Balkinization  

Tuesday, March 13, 2007

Should antidiscrimination laws have religious exemptions?

Andrew Koppelman

Should those who have religious objections to employing gay people or renting them housing be allowed to discriminate? There has been a lot of talk lately about a possible conflict between gay rights and religious liberty. Must there be such a conflict? I address this question in a recently published article, You Can’t Hurry Love: Why Antidiscrimination Protections for Gay People Should Have Religious Exemptions, 72 Brooklyn L. Rev. 125 (2006), which can be found here (pdf).

An excerpt follows:

In order to decide whether religious objectors ought to be excused from compliance with a law protecting gay people from discrimination, we need to consider why there are such laws in the first place.

The general rule, in employment decisions, is that of employment at will. An employer normally has the privilege of refusing to hire, or of firing, employees for any reason or no reason. He need not justify these actions to any official. Antidiscrimination laws, such as the Civil Rights Act of 1964, are exceptions to this general rule. So long as an employer does not engage in the enumerated types of discrimination, she has the privilege of being as arbitrary as she likes in her hiring. I can, for example, absolutely refuse to hire anyone whose eyebrows are not at least three inches long.

It is important to understand the reasons for the rule of employment at will, so that we can understand what we are doing when we depart from that rule. One traditional justification is rights-based: people have a right, it is sometimes said, to do what they like with their private property. The bankruptcy of this justification became clear during the debate over the Civil Rights Act of 1964, which then-presidential candidate Barry Goldwater opposed on libertarian grounds. The Civil Rights Act is not an invasion of our precious liberties. On the contrary, it diminishes the amount of oppression in the world. The idea of private property is not as sacrosanct as it once was, because the uses of that property can have public effects that are legitimate objects of legislative concern. Even Goldwater eventually abandoned the libertarian argument and supported antidiscrimination protection for gay people.

The more persuasive justification for the rule of employment at will is efficiency-based. It would be a terrible burden on the economy for government officials to have to approve every firing, much more every refusal to hire, that takes place in the private sector. Moreover, there is little reason to think that most types of arbitrary refusal to hire are likely to have much effect on anyone’s opportunities. Although I may refuse to hire anyone whose eyebrows are less than three inches long, other employers will compete for the services of the short-eyebrowed, and so will bid their wages up to pretty much the same level that they would have been if I had been willing to hire them. And the market will also punish me for my foolishly discriminatory hiring practices, since competent short-eyebrowed workers will go to work for my competitors. My tendency to discriminate means that I am turning away better workers and hiring worse ones. The overall tendency is for people like me to be driven out of the market.

Considerations of this sort led the prominent libertarian theorist Richard Epstein to argue that the Civil Rights Act ought to be repealed, because it interfered with freedom of contract for no good reason. In a free market, he argued, we can expect that blacks’ wages (for instance) will be as high as they can be. Epstein did not persuade many people. The point most commonly made by his critics was that he had left culture out of his model. Some groups are subject to pervasive discrimination. At least when the Civil Rights Act was enacted, his critics argued, racism was sufficiently pervasive to withstand the egalitarian tendencies of a well-functioning free market. Antidiscrimination law can have a powerful effect on economic opportunity. We know that black wages, for instance, went up dramatically after the act was passed. In 1964, the median income of nonwhite males was 57% of median white male income. By 1985, that ratio had risen to 66%. The proportion of black men working as professionals or managers relative to whites rose from 32% to 64%. And the most dramatic progress came in the first ten years after the Act.

Epstein does not succeed in showing that antidiscrimination law should not exist, but he does show why the burden is on those who want antidiscrimination law to be extended to new classes, and what it is that they need to show. Anyone who wants to extend antidiscrimination protection to a new class needs to show that the class is subject to discrimination that is so pervasive that markets will not solve the problem.

This is not hard to show in the case of lesbians and gay men. The intensity with which gay people have been despised in American culture is well documented, and scholarship has now dispelled Antonin Scalia’s ignorant claim in his Romer v. Evans dissent that all gays “have high disposable income.” Antigay discrimination is pervasive enough, and has a sufficiently severe effect on the economic opportunities of gay people, to warrant protection.

A lot of legislatures have been persuaded by these arguments. In twenty-two states as well as the District of Columbia and many municipalities, discrimination against gay people is prohibited. If these statutes are enforced, then in those jurisdictions, overt discrimination against gays will become like discrimination against the long-eyebrowed: if it happens once in a while, it will not make any economic difference. The preconditions for Epstein’s economic defense of a right to discriminate are not always present—that is why his general argument against antidiscrimination law is wrong—but they will be present here.

And there is every reason to think that religious exemptions will not often be sought. Antigay discrimination is now sufficiently stigmatized that a business that openly discriminates is likely to pay an economic price for doing so. When religious exemptions are available, they are an affirmative defense against the enforcement of the law. The defendant charged with discrimination carries the burden of pleading, the burden of producing evidence showing that the exemption is applicable, and the burden of persuasion. An antidiscrimination law with a religious exemption is nothing at all like a regime with no such law. The difficulties should not be exaggerated; conspicuously religious discriminators are so likely to prevail in their defenses that they are unlikely to be sued in the first place. But there are unlikely to be huge numbers of them, at least in most parts of most jurisdictions that protect gay people from discrimination.

This solution is not cost-free. If there are religious exemptions, then gay people will sometimes find themselves discriminated against, and that is insulting and hurtful. I take that problem up in the article, and I will offer the main outlines of that discussion in my next posting here.

The great attraction of regulation-plus-exemptions is that it lowers the stakes and makes possible a legislative compromise that does not threaten the deepest interests on either side. The burden of complying with antidiscrimination rules has become one of the premier concerns of conservative Christians, who tend to understand their opposition to gay rights to be defensive in nature. They have been collecting horror stories which, they argue, show that gay rights are a threat to religious liberty. Reasonable gay rights proponents should take these concerns seriously and seek to accommodate them where this is possible—not just because it is politically sensible (though it is), but because it is the right thing to do.

Comments:

Why does this rather long post offer no justification for its central, and controversial, claim that religious affiliation should excuse bigotry?
 

I have to say I find Marci Hamilton's reasoning much more persuasive. I think you radically underestimate the latent potential for discrimination which would become manifest if the laws were relaxed.

I'm also not sure where to find the logical boundaries of religious exemptions. Can Catholic pharmacists refuse to fill prescriptions for birth control? Can fundamentalist ambulance drivers refuse to transport gay patients? Can Shaker apartment owners refuse to rent to married couples?

The social benefits which we gain from laws recognizing the right to equal treatment seem to me far greater than any loss of religious "freedom" (a "freedom" which, I note, doesn't require that any believer adopt the condemned behavior). Equality of treatment is fundamental to republican government. The law should enforce that principle.
 

If a governmental regulation serves a valid government interest and is not designed to, nor has the effect of, advanc[ing] or inhibit[ing] a specific religion or religion in general, it meets First Amendment scrutiny.

Anti-discrimination statutes that are facially neutral and apply to all organisations can't be reasonably deemed to be pro- or anti-religion.

There is no constitutional bar to not exempting religions orgaisations.

While Bishop v. Amos held that exemptions in anti-discrimination laws do not contravene the First Amendment, there is no requirement that any such laws have such an exemption.

Cheers,
 

Prof. Koppelman:

The more persuasive justification for the rule of employment at will is efficiency-based. It would be a terrible burden on the economy for government officials to have to approve every firing, much more every refusal to hire, that takes place in the private sector.

But that is no reason for a religious exception. If anti-discriminatory laws are too unwieldy, that objection applies to the laws as a whole.

Cheers,
 

Prof. Koppelman:

Although I may refuse to hire anyone whose eyebrows are less than three inches long, other employers will compete for the services of the short-eyebrowed, and so will bid their wages up to pretty much the same level that they would have been if I had been willing to hire them.

Huh?!?

If you don't want to hire them, then you're reducing the "demand" for such people. That will drive their wages down, not up.

Cheers,
 

Arne,

And you're simultaneously reducing the supply of long-eyebrowed folks, pumping up their wages. Pointing out the distortions in a market that can be produced by a large enough population discriminating, particularly if market measures are used as the yardstick for measurement. Since the long-eyebrows get paid so much more than the shorties, that must be evidence that eyebrow length is correlated with competence; even though I have nothing against the shorties, what arrogance would lead me to think that I know better than the market about their relative worth?
 

IIRC, the Goldwater rationale for opposing the '64 civil rights act was that, on the face of it, the 14th amendment didn't give the federal government any power which would reach the actions of individuals, rather than state actors. And the '64 civil rights act presumed to regulate the activities of non state actors.

I have to say that, as a matter of what the text actually says, this is pretty much irrefutable. Private actors are not "states". Not that the text of the Constitution carries much weight anymore in our courts.
 

I said:

Anti-discrimination statutes that are facially neutral and apply to all organisations can't be reasonably deemed to be pro- or anti-religion.

See Oregon v. Smith (albeit not concerning anti-discrimination law specifically).

But let me amend that: "... absent evidence of invidious intent". See Church of Lukumi Babalu Aye v. Hialeah:

"We reject the contention advanced by the city, see Brief for Respondent 15, that our inquiry must end with the text of the laws at issue. Facial neutrality is not determinative. The Free Exercise Clause, like the Establishment Clause, extends beyond facial discrimination. The Clause 'forbids subtle departures from neutrality,' Gillette v. United States, 401 U.S. 437, 452 (1971), and 'covert suppression of particular religious beliefs,' Bowen v. Roy, supra, at 703 (opinion of Burger, C.J.). Official action that targets religious conduct for distinctive treatment cannot be shielded by mere compliance with the requirement of facial neutrality. The Free Exercise Clause protects against governmental hostility which is masked as well as overt. 'The Court must survey meticulously the circumstances of governmental categories to eliminate, as it were, religious gerrymanders.' Walz v. Tax Comm'n of New York City, 397 U.S. 664, 696 (1970) (Harlan, J., concurring).

"The record in this case compels the conclusion that suppression of the central element of the Santeria worship service was the object of the ordinances."

Because the regulations were so specific, so tailored to the prohibition of the Santeria practises, and the timing so suspect, the court rejected the "facial" neutrality of the ordinances. In essence, if the only affected parties (in practise) were the Santeria, and there was animus to Santeria shown, it was hardly a neutral governmental action.

Perhaps one might be able to find on specific circumstances that anti-discrimination statutes of nominally broad application were in fact directed and animated by hostility to a religion and thus not allowed under Hialeah, that's hardly true of the general anti-discrimination statutes that affect far more than just gays, and which affect equally mainstream religions hardly a suspect "target" for anti-religious animus.

Cheers,
 

IIRC, the Goldwater rationale for opposing the '64 civil rights act was that, on the face of it, the 14th amendment didn't give the federal government any power which would reach the actions of individuals, rather than state actors. And the '64 civil rights act presumed to regulate the activities of non state actors.

That's my memory also.

I have to say that, as a matter of what the text actually says, this is pretty much irrefutable.

I'm not at all convinced that this is true. State inaction certainly "denies" the equal protection of the laws just as much as any statute does. Dilan Esper, who sometimes posts here, wrote an interesting law review article on this point.
 

brett:

IIRC, the Goldwater rationale for opposing the '64 civil rights act was that, on the face of it, the 14th amendment didn't give the federal government any power which would reach the actions of individuals, rather than state actors. And the '64 civil rights act presumed to regulate the activities of non state actors.

Then either you or Goldwater misunderstood the legal skirmishing about the CRA. See, e.g., Heart of Atlanta, where it was explained that the justification for the CRA was the Commerce Clause. No one claimed that the Fourteenth Amendment (which as you point out prohibits gummint discrimination) applied.

I have to say that, as a matter of what the text actually says, this is pretty much irrefutable. Private actors are not "states". Not that the text of the Constitution carries much weight anymore in our courts.

You're tilting at the windmills of your own mind here. Care to try again, perhaps in a different direction?

Cheers,
 

Prof. Koppelman:

[Prof. Koppelman]: The more persuasive justification for the rule of employment at will is efficiency-based. It would be a terrible burden on the economy for government officials to have to approve every firing, much more every refusal to hire, that takes place in the private sector.

[Arne]: But that is no reason for a religious exception. If anti-discriminatory laws are too unwieldy, that objection applies to the laws as a whole.


Let me add to that that such a rationale of undue burden then also undercuts the minimization excuse you put forth as to why we should tolerate discrimination by religious organisations but not others because said discrimination by religious organisations is de minimus in its effect.

You can't argue both ways ("too much" and "too little") here.

Cheers,
 

How far would a religious exemption extend? Does it apply only to churches and church-affiliated ortanizations, or to any individual who regards homosexuality as a sin? I, for one, would have a good deal more sympathy for allowing church organizations such latitude than extending it to all individuals with religious objections.
 

I am but a layperson having little legal underpinning. However I have strong religious beliefs that God wants us to understand natural laws. I don't find peer reviewed science and medicine to have an inherent evil. And our best science and medicine concludes that homosexuality is a state of being and is not a moral choice.

What understanding I have of history informs me that religious beliefs are not immutable but change and evolve over time -- unlike natural laws, which are a constant. As humanity has gained new knowledge they have altered their views of what is moral. I only mention that being left-handed was very recently considered sinful. There are many more examples, as I'm sure you are aware.

In a secular society, founded largely out of an understanding of how religious beliefs intruded on government in the Europe our ancestors had recently left, our democratic experiment was set up to be rationally, not religiously, based. Certainly an enlightened and rational contemporary approach to homosexuality cannot argue that this human characteristic is immoral -- or use the tyranny of the majority to exclude homosexuals from equal civil rights.
 

One person noted "nor has the effect of, advanc[ing] or inhibit[ing] a specific religion" ... well, some laws DO have the EFFECT of doing that.

I think Marci Hamilton goes too far in ignoring this, but realize the weighing is complicated. But, I doubt even she wants the Catholic Church to be forced to have lesbian priests. I don't quite understand though how a strict reading of her philosophy could not lead there.

[The NY Court of Appeals, dealing with a health regulation dealing with birth control took a middle course that seems sound.]

As to 'private' discrimination, I think John Harlan was right in The Civil Rights Cases. Apparently, the drafters etc. of the law at issue, many of whom was at the founding so to speak, agreed.

Simply put, "public accomodations" are not simply "private" actors. They are 'clothed in the public interest' etc. This is localities have the right to regulate them more than they would regulation the home.

There is also the Commerce Clause issue. But, no, sorry, not just "private property."
 

joe:

One person noted "nor has the effect of, advanc[ing] or inhibit[ing] a specific religion" ... well, some laws DO have the EFFECT of doing that.

Apologies. I should have been more explicit and more clear. There are a couple of "tests" used in religious freedom cases, but the primary one is the Lemon test, which specifies that for a law to pass constitutional muster, "its principal or primary effect must be one that neither advances nor inhibits religion". Incidental burdens are permissible when coupled with a valid secular purpose (and presumably) effect; see, e.g., the Oregon v. Smith case. OTOH, if the purpose is to do so, it will be looked at rather askance.

Cheers,
 

Thanks Arne. And, Yoder etc. strongly secured free exercise until Smith put forth a more questionable policy. A policy whose "neutrality" (see Souter in the Santeria case) is questionable in practice.

Per Shaq, no, I said that I don't think she would go that far. I also am not sure how she would reasonably draw the line, esp. given the tone of some of her writings. Perhaps she explained in her book, but in her essays, she is rather anti special exemptions.

For instance, she is against Yoder, which accepted letting Amish have two less years of school. I wonder if she accepts homeschooling. She didn't like the SC ruling upholding the right of believers to have an exception to use hosecea tea for religious practices.

The net result is leaving things to the political processes. "Dry" areas surely would allow Catholics to use alcohol, while small amounts of drugs with less societal negative effects would in some cases not be allowed. Priests can discriminate, but perhaps not a somewhat less ceremonial based entity.

The 1A simply is not totally neutral, for or against, on the religion question. The state selectively cannot favor certain ideologies. And, fwiw, I think selectively -- up to a pt -- must allow believers to freely exercise their faith.

This includes somethings that require a bit of balancing. I honestly am not fully aware of the author's line -- it seems a bit hazy. But, e.g., a Catholic school can bar divorced teachers if not divorced electricians to fix the wiring. A basement apt is different from one of many in an apt building.

Some exemptions are generally accepted. And, under the current rules, there is probably some inequitable in some cases.
 

joe:

And, Yoder etc. strongly secured free exercise until Smith put forth a more questionable policy. A policy whose "neutrality" (see Souter in the Santeria case) is questionable in practice.

I'll agree that Smith was arguably not as "neutral" as one might hope. It wasn't as egregious or as obvious as Hialeah, and the motives weren't as blatantly anti-religious, but Smith was certainly (in my mind) an attack on personal freedoms rather than a disinterested move by the state to further legitimate state aims. I wish that courts would inquire more into motives and history, and to defer less to legislative "judgement". I'm at a total loss as to how legislatures can determine (for juridicial purposes) a scientific question such as the medical usefulness of marijuana.

Cheers,
 

There are two interesting books on the Smith case ... both the plaintiffs and the governmental atty have fascinating stories.

To clarify, I referenced Souter's concurrence to deal with the general issue of neutrality, not the matter in that case specifically. Motive is too often avoided, though the matter is often dealt with sub silento.
 

joe:

References/cites for those books? I may not need more books to read right now, but they do sound interesting.

Cheers,
 

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