Why Religion and Not ‘Sexual Orientation’ Deserves to be a Specially Protected Class

By Rev. Mark H. Creech, Executive Director

Christian Action League of North Carolina

August 15, 2008

Abraham Lincoln used to tell a story about a man who heated a piece of iron in the forge and made it into a horseshoe. He then changed his mind and decided to make something else of it. By this time, he had beaten the iron in so many different ways it wasn't much good for anything. Holding it up with his tongs, and looking at it in disgust, the blacksmith thrust it hissing into a vat of water and said: "Well, at least I can make a fizzle out it." [1]

Enumerations that are listed in discrimination policies or various laws designed to protect an individual or a group's civil rights have traditionally been preserved for immutable characteristics or some other matter fundamental to human need. Standard categories have included color, race, gender, religion, national origin and disability. Thus far, the U.S. Supreme Court has been unwilling to extend full "suspect class" to "sexual orientation" – a status that would make it deserving of greater judicial scrutiny.

Nevertheless, this hasn't kept homosexual activism from pounding away at the ironclad logic that homosexuality does not represent an immutable characteristic or address something essential to human nature as religion.

Would that it could be said no court had succumbed to such madness. Yet in its egregious decision to legalize same-sex "marriage," the California Supreme Court erroneously argued:

"We disagree,...that it is appropriate to reject sexual orientation as a suspect classification, in applying the California Constitution's equal protection clause, on the ground that there is a question as to whether this characteristic is or is not 'immutable.' California cases establish that a person's religion is a suspect classification for equal protection purposes...and one's religion, of course, is not immutable but is a matter over which an individual has control." [2]

When this author strongly argued in an op-ed piece (The School Violence Prevention Act: A Wolf in Sheep’s Clothing) against a measure for North Carolina's schools that would have made "sexual orientation" a specially protected class in North Carolina law, a letter to the editor of the Fayetteville Observer asked:

"If the Reverend truly believes that immutability and unchangeability are prerequisites for a characteristic to be a legitimate subject for civil rights protections, how does he reconcile this notion with the fact that one's religious beliefs and worship practices, neither of which are immutable or unchangeable, but are chosen behaviors, are specifically protected by the Bill of Rights and countless other civil rights laws?" [3]

The question is a reasonable one and should be addressed in a way that highlights the flawed reasoning which includes "sexual orientation" alongside religion, as well as other categories.

To contend homosexuality or other sexually alternative practices are as worthy of special protections as religion is like saying feculence is as important to one's person or the culture as food.

Just as food is essential to the body, religion is indispensable to the soul. Only worship can satisfy the highest and noblest aspirations of human nature. John A. Broadus, that great Christian scholar of yesteryear once declared:

"There swells in the breast something that wants God for its crown and for its completeness. There are aspirations in these strange natures of ours that only God can satisfy. Our thinking is a mutilated fragment without God, and our hearts can never rest unless they rest in God....What does it mean when your child begins to say, 'I ought to do this' and 'I ought to do that?' What does it mean? 'I ought.' Some of the beasts around us are very intelligent. They seem to think in a crude fashion. They seem to reason in a rudimentary way. Our intellect is not peculiar to us. They have something of it but they show no sign of having the rudiments of the notion that 'I ought' and 'I ought not.' It is the glory of man. It marks him in the image of the spiritual one that made him. And what is to nourish and keep alive and make strong that sentiment of moral obligation in our souls, unless it be the recognition of the fact that there is a God who gave us this high, moral, spiritual being; who made us for Himself; to whom we belong, because He made us, and because He made us to love Him until the sentiment of obligation to Him shall nourish in us the feeling of obligation to our fellow-men, who, like us, are made in His image." [4]

America's founders and greatest leaders have largely understood and often spoken of the necessity of religious sentiment. In an article titled "Religion and the Founders," Christopher Levenick and Michael Novak have written:

"The Founders saw the cultivation of religious sentiment as the ultimate safeguard of American liberty. They knew that liberty could only prosper among moral citizens, whose practice of self-government in their private lives was a necessary prerequisite for its exercise in public. They believed that even if it were possible for certain individuals to behave morally without believing in God, on the whole an entire citizenry could not long keep its moral bearings without the guidance of religious faith....Such thinking runs throughout the whole of American political life, from Washington to Lincoln to Roosevelt to Reagan, and up to the present day." [5]

So it is in this sense that religion provides a dual service for what is an immutable, unchangeable human need. By contrast, homosexuality is neither immutable nor a necessity to life. At best, it is a negative drive with serious complications for both the individual and the culture.

To make "sexual orientation" a "suspect class" is to corrupt the fine bread of civil rights protections with a dangerous mold. Legally, it creates an unavoidable clash between religion and homosexuality. Religion opposed to the behavior is eventually unable by law to contend the practice is immoral and thereby exercise forms of justified discrimination commensurate with its teachings. Moreover, because "sexual orientation" essentially shares nothing in common with the other enumerations, other than the experience of various forms of maltreatment, it produces inefficiencies and demoralization of the concept of greater judicial scrutiny.

In the end, after such hammering away at the system, Americans will hold it up to view with disgust, claiming it amounts to nothing more than a legal fizzle.

*******

Resources:

[1] As told by Clarence E. Macartney in Sourcebook for Speakers, Eleanor Doan, 1968,  

     Zondervan Publishing House, Grand Rapids, Michigan

[2] California Supreme Court Marriage Decision, Case No. S147999, pp. 97-98 (CA S.

     Ct., May 15, 2008).

[3] Fayetteville Observer, Letters to the Observer, Ian McGehee, Reverend's Rules Also

     Apply to Religion, August 1, 2008 

[4] Sermons and Addresses, John A. Broadus, Hodder and Stoughton, 1886

[5] Religion and the Founders, Christopher Levenick & Michael Novak, National   

      Review Online, March 7, 2005 

By Mark Creech Click here for bio and archived articles