I’m not taking any sides at this point but want to know what provisions the Bishops object to and why, and see if Zoe Brain can explain why such objections would constitute unfair discrimination.
The letter they sent says it all. They don’t elaborate other than to assert that there’s a problem, without saying exactly what.
It’s about US law. The way the 14th amendment has been interpreted by the US, there are 3 different levels of scrutiny when asserting that there has been discrimination. “Rational Basis”, “Intermediate”, and “Strict”.
Those who are not a member of a “Protected Class” as enumerated in Title VII of the Civil Rights Act are subject to “Rational Basis” scrutiny. Thus, for example, someone who alleges discrimination based on the fact that they have freckles would have to prove that there is no Rational Basis for the discrimination. The employer just has to assert, without proof, that there is a Rational Basis, such as one of their customers not liking peiople with freckles, so they may possibly lose business. Such discrimination is not deemed systematic, but individual, and the bar is set very low. The victim would have to prove that no such customer exists.
Once recognised as a “protected class” though, one where there is a proven situation of that whole group facing systematic discrimination, then you have “strict scrutiny”, where the employer has to prove that he’s not discriminating as part of that system.
Furthermore, should a group be proven in law to be the victim of systematic discrimination in one area, the same standard of proof is required in other areas. Thus a “protected class” status for the purposes of, say, Hate Crimes laws, could be leveraged to argue for employment, and marriage, and other issues.
The problem that the Church faces is twofold: first, that they can’t possibly prove that such employment discrimination doesn’t happen, and happen a lot. The newspapers are full of such cases, for example
The results are in from the Virginia Supreme Court in the Moore v. Virginia Museum of Natural History case. Ducking any discussion of the issues, the Court issued a few sentence letter indicating that Michael Moore’s appeal was rejected and that the Court found “no reversible error” in the lower court ruling. For those unfamiliar with the case, the lower court had ruled that Gov. Tim Kaine’s Executive Order 1 (2006) was basically worthless and provided Moore - who was fired by the Museum because he is gay - with no cause of action for his wrongful firing.
As for Intersexed people:
In 1987, Wilma Wood was fired. She brought suit against her employer, claiming that she had been fired after the employer learned that she was intersexed and had undergone genital surgery. The U.S. District Court in Pennsylvania found that the Pennsylvania Human Relations Act protects women because of their status as females and discrimination against males because of their status as males, but employers are not legally prohibited from terminating employees on the basis of intersex status. The Court cited caselaw arising under Title VII as “persuasive authority.”
Surveys have shown that 97% of Intersexed and Trans people have faced discrimination of some kind in employment. 40% have been fired at least once. This usually happens in jurisdictions with no legal protections, so they can’t get to court - or if they do, they lose, having no case. In places where there are such protections, there’s little provable discrimination, so few court cases again.
So - GLBT people are being discriminated against. By Church teaching, which says only Homosexual acts rather than inclinations are sinful, this means that this discrimination is unjust.
But if they were to allow it to be stopped, this could be , and
would be, used as an argument that Gays are being discriminated against systematically. Which they are of course. Currently the legal fiction is that it’s a long series of complete coincidences, there is no religiously-based discrimination, and that GLBT people must prove otherwise to be protected.
Therefore the Church must assert that a law against discrimination which protects on the basis of “sexual orientation” - not “sexual behaviour” - actually means “sexual behaviour”.
Furthermore, they must assert - without proof, as there isn’t any - that the Title VII religious exemptions they’ve lived with since 1964 without a problem have suddenly become inadequate. That while they can live with those excemptions when it comes to adherents of the Church of Satan and other overt Devil-worshippers, Gays are so much worse than those that they would be inadequate.
So they must fight against legal protections against persecution they recognise openly as unjust, because if they didn’t, then the situation of unjust persecution would be recognised legally, and used to end other persecutions they consider only right and proper.
As for Intersexed and Trans people - it appears from this letter that the Church’s position is that persecution of them is not unjust, and may even be praiseworthy, with no need to justify that.
Now I could be mischaracterising their views, misinterpreting them. But if anyone has any alternate interpretation, I’d appreciate they give it here. We’ve had several people chime in, asserting that this is a good letter, without elaborating as to the law. Perhaps they’d care to comment as to why it’s reasonable that Intersexed people be fired for being who they are, and how this in accordance with Church Doctrine. It’s certainly the Pope’s view, for example.
