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 U.S. majority toward Africans and Asians (he might also have mentioned Native Americans).

 

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."  Lawrence v. Texas, 123.S. Ct. 2472 (2003).)

 

        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.