[Click HERE for part 1]
So how then should we go about creating laws for an increasingly multicultural society which consists of vastly different views on sexuality? How might the government find a way to prevent any cultural or identity group from obtaining unfair legal power over another group?
This is important because terms like “tolerance” and “equality” and “freedom” get thrown around a lot in this debate by those on both sides of the culture war. Yet often the ideas behind those terms, at least in how they are being used by either side, are disingenuous at best. As one of us (Owen) puts it over on his blog: “If the rhetoric of diversity and tolerance from progressive parties are genuine, then we have to look at how we address the conflict of sexuality and faith as a prototype for how we deal with cultural conflicts in general.” Likewise, if the conservatives rallying under the banner of “freedom” are genuinely concerned about that concept, then they must be ready to recognize that some people’s religious convictions will lead to views or practices that they themselves may very well find abhorrent.
We suggest that it starts with a recognition of three basic principles:
- Government should, as far as it is able, maintain complete neutrality regarding differences in religious or philosophical perspectives.
- In regard to an individual’s private life, the government should allow, as far as it is able, freedom of personal conscience on matters that do not endanger, harm, or materially damage others.
- Where the lines between people’s public and private lives blur–such as in the marketplace–the interests of people with differing cultural expressions and identities must be balanced as much as possible. There should be no outright legal favoritism of one culture/identity over another.
These are, we would suggest, fairly uncontroversial and quite reasonable expectations under the form of government established by America’s founders and enshrined within her Constitutional laws. So, with these three propositions in mind, here is how we might begin to find a workable solution to the current same-sex marriage vs. religious freedom debate:
- Government should take no official stance regarding the definition of marriage. Rather, it should only acknowledge domestic civil unions between both same-sex and opposite-sex couples. “Marriage” would then return to the individual’s faith community or cultural philosophy to determine.
- Government should not make any laws regarding sexual and relational practices that go on in the home between mutually consenting legal adults. This would obviously not apply to some practices whereby individuals are endangered, minors are involved, or someone is not consenting or involved against their will.
- When it comes to private businesses, government should adopt a set of principles that will allow them to balance out both same-sex couples’ desire for marriage and those who define marriage as between a male and a female for religious or philosophical reasons. To be a truly multi-cultural society which respects as many people as possible, it is necessary to balance BOTH the principle of freedom from discrimination AND the freedom of religion, and not allow one to always take priority over the other.
Of course, this third point requires a good bit more nuancing. Often times, people who advocate that sexual orientation should be a protected class compare their position to non-discrimination laws based upon ethnicity or gender. While we agree that laws and societal practices were put in place which held back and discriminated against women, African-Americans, and LGBT persons, not all forms of discrimination are of the same severity.
For instance, African-Americans have historcally been subjugated to such widespread institutionalized oppression that they were often forced into higher rates of poverty–which is still present today in many places. On the other hand, people who identify as LGBT tend to come largely from middle-class backgrounds.
Thus, a simple one-to-one appropriation of Civil Rights categories from a half century ago by current LGBT advocates does not accurately fit the situations faced by these two communities of people separated in time, place and cultural standing. In other words, while laws restricting formal, legally recognized same-sex marriage relationships have indeed resulted in feelings of genuine hurt for many in the LGBT community, the actual tangible impacts of favoritism and discrimination are dramatically different than those experienced by African Americans during the Jim Crow era. Given the widespread institutionalized disparity black individuals faced a half-century ago, it was necessary to impose strong anti-discrimination laws in order to protect the freedoms of people of different ethnicities. However, we would argue that in our current cultural climate, we do not need such a one-size-fits-all approach to all forms of discrimination. Rather, various types of protections need to be balanced out differently depending on the circumstances people face today.
For example, consider protections against discrimination for people with physical handicaps. Federal law provides wide anti-discriminatory protections against people with handicaps–but not without limit. A person who is qualified for a job cannot normally be rejected by a potential employer based solely upon their handicap. However, if a person’s handicap by nature makes them unqualified for what a particular job entails (such as, for example, someone with a severe speech impediment applying for a customer service phone line position, or a wheelchair-bound person applying to be a valet at a busy restaurant), an exception is allowed for the employer to ‘discriminate’ and not hire that person. Why? Because to treat anti-discriminatory laws as a blanket statement with no exceptions at all creates an undue burden on the hiring party.
This is not controversial and makes sense to most people. After all, it is quite reasonable that a person who is confined to a wheel-chair should not be hired for a job where the ability to stand, walk, and run are essential to that job—even if the person in question feels discriminated against as a result. Overall, however, laws against discrimination of individuals with special needs do a good job balancing the civil rights of handicapped individuals with the freedom of businesses to hire those they feel are best suited for the job.
So, turning to the current debate over LGBT civil rights with religious freedom of business owners, what criteria might we use to balance out the rights of those who want to participate in same-sex marriage with those of individuals or business owners who hold to the traditional male-female view of marriage?
How do we move forward as a society without falling victim to the zero-sum, winner-take-all scenarios that the current opposing sides in this “culture war” are fighting for?
We would suggest that we as a society simply have find those principles which will take into consideration where different people’s various rights and interests are balanced out in a thoughtful and reasonable way–allowing for the occasional exception to any across-the-board norms we put in place.
To accomplish this, we would like to offer a key concept which might help society weigh the various—and often opposing–interests of all its citizens. It is a concept that would balance all people’s interest in the public marketplace.
It starts by recognizing that there are two broad types of personal involvement in business: High Personal Involvement and Low Personal Involvement.
- High Personal Involvement entails the processes of personal creativity and that communicates a message about the person.
Low Personal Involvement entails private transactions, routine processes that require little creativity, etc.
- High Personal Involvement consists of the creation of artistic, religious, celebratory or communicative goods or services.
Low Personal Involvement consists of non-artistic, non-religious, non-celebratory or non-communicative goods or services.
- High Personal Involvement should favor the producer/provider.
Low Personal Involvement should favor the consumer.
By recognizing this distinction between levels of involvement, we can begin to craft fair and just legislation that protects the genuine civil rights of LGBT individuals in a society where their marriages are legal, and even where they are deemed a protected class under civil rights categories…while also upholding the freedom of religious conviction and freedom of speech for business owners and individuals who are unable to celebrate or personally endorse same-sex marriage.
In the next and final part of this series, we will look at a proposed legislative approach based upon the High/Low Personal Involvement principle that we feel will allow both sides of the marriage debate to co-exist without the constant “culture war” mindset leading to endless frivolous lawsuits and character assassinations that have characterized things thus far.
There IS a better way!
[Click HERE for part 3]