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On the Road to Same Sex Marriage

Non-Discrimination Laws Pave the Way

By Stephanie Block

Last year, New Mexico passed one of the nation’s most liberal nondiscrimination laws, including sexual orientation and gender identity among the previously protected attributes of race, religion, national origin, and handicap.

In so far as it referred to sexual orientation and gender identity, this legislation was not motivated by political or economic inequities. Persons living openly homosexual lives can and do hold political office, vote, influence legislation, and, as a group, have a statistically higher income than the general population.  There is no need for further legislation to safeguard political or economic opportunity.

What the legislation did was to expand special protection of one group of persons at the expense of others.  It weakened the ability of employers and institutions, such as those working with children, to enforce basic standards of behavior.  Schools cannot refuse to hire or dismiss a teacher on the basis of open sexual self-expression, such as cross-dressing.  Landlords of more than three single-family dwellings cannot refuse to rent to persons with whom they are at a moral variance.  Expressions of moral disapproval for particular sexual orientations or “gender identities” are illegal in the workplace if they can be construed – directly or indirectly – as affecting the hiring or firing of another individual.

One Step at a Time

In addition to the problem of protecting certain sexual behaviors, it is of concern that non-discrimination legislation has been consistently used around the world as a step toward the legalization of same-sex marriage – against which the Church has spoken strongly.

·        The Family Court of Australia identifies the three stages toward inclusion that lesbian and gay legal initiatives have followed.  They are the decriminalization of same sex acts, the implementation of non-discrimination laws for equal protection in the workplace and in the provision of services, and the attainment of legal marital status between same-sex couples. [Danny Sandor, “Same Sex Couples and Family Law,”]

·        Outright, “Scotland’s democratic lesbian, gay, bisexual & transgender rights organization,” presents a similar analysis, explaining that the legal recognition of same-sex unions is built upon the decriminalization of homosexual acts followed by the enactment of non-discrimination legislation. Legal recognition of same-sex unions, the “third step,” is “unlikely to be taken in any individual legal system without the taking of the first two steps.”  According to some legal theorists, there is “an internal logic in these steps which seems to make the progression inevitable.”

“Once people engaging in homosexual activity are no longer seen as criminals, but instead as citizens, they can hardly be denied their civil rights, including their right not to be treated differently because of their (criminally irrelevant) sexual orientation.  In this way, the step of non-discrimination not only follows, but builds on the step of decriminalization.  Similarly, the very idea of non-discrimination with regard to sexual orientation simply demands that no one shall be disadvantaged by law because of the gender of the person he or she happens to love.  In this way, the links between the steps of decriminalization, anti-discrimination, and partnership legislation are not only sequential (in the European countries that have gone that far), but also morally and politically compelling.” (Kenneth McK. Norrie, “Sexual Orientation and Family Law,”; quoting Kees Waaldijk, “Civil Developments: Patterns of Reform in the Legal Position of Same-Sex Partners in Europe,” 2000.)

·        The Catholic Organization for Life and Family, founded by the Canadian Conference of Catholic Bishops and the Knights of Columbus, has recently produced a leaflet (“Marriage Matters,” © 2004) that makes a similar link.  It writes: “Two provincial appeal courts (British Columbia and Ontario) have found the opposite-sex definition of marriage to be discriminatory.”

Lastly, this legislation is of particular concern to Catholics because the Vatican has clearly cautioned against including the protection of homosexual behavior in anti-discrimination laws.  In the June 1992 letter to the American bishops, Some Considerations Concerning the Catholic Response to Legislative Proposals on the Non-Discrimination of Homosexual Persons, one reads: “There are areas in which it is not unjust discrimination to take sexual orientation into account, for example, in the consignment of children to adoption or foster care, in employment of teachers or coaches, and in military recruitment.”

    The Vatican directive continues: “...[I]t is inappropriate for Church authorities to endorse or remain neutral toward [legislative proposals on the non-discrimination of homosexual persons] legislation even if it grants exceptions to Church organizations and institutions. The Church has the responsibility to promote the public morality of the entire civil society on the basis of fundamental moral values, not simply to protect herself from the application of harmful laws.”