On religious freedom and discrimination

With the recent proposed amendment to Arizona’s religious freedom law, Facebook has fed me a lot of outraged comments about religion and discrimination. Some rejected that discrimination was the sort of thing anyone could do for religious reasons: real religion teaches people to be kind to each other. Others allowed that people might have genuine religious reasons to want to discriminate, but denied that society had any reason to let them: “you can’t force your religion on other people” was the prevailing sentiment here.

But the generally shared conclusion was that the Arizona law was all about permitting religiously motivated discrimination—which is a lie, frankly, but I’ll let others deal with that—and that discrimination should never be permitted, whether religiously motivated or not.

I disagree, though how much I disagree depends on just what my Facebook acquaintances meant. Here are five versions of the argument, ordered roughly from least to most reasonable, with my responses.

1. Religious freedom doesn’t give you the right to discriminate.

Actually it does, in some circumstances. It has to. Religious freedom must include the right to form churches and other religious associations, and the right to associate with people who share one’s religious beliefs entails the right to exclude those who do not share those beliefs—in other words, to discriminate against them because their religious beliefs.

2. Religious freedom doesn’t give you the right to discriminate on the basis of race, sex, or sexual orientation.

If this is true, then religious organizations have no right to decide for themselves whether to ordain women or perform same-sex marriages, and congregations that serve particular ethnicities may not prefer clergy who share the race of their congregants.

Perhaps you find such discriminatory practices appalling, and think no church should engage in them. But if religious freedom does not mean that churches can decide for themselves who will lead them and what sacraments they will perform, then it means very little. This is one of the rare constitutional matters where the Supreme Court is unanimous. Every Justice on the current Supreme Court agrees that churches must be able to discriminate on any basis they wish when hiring and firing ministers—including race, sex, and sexual orientation.

3. Religious freedom doesn’t give you the right to discriminate in commerce.

Here we get to the actual issue, and the core of what most of my outraged Facebook contacts probably meant. It’s a respectable position, shared intuitively by a lot of people, but when I investigate the justifications for this position, I find none of them compelling.

So, the justifications, and my problems with them:

  • Commerce is an inherently non-religious activity, so people and institutions in commerce have no religious freedom rights.

Why? There are lots of businesses out there that claim to have religious values and to express their values through their work. For some, this amounts to little more than a religious mission statement. For others, it might be religious branding (Bible verses on In-N-Out’s packaging), while for some it substantially influences the way they do business: the way they negotiate with their employees, what sort of clients they are willing to take, what products they sell, what they invest in, and so forth. I’ve been told there are small for-profit companies that exist entirely to sell Christian books, make a living for the people involved, and then donate the leftover profits to missionaries.

I understand (and share) people’s reluctance to give a business a full set of religious freedom rights just for saying, “By the way, we’re Baptists.” But surely at some point along the religiosity continuum we have to recognize that the business is in fact a religious institution and grant it at least some religious freedom rights, limited though those rights may need to be.

  • When you choose to go into business, you accept the conditions the government puts on your business activity.

This is better than the previous version, but it is still problematic. It would obviously violate people’s religious freedom, for example, if the government required people who want a business license to promise not to allow any religious speech or imagery on their business premises.

The question is not whether a business consented to restrictions on its religious freedom by being a business; it is whether the government could constitutionally ask it to consent to those restrictions in the first place. The answer to this question is usually yes—of course the government can require you to honor your contracts, pay taxes, etc.—but that does not mean that the answer is always yes, or that it should necessarily be yes in the case of business owners who feel religiously compelled to discriminate in some way against gays.

4. Religious freedom doesn’t give employers or public accommodations the right to discriminate.

This is a more careful version of argument 3, and I agree with it in most cases. But there are two different reasons why discrimination by employers and public accommodations is a problem, and these reasons mean different things for religious freedom.

The first of these reasons is that when all or most of the employers and public accommodations in a community decide not to do business with a particular minority, that minority is effectively shut out from the economic life of the community and doomed to be an underclass. They will be unable to find any work except the most menial and degrading, they will have little ability to influence politics or enforce their rights judicially, and they will find themselves regularly exploited and unable to do anything about it. Where discrimination is this pervasive, providing a religious exemption from anti-discrimination laws would render the laws useless. Everyone would claim the exemption.

But when discrimination is relatively rare, the economic harms it inflicts are small—it is a very different thing to be refused service at one restaurant out of twenty than to be refused service at all of them. In this case, the harm caused by discrimination has mostly to do with human dignity. Refusing to hire people for reasons unrelated to their work, or denying them service at a restaurant, can send a message not just of disapproval but of rejection, of refusal to recognize them as members of society. This harm may be psychological, but it is real.

That said, a real harm is also inflicted when the state requires a photographer to photograph a gay wedding in violation of her religious beliefs. A few harms, in fact. One of these is the harm of having to choose between obedience to the law and obedience to God. Another is a dignitary harm similar to the one I described above: a public statement, this one backed by law, that her religious beliefs are repugnant to society. Finally, a coerced photographer suffers a special religious harm not suffered by a coerced baker or florist: the photographer is being compelled to present a gay wedding as a joyous occasion when she believes it is not. She is not merely being required to violate her religious beliefs; she is being required to preach religious beliefs that contradict her own.

When discrimination threatens to create an underclass, as might plausibly be the case for gays in some parts of the U.S., these harms to the photographer shouldn’t prevent the government from trying to rescue the oppressed minority. But when the only harm is dignitary—as it tends to be in the cases I’m familiar with—why should the religious minority always lose to the sexual orientation minority? Each side has a just claim. Surely some accommodation can be reached.

5. Jesus didn’t discriminate. You shouldn’t either.

Deep down, this is the real source of disagreement for many of my Facebook acquaintances. They have deep religious commitments, usually Christian, and these religious commitments express themselves in compassion for society’s outcasts and a belief that, as the Book of Mormon puts it, “all are alike unto God.” Discrimination deeply offends their religious sensibilities, and offends them still more when the people give devotion to Jesus as a reason for discriminating.

I empathize with these acquaintances: the world deeply offends my religious sensibilities on a pretty regular basis. I even admire them: they’ve taught me compassion for people I might otherwise ignore. But I think their charity is failing them here. People who oppose same-sex marriage for religious reasons have a tough road ahead. They are already a minority, and within a generation they’ll be a much smaller one. With time, they’ll increasingly be at the mercy not only of anti-discrimination laws but of America’s well-oiled outrage mill and the ostracism and boycotts it inspires. In some professions, they’ll face a choice: keep your religious views secret, or lose your career.

To some extent, I think this is inevitable. Every society has its orthodoxies and its heretics, and perfect inclusion of the heretics is not humanly possible—we’re all tribalists at heart. But if the heretics can’t be included, at least let them be left alone; if respect is impossible, let us at least have toleration. And when the stakes are high for the religious, and low for gays, let religious freedom include the right to discriminate.

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“Toxic Religion”? The Parable of the Pan
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  • Namakaokona

    Your final conclusion is predictable but flawed: any lawyer worth their salt could dismantle the photographer’s case and lay it bare for what it is in about 15 minutes: has this photographer in fact demonstrated their religious convictions (assuming they are ‘Christian’) by inquiring and requiring that each heterosexual couple she consents to photograph has been completely chaste, not living together already and not divorced–all Biblical decrees. Of course, said photographer has never done that, because her objection to a gay wedding is selective and hypocritical and is simple opprobrium of gay people. Case closed.

    • AlanHurst

      Actually, any lawyer who knows the first thing about American religious freedom law would tell you that it’s unconstitutional for a court to inquire whether religious views like this are reasonable, or consistent with scripture, or whatever. You can only ask whether they’re sincere.

      But even if you do ask whether they’re reasonable, there are plenty of ways the photographer’s objections can be reasonable. Catholics, in particular, have a very old and extensive body of thought that helps them determine whether, by their action or inaction, they are becoming complicit in someone else’s sin.

      One of the factors Catholics use is something called “scandal”: by my action, am I sending the message that I approve of the sin? It’s perfectly reasonable for a photographer to think that she can create images celebrating the wedding of people who are divorced or cohabiting without sending the message that she approves of divorce or cohabitation–who can tell from the picture that they’ve cohabited? And perhaps they’ve repented of their cohabitation. On the other hand, it’s difficult to think that creating images celebrating the wedding of two people of the same sex does not send a message that same-sex marriages are a good thing. In fact, the couple presumably wants the pictures to send that message.

      • Namakaokona

        That’s simply not true. If the contention of the hypothetical photographer is that their objection is religious, then inquiring into the consistency and legitimacy of their religious beliefs is completely allowable. In this hypothetical case, and in the real life one, the photographer’s objection based on the sinfulness of same sex marriage, can be seen to be completely inconsistent: the photographer has never had a problem photographing people who are living together, or who are divorced or who are otherwise sinning according to religious standards because the photographer doesn’t care, thus their objection to the gay couple is laid bare for what it is–simple animus towards and moral opprobrium of gay people.

        • ahermit

          Exactly! it’s the consistent application of the alleged principle which is in question. If the photographer is applying the religious objection only to same sex couples and not to others then it isn’t the religious objection to the wedding ceremony which is the basis of his refusal to serve them; it’s distaste for their sexual identity.

      • Namakaokona

        PS Catholic thought and law are not the basis of our Constitutional Republic: it is the Constitution of the United States.

  • http://rubyg.blogspot.com Joy Buhler

    “Jesus shouldn’t discriminate, you shouldn’t either.” That’s actually not my point of view even though I’m a LDS LGBTQ ally. That’s a straw man fallacy, and most of your friends who advocate gay rights would probably agree with me that our religious and moral convictions on this issue are more complicated than what you put forward. That being said, on this issue…its more important that divergent sides on this issue converse, and I’m glad you put your viewpoints and opinions out there. Kudos to you, Alan.

    • AlanHurst

      I’m a little surprised you consider it a straw man – if you belong to a church that sings “I’m trying to be like Jesus,” it’s a strong argument, and I haven’t tried to debunk it.

      But otherwise, thanks! Good to hear from you. I hope life is treating you well.

      • http://rubyg.blogspot.com Joy Buhler

        Yes, the Church says, “I’m trying to be like Jesus.” I’m not arguing against that we should all be more like Jesus. I just think you are reducing the logic and rationale of those with diverging views on this issue to something that is more simple than it is in reality so you can set it up and knock it down in this essay. That’s a straw man. That being said, I’m doing well, thanks. Hope you and your family are doing well, too.

        • AlanHurst

          My apologies if you think I turned your views into a straw man and knocked them down. Such was certainly not my intent–indeed, far from knocking them down, I express empathy and admiration.

  • Rachael

    Great piece, Alan. Thanks for giving this issue some clarity and level-headed engagement.

  • Nathaniel

    Bob Jones University:

    On January 19, 1976, the Internal Revenue Service notified the
    university that its tax exemption had been revoked retroactively to
    December 1, 1970. The school appealed the IRS decision all the way to
    the U.S. Supreme Court, arguing that the University met all other
    criteria for tax-exempt status and that the school’s racial
    discrimination was based on sincerely held religious beliefs, that “God
    intended segregation of the races and that the Scriptures forbid
    interracial marriage.”
    The university was not challenged about the origin of its interracial
    dating policy, and the District Court accepted “on the basis of a full
    evidentiary record” BJU’s argument that the rule was a sincerely held
    religious conviction, a finding affirmed by all subsequent courts.[109]
    In December 1978, the federal district court ruled in the university’s
    favor; two years later, that decision was overturned by the Fourth Circuit Court of Appeals.

    On January 8, 1982, just before the case was to be heard by the U.S. Supreme Court, President Ronald Reagan
    authorized his Treasury and Justice Departments to ask that the BJU
    case be dropped and that the previous court decisions be vacated.
    Political pressure quickly brought the Reagan administration to reverse
    itself and to ask the Court to reinstate the case. Then, in a virtually
    unprecedented move, the Court invited William T. Coleman, Jr. to argue the government’s position in an amicus curiae brief, thus ensuring that the prosecution’s position would be the one the Court wished to hear. The case was heard on October 12, 1982, and on May 24, 1983, the U.S. Supreme Court ruled against Bob Jones University in Bob Jones University v. United States
    (461 U.S. 574). The university refused to reverse its interracial
    dating policy and (with difficulty) paid a million dollars in back
    taxes. Also, in the year following the Court decision, contributions to
    the university declined by 13 percent.


    Their beliefs about the sinfulness of interracial dating are just as sincere as your beliefs about the sinfulness of gay marriage. They lost, because religious beliefs aren’t allowed to trump civil rights.

    • Namakaokona

      It should also be noted that BJU was not enjoined, stopped, or forbidden in any way from continuing their racist policy, they were simply not given a tax credit for doing so.

    • AlanHurst

      I’ll make no secret of it: I don’t like the Bob Jones decision. But you’ll find its holding is much narrower than “religious beliefs aren’t allowed to trump civil rights.” Otherwise, how do you explain the unanimous Hosanna-Tabor decision I mentioned in the post?

      In particular, if more had been at stake in Bob Jones than tax subsidies, it would have been a very different case.

  • annoyingbookworm

    Actually, if a couple has been sexual, the LDS church ENCOURAGES them to get married, especially if children have resulted. (In fact, you can’t get baptized LDS if you’re currently cohabiting–you have to either get married or have one of you move out).

    The 1-year waiting period has to do with temple sealings (i.e. marriage that continues in Heaven after death). If a couple gets married outside the temple (whether because of unworthiness or just personal preference) they have to wait at least a year to get have the marriage sealed.