On topic discussion regarding homosexuality

A.E. Brownstein aebrownstein at ucdavis.edu
Tue Apr 13 10:42:13 PDT 2004


I'm afraid I wasn't sufficiently clear in my post. The point of the analogy 
was not to advocate the protected status of homosexuality, but rather to 
press the point suggested by an earlier post that providing protected 
status under the civil rights laws or constitutional doctrine constituted 
approval of what was being protected. For the purpose of that analogy, one 
has to look at other status defining characteristics that are accepted as 
protected in order to determine whether approval of those characteristics 
is inferred or communicated by the fact that they are protected  --- in 
areas such as access to rental housing or other areas.  The protection 
provided to those who practice arguably "false" faiths seemed like a good 
example both because this is a religion law list and because, in my 
experience, many conservatives religious people are committed to the 
protection of religious practices and individuals of faiths they (the 
conservatives) reject as false. There are other examples, of course.

While I thought it should clarify my earlier post, I should also add that I 
believe it was a mistake to join this thread. I regret doing so and see no 
reason to continue participating in it..

Alan Brownstein
UC Davis

At 07:16 PM 4/12/2004 -0600, you wrote:
>The problem with arguments from analogy is that one first has to establish 
>that the analogy one has employed is the most appropriate.  Those of us 
>who advocate against recognition of protected status for homosexuality 
>would want to analogize it to something that is not protected; those of us 
>who advocate for recognition of protected status want to analogize it to 
>something that is protected (like religion).
>
>I think it's at least intuitive that the closest analogy for homosexuality 
>would be to other consensual sexual behaviors, such as a prediliction 
>toward "plural marriage," adult incest, adultery or fornication.  None of 
>these is usually protected nor, do I think, should they be.
>
>As for religion, I think the protected status allocated to that is based 
>on a view that religion is not so much conduct as something into which one 
>is born (like ethnicity) and therefore immutable.  I think the idea of 
>religion has changed somewhat since then, and is now more frequently the 
>subject of individual choice - and I often question the appropriateness of 
>continued protected status for it (as against private actors).  But, I 
>confess to be somewhat radically libertarian in my view here.
>
>Sam Ventola
>Denver, Colorado
>
>>From: "A.E. Brownstein" <aebrownstein at ucdavis.edu>
>>Reply-To: Law & Religion issues for Law Academics 
>><religionlaw at lists.ucla.edu>
>>To: Law & Religion issues for Law Academics <religionlaw at lists.ucla.edu>
>>Subject: Re: On topic discussion regarding homosexuality
>>Date: Mon, 12 Apr 2004 11:52:25 -0700
>>
>>In thinking and teaching about these issues I find it useful to develop 
>>analogies. One of the most useful analogies I employ is that between 
>>sexual orientation and religion, gay people and religious minorities, and 
>>rights of intimate association and free exercise rights.
>>
>>* * *
>>
>>Similarly, I interpret Mr. Ventola's post (perhaps incorrectly) as 
>>suggesting that a law which prohibits a person from withdrawing himself 
>>and his property from gay people forces that person to accept homosexual 
>>conduct. I interpret "accept" here to mean "approve of" or "recognize as 
>>spiritually or morally correct."  Analogizing to religion, I would ask 
>>whether a landlord who is compelled by law to rent an apartment to a 
>>person of a different religion, one whose tenets the landlord believes to 
>>be "wrong," is being forced to "accept" the merits, truth or morality of 
>>that religion.
>>
>>* * *
>>Alan Brownstein
>>UC Davis
>>
>
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