My recent opinion piece in the Lincoln Tribune (read it here) explains why “sexual orientation” is not a protected nondiscrimination class. The article has elicited a comment from a reader that warrants my response.
The reader writes that religion would not be included in the list of protected classes if “immutable” characteristics were the only ones to be considered when creating a nondiscrimination protected class. Therefore, the reader points out, this logic cannot be applied to excluding sexual orientation from the list of protected classes.
While understanding the legal jargon behind protected nondiscrimination classes is complicated the matter of religion is very straightforward. Religious devotion does indeed change many times throughout a person’s life and is the one fluid protected status typically included in nondiscrimination provisions. However, it is included not because of its unchangeable nature, like race, age or gender, but because religious liberty is a constitutionally protected activity, and thus, holds a special, inviolate position in our legal system. Sexual orientation does not hold the same legal protection in our constitution, nor does it maintain an immutable characteristic, therefore, should not be included in the list of protected classes.
Mike says
It should go without saying that religious freedom is a protected cornerstone of American liberty, regardless of whether it is “immutable”. Religion has *historically* been protected in America. It’s why the Pilgrims settled Plymouth Colony and the Puritans settled in Massachusetts.
Too much emphasis is placed on “immutable” characteristics by many pro-gay activists in these recent discussion of sexual orientation as a protected category: a person’s height is relatively immutable after a certain age, too, but it’s certainly not a crime to discriminate based on height. Only a select handful of these are protected.
However, to play devil’s advocate, do you believe you’d change your mind Jessica if a gene (or collection of several genes acting pleiotropically) was discovered to be the cause of homosexuality? That is, if homosexuality did in fact turn out to be genetic?
Robert B says
In addition the practice of ones religion is also protected under the First Amendment of the Constitution. So, you cannot be discriminated against for wanting to attend church on Sunday or praying towards Mecca. Now, this may keep a person from applying for certain jobs. However, a person cannot be discriminated against by HR for having certain religious beliefs. In my mind, that is why religion is included in the list.
Mike, I certainly cannot answer for Jessica, but while I do not believe this to be true, if for arguments sake, there is a homosexuality gene, it still would not pass the test of being a characteristic that can be known by another person for the purposes of discrimination. Basically, I cannot know your genetic makeup. Thus, there is no way I can discriminate against you for an invisible characteristic in your genes.