Religious Freedom And Discrimination

April 4, 2009

Tell me what you think about this, because this is the sort of thing you see on conservative blogs and in conservative journals all the time. Here’s Rod Dreher (conservative, Catholic columnist, writes a blog on beliefnet and in National Review, The American Conservaitve, etc., so pretty much a bigwig mainstream conservative) writing about Iowa’s recent ruling on gay marriage:

“This morning, I had breakfast with some guys, including a lawyer. We weren’t aware of this decision, but we talked about this issue. The lawyer said that as soon as homosexuality receives constitutionally protected status equivalent to race, then ‘it will be very hard to be a public Christian.’ By which he meant to voice support, no matter how muted, for traditional Christian teaching on homosexuality and marriage. To do so would be to set yourself up for hostile work environment challenges, including dismissal from your job, and generally all the legal sanctions that now apply to people who openly express racist views.”

I bring this up not because I think this argument has any merit (it doesn’t), but because I think it actually resonates with people. Basically, the right is trying to reframe the argument (and I actually don’t think there’s much a legitimate legal argument, btw) on gay marriage into one of religious freedom.

The argument goes something like this:

It is a core belief of Christianity (at least the most numerous sects of Christianity) that homosexual marriage is unacceptable. There are various reasons for this, but the two most important are that homosexual relations are sinful and, more prominently featured in their arguments, that marriage is a sacred union between a man and a woman. If American society officially rejects this view by permitting same-sex marriages, it will necessarily impose a burden on those Christians who reject it on moral and religious grounds. Specifically, they would be open to court challenges if they speak out against same-sex marriage or refuse to sanctify such marriages in their churches.

Hilzoy (i.e., Hilary Bok, Johns Hopkins professor of philosophy and bioethics who blogs under the name “Hilzoy”) I think demolishes this argument here:

“Notice anything about those legal sanctions? They all apply to people who openly express racist views at work. There are no legal sanctions for expressing openly racist views on the street or on a public beach. Why not? We have this odd thing called ‘freedom of speech’, which precludes them. In a country that let Nazis march through a town full of Holocaust survivors, I find it hard to believe that Rod Dreher and his friends will not find some way to express their views in public.

Apparently, to be the kind of ‘public Christian’ that Dreher thinks he has a right to be, it’s not enough to bear Christian witness in public. It’s not even enough to express disapproval of homosexuality in public. You have to express disapproval of homosexuality to your co-workers, in your workplace. And you have to do so even if they find your expressions of disapproval so unpleasant that they actually file suit.

The existence of laws against sexual harassment in the workplace does not mean that no one can be a public lecher.”

I don’t think, though, that this addresses all of what Dreher is getting at. Don’t get me wrong – the freedom of speech argument is completely idiotic, and the idea of it being difficult to be a public Christian in America is patently absurd (try being a public homosexual for a week and get back to me).

While he doesn’t talk about it explicitly, though, his statement hints at a larger question: to what degree should churches be allowed to discriminate? Can churches fire gay employees? Fire gay teachers? Expel gay students? Are they susceptible to lawsuits for preaching racism and homophobia? Will church-owned hospitals, for example, be required to pay for benefits to spouses of employees in same-sex marriages?

These are, of course, different questions with potentially (and likely) different answers.

I think the most important thing to point out about this, though, is that gay marriage itself won’t necessarily affect (most of) these questions one way or the other. Legal questions about discrimination will exist whether the state sanctions same-sex marriages or not.

But I don’t think the answers to these questions are obvious all the same. Churches are generally granted far more leeway in these affairs than, say businesses, or the government. The Catholic Church can keep women out of the priesthood. And courts in California have upheld the right of churches to expel gay students from their schools.

Churches can not only refuse to marry same-sex couples but can refuse to marry those who’ve been divorced, and people who aren’t both members of the religion in question. None of the above can be challenged on legal grounds.

To be honest, I don’t have a good answer here. I do believe that churches should be granted a free space in which they can set their own rules, provided it doesn’t interfere with freedoms of citizens outside that space. But at the same time I find it profoundly unfair and morally reprehensible for churches to actively discriminate against people because of sexual orientation, gender, race, etc. And I find it particularly troubling when it affects students in school or other important social services carried out by churches that do have a profound impact on society at large. Imagine, for example, if Catholic schools were to discriminate based on race.

Obviously there must be great deal of scholarship on this issue, but I’m not a lawyer and not familiar with it. I know people rarely (pretty much never) comment on this blog (or read it?), but thoughts on this would be greatly appreciated.

At what point does the harm on others imposed by religious expression become unacceptable in a free society?


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