DEBATING THE GAY ISSUE : ‘Rights’ Are Not Always Trumps : Can public policy justifiably ‘favor’ certain ‘lifestyles’ over others? Yes.

This past July, the Vatican’s Congregation for the Doctrine of the Faith issued an advisory to the Catholic bishops of the United States stating that “there are areas” of public policy “in which it is not unjust discrimination” for the state “to take sexual orientation into account.” The “areas” in question included the hiring of teachers and athletic coaches, military recruitment, public housing and adoption.

The document met with a firestorm of criticism from gay and lesbian activists and, more gently, from a number of American bishops. The media spin doctors were also at work: “Discrimination against gays backed by Vatican,” read one typical headline, in this case in the Kansas City Star. But those who read the entire document found it suggestive of a more complex, and more interesting, position.

“Homosexual persons, as human persons, have the same rights as all persons, including the right of not being treated in a manner which offends their personal dignity,” the advisory stated. “It is deplorable that homosexual persons have been and are the object of violent malice in speech or in action. Such treatment deserves condemnation from the church’s pastors wherever it occurs. It reveals a kind of disregard for others which endangers the most fundamental principles of a healthy society. The intrinsic dignity of each person must always be respected in word, in action, and in law.”

Read through lenses not befogged by the steam from America’s contemporary culture war, the Vatican advisory did a useful and important service; it asked religious leaders, legislators and citizens to reflect more carefully on the meaning of “rights” and “discrimination” than is usually the case in our entitlement-obsessed society.

“Rights” can come into conflict, which means that some “rights” are not trumps in every circumstance. (The lunch-counter-owners’ rights in the Jim Crow South did not trump the rights of black citizens.) Nor does every “right” create an entitlement. (The First Amendment’s right of freedom of the press does not oblige the government to subsidize newspapers.)

Nor does the acknowledgment of a rights claim necessarily carry with it the stamp of public or governmental approval. (Ask David Duke or Gus Hall.) These were once common understandings in American public life. Was something important lost in our political culture when these ideas disappeared in a blizzard of rights-talk and affirmative-action programs?

Governments are always in the business of making discriminations because they make choices; governments allocate benefits and assign burdens. Anything other than a flat-rate income tax is a clear act of discrimination.

But is it a morally invidious “discrimination” that calls into question the basic justice of our democratic experiment? Flatfooted, draft-age males who built B-24s rather than serving in the armed forces during World War II missed out on the subsequent (and substantial) benefits of the GI Bill. Did that constitute unjust discrimination?

The Vatican advisory thus invites us to revisit some basic questions of democratic principle. But it also asks us to face squarely, without hysteria, and with the moral seriousness expected of a self-governing people, one concrete application of those questions: Can public policy justifiably “favor” certain “lifestyles” over others?

The Vatican’s answer is yes: Giving priority to the protection and enhancement of heterosexual marriage and the families that grow out of heterosexual marriage is not a morally odious act of “discrimination”; it is an act of justice. The church defends this proposition on the basis of its understanding of the moral law (an understanding based on a “natural law” analysis which is, philosophically, not for Catholics only). But anyone who has thought about the relationship between the cruel cycle of poverty, violence, crime and drugs in the urban underclass, and the collapse of the traditional family structure in those inner-city communities, will understand that the Vatican’s concern is neither so mindless nor so misplaced as it is frequently portrayed.

Should the United States understand its obligation to treat homosexual Americans with justice and decency on the analogy of, say, Martin Luther King Jr. vs. Bull Connor?

The Vatican advisory suggests that the analogy doesn’t work in several key areas of public policy where rights are in conflict and have to be ordered. The suggestion deserves serious, civil debate, not contemptuous dismissal.