APA anti-discrimination policy
December 4, 2009 — 13:48

Author: Alexander Pruss  Category: General  Comments: 48

We have a new APA anti-discrimination policy that attempts to settle it that schools that prohibit same-sex sexual activity are in violation of the policy. Here is a really serious problem with the policy. Suppose George is a member of Westboro Baptist Church (for those who don’t know about it, it’s a virulently anti-gay congregation–and that’s by far an understatement, as is indicated by their URL which I shall not reprint but which you can see if you google for them). George applies for the position of chair of a philosophy department at a state school, and expressly states during the interview that if appointed he would, under all possible circumstances, do his utmost to block the hiring of any gay faculty. It is clear that he ought to be dismissed as a candidate there and then, since he is committed to conduct that is unprofessional in the institutional context he is a candidate for. However the APA policy appears to prohibit dismissing George from one’s list of candidates.

Here’s why. The relevant part of the policy is:

The American Philosophical Association rejects as unethical all forms of discrimination based on race, color, religion, political convictions, national origin, sex, disability, sexual orientation, gender identification or age, whether in graduate admissions, appointments, retention, promotion and tenure, manuscript evaluation, salary determination, or other professional activities in which APA members characteristically participate. This includes both discrimination on the basis of status and discrimination on the basis of conduct integrally connected to that status, where “integrally connected” means (a) the conduct is a normal and predictable expression of the status (e.g., sexual conduct expressive of a sexual orientation) or (b) the conduct is something that only a person with that status could engage in (e.g., pregnancy), or (c) the proscription of that conduct is historically and routinely connected with invidious discrimination against the status (e.g., interracial marriage). (Emphases added. -ARP)

Thus, the policy prohibits discriminating against George for his adherence to the tenets of Westboro Baptistry or acting in ways that are “a normal and predictable expression” of his adherence. But it is extremely plausible that doing one’s best to block the hiring of gay faculty is “a normal and predictable expression” of being a Westboro Baptist (for the sake of my Baptist friends, I should note that I take it that “Westboro” is a non-factive modifier like “fake” or “ex-“). Therefore, the committee cannot discriminate against George on the basis of his unwillingness to comply with university policies that, we may suppose, prohibit discrimination against gays.

The irony is that the very conduct which the policy was intended to eliminate becomes protected by the policy.

Examples can be multiplied. Consider a member of a white supremacist religion who promises to do his best to work against non-white colleagues. Or for a more funny example, consider a member of an obscurantist religion opposed to the study or teaching of philosophy. He has no knowledge whatsoever of philosophy and no willingness to teach or do research therein. Nonetheless the maintenance of ignorance cannot be grounds of discrimination because it is a form of conduct (he actively stops his ears whenever anyone talks philosophy; in any case “conduct” is to be understood widely, since “pregnancy” is one of the examples given in the policy) “integrally connected” with the religious status. Or consider that political convictions are one of the listed statuses, and think about the anarchist whose political views are “naturally expressed” in the violent overthrow of the president, whether of the United States or of the university.

Now consider how one might defend the policy against these objections. One might say that it is permissible for the institution to require that faculty perform their institutional duties. The religiously-motivated ignoramus and bigot, as well as the politically-motivated person seeking the violent overthrow of the university president (but perhaps not the one seeking the overthrow of the president of the U.S.) are unwilling ot perform their institutional duties. However, if this route is taken, then the policy is trivialized to a significant degree. For instance the conservative Christian school can simply (and sincerely) say that it is one of the duties of the faculty member to model, for the benefit of the students, the Christian sexual morals that its denomination believes in.

A different defense would be to say that some behaviors, like discriminating against gay colleagues, are so unnatural that they are not a “natural” expression of anything, not even of something as unnatural as being a Westboro Baptist. However, if one takes this route, then it once again becomes a philosophically substantive question whether schools that prohibit homosexual conduct are violating the policy–and it was the point of the policy to decide that question. For the opponent of same-sex sexual activity can equally say that same-sex sexual activity is unnatural, and hence not a “natural” expression of anything.

Here’s another way of looking at the argument (I am grateful to a correspondent for this). We have a dilemma. Discrimination either is defined by negative differential impact or by unjustified negative differential impact. If it is defined by negative differential impact, then all the counterexamples above apply–in all my examples, refusing to hire the weirdo is discrimination on the grounds of something integrally connected with a listed status. If it is defined by unjustified negative differential impact, then the substantive questions that the policy was supposed to settle are unsettled, because it is a substantive question whether refusing to hire persons who have sex with persons of their own sex is unjustified.

Comments:
  • Z. J. Kendall

    Well dealt with.

    December 4, 2009 — 15:06
  • Dan Johnson

    Jeremy Pierce makes a similar argument on his blog, with respect to sexual orientation toward children (pedophilia):
    http://parablemania.ektopos.com/archives/2009/11/apa-discrim.html#comments
    Norcross (the major supporter of the policy) says this in reply:
    “However, lets grant, for the sake of argument, that conservative evangelicalism is a standalone religion, and lets further grant that discrimination against active homosexuals is a normal and predictable expression of that religion. This leads us to yet another confusion in Jeremy Pierce’s attempt to convict the APA of inconsistency. Certain religions may practice human sacrifice. Some political convictions entail that genocide is not only justified but obligatory. If an institution refused to hire someone who had performed human sacrifice or participated in genocide, would that constitute unethical discrimination, according to the APA’s code? Obviously not. The reason is clear. The normal and predictable expressions of the religion or political convictions in question are themselves clearly unethical. Again, the APA’s policy is written for adults with a modicum of common sense. The policy doesn’t need to spell out the obvious fact that normal and predictable expressions that are themselves morally objectionable are not protected. The APA policy states that discrimination against homosexuals, active or otherwise, is morally objectionable. Therefore, even if such discrimination is somehow a normal or predictable expression of a religion, it is not protected by the policy.”
    He opens himself up to precisly your objection, Alex. All of a sudden conservative religious schools can in good faith claim to be in accord with the policy, because of (as Norcross says) “the obvious fact that normal and predictable expressions which are themselves morally objectionable are not protected” and their belief that homosexual behavior is morally objectionable. But the policy was supposed to prevent exactly this.
    Presumably, since the policy itself does not state that homosexual behavior is morally unobjectionable, the APA will be unable simply on the basis of this policy to flag any school who won’t hire practicing homosexuals as failing to comply with the policy. It will have to make independent moral judgments which are not a matter of policy and which will be contested by some of its members.
    I’m rather surprised Dr. Norcross did not recognize this immediately himself.

    December 4, 2009 — 15:23
  • John A.

    Alexander
    I find your arguments very compelling, but they miss of one the roots of the problem. Not only is it poor logic, this policy assumes a monolithic body politic where in fact the people who make up the APA are as pluralistic as the society it functions in. This is similar to the problem of trying to decide at a governmental level any policy that would exclude by law certain types of actions between autonomous individuals because other autonomous individuals do not agree with that behavior and have the votes on their side. I remember one pundit arguing that federal funds should not be be used to fund anything that people find morally objectionable. He was defending the ban on the use of federal funds to fund abortions. Unfortunately, given his major premise there is nothing the government could then fund because someone will find it morally objectionable. It does seem paradoxical to assume we can solve by policy what we cannot solve by argument.
    I am not smart enough to know how to solve this problem other then to let autonomous people do what they want as long as they do not stop others from doing what they want. As far as the APA is concerned, I think the best solution is to publish the policies of the institutions that make use of APA services so that people can investigate for themselves whether or not to pursue opportunities in those institutions. We can still debate the issues, but realize that we will probably never solve them to everyone’s satisfaction.

    December 4, 2009 — 15:42
  • Mike Almeida

    it is a substantive question whether refusing to hire persons who have sex with persons of their own sex is unjustified.
    Unless I’m missing something, those who support the policy view the substantive question to be not just settled, but the driving motive for the policy. The argument seems to go, it is because discrimination against gays (or conduct integrally connected thereunto) is ‘culpable discrimination’ that the APA should prohibited it. I don’t think the document can reasonably be read as neutral over the sorts of conduct/commitments protected. In fact, I took the main argument opposing this position to be that an institution could reasonably reach the philosophical conclusion that conduct integrally connected with being gay is immoral and should not be protected. In any case, that struck me as a philosophical position that a reasonable person could take on this issue (though there wasn’t much call for philosophy in the whole discussion, as I recall). So, the entire argument seemed to turn on the substantive moral question. But maybe I haven’t taken your point.

    December 4, 2009 — 16:10
  • Dan:
    I think Norcross’s suggestion that we restrict the conducts to non-immoral conducts really weakens the policy (besides adding something that isn’t there). For instance, suppose monotheism is true and that if monotheism is true, then worshipping many gods is immoral. In that case, a non-religious university would be permitted by the policy to discriminate against the practice of Hinduism. And yet that seems to a paradigm case of what a conduct the policy is intended to proect. Or suppose that it turns out to be immoral to vote for major party X because the policies of major party Y are all-things-considered better (it seems likely that most people think this is true for some X and Y–in fact, for the same pair X and Y, but not the same ordered pair), and it’s immoral to vote for a party whose policies are all-things-considered better. In that case, every school would be permitted to discriminate against those who vote for party X, which would make the protection of conduct naturally arising from a political conviction a joke.
    Mike:
    The context for my line is a suggested reading of the word “discriminate” as including “unjustly”. If so, then a school can agree that the policy prohibits discrimination against those who have sex with people of their own sex, but say that their refusal to hire such people is not discrimination as it is not unjust. To decide whether they are right, one would have to decide whether such refusal to hire is unjust. And that is the very question the policy was supposed to answer–but which on this reading is unanswered. This gives one good reason to think the reading is wrong, except that the alternate reading is prey to Jeremy’s and my counterexamples.

    December 4, 2009 — 17:25
  • Mike Almeida

    If so, then a school can agree that the policy prohibits discrimination against those who have sex with people of their own sex, but say that their refusal to hire such people is not discrimination as it is not unjust.
    No, I understand that. Just to clarify, there is discrimination in either case, whether just or not. Some of it is culpable discrimination (unjust discrimination, if you like), some of it is not. But I thought that most of the earlier blog discussion of this concerned the very question of unjust discrimination. I thought it was argued that indeed it is unjust discrimination. If so, your reading does not raise a point that was overlooked. It came up whether the discrimination was analogous to discrimination based on race or not, as I recall. And many argued that it was, and so was similarly unjust discrimination. Others argued that it was not analogous to such discrimination, and so not (obviously) unjust. Am I misremembering that?

    December 4, 2009 — 18:02
  • M.

    It seems that this might be fixed by a simple amendment: change “no discrimination based on expected religious/political/racial/sexual conduct” to “no discrimination based on expected religious/political/racial/sexual conduct, unless it would expressly lead to further discrimination based on expected religious/political/etc. conduct on the part of the applicant.” White supremacist applicants openly intent on purging the department of minorities wouldn’t pass this test.
    Regarding the guy whose religion instructs him not to know anything about philosophy, we could simplify this to a guy whose religion instructs him not to do any work whatsoever! But here we could simply require applicants to perform necessary institutional duties, provided that those institutional duties aren’t targeted at discriminating against certain groups for religious/ideological reasons. While religious discrimination may be a consequence of certain hiring criteria, that doesn’t mean the intent of such criteria is particularly religiously discriminatory. No one has the “Church of Laziness” in mind when demanding applicants to perform job-related duties. But Christian schools which engage in anti-homosexual discrimination are explicitly doing so to weed out those whose lifestyles are not in accord with their (the schools’) spiritual beliefs.
    Just a (possibly flawed) thought.

    December 4, 2009 — 19:31
  • M.:
    Sure, there are amendments that are possible. Note, though, that your proposal would prohibit discrimination against the campus anarchist who wants to overthrow the university president in a violent way. So one needs other qualifiers. It gets tricky.
    I think that it might have been more sensible to forget about trying to craft general rules. It would have been simpler and less ambiguous, though less philosophical, simply to add an ad hoc prohibition against discrimination on the basis of the homosexual or the heterosexual nature of one’s sexual activity.
    Mike:
    True, we did have such a discussion. The point is simply that if we read “discrimination” as “unjust discrimination”, the policy does not settle the issue it was intended to do.
    Consider the following variant policy
    (1) “We oppose unjust discrimination in hiring, promotion, etc.”
    with no list of particular statuses. The variant policy has the advantage of simplicity and indisputable justice. Its disadvantage is that to figure out whether discrimination on the basis of status or conduct K is permissible, one would have to figure out whether such discrimination is just or unjust. Now if the present policy means “unjust discrimination” by the word “discrimination”, then it is weaker than (1). For instance, to draw the uncontroversial inference that it is wrong to discriminate racially from the present policy (on this reading) one would have to establish that racial discrimination is unjust. But if one is going to have to establish that racial discrimination is unjust in order to apply the current policy, then one is no better off in that regard than one would be under (1). For once one establishes (and it’s not hard to do so) that racial discrimination is unjust, it follows that (1) forbids it.

    December 4, 2009 — 20:30
  • In the First Amendment context, a rule that incidentally impedes a given religious practice won’t implicate the Free Exercise Clause if it is a “neutral law of general applicability.” Much the same approach would most sensibly apply here since, for example, schools otherwise wouldn’t be able to prohibit things like prolicide (which after all might very well be “a normal and predictable expression” of a person’s adherence to this tenet).

    December 4, 2009 — 22:32
  • I wonder if that’s a route the APA would want to take.
    Suppose a conservative Catholic school prohibits faculty from engaging in any sexual relations that are not of “reproductive type”. (Thus, it prohibits oral/anal sex, contraception, etc., whether between persons of the same sex or between persons of the opposite sex.) Then the school could argue that it has a neutral law of general applicability, with some justice. After all, the acts that would be prohibited by the rule are acts that are also are done by heterosexuals, and in our culture not just in rare cases. Or consider a conservative Protestant school in a state that does not recognize same-sex marriage that simply prohibits faculty from engaging in any sexual relations outside of a legal marriage. Again, the prohibition would affect both heterosexuals and homosexuals. In both cases, the schools could be quite sincere in the neutrality of their respective rules. (Actually, the Catholic school could adopt the conjunction of the rules.) The Catholic Church does indeed condemn engaging in sexual relations that are not of reproductive type, no matter whether one does so alone, or with a person of the opposite sex, or with a person of the same sex.
    I am guessing that what you could say is this: in both the Catholic and the Protestant cases, there is a differential impact of the rule on homosexual faculty, since while both of the rules in fact have a significant impact on heterosexual faculty, their impact on homosexual faculty is arguably significantly greater. And it was the intention of the framers of the new policy to prohibit such a differential impact.
    But now exactly the same argument can be made in some of my other cases. Just as a prohibition on sexual activity of non-reproductive type differentially impacts persons of homosexual orientation, so does a prohibition against discriminating against persons who engage in homosexual behavior (or, say, against faculty engaging in hate speech on campus) differentially–and rightfully–impacts Westboro Baptists (hate speech is one of their central characteristic activities–they love to demonstrate with banners saying “God hates x” and variants, with various substituends for x).
    Likewise, a prohibition against various forms of overtly racist activity differentially–and rightfully–impacts persons of racist political convictions, but political convictions are a listed status. There is a correlation between such convictions and such activity, and most people who engage in the activity have such convictions.
    I take it that the reason for the APA’s talk of activity that normally expresses a status was to remedy perceived ambiguities in the previous policy, in part so we wouldn’t have to be trying to figure out whether prohibitions of sex outside of marriage in states where same-sex marriage is not recognized count as neutral or not.

    December 5, 2009 — 8:16
  • John:
    I am not a political philosopher. I have no idea how to deal with the tough issues you raise. Maybe one day you will have something helpful to tell us on them. But as for me, I have this knack for finding counterexamples, which also operates in areas of philosophy that I don’t specialize in, so that’s what I did here. 🙂

    December 5, 2009 — 8:22
  • Well, to the extent that the hypothetical rule against nonreproductive-type sex acts is “neutral,” the APA could adopt an equally neutral requirement that member schools not so discriminate.
    But the fact that the rule is neutral on its face (much as the rule of Exodus 21:17 is) does not make it neutral in the relevant sense. Again, I’ll analogize to the legal context. (The APA and religious schools are private institutions, so the constitution doesn’t bind them as it would bind state and federal legislatures; but the minimalist moral and policy concerns that have been hashed out in the courts on these issues over the last 60-plus years more or less map onto the nonlegal context.) First, if the rule were a law, it would probably run afoul of the First Amendment on the establishment clause side, since it seeks to impose a religiously-based viewpoint, albeit by using language that is facially neutral. In other words, it’s not a “neutral” rule because it has no valid secular purpose and has the primary effect of promoting religious ideas. Second, a facially neutral law intended to have a disparate impact on a certain class of individuals violates equal protection. The rule in question does appear to be intentionally (if only partially) directed at homosexual sexual activity, and would on that count violate equal protection.
    But even if one were convinced that there were a genuinely neutral rationale behind the discriminatory rule (and so that it was counter to neither the establishment or equal protection clauses), the APA would nonetheless clearly be permitted to propound its own rule countering such discrimination.

    December 5, 2009 — 15:17
  • John A.

    Alexander
    As I said, I find your arguments regarding the APA’s policy compelling. I think they demonstrate why the policy is not a good one. I was not being critical of your use of counter-examples. I admit that I do not find every counter-example raised by metaphysicians to be interesting or relevant – some are pretty far-fetched and unrealistic for me to take seriously, but that is my problem, certainly not yours. (I have the same issue with many epistemologists and ethicists.)
    What I was trying to suggest is that the APA’s attempt to solve through a policy statement what philosophers and others have not been able to solve by argument is misguided at the political level which should recognize the rights of autonomous persons to act on their reasonable beliefs as long as they do not limit others from acting on theirs. This position justifies a pluralistic, not a monolithic, political environment where there will be significant differences in how peoples and groups of peoples choose to live. Autonomous people can knowingly and freely enter into formal and informal relationships with others. Organizations are defined by the rules and norms that are agreed to by its members. The Catholic Church, or any Church or organization for that matter, certainly has the right to restrict its membership to those who share is essential creeds and dogmas. I think this extends to schools that are directly tied to a specific Church. That fact that these organizations rule me out as a member because I do not accept their conceptual framework does not mean I have been unfairly discriminated against. Many of the counter-examples raised by you and the other contributors reflect this very point. We can discuss and learn from these counter-examples, both at a metaphysical and political level.
    But this discussion does seems to miss the important point that the APA’s policy is essentially a political statement designed to establish how all its members should respond to these concerns in the political realm. As I understand the idea of organizational membership, the statement of the APA entails that all APA members should “reject as unethical all forms of discrimination based on race, color, religion, political convictions, national origin, sex, disability, sexual orientation, gender identification or age, whether in graduate admissions, appointments, retention, promotion and tenure, manuscript evaluation, salary determination, or other professional activities in which APA members characteristically participate. This includes both discrimination on the basis of status and discrimination on the basis of conduct integrally connected to that status, where “integrally connected” means (a) the conduct is a normal and predictable expression of the status (e.g., sexual conduct expressive of a sexual orientation) or (b) the conduct is something that only a person with that status could engage in (e.g., pregnancy), or (c) the proscription of that conduct is historically and routinely connected with invidious discrimination against the status (e.g., interracial marriage).”
    I take it that to be a member of APA (which I am not) is to be in agreement with its policies. If one disagrees with the policies of an organization how is it reasonable for that person to be a member of that organization. I presume that if some members of the APA disagree with this policy then they can try to get it changed or should leave the organization, but while trying to get it changed they should follow the policy. My point is, that at the political level alone this policy reflects a political position that is disrespectful of autonomous people. Your original argument supports my position

    December 5, 2009 — 16:13
  • The imposition of religiously-based viewpoints is permitted by the APA to religious schools, when it does not conflict with the non-discrimination policy. So the first argument appears irrelevant.
    In fact, outside of the context of a constitution that requires religious neutrality, the question whether the viewpoint is religiously or secularly based is surely only relevant if one thinks that religiously-based justifications are epistemically weaker than secularly-based ones. But whether that is so is a controversial question. This question falls in the province of the philosophy of religion, and there is no consensus on it among the philosophers.
    Anyway, continuing, the argument seems to be:
    1. The rule is intentionally (though only partially) directed at homosexual sexual activity.
    2. Therefore, the rule is intended to have a disparate impact on a certain class of individuals.
    However, this argument is clearly invalid, since from (1) it follows only that the rule is intended to have an impact on a certain class of individuals, not that it is intended to have a disparate impact on that class. So something is missing from your comment, I think.

    December 5, 2009 — 16:32
  • MD:
    However, we’ve departed somewhat from the subject under discussion, which was whether the new APA policy’s wording succeeds in prohibiting discrimination against homosexual activity without simultaneously prohibiting discrimination against bigotry and morally abhorrent or criminal religious practices (I take it that it is uncontroversial that we want to be able to discriminate against these). I’d like to keep the discussion in this thread as much as possible on this topic. In fact, I think this discussion can be neutral on the question whether the APA is right to aim to eliminate discrimination against homosexual activity.
    So I return to my dilemma, which we can expend to a trilemma by using Mark Murphy’s three definitions of discrimination. We can understand “discrimination” in three ways:
    (a) intentional targeting for burdening of the protected class;
    (b) burdening that is motivated by animus against the protected class;
    (c) burdening of the protected class that is disproportionate and not adequately justified.
    If in the new policy the word “discrimination” is meant in sense (a), then we have the problem that the bigots are protected, because religious status and its natural expression is protected, and some religious statuses are naturally expressed by bigotry. And then my counterexamples apply. If “discrimination” is read in sense (b), then bigots are still to some degree protected, because there is certainly an animus against them–and rightly so. Moreover, homosexual practice is not always protected, because a particular school may be lacking in animus–they may simply find the arguments, religious or natural law, convincing. And in case (c), the new policy hardly advances beyond the old policy, because the question whether prohibiting homosexual activity is adequately justified is not addressed by the new policy.

    December 5, 2009 — 16:45
  • John:
    I am a member of the APA (I think: I still need to send in the renewal form for the next year). I do not consider it necessary for me to leave the APA despite disagreeing with the policy. Organizations–professional ones, Departments, etc.–pass various policies at various times, sometimes by executive fiat and sometimes by a vote among the members. It is not usual for all the members of the organization who disagree with these policies to leave, unless either the policies are particularly central to the functioning of the organization (thus, someone who thinks philosophy ought not be practiced should leave the APA) or are exceedingly vicious (the degree here must be judged on a case-by-case basis). Therefore, membership in an organization does not signal agreement with all the policies of the organization, just as citizenship in a democratic society does not signal agreement with all laws.

    December 5, 2009 — 16:52
  • Mike Almeida

    I take it that to be a member of APA (which I am not) is to be in agreement with its policies. If one disagrees with the policies of an organization how is it reasonable for that person to be a member of that organization.
    That’s something close to APA, love it or leave it. There is the well-known alternative to find reasonable ways to move policy in directions you find just. I’m sure I’m in less than full agreement with every organization of which I am a member.

    December 5, 2009 — 17:36
  • AP,
    It isn’t clear to me how fact that the APA permits religious schools to impose religiously-based rules when those rules don’t conflict with the APA’s nondiscrimination policy would prevent the APA from adopting a rule rendering certain of those rules as prospectively conflicting (as indeed in this case it seems to have done). So I think my initial point stands. Or?
    My premise that the rule is intentionally (though only partially) directed at preventing homosexual sexual activity just means (I took it) that the rule is, in part, intended to discriminate against homosexuals. The disparate impact between (1) preventing the full range of a class’s “natural” modes of sexual expression (in the homosexual case) and (2) preventing all but the most paradigmatic mode of sexual expression (in the heterosexual case) seems clear enough. Of course, the premise that this impact is intended (and that it obtains at the appropriate level of generality) will be in the minds of some merely arguable; but in any case I wouldn’t think it needs to be supplemented to make the argument go through.
    As to the trilemma, it would seem that at least the APA has reached the consensus that the kind of discrimination in question falls under the third category of discrimination you define. The APA’s rule prohibiting such discrimination would therefore (by the institution’s own lights) not fall under any of the three categories. Other than the political problem that (by the lights of dissenting members and nonmembers) the APA hasn’t adequately justified its own determination on this score, is there a residual, conceptual problem I’m not seeing?

    December 5, 2009 — 18:21
  • John A.

    Alexander
    I never said someone HAS TO leave an organization if they disagree with its policies – that is one option. (No one has to do anything – I take it that is what it means to be free. I do admit that I find it hard to understand why a person who disagrees with ALL or MOST OF the [organizational defining] policies of an organization would choose to stay, but that is a different issue.) The other option I mentioned, the one you are in fact actively engaged in, is an attempt to persuade others that the policy is wrong, or at least misguided and in need of clarification. There is a third option, one could disagree, but still comply. (This is obviously Socrates’ position in Crito). Therefore, you staying in the APA (once you pay your dues) is not inconsistent with what I suggested.
    Now, I would argue, and in fact have done so, that if the organization is indeed an ethical one, that there must be an overarching organizational policy that allows for dissent and ‘loyal’ opposition. This policy allows for formal mechanisms to be in place to allow for constructive dialogue and the possibility of reform. The discussion on this blog (and the countless others where this policy has been discussed) is a social recognition of this overarching policy within the larger body politic. This overarching policy seems to be a necessary condition for democratic societies/organizations to exist.
    I agree that I overstated my position at one point. ‘Agreement’ is probably the wrong word – ‘compliance’ might be a better one. I am assuming that an organization would not encourage or allow members not to comply with the policies that define the organization. It is certainly possible to disagree with a policy, but to act in compliance with it. The exception to this is if disobedience is a form of persuasion – which I think it is. In this case, disobedience is still consistent with being a member of an organization.
    Back to the APA policy – I will try to outline an answer to how we should handle George (argued already by others) that is consistent with the idea of autonomy. The reason it is permissible to discriminate against George is that the organization he is a member of does not respect the foundational idea that responsible people should be able to live as they themselves determine. We have an obligation, based on how we as reasonable people want to be treated, that allows us to actively try to delimit these types of organizations influence in our social lives. Because these types of organizations use force, in terms of threat, actual coercion and/or deception, as the main means to ensure compliance (all organizations use force to some extent) it is morally obligatory of us to act against these organizations – we do not have to recognize there right to exist because they themselves deny this right to others. To use a Rawlsian distinction, a just society/organization is ‘liberal,’ or at least ‘decent,’ while an unjust one is either an ‘outlaw’ society/organization or one that lacks to means to meet basic human biological needs. George’s organization is an ‘outlaw’ one therefore, the APA, being a liberal one, is obligated to eliminate its influence.
    What the APA policy seems to lack is a clear articulation of the meta-ethical/political foundation upon which it rests. Many of your (and other commentators) counter-examples exemplify this problem. I am sure that there is more then one possible morally acceptable articulation – I personally prefer a Rawlsian one, but I can certainly see one being developed from a more consequentialist/utilitarian or Lockean/Libertarian meta-ethical perspective, or Marxist, or Feminist perspectives. It is clear that given the role autonomy plays in my understanding of the ideal political arena that I have issues with many formal organizations. But, as long as they do not receive financial support from the general funds of the society, but are solely funded by their own means, then they can function as they wish. I see no reason while Oral Roberts University should even have to consider me for a teaching position – of course, I wouldn’t want to teach there anyway, even if I had the necessary academic credentials. I might intellectually, at some abstract level, wish that the types of people who reflect these types of traditions did not exist, but they may wish people like me didn’t exist – so we are even. The political point is that we have to make room for divergent types of peoples and the divergent types of organizations they develop and implement to give meaning to their lives. In a reasonable, well-established political environment the opportunity for dialogue with those we disagree with is essential – that is why I like to read and comment on this blog – I seldom agree with what is being discussed, but I have learned a great deal by participating.
    The APA policy tries to accomplish the ideal of eliminating unjust discrimination, but it fails because it does not articulate its meta-ethical/political foundation. Therefore it is open to the problems brought forth by commentators on this thread (and other blogs). The APA needs to go back to the ‘drawing’ board.
    Anyway, I am rambling. Have a good night. The Texas-Nebraska game just started. Go Nebraska!!!!!

    December 5, 2009 — 19:36
  • MD:
    So, let’s take the third reading. If we do that, then there is no conceptual problem with the policy. In fact, the policy is utterly uncontroversial as it stands. We presumably all agree that it is wrong to burden anybody in a disproportionate and unjustified way, and in particular that it is wrong to burden the persons with the listed statuses. That it is wrong to do something that is disproportionate and unjustified is an analytic truth. On this reading, just about every school can in good conscience check the box in the advertisement form saying they are in compliance with the policy as long as it is sincere in its own policies. (An exception might be if the person who fills out the form disagrees with the school that she represents.)
    Now, of course, the APA can then find the school in non-compliance and flag it as such. But it does trivialize the first step of the procedure, namely the school’s checking off if they are in compliance.
    This is an important question of interpretation. For the representative of the Christian school that discriminates against same-sex sexual activity needs to decide whether to check the box in the ad. If “discrimination” is understood as you suggest, then she much check the box (at least as long as she agrees with her school). Why? Because the question is whether the school discriminates in an unjustified and disproportionate way, rather than whether the school discriminates in a way that the APA takes to be unjustified and disproportionate. And thus she must answer according to her honest opinion, which is presumably (unless she disagrees with her school) that there is no unjustified and disproportionate discrimination.
    On the other hand, if “discrimination” does not analytically imply “unjustified and disproportionate”, then she presumably cannot check the box.
    I do think that reading the policy as logically trivial is implausible. It’s phrased as if it were stating an important moral truth. On the other hand, something could be both important and trivial, so this isn’t a decisive argument against the reading. And a reading that renders the moral claim trivial does have the advantage of not being subject to counterexamples. (I know this sounds like I’m being sarcastic. I am not. I do think logically trivial accounts which are not subject to counterexamples can have a genuine value. I’ve just finished a draft of a paper giving a deflationary account of diachronic identity, and my account is indeed logically trivial and not subject to counterexamples.)

    December 5, 2009 — 22:28
  • John A.

    I wrote and your quoted me: “I take it that to be a member of APA (which I am not) is to be in agreement with its policies. If one disagrees with the policies of an organization how is it reasonable for that person to be a member of that organization.”
    You replied to this by saying: “That’s something close to APA, love it or leave it. There is the well-known alternative to find reasonable ways to move policy in directions you find just. I’m sure I’m in less than full agreement with every organization of which I am a member.”
    Immediately following my above quote I had written: “I presume that if some members of the APA disagree with this policy then they can try to get it changed or should leave the organization, but while trying to get it changed they should follow the policy.”
    I do not see how I am in disagreement with what you said. Can you clarify?

    December 6, 2009 — 0:06
  • Mike Almeida

    I do think that reading the policy as logically trivial is implausible.
    But taking the policy literally and non-trivially is also implausible, since it is obviously do not intended to protect bigots. Read non-trivially the initial clause is too clearly false.
    The American Philosophical Association rejects as unethical all forms of discrimination based on race, color, religion. . .
    The universal quantifier makes it too susceptible to counterexample, as Alex pretty much shows. Read as probibiting unjustified descrimination does approach trivialization (though I don’t think it is analytically true that all forms of unjust discrimination are wrong, since it is not apriori that minor injustices always override maximal benefits), but there are alternatives.
    The policy might fairly be read as erring on the side of non-discrimination. So, in disputed cases, as in the cases under discussion, we should err (if we err at all) on the side of protecting the relevant parties. In non-disputed (or hardly disputed) cases, such as W. Baptists, it is obvious that we should not protect the relevant parties. So, there is a non-trivial reading of the APA policy that has prima facie plausibility.

    December 6, 2009 — 8:21
  • Mike Almeida

    You write this,
    I take it that to be a member of APA (which I am not) is to be in agreement with its policies.
    Taken together with the rest of that paragraph it still entails that remaining a member of the APA, or any other organization, entails that I am in agreement with the organization’s policies. Even if I am trying to change it, I am, according to this view, still in agreement. My claim is that remaining a member does not entail being in agreement.

    December 6, 2009 — 8:27
  • Mike:
    “Read as probibiting unjustified descrimination does approach trivialization (though I don’t think it is analytically true that all forms of unjust discrimination are wrong, since it is not apriori that minor injustices always override maximal benefits), but there are alternatives. ”
    If there are cases where a minor injustice does not override maximal benefits, in such cases the discrimination is not unjustified, and so that’s not a counterexample to the triviality thesis.

    December 6, 2009 — 10:08
  • Mike Almeida

    If there are cases where a minor injustice does not override maximal benefits, in such cases the discrimination is not unjustified, and so that’s not a counterexample to the triviality thesis.
    Not so fast. I specify a case in which the discrimination is unjust; it’s at least strained to say that unjust discrimination is justified discrimination. The discrimination is, I claim, an all-in injustice. It doesn’t mean I can’t have reason to perform an action that happens to be a clear instance of unjust discrimination. And those reasons need not make the discrimination any less unjust. So, we have two options: (i) call some unjust discrimination justified discrimination or (ii) call all unjust discrimination unjustified, and urge that some actions that are instances of unjustified discrimination are themselves justified (e.g., when they are also instances of maximal beneficence). I was taking the latter position.

    December 6, 2009 — 12:17
  • AP, I don’t find your remarks sarcastic in the least. I’d only just disagree with you (and I see too with Mike A) that the policy statement is in any strict sense trivial. It’s in the nature of general rules that there will be disagreements about whether there are, and what count as, significant counterexamples. It’s worth exploring alternative ways to draft an improved version of the rule, but as currently drafted the rule seems to me to send a signal that is reasonably clear and easy to understand.
    As long as the check box includes a “to the best of my knowledge” clause, I would see no problem with the certification – if there really is in the mind of the certifier a good faith doubt about the compliance of his or her institution, the party could submit a query to the APA setting out the questioned policies and requesting guidance. (Perhaps such an applicant should be spared the public flagging pending the APA’s disposition of his or her inquiry.)

    December 6, 2009 — 13:28
  • Clayton Littlejohn

    I wonder how ‘religion’ is being understood. Are the members of the Westboro Baptist Church Christians? I don’t think that members of that church engage in the conduct is a normal and predictable expression of the status of being Christian, but I know so little about the practices of Christians. Is picketing outside of funerals the normal and predictable expression of Christian commitment? If I was passing on of their demonstrations and muttered ‘That’s the normal and predictable expression of Christianity’, I don’t think some of you would let me get away with that.

    December 6, 2009 — 20:45
  • Clayton:
    The question of how widely or narrowly the status “religion” partitions is a good one. The broadest partition is into religious and non-religious people. If that’s the intended partition, then discrimination against, say, religious Jews is permitted to a secular school. And that’s surely not the right reading. A narrower partition will have divisions like: non-religious, Christian, Jewish, Muslim, Hindu, Buddhist, etc. On this reading, a secular school would not violate the policy by discriminating against Shiite Muslims, Orthodox Jews and Episcopalians. Again that does not seem to be the right reading.
    So the correct partition seems to be narrower, at least as narrow as what we call “denominational” divisions. I don’t know if anybody has done any work on how to define these divisions. I think that in the non-mainline Protestant world, often it is correct to characterize a single congregation as a denomination when that congregation does not have an affiliation with a larger body. I think that in this sense the Westboro Baptists should be understood as a single denomination. In support of this, here is something from the San Diego Christian Examiner: “According to their website, they term themselves “old-school” or “primitive” Baptists; a distinction that emerged in the early 1800’s as the result of theological and operational disagreements within the existing American branch of the Baptist denomination of the time. Estimates place around 2000 Primitive Baptist churches in America today, none of whom admit to being affiliated with Westboro Baptist church. So, it is important to note, right off the bat, that the specific sub-group of Baptists that Westboro claims to be identified with, denies the same. That fact, alone, should be of some concern…especially to Westboro. I have been unable to identify any churches, anywhere, that openly align themselves with Westboro, for that matter.”
    Given the fact that Westboro Baptists have their own distinctive practices (e.g., picketing funerals, as well as Christian and non-Christian establishments (they recently picketed Baylor), etc.) and doctrines (e.g., that God hates certain kinds of sinners) that contradict standard practices of Christians of every other denomination I know of, and given that no larger body recognizes them, it seems correct to classify them as sui generis, a denomination in their own right. (Or perhaps even a non-Christian religion, if we take the claim that God loves sinners to be central to Christianity.) The fact that they claim to be “old-school Baptists” does not make them “old-school Baptists”, any more than the Westboro Baptists’ claim to be practicing true Judaism would make them be Jews (I think I saw the latter claim somewhere on their website; but if not, the point still remains a fine hypothetical).
    And thus on a denomination-level partition, being a Westboro Baptist counts as a protected status. I am fine with that, I guess. But I am not fine with their distinctive practices being protected from discrimination (though I recognize that their freedom of speech needs to be protected by law).

    December 7, 2009 — 9:04
  • 1. It’s also worth noting the head of the Westboro Baptists, the Rev. Phelps, founded his own legal firm, Phelps Chartered, all the principles of which are members of the church, and which firm specializes in constitutional freedom of speech cases, which obviously come up quite a lot given the unique practices of this unlovely religion. If an institution checked that they comply with the non-discrimination policy, and if a Westboro Baptist applied for a position (they are lawyers, so there is a nearby world where at least one of them gets a philosophy graduate degree and applies for a philosophy of law position), and the person thought himself or herself discriminated against (and indeed it would be very, very hard for the members of the search committee to mentally bracket the person’s practices, given how public they are, so it wouldn’t be a groundless thought), a lawsuit would indeed be likely.
    2. Raising a new issue, I am curious what it means for an institution to check that they are “in compliance” with the policy. Obviously, a sufficient condition is that the institution’s own non-discrimination policy (NDP) is at least as strong as the APA’s and all the members of the Department and administration abide by this policy. But the sufficient condition is unlikely to be met–the APA’s policy is stronger, I think, than typical school NDPs. A necessary condition is that the school have no official policy going against the APA’s NDP. But this necessary condition is surely not sufficient–one can have a school that’s racist through and through but that does not have any official racist policies.
    The following fairly ordinary scenario is going to be hard to evaluate. The school has a NDP that covers many, but not all, the cases in the APA’s NDP. The school’s Philosophy Department, however, contains some members who are biased against a listed status or a conduct integrally connected with it. It seems not unlikely that quite a number of Departments might contain at least one person who is biased (I am using this word as neutrally as it can be used) against homosexuals, or homosexual activity, or reform Jews, or Sunni Muslims, or Democrats, or Republicans, or the Christian Right, or transsexuals, or Catholics.
    I expect we all know at least one philosopher who has a bias against at least one of the groups I’ve listed, all of which are covered by the APA’s NDP. (For instance, I had an interview at a highly ranked school shortly after Elizabeth Anscombe died, and at lunch a well-respected philosopher there expressed his amazement that a solid Catholic like her managed to be a really good philosopher.) It may even be the case that most philosophers have a bias against at least one of the groups listed. (Thus, it might well be that most people who aren’t biased against homosexual activity are biased against the Christian Right.)
    Because I have supposed that the school’s NDP does not cover all the cases in the APA’s NDP, such a person might not even be required by the school’s policy to bracket that bias. But even if she is required to bracket that bias, the Department Chair might know that either she will fail to try bracket the bias or she will likely be unsuccessful in her attempt to bracket it. Is the Chair permitted to check the compliance box in a case like that? (That the person is in a minority in the Department appears irrelevant. Her vote can still be decisive, and her word may convince others.)

    December 7, 2009 — 10:23
  • Keith DeRose

    Hmm. Though I belong to a particular denomination and to a particular congregation, if I’m just asked what my religion is, I think the the right answer–the answer at the right level of specificity for that question–is just that I’m a Christian. “Religious” (as opposed to non-religious) is too broad; “Episcopal,” and even “Anglican,” seem to narrow. I count Methodists, Southern Baptists, Roman Catholics, etc. (and, sadly, Westboro Baptists) as “co-religionists.”

    December 7, 2009 — 12:46
  • Keith DeRose

    Of course, there could be — and probably are — religious groups with anti-gay views similar to and as virulent as those of the Westboro Baptists, but that really do constitute their own stand-alone religion.

    December 7, 2009 — 12:54
  • Clayton Littlejohn

    Hey Alex,
    I think I’d individuate religions broadly but not so broadly that there’s one religion. I’ve had Mormon and Catholic friends who didn’t particularly like it when they were told that they weren’t Christians and belonged to a different religion than, say, Baptists and Lutherans. Not really a fight I had a dog in, but I remember thinking it was a bit nasty when a girl was kicked off her soccer team at one of the local colleges in Lincoln because she “wasn’t a Christian” when she was known to be a Mormon. I remember then thinking they were all the same religion, but it was a nasty thing to do regardless. Took some comfort in the fact that the team was worse off without their first string goalie.
    As an anti-individualist, I would say that regardless of what the members of the APA intended, the content of what they said should be cashed out in broad enough terms that the members of Phelps’ group count as Christians and so we can all say that they are bad Christians and I can imagine Christians wishing that Phelps didn’t belong to their religion since he makes it look so bad. I assume the individualists would say that this is what the members of the APA said because it was what they intended to say. (I’m sure that’s uncharitable to the semantic individualists but it’s such a bad view I don’t know exactly how to be charitable to it.)
    My worry was basically this: if there’s no actual religion whose members discriminatory conduct is a normal and predictable expression of their religion, the APA policy couldn’t discriminate against any actual religious actors. At worst, we have a case where the actual policy could discriminate in some merely possible world that the policy wasn’t designed to address.
    If I’m reading you correctly, your worry is that if we individuate the policy broadly, there’s not sufficient cover to protect various religious believers who act on their beliefs from discrimination from those who say that we don’t discriminate against their beliefs but only the actions rationalized by those beliefs when coupled with appropriate complexes of desires and intentions. One solution would be to petition the APA for a more robust policy that protects more religious actors from discrimination. I’m very much against secular schools discriminating against Jews, Christians, Muslims, etc… At any rate, good point. I don’t think that the policy permits in the sense of ‘protects’ or ‘gives the right to’ discrimination against religious actors, but maybe if read carefully it doesn’t do enough to forbid it.

    December 7, 2009 — 13:14
  • I would think that in US jurisprudence, prohibitions against discrimination on the grounds of religious status would cover, say, anti-Catholic discrimination, and not just anti-Christian discrimination. After all, we really wouldn’t want secular judges to be trying to figure out what counts as a quintessentially Christian practice or belief, and it appears to be settled US juridical doctrine that such investigation is not the job of the courts.
    A bit of searching in Google Books shows that it is pretty normal to talk of “religious discrimination” against nonconformist Christians and Catholics, typically by other Christians. I thus think in ordinary usage, discrimination against any Christian denomination would qualify.
    For comparison, Title VII prohibits discrimination on the ground of “religion” and defines “religion” as: “all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.” To my non-lawyer ears, it’s an oddly stipulative definition–whether a practice can be reasonably accommodated or not is surely irrelevant to the question whether it is a religious observance.
    There seem to be a fair amount of court decisions on the accommodation of Seventh Day Adventists in respect of working on Saturday. The controversy seems not to be whether Seventh Day Adventists are a religion, but whether accommodating them is an undue hardship. I haven’t yet come across any judgment that the relevant religious status is “Christian” and not “Seventh Day Adventist”, and that Christians do not characteristically abstain from working on Saturday.
    Of course, the APA is free to define its terms as it sees fit, but without a further definition, it seems that the narrower partitioning that is generally used is what is intended.

    December 7, 2009 — 21:02
  • Robert Gressis

    Hi Alex,
    I think the APA construes discrimination against homosexuals as falling under Murphy’s type (c):
    “(c) burdening of the protected class that is disproportionate and not adequately justified.”
    Your response to this is that “in case (c), the new policy hardly advances beyond the old policy, because the question whether prohibiting homosexual activity is adequately justified is not addressed by the new policy.”
    Now, assuming I understand your criticism correctly, if (c) is what the proposal means by discrimination, then when it holds that “The American Philosophical Association rejects as unethical all forms of discrimination based on … sexual orientation”, then the problem is that a person convinced by scriptural or natural law arguments against the moral permissibility of homosexual conduct would hold that a disproportionate burden on homosexual faculty members is adequately justified.
    But, against this, supporters of the amendment would say that discrimination amounts to “burdening of the protected class that is disproportionate and not adequately justified” according to the people enacting the policy. In other words, disproportionate burden on the Westboro Baptist, the anarchist, etc., are all adequately justified. However, undue burden on homosexuals is not, and cannot be, adequately justified.
    By the lights of the people enacting the APA petition, in other words, you cannot reasonably argue that homosexual conduct is immoral and that is why policies that place extra burdens on them are discriminatory.

    December 8, 2009 — 11:38
  • “I would think that in US jurisprudence, prohibitions against discrimination on the grounds of religious status would cover, say, anti-Catholic discrimination, and not just anti-Christian discrimination.”
    That’s quite possible, but I seem to recall that the standards of US jurisprudence were deemed irrelevant in arguing that a prohibition against sexual orientation covered behavior.

    December 8, 2009 — 12:57
  • RG:
    “But, against this, supporters of the amendment would say that discrimination amounts to ‘burdening of the protected class that is disproportionate and not adequately justified’ according to the people enacting the policy.”
    This does raise an important question of the interpretation of legal texts. Suppose a legal text prohibits actions that fall under the predicate P. Question: Is what is forbidden by law (a) all actions that in fact fall under P, or (b) all actions that the legislators thought fall under P?
    I think the answer is (a). Here are some reasons to think this.
    1. In general, legislators may differ among themselves as to what they think in fact falls under P. Whose opinion is definitive? The majority in each given case? But the majority of whom? Of all the legislators, or only of those who voted for the law? These questions seem hard to answer, but if one opts for principle (b), they need to be answered.
    2. It seems that in the case of (b), we would have a radical and absurd originalism for constitutional texts. It is one thing to say that what the framers of the text meant by the prohibition is definitive, and another to say that the extension of the prohibition is exactly what they thought it was. The former is controversial but plausible; the latter seems absurd.
    3. Suppose a law prohibits unlicensed carrying of dangerous weapons in public, and the law was passed a hundred years ago. Those who passed the law did not believe that laser rifles were dangerous weapons, because they had no beliefs about lasers. It would be absurd to conclude that the law does not apply to laser rifles. We could, I guess, try to pose counterfactual questions: were x to know all the other facts of the matter about y, would x think y is in the extension of P? But such counterfactuals push one in the direction of (a). Suppose, for instance, that it is true that homosexual acts are immoral. Then that is a fact about homosexual acts. Now we have the counterfactual question: Were the members of the APA to know this fact, would they think that barring from employment at Christian colleges those who engage in homosexual acts is unjustified discrimination? And it’s really hard to answer this counterfactual.
    4. If a law is passed to protect a species of owls, the legislators’ opinion of whether Harriet the owl nesting in a tree near the legislative building is a member of that species or not is largely irrelevant to the question whether Harriet is protected. What matters is whether, in fact, Harriet is a member of that species, and that is for the scientists, not the legislators, to know.
    5. Suppose we find out that all the people who voted for the Eighth Amendment falsely believed that the application of thumbscrews does not hurt much (maybe, by a strange coincidence, they all had lost feeling in their thumbs from birth), and hence the believed that the use of thumbscrews is not cruel. Their opinion would not decide the question whether in fact the use of thumbscrews is cruel and unusual punishment.
    There is a bit of truth to (b), in that what the legislators thought to be in the extension of P is evidence for what they meant by P, and it is plausible (though perhaps controversial) that what they meant by P is definitive of what the law prohibits. This is just a special case of the general fact that what x thinks to be in the extension of a bit of language she uses is some evidence as to what she meant by it. But, nonetheless, we are frequently mistaken about what falls in the extension of words we use.
    If I am right–and like I often say, I am no legal scholar–then what is forbidden are actions that are in fact discriminatory, not actions that the APA thinks discriminatory. However, we can look to what the APA thinks here as a guide to the question of what they mean by the word “discriminate”. This may provide us with some evidence that “discrimination” entails unjustified adverse burdening. But if so, then if in fact a particular school’s policy is not unjustified, then in fact it is not “discrimination” in the sense in which the APA used the word.
    Clayton:
    Touché! 🙂

    December 8, 2009 — 13:55
  • Robert Gressis

    Alex, against your (b), you wrote:
    “1. In general, legislators may differ among themselves as to what they think in fact falls under P. Whose opinion is definitive? The majority in each given case? But the majority of whom? Of all the legislators, or only of those who voted for the law? These questions seem hard to answer, but if one opts for principle (b), they need to be answered.”
    As a general rule, it is true that this is a difficult question to answer, but in the particular case of the APA, it appears that all the people who made the petition binding understand the same thing by homosexual conduct–namely, same-sexual relations. (There could be some weird sci-fi examples that will pry apart their intuitions, but let’s just cross that bridge when we come to it.)
    “2. It seems that in the case of (b), we would have a radical and absurd originalism for constitutional texts. It is one thing to say that what the framers of the text meant by the prohibition is definitive, and another to say that the extension of the prohibition is exactly what they thought it was. The former is controversial but plausible; the latter seems absurd.”
    Well, it can’t be that the APA signers intend this originalism, because when it was pointed out by David Hoekema that the APA in 1989 did not think religious institutions’ discriminating against homosexuals was unjustified, Michael Otsuka replied that we’re not operating with originalism here. I would guess then that the extension of the prohibition is what the current leadership of the APA thinks it is, whenever that is. Thus, if the APA leadership in the future considers sexual orientation to be all of a sudden something that is immoral, then all of a sudden institutions that place greater burden on homosexual faculties will no longer do that in a sense that the APA considers unjustifiable.
    “3. Suppose … for instance, that it is true that homosexual acts are immoral. Then that is a fact about homosexual acts. Now we have the counterfactual question: Were the members of the APA to know this fact, would they think that barring from employment at Christian colleges those who engage in homosexual acts is unjustified discrimination? And it’s really hard to answer this counterfactual.”
    But most of the people who signed this petition, as well as the people who enacted it, think that what you’re talking about is counterpossible. It was repeatedly claimed that John Corvino settled this issue in such a way that one cannot possibly disagree with him in an honest or nondefective way. Witness, for example, Jon Cogburn’s comment from the Leiter Reports of February 12, 2009: “John Corvino (“Same Sex: Debating the Ethics, Science, and Culture of Homosexuality”) and others have assessed the moral debates concerning homosexuality such that any fair minded, informed, and philosophically competent person should be strongly against bigotry towards gay people, which just is on a par with the other forms of discrimination mentioned above.” In other words, those no need to ask about the hypothetical, because it’s already been definitively shown that the situation you’re imagining cannot come to pass.
    (Interestingly, Cogburn’s claim, if true, allows for a very quick disproof of many versions of Christianity, including Roman Catholicism.)

    December 8, 2009 — 23:43
  • “I would guess then that the extension of the prohibition is what the current leadership of the APA thinks it is, whenever that is.”
    Surely not. Consider the fact that there are a lot of statuses in the policy, and not all of them have been thought about as much as the sexual orientation case. On a number of the statuses, there may be very little agreement among the leadership as to what constitutes discrimination. But, still, discrimination is forbidden.
    As for the work of Corvino, while it is well-argued, we would not in any other area of philosophy take arguments like his to be knock-down drag-out disproofs of a position. We would take the arguments to be a significant move forward in a debate, and then await responses, which are not that hard to give. The force of Corvino’s arguments (at least the ones I’ve read) is lesser than, say, the force of Sider’s arguments for four-dimensionalism or of Merricks’ arguments against four-dimensionalism. (I also have a nagging suspicion that at least some of the people enthusiastic about Corvino’s arguments have not read enough on the other side.)
    I would estimate the level of intellectual sophistication in the current philosophical discussion of the permissibility of sexual activity of non-reproductive type to be roughly like, or inferior to, that in the theory on truth after the work of Russell and maybe Ramsey but prior to Tarski. In hindsight, it would be silly for us to take any of that work to be decisive on any substantive questions, such as whether a correspondence theory holds. And I think one could have recognized this at the time, by noting the lack of a sophisticated dialogue with critics, loose ends in arguments and a general lack of development in the discussion. For the profession as a whole to have thought that Russell’s arguments against facts were such as to admit of no rational response would have shown a significant lack of imagination on the part of the profession.
    As for the counterpossibility claim, it is easy to imagine a possible world with laws or initial conditions different from ours where scratching one’s head or engaging in homosexual activity has and is known to have horrendous consequences, neither practice fulfills deep needs in anybody and God forbids both practices on account of their consequences. In such a world, scratching one’s head or engaging in homosexual activity is wrong. So it’s not a counterpossible.

    December 9, 2009 — 8:29
  • I shouldn’t have said that in no other area of philosophy would we take arguments like Corvino’s to be knock-down drag-out conclusive arguments for a position. There probably are some ill-developed areas of philosophy where a particular argument of that weight is wrongly taken to be absolutely conclusive (i.e., such that no one can rationally disagree with it). I should have either said “should” instead of “would”, or restricted the quantification to be over well-developed areas of philosophy and arguments that fit well within the area (thus, a particular poor philosophy of religion argument might make philosophers of science think that something is absolutely conclusively shown, but that’s irrelevant, because philosophers of science are not the right people to evaluate that argument).
    I should note that none of this is a way of putting down Corvino, for whose work I have much respect. Many philosophers think there are no knock-down drag-out successful arguments in philosophy (I don’t know what they think of Corvino’s work–maybe some of them think it’s an exception to the general rule?). I do not share that conviction, but I am inclined to think such arguments are rare.

    December 9, 2009 — 8:37
  • Robert Gressis

    Hi Alex,
    First, just to be clear, the positions I articulate above are not really *my* positions. I’m just trying to imagine what a supporter of the position who wants to avoid your argument would say.
    That said, I think I’m exaggerating a bit what such a person would say regarding the morality of homosexual sexual relations. To say that it’s absolutely impossible that such relations could ever turn out to be immoral is surely too strong. Better, I think, would be that people like Corvino have shown that it’s as rational to prohibit homosexual sexual relations as it is to support race-based segregation.
    Now, of course, there are a lot of philosophers out there who would, I think, have no intellectual problem with race-based segregation: namely, moral nihilists. And I don’t think the same people who want to condemn traditionalists about sex also want to say that nihilists are equally blinkered (I could be wrong about this, though).
    So, I think what they would say in response to your wonder about what would happen if it turned out that discrimination against homosexuals were adequately justified is that yes, you’re right that discrimination would be permissible, but that such a state of affairs is as likely as the state of affairs in which it turns out that race-based discrimination was adequately justified.
    At any rate, you wrote, “Surely not. Consider the fact that there are a lot of statuses in the policy, and not all of them have been thought about as much as the sexual orientation case. On a number of the statuses, there may be very little agreement among the leadership as to what constitutes discrimination. But, still, discrimination is forbidden.”
    I think you’re right about this. So then it is indeed the case that your above argument is right, that the policy prohibits discrimination that is in fact inadequately justified, and that the APA further assumes that it is a fact that discrimination against homosexual sex is not justifiable, and so inadequately justified in the university context.
    Now, if a Christian thinks that prohibiting same-sexual relations is in fact adequately justified, and so says her department is in compliance with the policy, the APA would simply disagree and say she is not. I think you’re right, you could in good conscience be acting in accord with the policy, but she’d also have to know that the APA thinks she is not. Should she sign the compliance box on behalf of her department anyway, then it would be interesting to see what the APA representative’s reasoning was when it told her that she wasn’t in compliance with the policy.

    December 9, 2009 — 10:57
  • Sorry for attributing the arguments to you, Robert.
    “Should she sign the compliance box on behalf of her department anyway, then it would be interesting to see what the APA representative’s reasoning was when it told her that she wasn’t in compliance with the policy.”
    Maybe we’ll get to see it. It may be interesting.
    I am wondering what kind of a policy that prohibits non-marital sex would be acceptable to the APA. I suppose that in a state where same-sex marriage is legal, a policy that prohibits sex with someone that one is not legally married to would be neutral and unproblematic. What about the verbally same policy in a state where same-sex marriage is not legally recognized? Presumably, in that state, the verbally same policy would not count as appropriately neutral. So probably the only policy that the APA would find acceptable in a state like that would be something messy like this: “Sexual relations are only permitted between persons who either are legally married or equivalent-to-married, where a couple counts as equivalent-to-married when (a) they are not legally married, (b) they have exchanged vows whose content is equivalent to that of standard marriage vows, (c) all the legal prerequisites for marriage are met except for the requirement that the spouses be of the opposite sex and any requirement that a marriage be consummated in a manner only possible to opposite-sex couples, with consanguity rules being extended in a gender neutral way (so that if the law is worded only to prohibit a brother and a sister from marrying, the extension prohibits siblings from marrying siblings), (d) they publicly act as married except perhaps where the law so prohibits, and (e) through private contracts, to the extent reasonably possible, they have imposed on each other any and all mutual legal responsibilities involved in a legal marriage.” (I probably left something out. And there may still be issues of equal burden in that the content of the marriage vows in the case of a legal marriage is not specified.)

    December 9, 2009 — 15:22
  • Condition (a) should be changed to: “they cannot be legally married, on account of being of the same sex”.

    December 9, 2009 — 15:30
  • Keith DeRose

    Often rules and policies contain cloudy terms such that there’s likely to be a lot of disagreement about whether they apply to various situations. For instance, a company may have a scheduling policy that managers are supposed to follow that says that they can or must do such-and-such when making the workers’ weekly schedules, unless doing so places an *undue burden* on some worker, which they may not do. A manager and a worker might then end up in a dispute over the question of whether, say, scheduling two double shifts for the worker in a single week constituted placing an undue burden on her. To address such problems, the writers of the policy might add some “such as…” or “for example…” clause to clarify what’s to be counted as constituting an “undue burden.” Such clauses will of course still leave some situations unclear, but when an action is one of the examples explicitly listed in the added clause, it is clear that the action was at least intended to be included. So, suppose that scheduling someone to work two double shifts in a single week is one of the examples explicitly added to the policy to clarify what’s to count as an “undue burden,” but that the manager does not believe that that really is an undue burden, and schedules a worker to work two double shifts in a single week. I’m inclined to say the manager has violated the policy, though maybe others will think that that depends on whether scheduling someone to work two double shifts in a week in fact constitutes an undue burden. (“If that in fact is not an undue burden, then the manager has in fact not violated the policy — though it is in that case clear that she did something that the authors of the policy would have *thought* (mistakenly) was a violation”?) But at any rate, this much seems pretty clear to me: If the manager has to fill out a weekly checklist form which includes a place to check either “I followed the scheduling policy in making this week’s schedule” or “I did not follow the scheduling policy in making this week’s schedule,” together with some lines for writing an explanation if necessary, then she may not simply check “I followed the policy,” write no explanation, sign the form, and turn it in. She may instead not check either box and write an explanation along these lines: “I scheduled Jones to work two double shifts this week. I believe this does not constitute placing an undue burden on Jones, but it is listed as an example of an undue burden in the policy.” *I* also think the manager may check “I did not follow the policy.” But, to repeat, one option that is clearly wrong is to just check “I did follow…,” attaching no explanation.
    The new APA anti-discrimination policy isn’t exactly as I would have liked to see it written, but it does seem to me to get the job done. The problem with the old one was that some readers of it apparently thought, reasonably or unreasonably (I tend to think rather unreasonably) that discrimination against homosexual behavior couldn’t, or at least doesn’t, constitute discrimination on the basis of sexual orientation. (I get the distinction between behavior and orientation. I really do. I just think that–and think it’s fairly clear that–often discrimination against certain behaviors associated with orientation constitutes discrimination on the basis of orientation. You can often discriminate on the basis of orientation *by* discriminating against behaviors associated with the orientation. In fact, that’s a very common way of discriminating on the basis of sexual orientation.) The new policy handles that problem by explicitly listing discrimination against the relevant sexual conduct as an example of the banned forms of discrimination. The schools in question may think that their policies aren’t in fact discriminatory. *Perhaps* then they can somewhat reasonably think they’re not in fact in violation of the policy, or maybe that the policy is flawed in a way that makes it impossible to either follow or violate. I’ll think they’re wrong about such contentions, but this may all be questionable. But one thing that does seem quite clear is that, like the manager imagined above, one thing these schools cannot honestly do is simply check that they’re in compliance with the policy and send in their form. So, unless they engage in pretty blatant dishonesty in filling out their form, they will have to write something that will alert the APA to the fact that they’re doing things the APA policy clearly indicates is to be understood as violations of the policy, and the APA will then know to mark their ad.

    December 11, 2009 — 10:43
  • The policy clearly indicates that discrimination on the grounds of same-sex sexual activity is prohibited. That question, which was indeed open under the previous policy, is now almost certainly closed by use of the “e.g.” clause. (I say “almost certainly”, because it is my understanding that legal texts typically do not include “e.g.” clauses, but use different language such as “including but not exclusive to”; it is somewhat odd that the APA did not use such language.) So when I suggested in earlier stuff that no questions have been settled, I was wrong.
    However, the new policy does not indicate, even by an “e.g.” clause, what “discrimination” on the grounds of same-sex sexual activity consists in.
    Suppose “discrimination” is understood as an unjustified adverse action. Then there is a question of the judgment about what is unjustified and what is adverse.
    For instance, does “adverse” mean ultima facie or prima facie adverse? If it means prima facie adverse, then obviously all of the policies prohibiting same-sex sexual activity involve adverse action. But if it means ultima facie adverse, then whether the policies involve adverse action depends on the question whether (a) same-sex sexual activity is morally bad for the agent and (b) the policy is likely to move persons to cease engaging in it. The policy as written does not answer this question. (I think the answer to (a) is positive; but I do not know the answer to (b).)
    Similarly, the policy fails to answer the question what counts as “unjustified” (still on the assumption that “discrimination” is by definition unjustified).
    Now, we all have very good reason to believe that the majority of the framers of the policy believed that a school’s refusing to hire persons who engage in same-sex sexual activity, in order not to compromise the faculty’s witness to traditional Christian sexual morality and to encourage faculty to virtue counts as both adverse and unjustified. But the policy as worded does not say this.
    All that said, it would be really weaselly to check the box without writing a few words of explanation like: “I understand ‘discrimination’ to entail ‘unjustified adverse action’, and while our school takes prima facie adverse action against a protected group, this action is not unjustified.” But whether “weaselly” entails “wrong” is unclear (I am not a virtue ethicist). 🙂

    December 12, 2009 — 12:22
  • Keith DeRose

    the new policy does not indicate, even by an “e.g.” clause, what “discrimination” on the grounds of same-sex sexual activity consists in.
    True, and it also does not specify what discrimination based on religion, or based on race, etc., consists in. Is the policy (and many other non- and anti-discrimination policies) thereby rendered toothless generally? It doesn’t specify, for instance, that limiting blacks or Christians, say, to holding only very low-ranking positions constitutes discrimination on the basis of race and religion (respectively). I don’t think that means we should worry that someone might then legitimately claim that since they think it is justified to limit those groups to just low-ranking positions, such limiting does not really constitute “discrimination,” as that term is used in the policy. There is a long history of use of “discrimination” and various instances of phrases of forms like “discrimination on the basis of _____,” used in anti-discrimination policies and rules, and to a significant extent our society has worked out how such terms are to be understood in such policies — what will be taken to constitute the various forms of discrimination. Specific policies put out by groups typically just tap into that tradition of use, without trying to specify in exhaustive detail what is and is not to constitute the various forms of “discrimination” that they will not engage in.

    December 13, 2009 — 12:03
  • The problem is with getting a reading of the policy that reads the word “discrimination” consistently in all the cases, and that ends up prohibiting what the majority presumably wanted to prohibit without falling afoul of my counterexamples.
    So let’s suppose that we take our traditions of use of “discrimination” as our central guide here. Now, in our traditions of use, I think we do take refusing to hire someone with status X, for no reason beyond having status X, to be a paradigm example of discrimination against someone with status X. Therefore, by parallel, we need to take refusing to hire someone with behavior X, for no reason beyond exhibiting behavior X, as a case of discrimination against someone with behavior X.
    But now let X be some kind of bigoted or immoral and criminal behavior that is, in fact, integrally connected with a listed status. Then we need to take refusing to hire someone with behavior X to be a case of discrimination against someone with behavior X, and hence to be violation of the policy.
    So it doesn’t seem like this way works.
    One reason taking our traditions of the use of “discrimination” as guiding the interpretation is problematic, is that while we have a tradition of policies prohibiting discrimination on the basis of a status, we do not, to my knowledge, have a tradition of policies prohibiting discrimination on the basis of a behavior. If we understand “discrimination” in the case of behavior in a way exactly parallel to how we understand it in the case of status, then we have the problem of counterexamples. But if we understand “discrimination” differently in the case of behavior, then the question whether refusal to hire someone who exhibits a behavior integrally connected with a listed status always counts as discrimination is open.

    December 13, 2009 — 23:10
  • Keith DeRose

    while we have a tradition of policies prohibiting discrimination on the basis of a status, we do not, to my knowledge, have a tradition of policies prohibiting discrimination on the basis of a behavior.
    I don’t think this is right at all. Lots of the discrimination clearly understood to be ruled out by such policies is discrimination against behaviors associated with, say, religion. We all know, don’t we, that if an employer, say, allows workers to say Muslim prayers during work, but prohibits equally or more unobtrusive Christian prayers, that’s discrimination on the basis of religion? The employer can’t get away with the ruse that she isn’t discriminating on the basis of the workers’ religion at all but only on the basis of behavior. (“Look, if a Muslim for some reason tried to say a Christian prayer, I’d fire him, too. And I totally welcome Christians, so long as they say only Muslim prayers. So, you see, I’m not discriminating on the basis of workers’ religion at all, but only on the basis of their behavior”???) But we also know, don’t we, that if someone claims to have it as part of their religion that they are to grievously discriminate against those of certain other religions, anti-discrimination policies don’t mean we must allow such people to so act? (I *hope* so, because all policies that prohibit discrimination on the basis of religion but that don’t add explicit exception clauses to handle such cases, and not just the apa’s, are in trouble if that is not understood.)

    December 14, 2009 — 0:13
  • Not having made a study of this, having simply done a bit of googling, the following may be completely wrong, and if so, I apologize. But here is what seems to be the case.
    Standard non-discrimination policies explicitly prohibit discrimination on the basis of status, and leave the question of connected behavior to be prudently worked out (by judges, committees, individuals, etc.) As a result, I think we get a two-tier system.
    Tier 1: Refusing to hire on the basis of a listed status is forbidden simpliciter, or with a small list of narrow exceptions like affirmative action. Even if most of one’s customers are racists and having a non-white employee is very likely to hurt one’s business significantly, one is not permitted to discriminate on racial grounds in choosing one’s employees if one is subject to a non-discrimination policy that has race as a listed status.
    Tier 2: Refusing to hire on the basis of a connected behavior is forbidden unless the connected behavior is an undue burden to the employer. Thus, it would surely be found to be an undue burden to have to have as a salesperson someone who exhibited the characteristic behavior of a religion that required her to pray loudly for 95% of her waking hours. (On the other hand, it would not be an undue burden to have such an employee in a setting where 95% of her work time was spent in isolation from other people, and the prayers did not interfere with her work.) And, perhaps, it would be found to be an undue burden to have to have an employee who, every lunch time, stands in front of the employer’s LGBT resource center with a sign alleging divine hatred for gays, using a slur-word for gays on the sign.
    The APA policy, however, has the connected behaviors on par with status–essentially, engagement in an integrally connected behavior becomes another status. This means that if we read the APA policy consistently, we have to either downgrade the protection of status to Tier 2 (subject to undue burden considerations) or upgrade the protection of behavior to Tier 1. If we go for Tier 1, we get counterexamples. If we go for Tier 2, we have to figure out what is undue burden, and a good case can be made that burden is to be reckoned relatively to the central goals of the organization, when these goals are not unreasonable, and this can include the promotion of a particular moral milieu.

    December 14, 2009 — 9:01