After posting about the new Illinois law which bars discrimination based on sexual orientation and does not exempt churches or religious organizations - I decided to a bit of research to figure out how one defines, legally, who “is gay” or who “is heterosexual.”

The law itself tells us how to to define sexual orientation: “actual or perceived heterosexuality, homosexuality, bisexuality or gender-related identity, whether or not traditionally associated with the person’s designated sex at birth.”

As a side note, a search for homosexual orientation protected class generates some interesting related reading.

Also, as another side note, I found this, which applies to the state of Maryland, and presumably would similarly apply to other states who have included anti-discrimination laws that include sexual orientation as a protected class.

Sexual Orientation- refers to which gender an individual is attracted to and has affection for. A person’s Sexual Orientation refers to his or her feelings, not their behavior.

[Of course, the same page also references the Kinsey report as if it were serious science, so the validity of the entire page is in question in my mind, since anyone who has researched it knows that most of Kinsey’s research was based on fraud.]

But assuming for a moment that the definition above is similar to the one referenced by most states barring discrimination against “gays,” how is it even possible to prosecute, defend, or even keep from violating?

Logically, it seems to me, that in order to discriminate, one has to know that the protected class status exists in the first place. So, if the subject never comes up, say, in a hiring interview process, it would be impossible to discriminate. What if the interviewee makes it fairly obvious, but the interviewer is clueless and doesn’t perceive it? The law says actual OR perceived. So maybe potential employers should add this to their interview questions?

“I don’t perceive you to ‘be’ homosexual, but in the interest of compliance with SB3186, I must ask: ‘Are you?’”

or

“You appear to me to participate in the gay lifestyle, but in order to ensure that my perception lines up with what is actual, do you consider yourself to ‘be’ heterosexual, homosexual, bi-sexual or transgender?”

But the even bigger question I have is how does one go about proving in a court of law that they are attracted to members of the same sex? Or proving that that is the reason they did not get a job? It seems simply unprosecutable to me. Bad lawmaking.

I came across this letter to the editor in the Illinois Times, which sums up the question fairly well.

The question needing an answer is, what “evidence” will employers and landlords need from homosexuals, bisexuals, and transsexuals to back up who they are? It may seem bizarre to ask that, but given that such orientation is not always readily visible, shouldn’t some “proof” be provided in such instances?

Now, let’s bring it around to the issue as it relates to churches or mosques or other religious organizations (or even non-religious organizations, such as the Boy Scouts) that may have a religious or moral conviction that homosexual behaviour is wrong, because one of the things that makes the Illinois law big news is that it specifically and intentionally does NOT exempt churches.

If a church has a vacancy on its staff, it will look for someone who has religious beliefs aligning with its own. Let’s pick a hypothetical (fictitious) example. There is a church in downtown Chicago that believes it is a sin to drink Kool-Aid. Why? It doesn’t matter, it is their religious conviction (and right to believe, speak, assemble, and practice), and those that attend their church adhere to this belief. Their pastor has recently left for greener pastures, and they need to hire a new one. In the hiring and interview process, one of the questions that is (understandably) asked is whether or not this new candidate adheres to their beliefs, both in thought and action, that Kool-Aid drinking is morally wrong. If he does not, they would not hire him because he does not adhere to their religious convictions and would not be the best person to lead this group of people in their religious services and practices. If we take the same logic and apply it to a church that believes that homosexual acts are wrong, and the church has a candidate who not only is attracted to the opposite sex but also engages in homosexual sex, the church (as I understand it) would be in violation of SB3186 if they did not hire him for the job on that basis.

Why is there no uproar about this? Where is the defense of the first ammendment? Since when has a person’s self proclamation of their status of protected class (because that is really what defines the sexual orientation here) overridden the first ammendment’s religious freedom protections?

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A note of personal disclosure: My personal conviction (religious belief) is that sexual activity outside of the constraints of marriage between a man and a woman is morally wrong. This means that to me, any sex before marriage, heterosexual sex with someone other than a marriage partner, and homosexual sex are all equally wrong. I also do not believe that God holds someone responsible for that which they are tempted by, rather how they respond to that temptation, so someone who has “feelings and attractions for the same sex” and therefore is defined as “homosexual” in the eyes of some states, is not in fact doing anything morally wrong until they dwell on or act on those feelings or attractions (one might say, temptations). The same goes for a ‘heterosexual person’ who has feelings and attractions for someone besides their spouse. When those thoughts come to their mind, they should replace them with other thoughts and not act upon them. Everyone is tempted. It is how we respond to temptation that is our responsibility. And, one final point: no matter how someone responds to their particular temptations, they should be loved and respected as a person.