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.