother, as role models, contribute in different ways to the complete psychosexual development of their children, and the children have a right to male and female parents. There is no adequate substitute for the father-mother family. [28]

Since both sexes are necessary for the proper development of the child, the bond of friendship between man and wife is meant to be indissoluble and as strong as the ties of blood among siblings. This natural permanency of the marriage bond is obscured, however, by our cultural acceptance of divorce, in which the principal casualty is the child. It is thus appropriate for the state to bestow special benefits upon heterosexual marriage as a special kind of friendship that builds good families, thereby contributing to the common good of the state. In contrast, same-sex unions make no contribution to family or to the state.

Like Duncan, Pakaluk sees an ominous connection between acceptance of sodomy, imposition of the state’s will in not allowing individuals or institutions to discriminate in matters of housing, and the downgrading of heterosexual marriage to the level of same-sex unions. Once sodomy is tolerated, it is soon accepted, and those opposing it are considered by the media as prejudiced and oppressive. Special protection will be given to the gay lifestyle, while marriage, now dissociated in the minds of the public from the mission of procreation, will no longer be regarded as necessary for the common good of the state but merely another way of exercising one’s right to the kind of sex one desires. If faithful monogamous marriage is no longer necessary for procreation, will it be replaced by polygamy or polyandry? Such is the grim picture of the possible redefinition of the family presented by Pakaluk at a Courage conference.

Pakaluk, however, ended on a note of hope, pointing out that this path of social decline is not inevitable. He urges Courage members to spread the message of virtuous and chaste living to the world around them.

Richard F. Duncan

Professor Duncan explores the legal ramifications of gay rights legislation. Considering the relationship of public policy to sexual orientation laws, he shows that gay rights legislation declares homosexual behavior to be good and religiously motivated discrimination to be evil. [29] This issue may force "the Supreme Court to rethink its unwise decision, in Employment Division v. Smith, to drastically reduce the scope of the Free Exercise Clause." [30]

It is necessary to give the facts of the Smith case, also known as the "peyote" case, in order to understand Duncan’s critique:

Two members of the Native American Church, Alfred Smith and Galen Black, were denied unemployment benefits after being fired from their jobs as drug counselors. The benefits were denied because Smith and Black had been discharged for work-related misconduct—their illegal use of the hallucinogenic drug peyote for sacramental purposes at a ceremony of their church.

Smith and Black claimed that the denial of the benefits was an unconstitutional burden on their free exercise of religion, because it penalized them for taking part in what to them was a religious sacrament .... [T]he United States Supreme Court reversed the Oregon decision [of its Supreme Court], upheld the denial of benefits and, at least for the present, rejected the compelling interest test for most (but, significantly, not all) free exercise challenges. [31]

Duncan foresees conflicts between laws that protect sexual behavior outside of marriage and the faith convictions of individuals and institutions opposed to such behavior. He wonders whether exemptions from such laws will be made for religiously motivated people. In his argument he refers to Dennis Altman’s book

The Homosexualization of America, where the point is made that the homosexual movement has cleverly changed the focus of debate from behavior to identity; thus, opponents are viewed as attacking the civil rights of homosexual citizens rather than attacking specific antisocial behavior.

Rejecting the claim of gays to minority status, Duncan shows that sexual behavior and orientation give us much information concerning what a person does, or is inclined to do, whereas race tells us nothing about a person’s character. Sexual conduct and preferences, moreover, are fraught with moral and religious meaning. At least one can say that homosexual behavior is morally controversial. Thus, a landlord or employer who makes a distinction concerning another person’s sexuality is really making a judgment about the other’s character.

Since landlords and employers may regard homosexual behavior as immoral, it is up to professed homosexuals to prove that the beliefs of such persons are unreasonable and that homosexual practices are in fact morally neutral. [32] But gay rights advocates are not interested in undertaking such proof. There is no consensus in America that homosexual behavior is morally acceptable.

Duncan goes on to show that the other protected categories under anti-discrimination laws—gender, religion, and disability—are different from sexual orientation and behavior. "[R]eligious freedom is a fundamental constitutional right" from the beginning of our nation." [33]

Duncan points out, moreover, that the goal of civil rights legislation is social legitimation. From the literature of homosexual advocates it is clear that their strategy is to change society’s anti-gay attitudes and to vilify those opposing their agenda. Duncan stresses the high stakes involved:

When government passes homosexual rights legislation it sends a message to society that the homosexual lifestyle is legitimate, perhaps on a par with marriage and family life, and that the government is so committed to this value that it will bring force to bear against those who wish to manage their businesses in accordance with a different code of ethics. Persons who believe that the homosexual lifestyle is sinful, immoral, or destructive of traditional family values are given a Hobson’s choice under homosexual rights laws—either reject these deep personal beliefs as a code of business ethics, or get out of business. [34]

But homosexual rights laws are only one prong of a large scale campaign to change the way we think about homosexuality. Other strategies are meant to manipulate the media and the public school curricula. Two favorite buzz words in these strategies are homophobia [35] and religious intolerance. (More recently, it is the religious right.)

Policymakers must be made aware of the high stakes involved in extending anti-discrimination laws to human sexual behavior. It is not a question of race, gender, or economic disparity. The issue is a choice

between the values of moral relativism and the sexual revolution on the one hand, and the traditional values of family and religious freedom on the other .... Although the issue may be primarily a symbolic one, it is nevertheless symbolism of crucial importance . . . . It is about who we are and what we value . . . . The decision whether to turn our backs on millennia of moral teaching should be the product of careful and thoughtful judgment and not of a subtle and manipulative campaign of propaganda. [36]

Next Duncan focuses our attention on the problems created for "religiously-motivated institutions and individuals" (417) by homosexual rights legislation in 139 jurisdictions (416, n. 83). He carefully spells out the dangerous impact of the Supreme Court’s decision in Employment Division v. Smith (1990) on the free exercise of religious freedom. In his judgment "the Supreme Court cast aside almost three decades of free exercise jurisprudence." [37] He quotes Douglas Laycock to the effect that the Smith decision is inconsistent with the apparent meaning of the constitutional text. [38] More troubling than the Smith decision’s analytical shortcomings is its impact on the quality of religious freedom. "If the Court intends to defer to any formally neutral law restricting religion," observes Laycock, "then it has created a legal framework for persecution, and persecutions will result." [39]

Duncan believes that if free exercise of religion in the Bill of Rights has been misrepresented, it is important that we understand that the Court does allow some exception to the general rule of non-protection. Perhaps the exception that seems most compelling is "hybrid" claims i.e., claims under which free exercise is ‘reinforced’ by another constitutional interest such as free speech, association, or the right of parents to direct the education of their children." [40]

The remainder of Duncan’s article discusses cases of free exercise, which involve hybrid claims or laws that are not neutral or not of general application burdening religious practice. He describes situations in which there is restriction on religious conscience created by the enforcement of homosexual rights laws. In developing his argument Duncan points out that partial religious exemption from Smith is not satisfactory, because it leaves other believers unprotected; there must be equal protection of religious exercise. In one state several Catholic clerics argued for the gay rights bill in the media with the understanding that the Catholic Church would be exempt from certain provisions concerning the "right" of openly gay persons to teach in Catholic high schools. So the Church remained "neutral," while clerics and politicians traded exemptions in support for the silence of the Church. Indeed, such silence may be regarded as implicit approval. [41]

Duncan gives special attention to the case of Gay Rights Coalition v Georgetown University. The District of Columbia Court of Appeals held that the D.C. ordinance was justified because homosexual orientation " `tells nothing reliable about abilities or commitments in work, religion, politics, personal and social relationships, or social activities’ . . . . Unfortunately, the court did not explain this highly controversial conclusion." [42] As Pakaluk has observed, sexual behavior in general and homosexual behavior in particular do say something about the character of the agent. Duncan refers to Ben Shalom v Marsh (1989), in which the Seventh Circuit Court reasoned that even the orientation itself, which it described as "a propensity to engage in morally controversial behavior," [43] should be taken into account.

It is indeed curious to note that a civil court is more willing to see some connection between homosexual orientation, character, and possible behavior than many moralists. In Ben Shalom v. Marsh, the issue was the significance of a person’s admission that she is a lesbian. The Seventh Circuit Court concluded that this admission of sexual orientation "can rationally and reasonably be viewed as reliable evidence of a desire and propensity to engage in homosexual conduct. Such an assumption cannot be said to be without individual exceptions .... To this extent, therefore, the regulation does not classify [the] plaintiff based merely upon her status as a lesbian, but upon reasonable inferences about her probable conduct in the past and in the future." [44]

Duncan thinks that the Seventh Circuit’s reasoning is more persuasive than that of the D.C. court in the Georgetown case, and I agree. After all, this is not a condemnation of an individual person but a realistic appraisal of probable conduct.

Homosexual rights laws seem to be more the result of interest group politicians, sometimes under pressure from gay organizations, than a deep commitment on the part of society to carry out a value of the highest order. With regard to such laws the state’s interests are far from compelling, as they are in regard to just treatment of racial and ethnic minorities. [45]

Duncan and the many authorities he cites are not alone in their concern that gay rights laws will unduly and unjustly restrict the exercise of religious freedom. Congress, for example, passed the Religious Freedom Restoration Act of 1993 (RFRA), and it was signed into law by President Clinton. This law, supported by liberals, conservatives, and moderates, recognized that Smith " ‘virtually eliminated’ constitutional protection of religious freedom and seeks to restore that protection by creating a statutory exemption for religiously-motivated behavior burdened by governmental action . . . . In effect, RFRA creates, as a matter of national civil rights policy, a statutory exemption for free exercise equal in scope to the pre-Smith constitutional rule.." [46] (Ed. Note: The U.S. Supreme Court declared RFRA unconstitutional in 1997.)

Duncan agrees with Douglas Laycock that "unless the [Supreme] Court gives full scope to the exceptions to the general rule of Smith, that general rule of no free exercise protection for religiously motivated conduct will create a 'legal framework for persecution.’" [47] First, individual believers will be persecuted for discriminating against homosexuals in housing and employment; after that, persecution will extend to Christian schools and churches who discriminate against homosexuals; and later there will be the withdrawal of tax-exempt status from churches for refusing to ordain homosexual ministers. (I think the latter is unlikely,) In Duncan’s view, moreover, RFRA is not sufficient to protect religious freedom from these dangers, because, as an act of Congress, it can be repealed at any time. Employers and landlords are forbidden by gay rights laws from making judgments of character with regard to whom they hire or whom they allow to live on their premises. In. short, gay rights laws impose one view of sexual morality (sexual relativism) on the people and then enforce this code of morality on orthodox religious believers. It is wrong for a political majority to use the power of government to stigmatize another group. "Through homosexual rights laws, the state chooses sides in the cultural war that has divided our society, and one side—orthodox religion— ' on the receiving end of the law’s stigma and consequential material harms.’" [48]

Not surprisingly, Duncan insists that gay rights laws should not be passed, and where passed, they should be repealed. [49] If the Court allows such laws to be enforced against religiously motivated persons, it could be the end of religious pluralism in America. This view is supported by the thesis of John Finnis, [50] a distinguished professor of law and legal philosophy at Oxford, who sheds light on other aspects of the gay rights issue.

John M. Finnis

Reviewing British and European law on the issue of homosexual behavior and the various statutes against discrimination, John Finnis notes that "the standard modern position deliberately rejects proposals to include in such lists the item ‘sexual orientation.’" [51]

The explanation commonly given . . . [is that the] phrase "sexual orientation" is radically equivocal. Particularly as used by promoters of "gay rights" the phrase ambiguously assimilates two things which the standard modern position carefully distinguishes: (I) a psychological or psychosomatic disposition inwardly orienting one towards homosexual activity; (II) the deliberate decision so to orient one’s public behavior as to express or manifest one’s active interest in and endorsement of homosexual conduct and/or forms of life which presumptively involve such conduct. [52]

Finnis points out that in gay tights laws in America the. tendency is to equate orientation with behavior, but this is not so in Europe. In America, moreover, the result is that the law itself ends up teaching that homosexual conduct is a good to which one has a "right." This raises a question Finnis seeks to answer, namely, whether the European position that homosexual conduct is evil can be defended by rational argument. [53]

Finnis opens his argument by pointing out that "Socrates, Plato, and Aristotle regarded homosexual conduct as intrinsically shameful, immoral, and indeed depraved or depraving. That is to say, all three rejected the linchpin of modern ‘gay’ ideology and lifestyle." [54]

Following the thought of the ancient philosophers, Finnis develops his argument that all homosexual conduct or genital activity is evil by proposing three fundamental theses:

(1)The commitment of a man and a woman to each other in the sexual union of marriage is intrinsically good and reasonable, and is incompatible with sexual relationships outside marriage. (2) Homosexual acts are radically and peculiarly non-marital, and for that reason intrinsically unreasonable and unnatural, (3) Furthermore, according to Plato, if not Aristotle, homosexual acts have a special similarity to solitary masturbation, and both types of radically non-marital acts are manifestly unworthy of the human being and immoral. [55]

Finnis makes use of the pagan Plutarch’s understanding of marriage, that genital intercourse between spouses enables them to experience and in that sense express the marriage itself, "as a single reality with two blessings (children and mutual affection)." [56] All other forms of intercourse have no such meaning and are, therefore, unacceptable. In the Christian era Augustine comes close to Plutarch’s thought., but he never quite recognizes that in sterile and fertile marriages alike "the communion, companionship, societas and amicitia of the spouses—their being married—is the very good of marriage, and is an intrinsic, basic human good, not merely instrumental to any other good." [57]

The significance of Plutarch’s position then is that he makes sexual intercourse between husband and wife not merely an instrumental good but also an expression of the basic human good of union. From this Finnis concludes that parenthood and family are "the intrinsic fulfillment of a communion which, because it is not merely instrumental, can exist and fulfill the spouses even if procreation happens to be impossible for them." [58]

Turning now to the second thesis, that homosexual acts are radically nonmarital, Finnis shows that in both heterosexual intercourse before marriage, as well as in homosexual acts, the couple cannot experience or actualize a marital good. It does no more than provide each person with individual gratification. Their bodies are used as instruments in the service of their conscious selves. Such conduct disintegrates them precisely as acting persons. [59]

Finnis’ third thesis, following Plato, is that homosexual acts are similar to masturbation, and both are unworthy of humans and hence immoral. Avoiding the sentimentality of homosexual lovers in hard-nosed fashion, Finnis points out that reality is known through judgments and not through emotions. There is no real difference between same-sex acts of lovers and those of strangers in a rest room, or a prostitute giving a client some pleasure, or a man masturbating with a fantasy of more human relationships at the end of day’s work. [60]

Concerned with the objective meaning of homosexual actions as moral evil, Finnis states that there is no important distinction in essential moral worthlessness between solitary masturbation, being sodomized as a prostitute, and being sodomized for the pleasure of it. Sexual acts cannot in reality be self-giving unless they are acts by which a man and a woman actualize and experience sexually the real giving of themselves to each other—in biological, affective and volitional union in mutual commitment, both open-ended and exclusive—which like Plato and Aristotle and most peoples we call marriage. [61]

Sexual acts, then, do not truly unite man and woman in friendship unless they are marital, and to be marital they must also be open to procreation in the sense that they are the kind of acts of the reproductive function that under certain circumstances would lead to a child. Thus, Finnis makes room for sterile marriages; at the same time it is painfully obvious that homosexual activity cannot fulfill these two purposes of union and procreation. This brings us to Finnis’ next argument.

From ancient Greece and contemporary England he draws the distinction between behavior that is merely offensive, such as eating excrement, and "behavior to be repudiated as destructive of human character and relationships." [62] The example given is the copulation of humans with animals, which reduces the act of intercourse to a purely animal act. "The deliberate genital coupling of persons of the same sex is repudiated for a very similar reason." [63] Here Finnis goes beyond the arguments of the sterility of same-sex activity and the disintegrative manipulations of each partner to a new consideration, namely, that such activity is hostile to the self-understanding of those persons who are willing to commit themselves to real marriage.

This self-understanding of the spouses leads them to perceive the sexual joys of marriage as a way of actualizing and experiencing their intelligent commitment to shared responsibilities in genuine self-giving. [64]

Finnis sees the gay ideology and its use of the term orientation in the sense of a deliberate willingness to engage in homosexual activity as deeply hostile to the understanding of human sexuality in the minds of those members of society who are willing to commit themselves to real marriage. Homosexual ideology really denies the intrinsic meaning and value of marital sexual intercourse as something good in itself. If one holds that homosexual acts can be a "humanly appropriate use of sexual capacities," then, to be consistent, one must regard sexual desires and acts primarily as instruments for gratifying the individuals themselves.

Finnis sees this focus on self-gratification in gay activity as a genuine threat to present and future marriages. It makes nonsense of the view that adultery is immoral because it is a betrayal of the covenantal unity of spouses. Such a depreciation of marriage, implicit in the gay ideology, poses a tremendous challenge to the political community. If the community believes that the soundness and stability of family life are crucial to the well-being of the state, then "it has a compelling interest in denying that homosexual conduct—a ‘gay lifestyle’—is a valid, humanly acceptable choice and form of life, and in doing whatever it properly can . . . to discourage such conduct." [65]

In his conclusion Finnis makes the important distinction between private and public acts of morality in regard to the state’s duty to promote virtue for the sake of the common good. He believes that the state should not attempt to control "secret and truly consensual adult acts of vice" by making such punishable acts against the laws of the state; at the same time a law that did not criminalize private acts of sodomy between adults should not also tolerate the advertising or marketing of homosexual services, the maintenance of places of resort for homosexual activity, or the promotion of homosexualist "lifestyles" via education and public media of communication, or to recognize homosexual "marriages" or permit the adoption of children by homosexually active people . . . . [66]

Personal comments on gay rights legislation

In practice, in the United States the decriminalization of sodomy laws in twenty-three states and the nonenforcement of sodomy laws in all the other states have contributed to a general attitude on the part of the public that may be described as both passive and hostile: passive in the sense that many people tolerate the above quoted public manifestations of the homosexual lifestyle, hostile in the sense that people feel resentfully helpless to change the situation to one of public decency.

Meanwhile, many public officials curry the favor of the loudly articulate homosexual leaders because they are afraid of losing votes, while the mainstream media uncritically accept the goals, the activities, and the programs of homosexual activists. For example, in late June 1994, the Gay Pride Parade in New York City was authorized to move up First Avenue—not Fifth Avenue, where St. Patrick’s Cathedral is located—nonetheless, without a permit a group of gay activists paraded up Fifth Avenue, coming to a halt in front of the cathedral. Various public insults were shouted at the Pope, the Church, and Cardinal O’Connor. A group of men and women danced in the nude, mocking the Catholic Church. Meanwhile, policemen were told to do nothing. When questioned by the press, the mayor said that the nonaction of the city was meant to avoid further disturbances. There was no protest from the press, such as would be expected were one to insult the blacks, the Hispanics, the Jewish people, or any other minority.

The point is that at the present moment the public, in general, does not understand the gay rights movement. This, however, is only one more manifestation of cultural relativism in the area of sexuality, marriage, and family. In the public square, then, there is need for education on the moral issues involved in the gay rights movement. Arguments based upon revealed truth will not be accepted, while arguments based upon natural moral law, such as those of Michael Pakaluk, Richard Duncan, and John Finnis, will need to be translated into the language of the general public.

We must clearly explain what we mean by "rights" and "the common good," the meaning of human sexuality as it is expressed in marriage, the self-destructive nature of the homosexual lifestyle, apart from the AIDS epidemic, and the increasing empirical evidence that many are able to get rid of the homosexual condition through sound therapy, prayer, and spiritual group support.

An encouraging event took place on May 12, 1995, to which I refer above in footnote 49 of this chapter. A federal appeals court declared constitutional an amendment to the city charter of Cincinnati, which prohibits the city council and other government bodies from granting "minority or protected status" to homosexuals. The court’s decision declares that one cannot make a law to benefit or to protect an "unidentifiable group or class of individuals" because their identity is defined by "unapparent characteristics," such as "innate desires, drives and thoughts:" Those claiming a homosexual "orientation" simply do not comprise, as such, an identifiable class. The decision goes on to point out that many homosexuals successfully conceal their identity, and that those who become identifiable become such by their conduct. It is their conduct that makes them identifiable, not their orientation. In other words, they are not a minority in the true sense, as has been pointed out previously. One can hope that other communities will follow the lead of Cincinnati with similar amendments to city charters.

Document from the Congregation for the Doctrine of the Faith

With this background I should like to review the CDF 1992 document on discrimination and homosexual behavior, because one of its concerns was gay rights legislation. Its counsel on this question was roundly criticized by various gay writers; thus, after explaining its counsels, I shall reply to a representative critic of the document.

The full title of this controversial document is "Responding to Legislative Proposals on Discrimination against Homosexuals" (LPDH). It was originally sent out as a private statement to the bishops of the United States, but its content was released to the press by New Ways Ministry. This led to a revision of the original, published by the Vatican. [67] The statement is divided into two parts. The first part reviews relevant passages from the 1986 letter of the Congregation for the Doctrine of the Faith (CDF) to the Bishops of the Catholic Church on the Pastoral Care of Homosexual Persons (PCHP). The second part provides some practical applications of the norms found in the first part.

Part 1: Relevant passages from the CDF 1986 letter

In the first part of the document on discrimination (LPDH 1992, also known as "Considerations"), the distinction is made between homosexual orientation and activity, the same as we have made throughout this book. It reiterates the position of the CDF letter on pastoral care (PCHP) that by 1986 an "overly benign interpretation" of homosexual orientation was widespread. It was noted that the distinction between orientation and activity had already been made in the CDF "Declaration Concerning Sexual Ethics" (1975), but some had gone so far as to call the orientation neutral or even good. The 1986 statement, however, says that the inclination itself must be seen as an "objective disorder," because "it is a more or less strong tendency toward an intrinsic moral evil" (PCHP, no. 3).

The point is made that any criticism or expression of reservations concerning a homosexual lifestyle is regarded as a form of unjust discrimination. Pressure groups seek to manipulate the Church, presenting the homosexual lifestyle as "harmless or even good"—as an alternative way of living. The CDF believes that placing the homosexual lifestyle on the level of marriage will have "a direct impact on society’s understanding of the nature and rights of the family and puts them in jeopardy" (PCHP, no. 9).

Part II: Application of principles in part I concerning discrimination

To review section 10 of the 1992 document: the CDF provoked a storm of criticism in the United States by repeating the judgment found in no. 3 of the 1986 letter, namely, that sexual orientation is, as such, an "objective disorder." Section 10 also asserts that sexual orientation is not comparable to race or ethnic origin. Although condemning crimes against homosexual persons, it pointed out that society should not introduce legislation to protect homosexual behavior "to which no one has any conceivable right." If society enacts such protective legislation of homosexual conduct, it should not be surprised if distorted notions and practices gain ground, leading to violent reactions from other parts of the citizenry (LPDH, no. 10).

Section II of the 1992 document says that it is not unjust discrimination to take sexual orientation into account in the placement of children for adoption or foster care, in the employment of teachers, in the appointment of athletic coaches, and in military recruitment. It should be noted that taking sexual orientation into account is not the same as excluding the person from employment or housing. It is only one of the factors. In practice, moreover, both the employer and the future employee recognize the deeply equivocal meaning of the term sexual orientation. [68] Section 12 of the 1992 statement states that rights are not absolute, and therefore the state can legitimately limit objectively disordered external conduct, and that it may have the obligation to do so in certain circumstances. Section 13 says that lack of discrimination against public homosexual behavior amounts to regarding homosexuality, as such, "as a positive source of human rights, for example, in respect to so-called affirmative action or preferential treatment in living practices."

The document adds that there is no moral right to homosexual behavior, and, therefore, the orientation itself should not be a basis for judicial claims for nondiscrimination. To give homosexual behavior legal protection is equivalent to preferential treatment, promoting the homosexual lifestyle. Then the claims of homosexual persons to their active lifestyle would be defended precisely as an affirmation of the homosexual condition, while opposition to such claims would be understood as violations of basic human right.

Section 14 discusses several situations (1) Those who do not disclose their sexual orientation usually do not have any problem with the civil law, [69] but those who assert their gayness usually put pressure on the Church to support them in changing civil statutes (LPDH, no.5). (2) Those who view the homosexual lifestyle as harmless or as entirely good and worthy of public approval consider all criticisms of their lifestyle as "diverse forms of unjust discrimination" (PCHP, no.9). (3) Civil legislation that makes a homosexual lifestyle the basis for entitlements could actually encourage a person with homosexual orientation to declare his gayness and even to seek a partner to exploit the provisions of the law.

Section 15 advises that careful attention should be paid to the simple provisions of proposed measures, such as a homosexual couple adopting a child or acting as foster parents for a child. Provisions such as these raise questions concerning the rights of the child to have both father and mother in his formative years. Again, domestic partnerships of same-sex couples are given the privileges of heterosexual marriage under certain forms of gay rights legislation, Should this be? Should gay couples have the same rights as a heterosexual married couple in regard to housing? Should the domestic partner sham in the health benefits of the partner who is working, as would the ordinary married person? Obviously, the CDF answers in the negative to these questions, but gay rights legislation will give an affirmative response to the above questions. The CDF wants American bishops to be fully aware of the implications of such legislation (PCHP, no 9). Section 15 also states that public authority should forbid both public and private acts. Finnis believes that good jurisprudence should restrict itself to the public domain, promoting public morality. Strictly private activity between adults cannot really be controlled. [70]

Sections 16 and 17 raise questions for American bishops. The CDF believes that it is inappropriate for a diocese to remain neutral or to endorse adverse legislation despite its making exemptions for Church organizations. There is good reason: "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 application of harmful laws" (LPDH, no17).

Criticism of the 1992 document

I have referred to this 1992 document as "controversial" because it was greeted with much criticism within English and American Catholicism. This criticism is epitomized in a recent article by Robert Nugent. [71] The author refers to the 1992 document as "Considerations," and I shall do the same in my response.

Nugent is correct that "Considerations" does not accept the analogy between "orientation" and race and gender. I believe that the insights of Pakaluk, Duncan, and Finnis have demonstrated that there is no true analogy between "sexual orientation" and truly innate characteristics of persons for the very good reason that many homosexuals make themselves a minority by their active lifestyle. "Orientation" still leaves one free to act out the tendency or not to do so. Again, I did not find in Nugent clear definitions of "orientation" and gender.

On page 77, Nugent makes homosexuality a positive endowment of a person and not an "objective disorder" (PCHP, no, 3,) Elizabeth Moberly, Gerard van den Aardweg, and a host of other writers see the condition as a psychic "deficit ‘ " On page 78 and throughout the article, the implication is that the homosexual orientation is fixed for life, and one must simply accept it. Yet a whole school of thought and a body of literature have demonstrated that some can move out of homosexuality and into heterosexuality. [72] In short, what does "accepting" homosexuality mean? Does it exclude the hope that one can get out of it?

Nugent implies that keeping one’s homosexual orientation secret leads to self-destructive repression and many suicides. [73] In my work with young people over many years I have not found this to be so. To assert that not coming out of the closet probably puts one in danger of suicide is to make a gratuitous statement not based on empirical evidence. There are many homosexual persons who, with the help of spiritual direction and the support of Courage or similar organizations, have been able to be chaste and, in some instances, have been able to move out of homosexuality. When Nugent argues on the basis of lack of "empirical evidence" to indicate that there are not many individuals with homosexual tendencies who practice chastity in the sense of avoidance of illicit sexual desires (lust) and sexual-genital acts, he reveals his ignorance of a whole body of Exodus literature as well as the Newsletters of Courage, indicating that there are many such who, while concealing their orientation from the public, lead chaste and healthy lives. [74] The Courage office in New York City, moreover, is filled with letters witnessing to persons of all ages who are leading chaste lives. It is clear that Nugent is not aware of the many people in Exodus and Courage who not only lead chaste lives but also stay far away from the advocates of "gay rights."

Again, Nugent assumes that the analogy between homosexual orientation and race and gender is valid. Referencing a list of authorities found in Michael Pakaluk, Richard Duncan, and John Finnis, I argue that it is invalid. Furthermore, in the context of "Considerations," it is clear that the document argues on the basis of the Church’s teaching found in the CDF 1986 letter, namely, that homosexual acts are intrinsically immoral, and, therefore, one does not have a moral right to such acts. Since the condition of homosexuality is not an attribute that one freely wills to have, one can hardly speak of a moral "right" to "homosexuality." On the contrary, one has a moral right to seek to get out of the condition.

Nugent finds fault with "Considerations" because it says that protection based on one’s sexual orientation easily leads to protection and promotion of "homosexuality" and homosexual acts. But, Nugent says, homosexual behavior is not the "focus of civil rights legislation which is worded primarily in terms of orientation." [75] According to Nugent, the CDF argument fails to make clear and precise distinctions between homosexual orientation and homosexual behavior. [76]

In reply, I point out that "Considerations" must be read in the context of the CDF 1986 letter, which clearly distinguishes between the above terms; furthermore, as I have already indicated in analyzing the positions of three eminent Catholic professors of philosophy and law, Pakaluk, Duncan, and Finnis, the word orientation in many gay rights bills includes activity as well. [77] It is foolish to believe that the primary intent and purpose of such legislation is to protect only "orientation:" That is why Nugent uses the adverb "primarily," because he knows that wherever such statutes have been passed—and they have been enacted in at least 65 cities—the protection and promotion of the homosexual lifestyle also takes place. [78]

An entirely baseless charge that Nugent launches against "Considerations" is that one is "making obligatory the performance of a direct evil (discrimination) without a proportionately grave justifying reason." [79] The focus here is on section 12 of "Considerations," with which Nugent agrees in part, that human rights are not absolute; but he disagrees with the document’s assertion that these rights can be limited in certain cases, because homogenital acts are "objectively disordered external conduct:" The document says that such limitations can be both licit and obligatory. I think it is necessary to look at the types of situations in which, according to "Considerations," one may have a right to discriminate against such conduct: employment of teachers or athletic coaches; military recruitment; cases involving landlords and tenants; and so on (section 12).

What Nugent and John Tuohey (whose argument Nugent uses) fail to consider is that there can be just discrimination in situations where there is a conflict of rights or alleged rights. Does a Catholic landlord of a small apartment complex, believing that any genital sex outside of marriage is immoral, have a moral duty to refuse rental to an openly gay couple? Or to an unmarried heterosexual couple? I believe that such a landlord can justly discriminate against such couples. It is his private property, and he does not want immoral practices taking place therein. The issue in this case is not what dangers to family or the commonwealth are involved but whether the landlord has a right to exercise his Catholic conscience or whether he can be forced to rent to individuals who will probably be involved in immoral activity. If that were to happen, then those individuals would be imposing their cultural morality upon the landlord.

Actually, some gay rights bills make exemptions for landlords of small complexes and for religious schools with regard to the employment of openly gay teachers or athletic coaches, Other situations are discussed in Richard Duncan’s article, where he sees an oncoming conflict between the claims of gay rights advocates in applying such legislation and the religious freedom not only of Catholics but of all those who in conscience will not be able to abide by such laws. [80]

One can agree with Nugent that the state should not legislate strictly private behavior of adults, heterosexual or homosexual, but it can, should, and does make regulations concerning public sexual behavior, and it is rightly concerned with the impact of such behavior upon families, particularly upon youth. [81] Public authority in city, state, and nation has statutes concerning pornography, prostitution. and the like. Why is public support of homosexual activity exempt from such regulation?

Nugent’s attempt to compare homosexual activity with the practice of contraception from the perspective that the civil law cannot legislate against either type of private activity is valid, but when it comes to the consideration of the effect of public homosexual activity upon family life, it is not valid. [82] The attempt of homosexual activists in New York City to influence the minds of children by writing into curricula the notion that the homosexual lifestyle is on the same level as marriage is hardly a private matter any more than homosexuals dancing nude in front of a Catholic church.

"Considerations" does not tell American bishops what to do in regard to specific gay rights legislation, but it offers some salutary warnings concerning the future effects of such legislation upon the family and the common good. I have already presented arguments against gay rights bills in general, in the authorities reviewed in this study as well as in my review of "Considerations," but I have not focused on any one bill in particular, It is the contention of Duncan and Finnis, for which they present evidence, that such bills have already created situations in which the homosexual lifestyle is promoted: witness San Francisco, New York City, and Washington, D.C. As already observed, Duncan foresees conflicts of conscience for Christians who hold that homosexual activity is immoral when confronted with gay rights statutes concerning housing and employment of individuals who publicly assert their homosexual lifestyle.

Again, I agree that offering religious institutions exemptions from various provisions of gay rights bills should not persuade the ordinary of a diocese to accept such bills. Should he be silent, for example, on domestic partnerships or same-sex couples adopting children? There is little doubt, moreover, that homosexuals regard same-sex coupling as equivalent to marriage. Surely, the public recognition of same-sex unions lowers the esteem of society for the sacred meaning of heterosexual marriages and families.

Conclusion: Although I have presented authorities who argue well against gay rights legislation, I believe that the culture war concerning the morality of homosexual activity will go on. It is a human issue affecting all of us. In a letter to First Things, Clifton L. Brinson writes:

In the area of public opinion the homosexuality debate falls along remarkably similar lines as the abortion debate. A small group is unequivocally opposed to it. A slightly smaller group is unequivocally in favor of it. The majority of the public maintains an inconsistent stance in which they are personally opposed to it, but don’t feel that they have the authority to impose their beliefs on others.... However, this battle is quite winnable for the orthodox.... their task is to…equip the American populace to translate its private revulsion into public policy. [83]

While it is true that some bishops have not opposed gay rights legislation, it seems that the majority are rightly cautious about such bills. It might be imprudent to condemn all provisions in a particular bill, but it might also be imprudent to endorse any gay rights bill presented to the ordinary of the diocese. In general, a bishop ought to seek advice from professional moralists who are known for their support of Church teaching before giving any kind of support to a proposed gay rights bill. There is far more wisdom in "Considerations" than there is in Nugent’s critique of the CDF’s document, I recommend that bishops read the solid arguments of Duncan and Finnis against gay rights legislation. [84] While providing good natural moral law arguments against homosexual activity and propaganda, they also present a realistic view of the current situation. [85]

Endnotes:

  1. "The Homosexual Movement," A Response by the Ramsey Colloquium, First Things (March 1994), p. 18; hereafter cited as Ramsey Colloquium. Back to text.
  2. In our culture there is a one-sided emphasis on personal rights with little or no consideration of the divine natural moral law as the source of all human rights. Little effort is made, moreover, to correlate rights with duties. In Pacem in Terris, John XXIII states the principle that every human being is a person, i.e., his nature is endowed with intelligence and free will. "Indeed, precisely because he is a person, he has rights and obligations which flow directly and immediately from his human nature" (no. 259). In this way human rights are given an objective basis, becoming more than a feeling.
    Back to text.
  3. Ramsey Colloquium, p. 19. Back to text.
  4. Ibid. Back to text.
  5. See my The Homosexual Person, pp. 107-15; also Reuda’s The Homosexual Network (West Greenwich, Conn.: Devin Adair, 1982), pp. 299-382, and Malloy’s Homosexuality and the Christian Way of Life (Washington, D.C.: University Press of America, 1981), pp. 145-62. Back to text.
  6. David Neff, "Two Men Don’t Make a Right," Christianity Today (July 19, 1993), pp. 11-15. Back to text.
  7. Lena Williams, "Blacks Reject Gay Rights Fight as Equal to Theirs," New York Times (June 28, 1993), p. Al. Back to text.
  8. Neff, "Two Men Don’t Make a right," p. 14. Back to text.
  9. Ibid. Back to text.
  10. Jonathan Rauch, "Beyond Oppression," The New Republic (May 10, 1993), pp. 18-23. See also Andrew Sullivan, "The Politics of Homosexuality," The New Republic (May 10, 1993), pp. 24-26, 32-37, where the author proposes abandoning the oppression argument in favor of a strategy that may win acceptance and equality from the American public. Back to text.
  11. Rauch, "Beyond Oppression," p. 23. Back to text.
  12. Andrew Sullivan, Virtually Normal (New York: Knopf, 1995). Back to text.
  13. "Courting Injustice," National Review (March 1, 1993), pp. 16-18. Back to text.
  14. "Lesbians Win Bias Case in Minneapolis," American Libraries 24 (January 1993): 18. Back to text.
  15. Harvey, The Homosexual Person, pp. 79-83. Back to text.
  16. I regret that I cannot cover the Protestant and Jewish views; however, I recommend Christianity Today, Christian Century The Anglican Theological Review, and Christianity and Crisis for presentations of Protestant views. Back to text.
  17. John Yockey, "Economic Mercy for All: A Dialogical Model for the Pastoral Care of Homosexual Persons," New Theological Review 3, no. 3 (1990): 71-87. Back to text.
  18. The Homosexual Person, pp. 81-84. Back to text.
  19. See the Catechism of the Catholic Church, no. 2348: "All the Baptized are called to chastity. The Christian has `put on Christ,’ the model for all chastity. All Christ’s faithful are called to lead a chaste life in keeping with their particular states of life. At the moment of Baptism, the Christian is pledged to lead his affective life in chastity:’ See also nos. 2357-59, Chastity and Homosexuality. In no. 2357: "tradition has always declared that homosexual acts are intrinsically disordered." In no. 2359: "Homosexual persons are called to chastity." Back to text.
  20. Michael Pakaluk, audiotape, Civil Rights Claims of Homosexual People (Boston: Daughters of St. Paul, 1994), talks presented at Courage National Conference 1994. Richard F. Duncan, "Who Wants to Stop the Church: Homosexual Rights Legislation, Public Policy, and Religious Freedom," Notre Dame Law Review 69, no. 3 (1994): 393-445. John Finnis, "Law, Morality, and `Sexual Orientation,"‘ Notre Dame Law Review 69, no. 5 (1994): 1049-76. Back to text.
  21. These examples are my own—from past discussions of the issue. Back to text.
  22. Gay rights bills speak of orientation as including some sort of sexual behavior, often using the term practices. Back to text.
  23. Duncan, "Who Wants to Stop the Church," 407-8: "Have gay rights proponents proven their case that homosexuals have been economically impoverished by discrimination in employment, housing, and public accommodations and are therefore in desperate need of the protection of anti-discrimination laws in these areas? No .... the data support the opposite conclusion: homosexuals are an economically advantaged group in our society .... Market surveys support these findings. For example, a 1991 study conducted by Overlooked Opinions, a marketing and consulting firm that specializes in the homosexual market, reported the following" average household incomes: Gay Men, $57,325; Lesbians, $45,927; National Average, $36,520.
    Back to text.
  24. Ibid., 395, n. 7. Back to text.
  25. Ibid., 396. Read n. 9-10 for further elaboration of the issue. Back to text.
  26. John Woestendiek, "Gay Teenagers Talk about Coping in School," Philadelphia Inquirer (Nov. 6, 1994), pp. B1-2. The Mid-Atlantic Regional Conference of the Gay, Lesbian, and Straight Teachers Network presented teenagers who felt alienated from the other students because they had made it known they were gay or lesbian, and among the remedies proposed for this situation was to teach that the homosexual lifestyle was perfectly acceptable. One teenager said that a curriculum should stress diversity and teach students "there is nothing wrong with being gay or lesbian" (B2). Back to text.
  27. Michael Pakaluk, "Why Is Homosexual Activity Morally Wrong?" in Homosexuality: Challenges for Change and Reorientation, Journal of Pastoral Counseling 28 (New Rochelle, MY Iona College, 1993): 53-57. Back to text.
  28. On this issue see Elizabeth Moberly, Psychogenesis: The Early Development of Gender Identity (London: Routledge and Kegan Paul, 1983). She sees the origins of homosexual orientation principally in the inability of the young person to identify with the parental figure of the same sex. Back to text.
  29. Duncan, "Who Wants to Stop the Church," 393-445. Back to text.
  30. Ibid., 398. Back to text.
  31. Ibid., 418. Back to text.
  32. Duncan refers to the late Chief Justice Warren Burger in the Bowers v. Hardwick case (1986) saying that we have "millennia of moral teaching" about homosexuality, all of it condemning the act: ibid., 404, n. 40. Back to text.
  33. Ibid., 411, including notes 64-65. "[R]eligious freedom is expressly protected by the Bill of Rights .... In contrast, the Supreme Court clearly has held that there is no constitutional right under the Due Process Clause to engage in homosexual sodomy." Back to text.
  34. Ibid., 413-14. Back to text.
  35. Ralph McInerny relates his experience at Notre Dame University concerning "campus publications inveighing against homophobia—a neologism which requires linguistic as well as moral illiteracy . . . . Students follow suit, urging this Catholic university to apply Catholic doctrine and acknowledge that the Church `does not distinguish between homosexual and heterosexual persons.’ . . . The university, in short, has allowed itself to be recruited into an ideological campaign whose aim is to celebrate homosexuality and treat any misgivings about it as somehow, well, perverse. Of course, the enemy has long been within the walls in the form of wobbling on the part of moral theologians. Homophobia has come to mean the principled judgment that perverted sex is a serious sin, that its practitioners lead hellish lives and nowadays run the risk of a horrendous disease .... If this is indeed what homophobia means, let’s have more of it." See his "In Defense of Homophobia," editorial, Fellowship of Catholic Scholars Newsletter (March 1994), p. 1. Back to text.
  36. Duncan, "Who Wants to Stop the Church," 415. Andrew Sullivan says that societal acceptance of homosexual marriages "is the highest public recognition of our personal integrity. Back to text.
  37. Ibid., 417. Back to text.
  38. Ibid., 419, n. 99 (Douglas Laycock, The Remnants of Exercise, 1990). See also note 100 in Duncan. Back to text.
  39. Duncan, "Who Wants to Stop the Church," 420. Here Laycock mentions that Smith recognizes that the free exercise clause continues to protect the right of religious belief as distinct from religiously motivated conduct. Hence, it is called formally neutral. Back to text.
  40. Ibid., 420. Back to text.
  41. Ibid., 425, and n. 133. See also the Congregation for the Doctrine of the Faith, "Some Considerations concerning the Response to Legislative Proposals on the Non-Discrimination of Homosexual Persons," Origins (Aug. 6, 1992), no. 16. Referring to gay rights bills, the document says that it is inappropriate for the Church to endorse or to remain neutral toward adverse legislation despite the fact that such legislation grants exemptions from its provisions to Church organizations and institutions. It leaves the rest of the faithful unprotected. In no. 17 it says that the Church is concerned with family life and the public morality of the entire civil society and "not simply to protect herself from application of harmful laws." Back to text.
  42. Duncan, "Who Wants to Stop the Church," 436. Back to text.
  43. Ibid., 437. In note 197 Duncan quotes from the Vatican document on non-discrimination against homosexuals, no. 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 . . . and evokes moral concern." Back to text.
  44. Quoted in Duncan, "Who Wants to Stop the Church," 437. Back to text.
  45. Ibid., 438. Note 199 gives references to the gay strategies, media campaigns, and sympathetic politicians. Back to text.
  46. Ibid., 439-40. Back to text.
  47. Ibid., 442. Back to text.
  48. Ibid., 443, n. 222; this note also refers to the thought of Laurence Tribe, American Constitutional Law 989 (1978). Back to text.
  49. On May 12, 1995, the United States Court of Appeals for the Sixth Circuit found constitutional an amendment to the city charter of Cincinnati that prohibits the city council and other government bodies from granting "minority or protected status" to homosexuals in any law, regulation, or policy. (New York Times [May 14, 1995], p. A18.) Back to text.
  50. "Law, Morality, and `Sexual Orientation,’" Notre Dame Law Review 69 (1994): 1049-76. Back to text.
  51. Ibid., 1053. Back to text.
  52. Ibid., 1053-54. Back to text.
  53. Ibid., 1055. Back to text.
  54. Ibid. Finnis documents his statement from the writings of Plato and Aristotle and the learned historians of Greek philosophy, demonstrating that the prevailing belief that Socrates, Plato, and Aristotle approved homosexual acts is in fact false. Back to text.
  55. Ibid., 1062-63. The emphasis on intrinsically is mine. Back to text.
  56. Ibid., 1064. Back to text.
  57. Ibid. Back to text.
  58. Ibid., 1065. Back to text.
  59. Ibid., 1066-67. See also Germain Grisez, The Way of the Lord Jesus, vol. 2: Living a Christian Life (Quincy, Ill.: Franciscan Press, 1993):555-74, 633-80, esp. 634-39. Back to text.
  60. Finnis, "Law, Morality, and `Sexual Orientation,"‘ 1067. See also the quotation from Plato’s Gorgias, 494-95 in n. 48. Back to text.
  61. Finnis, "Law, Morality, and `Sexual Orientation,"‘ 1067. Back to text.
  62. Ibid., 1069. Back to text.
  63. Ibid. Back to text.
  64. Ibid. (paraphrased). Back to text.
  65. Ibid., 1070 (italics in original). Back to text.
  66. Ibid., 1076. Back to text.
  67. See Origins, no. 2 (Aug. 6, 1992): 173-77. Robert Nugent holds that the original version was probably written in the United States by consultants of the CDF. The official version ("Some Considerations concerning the Response to Legislative Proposals on the Non-Discrimination of Homosexual Persons") was printed in English in L’Osservatore Romano, no. 30 (July 29, 1992), p. 5. See "The Civil Rights of Homosexual People: Vatican Perspectives," New Theology Review 7, no. 4 (November 1994):72-86. Back to text.
  68. Duncan, "Who Wants to Stop the Church," 397. As used in gay rights legislation, the term "sexual orientation" generally means practice as well. Such legislation includes "sexual orientation and practices among the protected categories" (n. 13). See also John Finnis, "Law, Morality, and `Sexual Orientation,’" 1053. Speaking of the standard European politico-legal position on anti-discrimination laws, which deliberately refuses to accept the proposal to accept in such lists the item "sexual orientation," Finnis gives the reason for such rejection. The term " `sexual orientation’ is radically equivocal" (1053-54). Back to text.
  69. "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": LPDH, no. 14. This is my experience with the members of Courage, as well as with many other homosexual persons living alone. Back to text.
  70. Finnis, "Law, Morality, and `Sexual Orientation,"‘ 1049-51. 84. Back to text.
  71. "The Civil Rights of Homosexual People," pp. 72-86. Back to text.
  72. See my The Truth About Homosexuality: The Cry of the Faithful (San Francisco: Ignatius Press, 1997), chapter four. Back to text.
  73. Vincent Genovesi, SJ., criticizes me for holding that if a homosexual person keeps his orientation secret he does not suffer any discrimination and can exercise his civil rights with no difficulty. He calls my opinion and that of the Congregation for the Doctrine of the Faith "invidious:" He goes on to ask whether keeping one’s orientation private is a "form of oppression:" He says those who keep their orientation to themselves "live in silent deceit, pretending to be other than who they truly are:" Living in this way would seem to be demeaning. See his "Human and Civil Rights for Gays and Lesbians," America (April 22, 1995), pp. 15-19, esp. 16. Back to text.
  74. For excellent book lists on this and related issues: Regeneration, Inc. Allan Medinger publishes a monthly newsletter. See also Courage Newsletters. Back to text.
  75. Whatever the wording of gay rights legislation, sexual orientation is interchangeable with orientation and practice in American gay rights legislation. See n. 52, above. Back to text.
  76. Nugent, "The Civil Rights of Homosexual People," p. 80. Back to text.
  77. Finnis, "Law, Morality, and `Sexual Orientation,"‘ 52, 65. Back to text.
  78. See Congressman William Dannemeyer, "Homosexuality and the Law," Shadow in the Land (San Francisco: Ignatius Press, 1989), pp. 57-87, esp. 66-73, where specific instances of the promotion of homosexual lifestyle are documented. One can also read the personal ads in the L. A. Advocate, the leading gay newspaper. Back to text.
  79. Nugent, "The Civil Rights of Homosexual People," p. 81. He takes this argument from John Tuohey, "The CDF and Homosexuals: Rewriting the Moral Tradition," America (Sept. 12, 1992), pp. 136-38. Back to text.
  80. Duncan, "Who Wants to Stop the Church," 393-401. Back to text.
  81. Finnis, "Law, Morality, and `Sexual Orientation,"‘ 1049-51, cites examples from British law regulating public sexual conduct, or even forbidding advertisements in periodicals concerning one’s availability for private homosexual acts, and this long after the decriminalization of adult private sexual conduct (1967). Back to text.
  82. John C. Callahan, "A Liberal Case against Gay and Lesbian Rights," New Oxford Review (December 1994), pp. 8-15. Arguing from the need to preserve the stability of family life and the protection of those who are not able to protect themselves, namely, children and adolescents, the author thinks that the legal and social acceptance of the homosexual lifestyle would have a deleterious effect upon the young, particularly youths who have homosexual inclinations and are vulnerable to seduction. Back to text.
  83. December 1994, pp. 4-5. Back to text.
  84. Ernest Fortin focuses on the importance of natural law in these debates: "For centuries the cornerstone of moral theology was not the natural or human rights doctrine, but something quite different called the natural law. Rights, to the extent that they were mentioned at least by implication, were contingent on the fulfillment of prior duties. Far from being absolute or inalienable, they could be forfeited by the individual who failed to abide by the law that guaranteed them. Simply stated, what the church taught and tried to inculcate was an ethic of virtue as distinct from an ethic of rights": "The Trouble with Catholic Social Thought," Boston College Magazine (Summer 1988), p. 38. Back to text.
  85. On June 18, 1995, the U.S. Supreme Court ruled unanimously that the private sponsors of Boston’s St. Patrick’s Day parade had a constitutional right to exclude marchers whose message they reject, including those who seek to identify themselves as gay, lesbian, and bisexual Irish-Americans: New York Times (June 19, 1995), pp. A1, B16. Back to text.

 


ACKNOWLEDGEMENT

Harvey, Father John F. "The Dangers Presented by the "Gay Rights" Movement, and a Response." In Defending the Family: A Sourcebook (Steubenville, OH: The Catholic Social Science Press, 1999): 83-101.

(ISBN: 1-888462-00-0). Order from Franciscan University Press, University Boulevard, Steubenville, Ohio 43952/ (800) 783-6357. Reprinted with permission of The Society of Catholic Social Scientists, Inc.

This article was previously published as a chapter in The Truth about Homosexuality by Father Harvey, 1997. It is available from Ignatius Press.

THE AUTHOR

Fr. John F. Harvey, O.S.F.S. is founder and Director of Courage, a Catholic ministry to homosexuals headquartered in New York City. He also teaches at Allentown College of St. Francis de Sales. Father Harvey is on the Advisory Board of the Catholic Educator’s Resource Center.

Copyright © 1998 Society of Catholic Social Scientists




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