Employer's Self-Determination and Property Right Vs. Rights of Homosexual Employees Term Paper

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Conflicting moral standards in our time have led to a new conflict in the philosophy of human rights. Increasingly homosexual individuals are going public with their sexuality, and demanding that they continue to receive equal rights with the rest of society despite their sexual preferences. The idea that gays and lesbians should have equal freedom does make a great deal of sense according to rational ideas of rights such as those proposed by Mill and his contemporaries. After all, their sexuality is a private issue of self-determination, and should not serve to abridge their basic human rights. However, many individuals who exercise their freedom of religion in order to believe that homosexuality is a mortal sin believe that society should discourage it in every way possible: whether that be through laws, abridgment of "privileges" (e.g. equal rights), or by refusing employment and housing and other such necessities. This has caused a dilemma by which the government is caught between assuring the freedom of religion and association and press which anti-homosexual individuals out to enjoy and at the same time assuring the basic human rights of homosexuals. This is closely related to the kind of problem that arose when black people sought equal rights and desegregation, despite the fact that such a move would challenge the white populations right to freedom of association (e.g. In forcing store owners and such to allow blacks on their private property). However, while the government decided in favor of civil rights for racial minorities, this has not yet happened with sexual or other lifestyle minorities. Today, even though gay people no doubt deserve the right to have the same job opportunities as "normal" people, employers still can legally use the right of property, association, and self-determination to choose who they should hire and what wage the employees should get.

To understand this situation, it is first necessary to understand the idea of a right to work. Much of the complaint on the side of gay rights activists is based on the common modern idea that every person has the right to employment.

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However, there exists a great philosophical question as to whether a right to work actually exists. This is because there are two separate ideas of what constitutes a human or citizen right. According to one view of rights, they exist independently of their legal codification or even of their existence in anyone's mind. Whether a right to work exists, on this view, is an issue to be resolved by moral theory." (Elster, 54) This is the view that sees certain rights as inborn and unalienable. Another view of rights suggests that they are man-made and legally created. In that case, "the question whether there is a right to work then becomes a purely factual one" (Elster, 55) depending on whether or not the government has created such a right. Classically, rights are negative -- that is to say, they are determined by arenas in which no one should be allowed to interfere, such as a right to life which should not be violated by murder. One could argue then that there is a moral right to work, in that no one should interfere with someone else's occupation. At the same time, there does not seem to be a moral right to work for a particular employer or for a particular wage or to be paid at all. Few rights are positive in the sense that they are a right to have something, because that would require someone else to actively provide it. "The right to work, as defined against an employer, can at most be the right to retain a job that one already holds. It is nearly impossible to imagine how there can be a legally enforceable right to acquire a job. Even the right to retain a job is subject to serious….....

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