Monday, June 16, 2008

Homosexual Behavior and Brain Anatomy: Does It Matter?

The Chronicle of Higher Education's news blog reports as follows:

Swedish researchers are reporting today that brain patterns in homosexual people
resemble those seen in heterosexual members of the opposite sex, a finding that
will add to the debate about the origins of homosexuality.

Overall, the scientific evidence regarding the causation of homosexual behavior is inconclusive. (See Chapter 3 of the excellent Homosexuality: The Use of Scientific Research in the Church's Moral Debate by Stan Jones and Mark Yarhouse). Suppose for argument's sake, however, that science conclusively proves that genetics is the exclusive or most important explanation of one's inclination to engage in same-sex sexual behavior. The question, with respect to the conflict between religious associational freedom and sexual orientation nondiscrimination rules, is whether this matters.

It shouldn't.

Most of the cases that have reached litigation arose when governments tried to punish theologically conservative Christian groups that take extramarital sexual conduct (including same-sex sexual conduct) into account in their personnel decisions. Most of these groups -- and orthodox Christian ethics generally -- focus on whether a person engages in homosexual conduct rather than on his or her mere experience of sexual attraction to members of the same sex. The moral focus is on behavior rather than inclination. As a result, under traditional Christian sexual ethics, the morality of homosexual conduct does not turn on what causes one to experience same-sex sexual attraction.

Of course, the preceding paragraph offers a theological analysis rather than a legal one. I still haven’t answered the question – whether conclusive scientific proof that genes cause same-sex sexual attraction would affect a religious group’s constitutional defense to a sexual orientation nondiscrimination rule.

As a matter of doctrine, the first question a court should ask is whether the application of the nondiscrimination rule burdens the religious group's religious exercise. Conclusive scientific proof that genes cause same-sex sexual attraction should not affect the virtually inescapable conclusion that punishing religious groups for organizing around shared moral commitments substantially burdens their religious exercise. Nonetheless, Christian groups should be careful to accurately articulate their ethical calculus. They should clearly state that same-sex behavior is sinful without regard to the origin of same-sex sexual attraction. They should not state that such behavior is sinful on the ground that "people choose" to be attracted to members of the same sex.

The next doctrinal question is whether some compelling interest justifies this burden. Is the government's interest stronger if people don't "choose" to be sexually attracted to members of the same sex? I suppose one could argue that religious groups' conduct standards are more "unfair" if people don't choose their sexual attractions. And one could imagine some judges finding sympathy with such an argument. Nonetheless, the causation of same-sex attraction should not be relevant to a court's analysis of the state's interest. It does not affect the magnitude of the alleged social harm that supposedly flows from some religious groups' maintenance of conduct standards.