Civil Rights and Individual Choice

When I was a young child growing up in Louisville in the mid-1980s, my family regularly attended a little church on Hikes Lane called Southeast Christian. I even went to preschool at Southeast. This little church, housed in an angular, metal-covered modernist building with few windows, was led by a minster named Bob Russell. Russell preached a gospel that was "non-denominational" - it appealed to Protestants of various stripes, but was generally conservative overall. I spent many, many Sundays dutifully listening to his sermons.

Over the years, Southeast Christian grew in popularity, and outgrew that little metal building on Hikes Lane. The church eventually moved down the street to a much larger building, and the Dunman clan moved with it, but as I reached my awkward preteen years and divorce broke my family apart, we stopped attending.

By the turn of the 21st century, Bob Russell and Southeast had become even more popular, and both the membership rolls and the number of Sunday services continued to grow. Russell retired in 2006, not long after the church relocated to a new, gigantic arena-style structure out in the East End of town, derisively called "Six Flags Over Jesus" by the wayward unfaithful. By 1998, Southeast Christian had become Louisville's first and only true megachurch, with over 30,000 members.

Retirement didn't mean Bob Russell would stop preaching, however. He remains a Christian consultant of sorts, offering mentoring and leadership retreat services, and occasionally he appears in local media pushing his version of the Gospel to the many, many Louisvillians who still take him seriously.

Yesterday, Russell posted a piece on his website called "Are Gay Rights Civil Rights?" In it, he weighs in on one of the biggest legal and political topics in Kentucky as of late: same-sex marriage.

At the outset I'll say that I'm uninterested in the religious arguments Russell makes, since I'm not devout as he and don't know the Bible as well (despite being a student of sorts to him in my youth). But he presumes certain things that are legally inaccurate and misleading, and in that realm, I'm a little more versed.

Russell begins by rhetorically wondering and then answering why same-sex marriage is getting so much local press:

The obvious reason is that the gay agenda is wrongfully equated with civil rights...

I am of the conviction that homosexuality is not a civil rights issue at all. It is a behavioral issue. To have sex with someone of the same gender is an individual choice. It is not a distinctive like race, which is a God-given feature that cannot be denied.

There is a particular tendency among wealthy white men, especially those who perceive a higher calling, to deem themselves the arbiter of political and social truth. The lives and lifestyles of others unlike them do not deserve serious consideration until the right people - such as Bob Russell - have given them approval. But I digress. My immediate concern is with the contention that because same-sex intimacy is "an individual choice," it is therefore disqualified from being a civil rights issue.

To bolster his assertion, Russell provides a list of other troubling "individual choices" that he believes society rightly frowns upon or punishes. First is smoking:

No matter how much a smoker craves nicotine, society demands they resist their desires and not contaminate public places with second-hand smoke. Their behavior is heavily taxed and is unlawful in many establishments. It’s not hateful to discriminate against smokers, but reasonable and compassionate to do so.

To equate the intimacy of any private sexual relationship with a mere drug habit should be at least somewhat insulting to everyone. But Russell's confusion about what qualifies as a civil right can be illustrated by direct quotation of the Kentucky Civil Rights Act:

It is an unlawful practice for an employer: to fail or refuse to hire, or to discharge any individual, or otherwise to discriminate against an individual with respect to compensation, terms, conditions, or privileges of employment...because the individual is a smoker or nonsmoker, as long as the person complies with any workplace policy concerning smoking.

KRS 344.040(1)(a). The KCRA goes on:

It is an unlawful practice for an employer: to require as a condition of employment that any employee or applicant for employment abstain from smoking or using tobacco products outside the course of employment, as long as the person complies with any workplace policy concerning smoking.

KRS 344.040(2)(a).

It may or may not surprise anyone that a tobacco-friendly state like Kentucky actually extends anti-discrimination protection to smokers. It should also be noted that smokers, even the naughty ones who smoke around others, are not prohibited from getting married in our great Commonwealth.

I understand that Bob Russell is not an attorney. He probably hasn't read the Kentucky Civil Rights Act. But it seems like he probably should have if he was going to write a blog post deriding same-sex marriage advocates as being misguided and wrong for labeling a mere "individual choice" as a civil rights issue when his own state recognizes the individual choice of smoking as a behavior worth protecting.

Russell then follows the typical anti-equality playbook by conflating the consensual, intimate behavior of adults with something far more sinister:

Clergy who have abused children are not given a free pass because they have an innate desire for sex with minors. All agree the offenders should be held accountable for not denying their impulses and putting the well being of others ahead of self.

Two adults enjoying the company of each other in private is of course not at all the same as religious authority figures raping children. To suggest otherwise is to either not grasp at all the legal concepts of consent or coercion or to simply not care. But where there are political points to score and the faithful to rile up, legal accuracy is surely an afterthought.

Eventually, after banally comparing the intimate relationships and family structures of homosexuals to the American obsession with "sweets and comfort food," Russell ends with a passage from Galatians which warns the faithful to temper their "sinful nature" lest they wish to incur the "wrath of God."

Omitted from Russell's commentary is the fact that all of the sinful individual choices which he decries (with the exception of clergy child rape, at least theoretically) are all perfectly legal activities. Smoking, eating bad foods, and having "a multiplicity of partners" are not prohibited by our laws. Same-sex marriage, on the other hand, is prohibited, at least for now. If our justice system can tolerate such a wide array of terribly sinful individual failures like smoking and eating junk food, why can't it tolerate gay weddings?

Finally, there is another individual choice that our civil rights laws protect: religion. Protestants like Russell in fact embrace individual choice as a bedrock of their faith. One cannot become saved by Jesus Christ until he or she makes a conscious choice to accept Him as their Savior. I know, because I was baptized as a teenager in a Protestant church. That intimate, individual choice is protected by our anti-discrimination laws just like unchosen classifications such as race, color, national origin, sex, and age. Few, even among the godless, would oppose protecting religious choice (or the lack thereof), even as the religious attempt to impose their will on others.

I have not, so far, even disputed Russell's assertion that homosexuality is a choice. Ultimately, it doesn't matter whether it is or it isn't, because courts are now starting to apply the same reasoning which extends civil rights protection to religion - clearly a choice - to sexual orientation, which may or may not be voluntary at all.

In 2010, the Third Circuit Court of Appeals was faced with the question of "immutability." The court considered what makes certain traits and behaviors critically interwoven with a person's identity - and therefore worthy of legal protection - for the purposes of discrimination law:

We focus on whether putative group members possess common, immutable characteristics such as race, gender, or a prior position, status, or condition, or characteristics that are capable of being changed but are of such fundamental importance that persons should not be required to change them, such as religious beliefs.

Zavaleta-Lopez v. A.G. of the United States, 360 Fed. Appx. 331, 333 (3d Cir. 2010) (emphasis added).

Is a person's private sexual behavior of "fundamental importance?" Surely Bob Russell would agree that it is, since he feels the need to denounce and discourage sexual behavior he doesn't agree with. Homosexuality, in his own words, is "immoral behavior" so dangerous that it can unravel the very foundation of civil society. Logically, that would mean the choice to engage only in heterosexual behavior, preferably within an opposite-sex marriage, is of truly fundamental importance; our very survival as a culture depends on it.

The U.S. Supreme Court agrees that private sexual behavior is of fundamental importance to all individuals, but is ultimately none of the government's business:

If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.

Eisenstadt v. Baird, 405 U.S. 438, 453 (1972). More recently, the Court extended its logic to include same sex intimacy:

Private, consensual sexual intimacy between two adult persons of the same sex may not be punished by the State, and it can form "but one element in a personal bond that is more enduring."

United States v. Windsor, 133 S. Ct. 2675, 2692 (2013) quoting Lawrence v. Texas, 539 U.S. 558, 567 (2003).

What Russell and many anti-equality crusaders like him never seem to acknowledge is that the United States is not a theocracy. Bible passages are not statutes. The Constitution and all of its Amendments total more than 8000 words, yet not one of those words is "God" or "Jesus." People like Russell may long for a society more like Afghanistan under the Taliban, in which a small group of deeply pious men determined social and legal constraints for everyone else, but that is not the society in which we live. Neither the federal nor the state governments may establish any one religion over any others, and they may not deny fundamental rights such as marriage on the basis of arbitrary and irrational discrimination.

It is easy for straight, white, Christian men of great wealth to deem themselves the arbiters of what qualifies as a "civil rights issue." From their great seats of privilege and power, these men declare which cause is worthy of their recognition and which is a mere case of sinful "individual behavior." African Americans may now rejoice that a white Southern preacher like Bob Russell, perhaps begrudgingly, finally acknowledges the legitimacy of the racial civil rights movement. Unfortunately for the non-straight, however, their time in the good graces of the pious has yet to come.

Meanwhile, the Constitution embraces us all, sinful or otherwise. As Christian philosopher Soren Kierkegaard once said:

Sin is in itself separation from the good, but despair over sin is separation a second time.

The Sickness Unto Death (1849).