12 Feb A Right to Discriminate?
February 12, 2015
From the Desk of Laura Bunker:
Many people think that Religious Freedom is the ability to join the faith denomination of their choice. While that is an important aspect of it, Religious Freedom is more than just choosing a church. It is the freedom to live according to one’s religious beliefs in all aspects of life, in public as well as in private.
As United Families International Board Member Bill Duncan explains, “Religious people believe they are accountable to God in every aspect of their lives. Acting on this principle is what constitutes the ‘exercise of religion.’”
Just what does true Religious Freedom look like in our public lives? And who needs religious liberty safeguards and protections?
Mr. Duncan answers these questions, discussing five important categories of people or organizations who need religious liberty protections:
2) Businesses or other entities operated by a church
- Example: church schools or church-operated businesses
3) Businesses with a religious mission but which are not operated by a church
- Example: nondenominational schools or charities, church bookstores, soup kitchens
4) Businesses with a secular purpose but religious principles, who do not want to facilitate conduct they do not agree with.
- Example: Hobby Lobby, Chick-fil-A, or a business who does not wish to remain open on Sundays.
5) Individuals who do not want to facilitate activities or conduct they do not agree with
We invite you to read Mr. Duncan’s entire article below, describing what true religious freedom looks like — and why what we are talking about is not just a “right to discriminate,” as those driving same-sex advocacy claim.
President, United Families International
A Right to Discriminate?
By William C. Duncan
A common accusation made by those who oppose robust protections for religious liberty is that proponents are seeking a “right to discriminate.” The common form this argument takes is that religious liberty is already protected (say, by the First Amendment to the Constitution: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”) so any other concession is asking too much — it would be dangerous or scary, a license to pick and choose what laws to comply with; it would be a right to discriminate.
Discrimination in this context is, basically, denying a person a job or a place to live or refusing to provide goods or services normally provided in the course of doing business.
To assess the validity of this accusation, some background is helpful, though necessarily I will paint with a broad brush. Religious people believe they are accountable to God in every aspect of their lives. Acting on this principle is what constitutes the “exercise of religion.” There are at least five possible categories of organizations or people who could benefit from religious liberty protections.
First are churches. The basic liberties they seek are to teach their doctrines, provide sacraments or ordinances, build and maintain places of worship and select official representatives (clergy) without interference. These aims, which may be thought of as the core religious rights, are typically protected by interpretations of the U.S. Constitution. For instance, in 2012, a unanimous Supreme Court rejected a claim from the federal government that it should be able to second-guess a church selection of a teacher in a religious school. The fact that the current administration pushed this attempt all the way to the Supreme Court is concerning, but that claim lost and there’s reason to believe that at least for now, these core religious functions are protected from direct government interference.
That’s not to say there won’t be non-governmental interference with these functions, like vandalism, threats, slander, etc. There are also indirect ways in which government might interfere with core church functions — application of zoning laws, withdrawal of tax exemptions, and other levers the government controls (like the ability to designate who can legally solemnize marriages) could be brought to bear to influence or punish a church.
The second category would be enterprises affiliated with churches but which are not, properly speaking, churches themselves, like church schools or businesses that are operated by churches in order to advance church purposes. They have similar interests to protect. In their operations, they need protection of their ability to ensure employees are speaking and acting only in ways that further the teaching mission of the sponsoring church (or at least do not actively counteract it). This might involve required codes of conduct for students and employees, including provisions that might seem at odds with government-favored notions about matters like sexual morality.
These protections are often provided by law, such as those allowing religious organizations to give preference to hiring adherents or even exemption of these entities from coverage in anti-discrimination laws. These protections are not a “given” in a way that those understood to flow from the First Amendment are. They could be removed by legislation and there are voices that argue that the exemptions are unfair.
Third are charities or even businesses with a religious mission but which are not directly controlled by a church. Nondenominational schools, soup kitchens, church bookstores, and the like would fit in this category. They will have similar concerns with advancing their religious missions in hiring, employment benefits and use of facilities. They may be forced by the law with a choice, though, of getting religious protection by serving only fellow-believers as some laws require or living in accordance to what they understand is a divine mandate to help all people.
Some laws would protect these entities but those protections are typically much thinner. For the next two groups, those protections rarely exist.
Number four, for instance, is for-businesses whose owners would like to operate in accordance with their religious beliefs (e.g., Sunday closing).
Number five is individuals who would like to be free from participating in activities (marching in parades or assisting with medical procedures) that conflict with their religious commitments but may be asked to do so as a condition of employment, though co-workers could easily step into their place to avoid the conflict.
In federal law and the states that have adopted Religious Freedom Restoration Acts, these businesses and individuals can claim some protections (as the Hobby Lobby case demonstrates), but that protection is limited if courts interpret the protections narrowly (as the New Mexico wedding photographer learned).
Perhaps this does not exhaust every possible idiosyncratic religious freedom claim that could be made, but it certainly covers the key concerns. Here is the question this recital raises: Is asking for these protections of religious exercises really properly understood as asking to discriminate?
What seems immediately clear is that none of these claims would result in wholesale exclusion of those who identify as gay or lesbian from employment, housing, service in restaurants or hotels or even the provision of the vast majority of goods and services. Some employment opportunities might be foreclosed: clergy in some denominations, teaching or other positions in religious schools, charities or businesses when a condition of employment is something the candidate is unwilling to comply with—though certainly some people who experience same-sex attractions would be willing to adhere to the conditions. But this still leaves much latitude for other opportunities. (Some churches, of course, don’t even share traditional concerns about sexual morality.)
A critical distinction
The distinction that seems critical for religious organizations and people of faith is facilitation. In other words, they are generally willing to tolerate differences in outlook and life choices (which always exist in public life) but would like to stop short of participating in choices in conflict with the moral teachings they live by (facilitating same-sex weddings, for instance). They do not understand themselves to be “discriminating” in any pejorative sense. In fact, I know of no religion that teaches a religious duty to deny employment or housing to those whose actions or beliefs contradict the church’s teachings or which requires adherents not to do business with those that do. In some of the recent instances of conflict over wedding-related services for same-sex ceremonies, the business owners stipulated that they had or would be glad to offer their services to members of same-sex couples if those services did not involve what they considered to be participating in actions at odds with their faith.
The key question, then, seems to be what would be gained by not recognizing these claims of religious liberty? Assuming, as is clearly the case, that those few people, businesses or organizations who would decline to do something a potential customer or employee desired on grounds of conscience, were forced against their inclinations, who would be a winner? It’s possible that some might gain psychic satisfaction from using legal channels to suppress those who they believe have harmed them by not agreeing with their choices or opinions. That disagreement, though, will still exist.
Are we really better off if certain livelihoods become closed off to people of faith?
If dissent from now-prevailing secular orthodoxies is prohibited. It’s hard to see that this would be a net gain for anyone.
William C. Duncan is the director of the Marriage Law Foundation and of the Sutherland Institute’s Center for Family and Society. He was previously acting director of the Marriage Law Project at the Catholic University of America’s Columbus School of Law and executive director of the Marriage and Family Law Research Grant at J. Reuben Clark Law School, Brigham Young University, where he was also a visiting professor. He has published numerous articles on constitutional and family law issues in a variety of legal journals.
Originally published on February 6, 2015 by the Sutherland Institute