WASHINGTON -- Earlier this month, when the U.S. Senate took up the bill for a constitutional amendment forbidding same-sex marriage, a gay activist protested with the remark that such an amendment would be discriminatory.

My response: "Of course it would be discriminatory! But would it be good or bad?"

Today the term "discrimination" has come unfortunately to be used only for cases of a wrong or invidious selection of one person or group. But I deplore this development because it is based on confusion and thus leads to confused thinking on issues or questions of discrimination.

Discrimination is connected with choice. Humans have the ability to choose between alternatives, and every time we make such a choice we discriminate in favor of what we choose and against what we reject. Thus, for a trivial but nevertheless illuminating example, if you go to the ice cream store for an ice cream cone and are presented with many flavors of ice cream, you discriminate in favor of the flavor or flavors you choose for your cone, and against all those flavors you reject. In such a case there is no ethical or moral import to our choice, so people usually do not realize that this is a case of discrimination.

I remember that some years ago one saw print ads for some expensive or exclusive product, with the logo on the ad saying, "For the discriminating consumer." These ads were attempting to appeal to the residual snob in all of us by suggesting tacitly that if we chose the product in the ad and rejected its lesser competitors this would show that we had good or highbrow taste. In other words, the ad was attempting to stroke our egos by suggesting that we had discriminated wisely in favor of the product in the ad and against whatever was rejected, and implying this good or proper discrimination revealed our elevated taste and discretion.

For a non-trivial example, every time anyone chooses to hire one person and reject others, he has discriminated in favor of the one(s) hired and discriminated against the others who are not hired. Every time the admissions committee of a school or college or other organization admits some people and rejects others - which every admissions committee must do because there are almost always more applicants than there are available slots or chairs or positions - that admissions committee has discriminated in favor of some applicants and rejected others. Every time we pass a law we discriminate against whoever is harmed or whose acts are forbidden or taxed or regulated by that law, and discriminate in favor of all other persons.

So the ethical and public policy problem is not discrimination itself because discrimination cannot be avoided. In fact, if discrimination is done on a good basis or for good reasons, is a good thing. We can call those good discriminations.

The problem arises when we make discriminations on a bad or invidious or ethically improper basis. Those are bad discriminations.

The ethical and public policy issue or question, then, is finding the right or good basis on which to make our discriminations. Nearly everyone now agrees that discriminations made on the basis of race is improper and wrong (except that some people do continue to believe and argue that it is right or good to discriminate against one race in favor of another, especially white people in favor of black ones). The Americans With Disabilities Act has made it legally wrong, at least in most cases, to discriminate against people on the basis of physical disability for hiring or admissions to schools.

What then about sexual orientation and marriage? Is it good or proper to discriminate in law in favor of marriage between people who are heterosexual and against people who are homosexual? Here there exists a great deal of disagreement. Most homosexuals and homosexual activists claim that it is wrong to forbid same sex marriage. But there is little public agreement on this question. An ABC News Poll taken May 30 to June 4, 2006 shows Americans narrowly opposing civil unions for same sex couples, 48% against to 45% in favor, and shows a clear majority of Americans opposing same sex marriage by 58% against to 36% in favor. (www.pollingreport.com/civil.htm)

But only 41% of Americans are in favor of amending the constitution to outlaw same-sex marriage throughout the U.S., with 51% favoring that this issue be left to the individual states.

Ethical issues are not ultimately decided by polls. Even if a great majority of Americans favored a law forbidding black people to hold public office, this would be an unethical and unjust law - it would unjustly and unethically discriminate against black people. In the same way, even if a majority of Americans were to favor banning marriage between couples of different races, this would be an unjust and unethical discrimination. But the homosexual marriage issue is much less clear and there are good arguments, both ethical and prudential, that can be given for both sides. I don't know whether forbidding marriage for same sex couples is good or bad, ethical or unethical. But I do know that this question cannot be decided by claiming that such laws are discriminatory. Of course they are discriminatory. The question is whether that particular discrimination would be good or bad, ethical or unethical. That question cannot be decided by name-calling or by saying that this prohibition would be discrimination.

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