RIGHTS AGAINST DISCRIMINATION ON THE BASIS OF GENDER AND
SEXUAL EXPRESSION
Donnelly's Primary
Claim: Everyone has a right against invidious
discrimination, at least when it is egregious or widespread.
What is egregious
discrimination?
What is invidious
discrimination? "Discrimination
that tends to ill will or causes unjustifiable harm."(p. 548)
A problem for Donnelly's
formulation: When is discrimination justifiable?
U.N. Declaration of Human
Rights, Article 2: "without distinction
of any kind, such as race, colour, sex, language,
religion, political or other opinion, national or social origin, property,
birth or other status."
Donnelly's proposed addition
to the list: "sexual
minorities", includes gay, lesbian, bisexual, and transgendered.
Donnelly's Historical
Argument:
Discrimination on the basis
of gender expression is only the latest in a long history of the oppression of
a stigmatized minority by the dominant social group: e.g., attitudes of the
The Santorum Response to
Donnelly’s Historical Argument: Donnelly’s
history is a history of minorities stigmatized on the basis of hereditary
characteristics, over which individuals have no control. Discrimination on the basis of characteristics
over which individuals have no control is wrong.
Thus, discrimination on the
basis of sexual orientation would be wrong if individuals have no control over
their sexual orientation. But
discrimination against gays and lesbians is based on orientation +
behavior. Since they have control over
their behavior, discrimination on the basis of orientation + behavior can be
justified.
Talbott's Revision of Donnelly's Historical Argument: Discrimination on the basis of gender
expression is the latest in a long history of paternalistic justifications for
a dominant group to oppress a stigmatized minority.
Typically, the basis of the discrimination is moral
paternalism, because the behavior is regarded as bad for the person engaging in
it because it is morally wrong—even if it does not harm anyone else.
The Evolution of a
Constitutional Right Against Moral Paternalism
(1) Right of married couples to engage use
contraception. Griswold
v. Connecticut (1965).
(2) Right to interracial marriage. Loving v. Virginia (1967).
(3) Refused to overrule sodomy laws in Bowers v. Hardwick (1986).
(4) Right to refuse to be kept alive
artificially. Cruzan v. Director (1990).
(5) Refused to recognize a right to assisted suicide.
Washington v. Glucksberg (1997) and Vacco
v. Quill (1997)
(6) Overruled sodomy laws, establishing a right of
adults to engage in voluntary, non-pecuniary sexual relations in the privacy of
one’s own home. Lawrence v. Texas (2003).
What is the rationale of Lawrence v. Texas: We can
see that the Supreme Court is defining a liberty right for consenting adults to
be free from at least some kinds of legal paternalism even if the government thinks
their action is “foolish, perverse, or wrong.”
Paternalistic intervention = intervention to force the
target to do something for his/her own good, though the target does not believe
that the intervention is good for him/her.
In paternalistic intervention, the target's own
judgment about what is good for him/her is overruled by the person intervening.
Scalia's Slippery Slope Argument in Lawrence:
The same argument applies to bigamy, same-sex
marriage, adult incest, prostitution, masturbation, adultery, fornication,
bestiality, and obscenity. ("Every
single one of these laws is called into question by today’s
decision."
To which
of these examples does the above rationale apply?
The New Natural Law (NNL) Teleological Argument
Natural Teleology = goals or
purposes given in nature.
Crude Version of the Argument (Old Natural Law Argument):
(1) Only sex that is
potentially procreative is natural.
(2) Unnatural acts are
morally wrong.
Therefore, unnatural sex is
morally wrong.
(3) It is permissible to make
illegal what is morally wrong.
Therefore, it is permissible
to make unnatural sex illegal.
Lee and George reject this
crude version of the argument (177).
Why?
Lee and George’s Sophisticated Version of
the NNL
Teleological Argument
(1) In vaginal sex between a
heterosexual couple, the pair achieve an organic unity
as a single reproductive unity.
(2) There is a certain kind
of union, which L&G refer to as a marital
union, but which I will refer to as a procreative
union, that is only possible through the activity of vaginal, heterosexual
sex. When this union is lifelong and
exclusive, it is a distinctive human good.
(3) Any other kind of sexual
activity is incapable of achieving the distinctive good of a procreative union.
(4) Therefore, any other kind
of sexual activity is wrong.
In the literature, the main objection to the L&G argument
has been to question whether (4) follows from the (1)-(3).
Two main kinds of objection:
(1) The Innocent Pleasure
Objection (Liberationist).
L&G require that pleasure
be related to the achievement of a separate good in order to be morally
justifiable. Their opponent simply
requires that the pleasure not be the result of something that is itself morally
wrong (e.g., coercion, deception, exploitation), pleasure is not wrong. Key analogy:
eating for pleasure.
Reply: Pleasure by itself is not good. Examples:
prostitution and pornography and masturbation.
(2) The Other Goods Objection
(Liberal).
Suppose that there is a
distinctive kind of union that is a human good that is only achievable by
heterosexual vaginal intercourse. Why
couldn’t other kinds of sexual activity be permissible to achieve other human
goods, especially other kinds of interpersonal union? Key idea:
Other kinds of interpersonal, non-procreative unions.
Reply: No real (biological) union. Examples:
sodomy and fornication.
Review of Cases
On the G&L account,
everything on Scalia’s list is morally wrong:
bigamy, same-sex marriage, adult incest, prostitution, masturbation,
adultery, fornication, bestiality, and obscenity.
G&L would add to Scalia’s
list: divorce, pornography, sodomy, oral
sex, contraception, pedophilia, promiscuity, and group sex.
Which of these does the
rationale of Lawrence v. Texas apply
to?
THE MISSING ASSUMPTION
IN LEE & GEORGE’S ARGUMENT
(1) In vaginal sex between a
heterosexual couple, the pair achieve an organic unity
as a single reproductive unity.
(2) There is a certain kind
of union, which L&G refer to as a marital
union, but which I will refer to as a procreative
union, that is only possible through the activity of vaginal, heterosexual
sex. When this union is lifelong and
exclusive, it is a distinctive human good.
(3) Any other kind of sexual
activity is incapable of achieving the distinctive good of a procreative union.
(4) Therefore, any other kind
of sexual activity is wrong.
ASSUMPTION (5) It is permissible to make illegal whatever is morally wrong.
(6) Therefore it is
permissible to make any sexual activity other than vaginal, heterosexual sex illegal.
L&G are surely entitled
to regard these acts as wrong and to try to persuade others that they are
wrong. Are they entitled to make them
illegal?
For most of human history, it
has been assumed that the fact that a group regarded something as wrong was a
sufficient justification for making it illegal.
In the 19th century, everything on both lists was illegal. The
evolution of a constitutional right against at least some kinds of legal paternalism
is a new historical development. This course enables us to understand what kind
of development it is.