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Drawing Lines on Religion-Based Discrimination

Drawing Lines on Religion-Based Discrimination September 21, 2011

The Chicago Tribune reports that a gay couple is suing two bed and breakfasts for refusing to rent facilities to them for a civil union ceremony.

The Beall Mansion in Alton told the Wathens via email that it “will just be doing traditional weddings.” The owner of the Timber Creek Bed and Breakfast in Paxton wrote in an email to the couple: “We will never host same-sex civil unions. We will never host same-sex weddings even if they become legal in Illinois. We believe homosexuality is wrong and unnatural based on what the Bible says about it. If that is discrimination, I guess we unfortunately discriminate.”

Here’s the legal situation:

The couple filed a complaint with the Illinois Department of Human Rights, which investigated and found “substantial evidence” that a civil rights violation had been committed.

The August finding allows the Wathens 90 days to file a complaint with the state Human Rights Commission or take civil action in Circuit Court. The Wathens’ attorney, Betty Tsamis of Chicago, told the Tribune that her clients have chosen the latter path and will file lawsuits against both businesses as early as next week.

This action, should it proceed, could bring to the courtroom a debate over the boundary lines between religious freedom and discrimination in Illinois.

Steven Amjad, an attorney representing Timber Creek, said the state constitution guarantees religious freedoms.

“These are business owners that have strong religious convictions. The Legislature has created this (conflict), and the courts will have to sort this out,” he said.

Andrew Koppelman, a professor of political science and law at Northwestern University, said the question is whether the state’s Religious Freedom Restoration Act — which protects religious freedoms from government intrusion — can trump the state’s Human Rights Act, which includes the protection of people based on sexual orientation.

“The hotels seem pretty clearly in violation of the Human Rights Act,” Koppelman said. “And if you’re going to say that somebody is exempted from the human rights law under the Religious Freedom Restoration Act, that would mean that people could discriminate based on religious views. It’s a slippery slope.”

I’ve written recently about the billboard put up in Grand Rapids by my friends at the Center for Inquiry – Michigan. They had a billboard company refuse to put up their sign before finding one that would. After last week’s CFI meeting, I had an interesting conversation with the director of that group, Jeff Seaver, about whether that was illegal discrimination or not. He had actually been asked about that by a local TV reporter and had said something like, “And that’s okay, they’re a private company and they can turn down our business if they want to.” But since then, he’d been thinking about it and he wasn’t so sure that was true.

Sexual orientation is not covered by the anti-discrimination statutes in Michigan, or at the federal level, though it is covered by some states. But religion is covered nationally and in every state and it does cover private businesses. A Christian restaurant could not refuse to serve someone because they’re Jewish or Muslim — or atheist, for that matter. This is well established law and enjoys overwhelming public support, so it’s pretty well settled. So what’s the difference?

On the other hand, a church can, of course, limit its hiring to only those who share the same faith. This is known in legal terms as the ministerial exception. And this is a crucial principle. Freedom of religion would mean nothing if the state could force a Christian church to hire a Buddhist as a minister. But what are the limits of such an exception? What about a religious school? Could the government force a Catholic school to hire an atheist teacher? I think the vast majority of people, even atheists, would say no.

But what about a religious day care center? Or a homeless shelter? Or a restaurant set up by a ministry to fund some charitable activity? Jeff offered this possible distinction: If the activity is explicitly religious in nature, then the exception should apply, but if it’s a service that is not inherently religious in nature and is open to the public, they should be required to accept all takers both in terms of employment and servicing the public. And that seems reasonable, though not a perfect solution.

Some Christians claim that requiring them to serve gay customers in any context is a violation of their religious freedom. But if it is, it is exactly the same as requiring them to serve customers of every race or gender. Discrimination on the basis of race can be and historically has been based on religion as well, yet almost no one seriously argues today that any business should be able to turn away a black person. Who is going to stand up and say that a business should be allowed to refuse to hire women because their sincerely-held religious beliefs tell them that women should stay at home and not work?

Even if someone would make that argument, it’s not going to work, either legally or politically. It’s simply a non-starter. And there is no difference between those situations and discrimination against gay people or atheists. If it is a violation of religious freedom to force businesses to serve or hire gay people and atheists, it is just as much a violation of religious freedom to force them to serve or hire black people or women.

But Prof. Koppelman is right to point out that, legally, the Religious Freedom Restoration Act and its many state versions does complicate this. That law requires that religious groups and individuals be given exemptions from generally applicable laws unless the government can show a compelling state interest in enforcing the law on them specifically in that particular context. And those laws are used everyday to exempt religious groups from zoning regulations and lots of other laws.

It may be that RFRA and other such laws should simply be done away with, that there should be no exemption for religious groups or individuals, period. But then we go back to that ministerial exception, which I think even the most hardened atheist would agree with — no one thinks we should force churches to hire people who are not of the same faith. So perhaps Jeff’s solution is ultimately necessary, a narrowly drawn exception for churches and probably church-run schools, but not for businesses that just happen to be owned by Christians who feel the need to discriminate.

Thoughts?

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