Homosexuality and Hiring Practices
Recently I've been participating in a discussion that's been going on at several philosophy blogs about the hiring practices of certain Christian colleges (my comments can be found here and here, and the beginning of the debate can be found here), and whether or not the APA should refuse to allow schools that prohibit homosexual behavior from advertising in Jobs for Philosophers. The colleges in question require all employees to sign what they call "statements of faith" which basically require employees to promise not to engage in certain behaviors that the schools deem sinful or immoral. Prominent among the proscribed behaviors, not surprisingly, is homosexual activity. Now I think a policy of refusing to hire those who engage in homosexual activity is morally repugnant; homosexual behavior is not in itself wrong, and there is no job that engaging in homosexual behavior would prevent one from doing as well as one who does not. But here I'm interested in addressing the most common defense of the hiring policies of certain Christian colleges that I've come across. Proponents of this defense claim that they do not need to appeal (at least not directly) to the claim that homosexual behavior is wrong in order to justify the policies in question. My claim will be that if we accept their argument we will be committed to the view that institutions could be justified in adopting hiring policies that all (or at least nearly all) parties to the debate would agree are morally repugnant and should not be allowed.
Proponents of the defense that I will argue against begin by making a distinction between homosexual orientation and homosexual behavior. The institutions in question, they claim, will not hire anyone who engages in homosexual behavior, but are perfectly willing to hire those of homosexual orientation, so long as they promise to remain celibate. They claim that this distinction shows that these institutions are not practicing discrimination against homosexuals that is relevantly similar to the kind of, for example, racial or gender discrimination that we all abhor. If the institutions precluded candidates for merely having homosexual desires, that would be wrong. But to proscribe certain behaviors on the basis of the religious convictions that inform the institution's goals is, according to this view, acceptable. And since the content of a principle that allows religious institutions to refuse to hire those who engage in behaviors that it deems sinful or immoral does not in itself endorse the views of those religious institutions, this defense of the policies of Christian colleges that refuse to hire those who engage in homosexual behavior makes no reference at all to the wrongness of such behavior.
The problem with this defense, of course, is that institutions can conceivably, and in the past (and not even too distant past; think Bob Jones University) have, proscribed behaviors such as interracial sex and dating. And clearly this was (and even if it wasn't, it could have been, and would still have been morally repugnant) a policy of prohibiting only behavior; BJU did not refuse to hire or admit persons who merely desired to engage in interracial relations. Only those who actually engaged in such relations were banned from the school. Furthermore, the reason for BJU's having such a policy was that the university's mission was informed by religious beliefs, including the belief that interracial relationships are sinful. If a religious institution is allowed to prohibit its employees from engaging in behaviors that it deems sinful or immoral, then it seems that there can be no limit to what behaviors can be proscribed. On what basis could we outline such limits? Any limits that we set would infringe upon some (at least potential) institutions' ability to hire in accordance with their religious beliefs.
So if we are to allow religious institutions to refuse to hire those who engage in behavior that the institutions deem sinful or immoral, then we can imagine all kinds of morally repugnant policies that almost no one thinks should be allowed. A religious school might prohibit not only interracial dating, but interracial friendships, or, to speak even more concretely in terms of behavior, all interracial physical contact (e.g. handshakes) or communication (which is clearly a form of behavior), and do so on the basis of the religiously based view that God intended racial groups only to have physical contact and direct communication intraracially. Such an institution could have such a policy while remaining willing to both hire and admit members of any particular racial group. I assume that everyone would find such policies morally repugnant and, at the very least, agree that the APA should not allow any institution with such policies to advertise jobs in JFP.
Now, some might still think that religious schools should be allowed to adopt such policies, since it is an important part of our scheme of civil liberties to protect freedom of religion and association and the right to practice religion as one sees fit. I agree that freedom of religion is an important value, but it's important, I think, to recognize just how much of our other values we would have to give up, at least in principle, in order to endorse a view that allows religious institutions to adopt the kinds of policies that I've described. The above example of the imagined religious group that thinks all interracial contact immoral highlights this point well, and I'm sure we could come up with plenty more possible religious views about what conduct is sinful that would make it very difficult to endorse a general policy of allowing religious institutions to refuse to hire anyone who behaves in ways that it finds sinful or immoral. It's also important to recognize that we already weigh other values against the value of religious liberty in determining what can be done in the name of religion. Religious groups aren't exempted from murder charges if they believe that failing to engage in human sacrifice is immoral. Refusing to hire practicing homosexuals is not nearly as bad as engaging in human sacrifice, but religious freedom is not absolute, and so we must determine how the evil of refusing practicing homosexuals the same opportunities as everyone else stacks up against the harm to religious groups of regulating their hiring practices.
If we conclude that the evil of curtailing the liberty of religious groups to hire on the basis of their beliefs about what behaviors are sinful outweighs the harm done to homosexuals of allowing religious institutions to adopt such policies, then we might conclude that religious institutions should be permitted to adopt those policies. But if we do conclude this then we either have to also grant that religious institutions should be allowed to have policies such as that of BJU (or my imagined school that prohibits all interracial contact), or we must claim that the harm to those who would wish to both attend the school(s) in question and engage in interracial relations is greater than the harm to those who would wish to both attend the (perhaps different) relevant school(s) and engage in homosexual relations. And this claim seems to me implausible, especially since at least some of those heterosexuals who would wish to engage in interracial relations would also be attracted to (though perhaps less so) members of their own race, and so could still develop meaningful relationships, whereas the homosexuals in question would be entirely precluded from developing such relationships. If anything the harm to the specific persons on whom the two policies would place a burden would be greater for the homosexuals, and therefore a weighing of the effects of the two policies could not endorse allowing prohibitions on homosexual behavior while disallowing prohibitions on interracial relations.
The only way, as far as I can tell, that defenders of the right of religious institutions to prohibit homosexual behavior can attempt to draw a distinction between that policy and the policies prohibiting interracial contact that I've described above is simply to appeal to their belief that homosexuality is wrong, while interracial contact isn't (in the threads I've linked to above there are a number of instances of just this move, some more subtle than others). But this is precisely what defenders of this view set out to avoid. By appealing to their own religious beliefs as a justification for allowing one policy but not another, they neglect the fact that the whole point of their argument is to justify allowing all religious groups to cite their moral beliefs as a justification for refusing to hire those who don't conform their behavior to those beliefs. They can't draw the distinction they need without citing their own moral beliefs; but if we allow the citation of such beliefs, then we lose the ability to make the distinction.
So we are pushed to either allow religious institutions to cite their moral beliefs in order to justify refusing to hire those who don't conform to them, in which case the "no interracial contact" policy would be permissible, or else to refuse to allow religious institutions to cite their moral beliefs in this way, in which case they will have no justification for refusing to hire those who engage in homosexual behavior. Our decision is not all that simple, since it involves weighing the evil of allowing discriminatory and socially pernicious hiring practices against the evil of restricting religious freedom. But I'm fairly convinced that we should come down on the side of restricting discrimination.
Proponents of the defense that I will argue against begin by making a distinction between homosexual orientation and homosexual behavior. The institutions in question, they claim, will not hire anyone who engages in homosexual behavior, but are perfectly willing to hire those of homosexual orientation, so long as they promise to remain celibate. They claim that this distinction shows that these institutions are not practicing discrimination against homosexuals that is relevantly similar to the kind of, for example, racial or gender discrimination that we all abhor. If the institutions precluded candidates for merely having homosexual desires, that would be wrong. But to proscribe certain behaviors on the basis of the religious convictions that inform the institution's goals is, according to this view, acceptable. And since the content of a principle that allows religious institutions to refuse to hire those who engage in behaviors that it deems sinful or immoral does not in itself endorse the views of those religious institutions, this defense of the policies of Christian colleges that refuse to hire those who engage in homosexual behavior makes no reference at all to the wrongness of such behavior.
The problem with this defense, of course, is that institutions can conceivably, and in the past (and not even too distant past; think Bob Jones University) have, proscribed behaviors such as interracial sex and dating. And clearly this was (and even if it wasn't, it could have been, and would still have been morally repugnant) a policy of prohibiting only behavior; BJU did not refuse to hire or admit persons who merely desired to engage in interracial relations. Only those who actually engaged in such relations were banned from the school. Furthermore, the reason for BJU's having such a policy was that the university's mission was informed by religious beliefs, including the belief that interracial relationships are sinful. If a religious institution is allowed to prohibit its employees from engaging in behaviors that it deems sinful or immoral, then it seems that there can be no limit to what behaviors can be proscribed. On what basis could we outline such limits? Any limits that we set would infringe upon some (at least potential) institutions' ability to hire in accordance with their religious beliefs.
So if we are to allow religious institutions to refuse to hire those who engage in behavior that the institutions deem sinful or immoral, then we can imagine all kinds of morally repugnant policies that almost no one thinks should be allowed. A religious school might prohibit not only interracial dating, but interracial friendships, or, to speak even more concretely in terms of behavior, all interracial physical contact (e.g. handshakes) or communication (which is clearly a form of behavior), and do so on the basis of the religiously based view that God intended racial groups only to have physical contact and direct communication intraracially. Such an institution could have such a policy while remaining willing to both hire and admit members of any particular racial group. I assume that everyone would find such policies morally repugnant and, at the very least, agree that the APA should not allow any institution with such policies to advertise jobs in JFP.
Now, some might still think that religious schools should be allowed to adopt such policies, since it is an important part of our scheme of civil liberties to protect freedom of religion and association and the right to practice religion as one sees fit. I agree that freedom of religion is an important value, but it's important, I think, to recognize just how much of our other values we would have to give up, at least in principle, in order to endorse a view that allows religious institutions to adopt the kinds of policies that I've described. The above example of the imagined religious group that thinks all interracial contact immoral highlights this point well, and I'm sure we could come up with plenty more possible religious views about what conduct is sinful that would make it very difficult to endorse a general policy of allowing religious institutions to refuse to hire anyone who behaves in ways that it finds sinful or immoral. It's also important to recognize that we already weigh other values against the value of religious liberty in determining what can be done in the name of religion. Religious groups aren't exempted from murder charges if they believe that failing to engage in human sacrifice is immoral. Refusing to hire practicing homosexuals is not nearly as bad as engaging in human sacrifice, but religious freedom is not absolute, and so we must determine how the evil of refusing practicing homosexuals the same opportunities as everyone else stacks up against the harm to religious groups of regulating their hiring practices.
If we conclude that the evil of curtailing the liberty of religious groups to hire on the basis of their beliefs about what behaviors are sinful outweighs the harm done to homosexuals of allowing religious institutions to adopt such policies, then we might conclude that religious institutions should be permitted to adopt those policies. But if we do conclude this then we either have to also grant that religious institutions should be allowed to have policies such as that of BJU (or my imagined school that prohibits all interracial contact), or we must claim that the harm to those who would wish to both attend the school(s) in question and engage in interracial relations is greater than the harm to those who would wish to both attend the (perhaps different) relevant school(s) and engage in homosexual relations. And this claim seems to me implausible, especially since at least some of those heterosexuals who would wish to engage in interracial relations would also be attracted to (though perhaps less so) members of their own race, and so could still develop meaningful relationships, whereas the homosexuals in question would be entirely precluded from developing such relationships. If anything the harm to the specific persons on whom the two policies would place a burden would be greater for the homosexuals, and therefore a weighing of the effects of the two policies could not endorse allowing prohibitions on homosexual behavior while disallowing prohibitions on interracial relations.
The only way, as far as I can tell, that defenders of the right of religious institutions to prohibit homosexual behavior can attempt to draw a distinction between that policy and the policies prohibiting interracial contact that I've described above is simply to appeal to their belief that homosexuality is wrong, while interracial contact isn't (in the threads I've linked to above there are a number of instances of just this move, some more subtle than others). But this is precisely what defenders of this view set out to avoid. By appealing to their own religious beliefs as a justification for allowing one policy but not another, they neglect the fact that the whole point of their argument is to justify allowing all religious groups to cite their moral beliefs as a justification for refusing to hire those who don't conform their behavior to those beliefs. They can't draw the distinction they need without citing their own moral beliefs; but if we allow the citation of such beliefs, then we lose the ability to make the distinction.
So we are pushed to either allow religious institutions to cite their moral beliefs in order to justify refusing to hire those who don't conform to them, in which case the "no interracial contact" policy would be permissible, or else to refuse to allow religious institutions to cite their moral beliefs in this way, in which case they will have no justification for refusing to hire those who engage in homosexual behavior. Our decision is not all that simple, since it involves weighing the evil of allowing discriminatory and socially pernicious hiring practices against the evil of restricting religious freedom. But I'm fairly convinced that we should come down on the side of restricting discrimination.
posted by Brian Berkey at 12:07 AM
http://www.blogger.com/comment.g?blogID=18266847&postID=5333218621124962005&isPopup=true Comments:
It seems to me that your post runs together several distinct issues:
1. Whether the APA's policies entail that they should not accept
advertisements from these schools.
2. Whether the APA *should* have policies in place that would entail that they not accept advertisements from these schools.
3. Whether these schools should be allowed *at all* to have these sorts of practices.
It seems to me that the answer to (1) is clearly "no", and you do nothing to combat this claim. The key point here is that policies that ban certain sorts of *behaviors* do *not* (at least not *necessarily*) amount to the sort of discrimination that the APA policy is out to ban, namely discrimination on the basis of sexual *orientation*. It seems to me that it would be easy enough to find out if these schools (or any others) were in fact engaging in this latter sort of discrimination: we might look to see if they are willing to hire people who are openly homosexual and yet strive to live chastely, whether they treat professors who engage in extramarital *heterosexual* activities (or other behaviors that are forbidden by their hiring policies) in the same ways that they treat those who are actively homosexual, etc. No-one has provided any evidence that Weston et al run afoul of anti-discrimination policies in these ways, and so it seems to me that they therefore do not violate a policy that "rejects as unethical all forms of discrimination based on ... sexual *orientation*" (my emphasis).
As to (3), which seems very often to be the issue you're considering (cf. your constant talk of whether religious institutions should be "allowed" or "permitted" to do so-and-so, of their "rights", etc.), it seems to me that the issue here is at least as cut and dry as (1), if not more so. Even in the case of Bob Jones University, the upshot of their racist policies was not that they were closed down, imprisoned or what have you - they simply had a number of the *privileges* that are normally extended to private educational institutions (such as tax breaks) revoked. As much as I find the BJU policy morally repugnant, I'm grateful that we nevertheless chose to exercise this sort of restraint: unless they were, say, engaging in human sacrifice (your example), it seems to me that people on the outside of private organizations shouldn't intervene in those organizations' rules, no matter how bizarre and even unethical they strike us. (For similar reasons, we shouldn't invade foreign countries just because there's bad stuff going on in them.) This sort of restraint is a bedrock principle of the modern liberal consensus on religious freedom, and it seems to me that the small but growing chorus of voices encouraging us to violate it, and to interfere more rather than less in the lives of religious organizations (cf. the proposed laws to require religious adoption agencies to place children with same-sex couples (in the UK) and to require religious nursing homes to allow euthanasia on their premises (in our very own California)), are extremely dangerous, and threaten to undermine the already shaky foundation on which our society has been constructed. (Maybe you disagree with all this, but if you do then you're bringing up issues that go far beyond the apparently limited scope of your original post.)
So this brings us to (2), which is where I think the really interesting issues lie. And even though you usually adopt the rhetoric of (3), I'm assuming (for the sake of charity, since I really find it hard to believe that sane people could reject the sort of position I outlined in response to it, even though I know some do) that a positive response to (2) is what you're really after.
I take it that your argument has the form of a dilemma for religious-freedom types like me: either,
a) the APA should allow religious organizations to have whatever policies they want, in which case there are no grounds to penalize BJU (or your hypothetical no-interracial-touching school); or,
b) the APA should penalize religious organizations for (certain?) rules that they regard as immoral, in which case (since discrimination on the basis of sexual behavior is immoral - note that this premise is unargued-for) the APA should penalize Westmont, Wheaton, Bethel, et al (perhaps by not accepting their ads, though there might be other options).
But here's the problem: What are we to say about the fact that these schools use *religious preference* as a criterion in hiring? If we can run a similar line of argument here, then we have a pretty clear reductio of your view, since it seems *obvious* that private religious schools should be allowed to hire faculty who share their founding convictions. I take it, though, that you'd say that the equivalent of option (a) is unproblematic when it comes to religious conviction - but then where does the difference lie between this and homosexual behaviors? Both religious faith and sexual acts are freely chosen, and it is among the principles of liberal political thought that public institutions aren't allowed to discriminate on the basis of them. But what about *private* institutions? Why do - why *should* - we allow private religious institutions to have hiring policies that are restricted to their coreligionists?
It seems to me that in response to this you'll have to appeal to the idea that one's religious convictions are obviously relevant to whether one is qualified to teach at a religious institution, whereas one's private sexual behaviors are not. You indicate something like this when you say that "homosexual behavior is not in itself wrong, and there is no job that engaging in homosexual behavior would prevent one from doing as well as one who does not". But this seems just false: what about the job of trying to convince college students to live according to the Christian sexual ethic? Doesn't it seem that flaunting this ethic in one's own life would get in the way of doing this? And doesn't it therefore seem that inasmuch as schools like Westmont, Wheaton, and Bethel regard this as one of the things their professors are supposed to do, they can take the lifestyles of prospective faculty into account when it comes to hiring? If not, why not?
The problem, in other words, is that Christian ethics is inseparable from Christian teaching, and one's freely chosen sexual behaviors are just as relevant to one's ability to promote the Christian sexual ethic as other aspects of one's lifestyle - the more narrowly "religious" ones, e.g. whether one professes a certain creed, goes to church regularly, etc. - are relevant to one's ability to promote Christianity more generally. And insofar as promoting Christianity is, naturally, one of the things that a Christian educational institution is (probably - you never know these days) going to want to do, it seems that such an institution needs to be permitted to hire only those willing to commit themselves to living out (or at least *trying* to live out, or at least not openly flaunting) certain key Christian moral teachings.
So what of the initial dilemma? It seems to me that neither horn is actually as bad as you think.
Starting with (b), I think that there's plenty of room to make meaningful distinctions between the BJU policy (or the policy of your hypothetical institution) and those of Westmont, Wheaton, and Bethel - distinctions that go beyond "if you're a religious institution, you can do whatever you want short of physically hurting people". For example, we can ask: is the Bob Jones policy really rooted in Christian ethics, or is it just racist?; or, is there even a *minimally* sensible rationale for a ban on interracial dating (or touching), as opposed to homosexual activities? It seems to me that the answers to these questions are "no" and "no", and I find it rather frightening to find people so insensitive to the content of Christianity that they're unwilling to see this. It seems to me that just as our court system is able to decide, or at least try to decide, that certain associations are religions while others are not (if they couldn't do this, our constitutional system would be in pretty deep shit), we should be able to try and make meaningful distinctions like this one. If you honestly don't think there's a meaningful distinction to be made between a ban against interracial dating and one against homosexual activity, then I really find myself at a loss for words. (It stinks of a self-imposed blindness.)
But I know that lots of people will stonewall at this point, and say that there just *isn't* a distinction, so my position forces us to adopt the first horn. So suppose I agree, and say that the APA should be willing to accept advertisements from the likes of Bob Jones University as well. What would be so bad about this? The reason I ask this is that racists of the BJU ilk are a really massive minority in our society, and to some extent I think it's wise to let their bigotry have its minute in the sun so we can address it head-on rather than keeping it closeted and pretending it's not out there. Sure, their dating policies are stupid, arbitrary, racist, fear-mongering, and what have you - but so what? It's not as if our republic - or our "philosophical association" - is going to come crumbling down because we let some idiots take out an ad looking to hire other idiots. Perhaps we should just let them expose themselves for the idiots they are.
(Before you say that this line of argument would rule out *other* ways of penalizing BJU, like taking away their tax breaks, note first that I actually *do* think we, or at least our court system even if not we philosophers, can make meaningful distinctions along the lines of my response to (b), and secondly that I don't think that the government should offer preferred tax status to *anyone*, unless perhaps they're engaged primarily in charitable work. Yay, fiscal libertarianism! But in any case, matters constitutional are far beyond my ilk - I'm concerned here with the APA, not the USA.)
In other words: I think the good of religious pluralism is too important to be violated on grounds as flimsy as the ones you bring forward against Weston, Wheaton, Bethel, et al. The restrictions you propose would amount to requiring that they either cease to be the sorts of institutions they were founded to be (namely, Christian ones), or that they, and any philosophers who'd be interested in taking a job at them (I suppose this *sort of* includes me, though actually I don't think I meet their religious requirements), go find some other organization that's willing to tolerate their religious convictions (which are really what's at stake here). It seems to me that this would be really unwise of the APA, not least because of the negative effects it would have on Christian graduate students looking for jobs.
First, a reminder that "homosexual" is not a protected class under the Civil Rights Act of 1964, and, more importantly, secondly, churches are expressly exempt from all the Acts' provisions (the Guide Dog School for the Blind secured universal access to all areas of human intercourse, including operating rooms, cooking spaces, every venue, save churches, which are free to bar blind individuals with their guide dogs).
The usual reason given for this preferential treatment of "churches" and their related institutions in the constitutional guarantee of the "free exercise of religion." Amazingly, some rather odd practices seem to be "protected" by this guarantee, including ex-gay reparative torture to cure homosexuality as a religious practice. Churches may have "free exercise," but not absolutely, and certainly not "to inflict harm." The line of demarcation is not always easy to make, much less sustain.
With these matters in mind, churches (and their sponsored colleges and schools) make the claim that their "beliefs" and "practices" are constitutionally protected, while the Civil Rights Act expressly exempts them from non-discrimination policies.
But, while we generally regard the guarantee of "free association" as a value, one assumes that guarantee applies only to voluntary associations. Necessary associations are involuntary or voluntary, but for our purposes, necessity trumps the "freedom" to opt out of a necessary association. Where I attend college remains a voluntary association, but where I work often has a degree of necessity. And work, unlike education, is a primitive need, sine qua non, since it is essential to survival. Thus, it has a necessary component to its features. Therefore, to proscribe any behavior not directly related to the workplace, as an offense to religious sensibilities, seems to me, at least, untenable. Using the "color of religion" to discriminate in employment for reasons extrinsic to performance and function, gives religion more "freedom to exercise" than necessity gives to earn an income for one's survival. In balancing the two claims, the necessity of work has to trump the "free exercise" guarantee.
As you explain, if the "free exercise" is absolute, the harms to non-religious individuals, or to individuals whose practices are proscribed by religion as their "free exercise," could be so expansive, unjust, and allow for the most heinous practices (and unjust discriminations in necessity) that their appeal to "free exercise" exceed the reasonable parameters of the guarantee. Not unlike using the "color of law," to break and violate the law, is not a reasonable position, and nor is using the "color of free exercise" to practice the most heinous discriminatory practices extrinsic to work performance and function is exceeding all reasonableness. It's one thing to espouse religious belief, practice worship, as a part of the "free exercise," but another to use as a discriminatory device under the "color of free exercise."
It's always difficult to argue against "faith" because, in my opinion, faith boils down to gut feeling and blind belief and avoids relying on rational argument. So if you are ever arguing with a "believer", your opponent can easily trump every comment you make with the end it all phrase "i just believe it is so." end of story. what else can you argue? they are not exercising logic. you and your opponent are working on completely different playing fields.
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