Religious freedom or illegal discrimination?

[Ian David]

Religious freedom or illegal discrimination?

COLUMN By TIM GORDINIER, Ph.D.
HumanistNetworkNews.org
Nov. 9, 2005

The tug-of-war between accommodating the needs of religious people and protecting the rights of everyone else is a never-ending saga. Take the following two examples recently in the news:

In Kentucky, the Amish owner of a thrift store refused to serve a woman who had been excommunicated by the Amish community. The owner claimed that she had no choice in the matter and that she might have faced the same ostracism -- and Hell’s damnation to boot -- if she had taken money from the ostracized woman.

Is this case of religious freedom? Or illegal discrimination in a place of public accommodation? Or simply a matter of a private businessperson having the right to choose her customers?

In other news, a Baptist church in Texas rented its property so that the state could use it as a polling place on Election Day. By law, no one is permitted to electioneer within a 100-foot radius of the polling place -- but it is legal to do so outside that radius. Here’s the rub: Does the church have the right to stop people from electioneering on their property outside that radius? Can it go even further and allow only those people who share its political views and religious values to post signs or otherwise voice their position?

That's exactly what happened, according to one voter, who said that the Baptist minister would not let him display a sign opposing a ballot referendum that would ban gay marriages. The minister even made him remove his car from the parking lot near the polling place because it carried a bumper sticker that opposed the proposition.

Take the last case first. Most of us would not normally raise legal objections to a religious group that engaged in viewpoint discrimination on its own property. Why should a church be forced to express a view that it would normally consider to be sinful?

Well, it's not that simple. Since the church in this case had temporarily given over its property for a government purpose -- in this case furthering the electoral process -- it should be forced to act in the same viewpoint neutral manner that is required of government when a polling place is located on government property.

That means that in order to ensure a fair process the church can't favor one side over another, especially when signs and placards of one side are clearly visible enroute to the polling place. If a religious organization doesn't like these conditions then it shouldn't get involved in the political process in the first place. And perhaps that's the best solution of all. Some have even argued that allowing religious organizations to become the site for a polling place is, in and of itself, a violation of the First Amendment, even if the church does not interfere with legal electioneering on its property.

What about the person who refuses to serve someone for religious reasons? This is a situation that is coming up more and more in the news: "Conscientious" pharmacists who want religious exemptions from having to dispense birth control; waiters who won't serve alcohol to pregnant women; a landlord who won't rent to a gay couple. Should a person have to violate his or her religious convictions in order to practice some profession or occupation? Is it reasonable to ask them to be complicit in what they regard as another's immoral behavior? Especially when it might be regarded as tantamount to murder by their reckoning?

Despite what many might think, the Amish shopkeeper would not normally have the upper hand in this debate. When people open up a restaurant or store to the public, it is, strictly speaking, no longer their private property. Under firmly settled public accommodation laws, it is unlawful to discriminate against customers on the basis of race, gender, religion etc. Think of it this way: If she simply had refused to serve a black person or some other minority for non-religious reasons, she would not have had much to go on legally.

But in some situations her religious objections may actually give her a trump card to play.

Even though the U.S. Supreme Court has said that the Free Exercise Clause of the First Amendment no longer gives religious persons the privilege of ignoring otherwise valid laws -- because they just happen to interfere with their religious convictions or practices -- many state legislatures, state constitutions and Congressional statutes still adhere to the old accommodationist view. Under these laws, government must exempt burdened religious practices, unless it can demonstrate a "compelling" governmental reason not to. The Supreme Court has also held that it is perfectly valid for other branches of government, or states, to create new rights, or to augment already established protections and liberties found in the Bill of Rights.

The result is a crazy-quilt patchwork of privileges and exemptions that sometimes give the edge to religious persons and sometimes not. Fortunately, Kentucky is not one of the states that gives out blanket exemptions --or at least that's what current interpretations of its state constitution say. In fact that state seems to have a more stringent view of separation of church and state than the Establishment Clause of the First Amendment.

But is this variability good for the nation?

And what of the woman who will face an earthly punishment (and believes she will face a worse punishment in the afterlife) if she is required to engage in a commercial transaction with an excommunicated member of her faith? Should rationalists care about her hard choice, or are we too tolerantly allowing religious persons and perspectives to impose their religious needs on the rest of society? After all, these situations are often dilemmas of religious individuals' own making -- much like the Orthodox Jewish woman who cannot remarry in her faith community because her husband will not grant her a religious divorce or "get".

This might be as good an inducement as any to get one to leave one's religious heritage behind and embrace some freethought alternative. But we shouldn't be too demanding of these folks because this transition is often a difficult process. As many have persuasively argued, we don't necessarily choose a religious heritage, it chooses us, based on the accidental circumstances of our birth. So accommodation will continue, and our elected officials will have to make some hard choices -- sometimes exempting one religious individual, but not another. Unfortunately, these Solomonic decisions seem like they will only grow in number as the United States becomes even more religiously diverse in the future.

Tim Gordinier, Ph.D., is the director of public policy of the Institute for Humanist Studies. A registered lobbyist for humanism, he earned his doctorate in public law with a concentration on the religion clauses of the First Amendment. He is the author of the online course Religion and the Constitution, offered through the Institute's Continuum of Humanist Education.
http://humanisteducation.com/area.html?area_id=4

For information about the IHS public policy department, visit: http://humaniststudies.org/policy.html.


To receive Gordinier's NYS legislative updates by email, visit:http://humaniststudies.org/lists/alllists.html

Sources include:

* Amish store at center of discrimination case, (story by Associated Press, Nov. 1, 2005).
http://www.kentucky.com/mld/kentucky/news/state/13048715.htm

* Americans United Issues Statement On IRS Enforcement Of Federal Tax Law Ban On Church Electioneering, (press release by Americans United, Nov. 8, 2005).
http://www.au.org/site/News2?abbr=pr&page=NewsArticle&id=7639&security=1002&news_iv_ctrl=1241


See Also:

* Conservatives Also Irked by IRS Probe of Churches, (story by La Times, Nov. 8, 2005).
http://www.latimes.com/news/printedition/la-me-irs8nov08,0,3141303.story

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