1. Is Same-Sex Marriage Wrong?

2. Jordan’s Central Argument
Jeff Jordan: “Is it Wrong to Discriminate on the Basis of Homosexuality?”
Jordan’s Central Argument
“[T]he moral impasse generated by conflicting views concerning homosexuality, and the public policy ramifications of those conflicting views justify the claim that it is morally permissible, in certain circumstances, to discriminate against homosexuals” – particularly with regard to same-sex marriage. (358-9)

3. Parity Thesis vs. Difference Thesis
Are there occasions in which it is morally permissible to treat homosexuals unfavorably, whether because they are homosexuals or because of homosexual acts?
Parity Thesis: No – homosexuality has the same moral status as heterosexuality.
If this is correct, then it would be immoral to discriminate against homosexuals on the basis of their homosexuality.
Difference Thesis: Yes – there are morally relevant differences between heterosexuality and homosexuality which justify a difference in moral status and treatment between heterosexuals and homosexuals.
If this is correct, then there are situations in which it is morally permissible to discriminate against homosexuals.
(Note that the Difference Thesis, even if true, does not justify discrimination on all occasions.)

4. An Argument for the Parity Thesis
As we are in the realm of sexuality, talk of moral rights (such as a right to privacy or a right to liberty) would seem to provide the most obvious grounds for the parity thesis.
But sexual acts performed in public (whether heterosexual or homosexual) are properly suppressible.
As such, a straight-forward appeal to some right will not go very far.

5. An Argument for the Parity Thesis (cont’d)
Perhaps the strongest reason to hold that the parity thesis is true is something like the following:
P1 Homosexual acts between consenting adults harm no one. And,
P2 respecting persons’ privacy and choices in harmless sexual matters maximizes individual freedom. And,
P3 individual freedom should be maximized. But,
P4 discrimination against homosexuals, because of their homosexuality, diminishes individual freedom since it ignores personal choice and privacy. So,
P5 the toleration of homosexuality rather than discriminating against homosexuals is the preferable option since it would maximize individual freedom. Therefore,
C the parity thesis is more plausible than the difference thesis.

6. An Argument for the Parity Thesis (cont’d)
P2 Respecting persons’ privacy and choices in harmless sexual matters maximizes individual freedom.
P3 Individual freedom should be maximized.
P2 and P3 seem unproblematic.
P1 Homosexual acts between consenting adults harm no one.
On its face, P1 seems true.
However, this seems to be the case only if such acts are done in private. Public acts may involve more than just the consenting adults.
P4 Discrimination against homosexuals, because of their homosexuality, diminishes individual freedom since it ignores personal choice and privacy.
As with P1, this seems to be obviously true only where we are discussing private acts.

7. An Argument for the Parity Thesis (cont’d)
P5 The toleration of homosexuality rather than discriminating against homosexuals is the preferable option since it would maximize individual freedom.
P1-P4 lends support to P5 only if we are considering acts done in private.
As such, the conclusion for the plausibility of the parity thesis can only refer to acts performed in private.
As such we have no reason to think that there are no circumstances in which homosexuality and heterosexuality are on equal moral ground.

8. Moral Impasses and Public Dilemmas
Suppose one person believes that X is morally wrong, and another believes that X is morally permissible.
If the first is correct, then the second is wrong, and vice versa.
This situation of conflicting claims is an impasse, and impasses result from moral disputes.
An impasse is likely to have public policy ramifications if:
large numbers of people hold conflicting views;
the conflict involves matters fundamental to a person’s moral identity; and
the conflict involves acts done in public.
A public dilemma is a special case of moral impasses, and refers to those moral impasses with public policy consequences.
Not every moral impasse constitutes a public dilemma (consider cigarette smoking).

9. Moral Impasses and Public Dilemmas (cont’d)
Public dilemmas can be actively resolved in two ways:
Resolution by Declaration: where the government allies itself with only one side of the impasse, declaring that side of the impasse correct, and sanctioning and coercing against the other (e.g. abolition, prohibition).
Resolution by Accommodation: involves finding a middle ground in a dispute and placing public policy in that location. Here, there are no absolute victors or losers (e.g. Federal Fair Housing Act).

10. Moral Impasses and Public Dilemmas (cont’d)
“Unless there is some reason why the state should take sides in a public dilemma—the protection of innocent life, or abolishing slavery, for instance—the state should be neutral, because no matter which side of the public dilemma the state takes, the other side will be the recipient of unequal treatment by the state.” (361)
An overriding reason would typically involve the protection of generally recognized rights.
If a public dilemma must be resolved, resolution by accommodation is preferable to declaration since the latter involves a large number of people who would be forced to live under a government that “legitimizes” activities they find immoral.

11. Conflicting Claims on Homosexuality
While one need not adopt a religion-based morality, one must still respect those who do.
Because many religious people sincerely believe homosexual acts are morally wrong, and many others do not, there results a public dilemma.
It is only via the difference thesis, and not the parity thesis, that accommodation can be reached.
Same-sex marriage is a public matter.
For the government to sanction same-sex marriage would be to fall on one side of the public dilemma and against those with religion-based moralities.
This is especially true as the status quo has been no same-sex marriages, and for the government to choose otherwise would not be a neutral act.

12. Conflicting Claims on Homosexuality (cont’d)
If the state sanctions same-sex marriage, then there is no accommodation available for those on the other side of the dilemma.
But if the state does not sanction same-sex marriage, there is accommodation available: private homosexual acts will be left to personal choice.

13. The Argument from Conflicting Claims
P1 There are conflicting claims regarding whether any state should sanction same-sex marriages. And,
P2 this controversy constitutes a public dilemma. And,
P3 there is an accommodation possible if the state does not recognize same-sex marriages And,
P4 there is no accommodation possible if the state does sanction same-sex marriages. And,
P5 there is no overriding reason for a resolution via declaration. Hence,
P6 the state ought not sanction same-sex marriages. And,
P7 the state ought to sanction heterosexual marriages. So,
P8 there is at least one morally relevant case in which discrimination against homosexuals, because of their homosexuality, is morally permissible. Therefore,
C difference thesis is true.

14. The Argument from Conflicting Claims (cont’d)
“Since the strongest argument in support of the parity thesis fails, we have reason to think that there is no overriding reason why the state ought to resolve the public dilemma via declaration in favor of same-sex marriages. We have reason, in other words, to think that [P5] is true.” (363)
Two Objections Considered
Objection 1: Jordan’s argument is unsound because the same form of argument would permit discrimination against some practice previously considered controversial but now accepted (such as mixed-race marriages).
Response 1: The issue of mixed-race marriages is not a public dilemma—it may have been at one time, but it isn’t any longer.

15. Two Arguments Considered (cont’d)
Response 2: Even if mixed-race marriage is a public dilemma, it is one that allows for resolution by declaration, where the same is not true for same-sex marriage: “state protection from racial discrimination is a reason sufficient for a resolution via declaration” where sexual orientation is not.
Response 3: The grounds for objection in cases of same-sex and mixed-race marriages differs: one concerns racial identity; the other concerns behavior thought morally problematic.

16. Two Arguments Considered (cont’d)
Objection 2: If homosexuality is biologically based (i.e. genetic), how can discrimination ever be justified?
Response: While a predisposition to act on homosexual urges might be biologically based, acting on such a predisposition is a matter of choice. Being a homosexual is a status; homosexual acts are behaviors.
Just as pyromania might be biologically based, we still want to say that acting on such a predisposition is a moral issue.

17. A Second Argument for the Difference Thesis
If we accept Principle (A):
No just government can coerce a citizen into violating a deeply held moral belief or religious belief (365)
…then for a government to sanction same-sex marriages would be impermissible.
Sanctioning same-sex marriage means employers must provide health care benefits to spouses of employees.
An employer who feels same-sex marriage is immoral must nevertheless provide such benefits to an employee’s same-sex spouse.
The employer has no “exit right” allowing him to refrain from doing so.
So the employer is forced to do something he finds morally wrong.