Balkinization: Will We Sanction Discrimination?

Will We Sanction Discrimination?

Guest Blogger

Louise Melling

For the Conference on Liberty/Equality: The View from Roe’s 40th and Lawrence’s 10th Anniversaries

More than forty lawsuits blanket the country with various institutions – ranging from Notre Dame to a chain of arts and crafts stores to archdioceses to a mining company – challenging the requirement that they include prescription birth control among the services covered by the insurance they provide employees. In every case, the plaintiffs claim the contraception requirement violates their religious freedom.

These challenges to the contraception requirement are the most prominent of a rash of cases challenging anti-discrimination rules in the name of religion. We see bakeries and bucolic inns closing their doors to same-sex couples, Christian schools firing employees who are pregnant and unmarried, and nurses protesting even taking the blood pressure of abortion patients. In every case, the refusal to provide services or equal treatment is rooted in religious beliefs.

The cases pose this fundamental question: Does the right to religious freedom include the right to impose your views on others? Does it include the right to impose your views on a diverse workforce? On customers and patients seeking your services you offer the public? Does it include the right to close the door – in your office or your bakery or your emergency room – because you disagree with the person seeking services?

In the past, we have said no. When a restaurant resisted racial integration because the owner’s faith taught that the races were to be separate, the courts said no. When Bob Jones University asserted a religious objection to nondiscrimination in admissions (in that case, of the right to turn away students who believed in interracial dating), the courts said no. And when Christian schools sought to pay men more than women because, consistent with their faith, men were supposed to be heads of the household, the courts said no. In every case, the principle of nondiscrimination was sufficiently compelling to override the religious objection.

The stakes now are every bit as critical. We should no more tolerate an inn turning away a same-sex couple than we sanctioned it turning away an interracial couple. And we can no more sanction a view that women should be mothers than we could that only men should heads of households. The court of public opinion understands that. Will the courts of law? The next few months will be telling.

Louise Melling is a Deputy Legal Director for the American Civil Liberties Union Foundation. You can reach her by e-mail at lmelling at aclu.org

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