The precise issue that came before the U.S. Supreme Court in the consolidated cases Bostock v. Clayton County and Altitude Express Inc. v. Zarda deserves clarification at the outset. Both involved gay men whose sexuality became clear to their employers. Both men were terminated from their places of employment—one from his job as a county child-welfare services coordinator, the other from working as a skydiving instructor. Both claimed that they were terminated because of their sexual orientation, in violation of Title VII’s prohibition against sex discrimination. The court had to answer whether “sexual orientation” falls within the meaning of “sex” in Title VII, and thus whether the plaintiffs could allege that they suffered sex discrimination.
The USCCB brief supports the position of the employers, arguing that “sexual orientation” is not included within Title VII’s meaning of “sex,” but that’s not its main concern. The majority of the brief (eleven of its fourteen pages) focuses on the ways in which allowing gay and lesbian persons to bring claims of sex discrimination to court could create conflicts for religious employers and employees. But to make that case, the bishops let one interpretation of contemporary jurisprudence dictate the terms of their advocacy of Catholic theology.
Essential to the USCCB brief is jettisoning the distinction between inclinations and actions. This is a distinction fundamental to Catholic moral theology. But the brief only mentions it in passing:
In the view of many faith traditions and religious believers, there is a difference between an inclination toward homosexual conduct, which they do not regard as per se immoral, and homosexual conduct, which they do. Though the distinction between inclination and conduct is also ubiquitous in our civil legal tradition, this Court has hesitated to embrace it in this context.
In light of this hesitation, it seems likely that if this Court were to construe “sex” to include sexual orientation, it will then construe “orientation” to include conduct. That in turn will create innumerable conflicts for employers, especially religious employers that, as we describe in more detail below, wish to hire and retain employees who agree with and live out the religious commitments animating the employer’s mission and work.
It’s easy to miss what is going on in these two paragraphs. Here, the USCCB waves away the distinction between “homosexual inclinations” and “homosexual conduct,” and capitulates to the position it believes the court will “likely” hold. Rather than defend their own moral theology, the bishops choose to speculate about the trouble that barring discrimination on the basis of sexual orientation might make for them in future cases.
The only other mention of the distinction between inclinations and actions is buried in a footnote, briefly referencing the USCCB’s guidelines for the pastoral care of homosexual persons. But such care does not seem a pressing concern in the brief: the Catechism’s teachings on discrimination are passed over in silence. Paragraph 2358 of the Catechism states that, with regard to persons with deep-seated homosexual tendencies, “every sign of unjust discrimination in their regard should be avoided.” Not only is unjust discrimination condemned, but even signs of such discrimination.
This omission helps explain the brief’s failure to muster even a half-hearted objection to firing someone simply because they are gay, even if they are celibate. How could it? The moral theory adopted by the brief, or at least taken to be acceptable by it, elides the difference between someone who wants to do a certain act and someone who actually does it. The brief reserves the right to fire a person on the grounds of orientation. To make sure that a teacher in a same-sex marriage can be fired, the bishops are willing to argue that they should be able to fire a gay teacher who lives exactly as they’ve instructed, often at great cost.
Such a position throws into doubt claims by Church leaders that they don’t object to homosexual persons, but only to homosexual activity. These doubts only grow when one notices that homosexual persons make no appearance in the brief. Though the terms “homosexual relationships,” “homosexual conduct,” “homosexual acts,” “homosexual inclination,” “homosexual tendency,” and “homosexual conduct and marriage” appear seventeen times, the term “homosexual person” is nowhere to be found. “Gay” can only be found in a single footnote that references another case. This all leaves gay Catholics questioning what Church leaders really believe about them.