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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).
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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