Religious Freedom and Non-Discrimination Law

Religious Freedom and Non-Discrimination Law:

A Clash of Two Goods

 

The relationship between religious freedom and civil non-discrimination law has been much in the news lately. The United States Supreme Court recently ruled in the Hobby Lobby case that a closely held corporation may exclude coverage for contraception services and medications from employees’ health insurance benefit plans based upon the corporation’s owners’ religious objections to contraception. Basing their argument on that case, some people are demanding that they be allowed to discriminate against LGBT people in ways that violate the law because of their allegedly religious objections to minority sexual orientations and gender identities. Many of us believe that the supposedly religious values behind these acts of discrimination are utter nonsense, that they represent very bad religion. I believe that myself, but my belief about another’s religious convictions is utterly beside the point here. So is yours. Freedom of religion means nothing if it applies only to religion of which we approve. We are dealing here with two bedrock values of American life—religious freedom and the rights of people to be free from discrimination based upon some characteristic of a person’s humanity. Moral and ethical choices are easy when they are between an evil and a good. They are very much more difficult when they are between two goods. For me both religious freedom and freedom from discrimination are profound goods. The constitutional guarantee of freedom of religion that we Americans enjoy distinguishes us in a most positive way from many other countries in the world and is a great benefit to us. Most of us also believe in the inherent dignity and equality of all people, and that belief is codified to some extent in federal law and often to a greater extent in state and local laws against discrimination in employment, housing, and other areas of life. Some claim that their religion requires them to discriminate against women by excluding contraception from an employer provided health insurance plan. Some claim that their religion requires them to refuse to do business with gay, lesbian, bisexual, and transgender people and that the constitutional guarantee of religious freedom excuses them from complying with nondiscrimination laws that apply to such people. How are we to evaluate and resolve those demands that are grounded in a foundational good—freedom of religion—yet so seem to violate another good—freedom from discrimination?

To answer that question we have to introduce what I think is an essential distinction. The question we are addressing here arises on two different levels. The first is the level of personal belief and opinion. Each of us is free to make our own decision about which of the two goods at issue here is most important. We probably tend to make our personal decision largely on the basis of emotion. Many of us, myself included, react emotionally against an employer’s refusal to include birth control costs as a covered medical expense in an employee’s health insurance benefit. To many of us that exclusion smacks of discrimination against women, patriarchy, and even misogyny. It certainly reeks of bad religion. We react with equal emotion to discrimination against God’s LGBT people. That discrimination seems to us to be not a true religious belief but only an expression of cultural prejudice and ignorance. I suppose that on the level of our personal decisions this emotion has its place. I feel it, and I don’t mean to disparage it. I think we must understand however that those on the other side of these issues also feel strong emotions around their positions on these matters. On the personal level, go ahead and believe what you believe. Feel what you feel. We all have our right to those beliefs and feelings, and the government may not interfere with them.

The matter is different, however, when we turn to the other side of the necessary distinction and consider the public policy ramifications of the decision that must be made between these two goods. The Supreme Court has said that religious freedom trumps freedom from discrimination when it comes to the issue insurance coverage for contraception. I think they’re wrong about that, but they were considering the matter (in theory at least) from a purely legal perspective. What are the legal considerations here? Does freedom of religion really trump equal treatment of people regardless of gender? Those insurance policies in question do after all include coverage for Viagra. Does freedom of religion trump the right of LGBT people to be free from discrimination in employment, housing, and public accommodations?

To get at what I think is the correct legal answer to these questions let’s take a look at the history of another form of discrimination with which our country has long wrestled and continues to wrestle, the issue of discrimination on the basis of race. Discrimination against people of African ancestry is as old as the presence of such people in what today is the United States. It began when dominant white people began to import enslaved Africans to provide cheap labor on the white people’s plantations. It continued through the years of slavery, then through the years of de facto or de jure apartheid that followed the abolition of slavery. Many white people advanced religious justification for their discrimination against Black people. They said that Black people bore the curse of Ham, Ham being one of Noah’s sons who the Bible says was cursed because he saw his father Noah naked. (See Genesis 9:20-25. In that story the consequences of the curse fall not on Ham but on his son Canaan, but never mind.) These white racists said that their denigration of Black people was a religious duty. They said that God had made Black people inferior to white people and that they had no choice but to act on what God had ordained. That reading of the story of Noah and Ham is deplorably bad biblical exegesis, but again that’s not the point. American racism was said to be grounded in the Christian faith just as today some say that discrimination against women and against LGBT people is grounded in Christian faith.

In 1964 the federal government passed the Civil Rights Act. Non-discrimination laws had been or later were passed by state legislatures as well. May cities and counties adopted their own ordinances banning racial discrimination in employment, housing, and public accommodations. I don’t think it ever seriously occurred to anyone that the claimed religious foundation of discrimination against Black people allowed business owners to violate the non-discrimination laws that applied to their businesses. Think of an employer accused of racial discrimination coming into court and saying that he has to pay his Black employees less for the same work than he pays his white employees because the Black employees carry the curse of Ham. That employer would have been laughed out of court in a heartbeat, and properly so. Yet the dismissal of the employer’s defense wouldn’t be, in theory at least, based on a rejection of the employer’s religious belief. It would be based on the notion that the employees’ legally guaranteed right to be free from discrimination on the basis of race was the controlling public good in the matter. Yes, I trust that no respectable judge would take the alleged religious basis of the discrimination seriously; but, assuming that there was no evidence to suggest otherwise, any respectable judge would have to take the defendant’s assertion of his religious beliefs at face value despite her personal dismissal of that assertion as blatant nonsense. The judge would have to hold that the public value of nondiscrimination expressed in the applicable civil rights statutes and ordinances outweighed a claim that the discrimination was an exercise of the employer’s freedom of religion.

It seems to me that the same reasoning applies in today’s issues about religious freedom in the provision of health insurance and about discrimination against LGBT people in housing, employment, and other protected areas of life. In the Hobby Lobby case the owners of that closely held corporation said that the Affordable Health Care Act’s mandate of coverage for contraception expenses violated their religious freedom because they don’t believe that contraception is moral. Yet that law in no way compelled those owners to use birth control. You don’t believe in it? Fine. Don’t use it. That’s your right. You are free to ground your beliefs an any religion you want. You are free not to use it. It doesn’t follow however that you are free to exclude coverage for what the medical profession recognizes as a legitimate health care expense from the insurance you provide your employees. Likewise, no civil rights law requires anyone to engage in same gender sexual behavior. You don’t like gay sex? You think it is inherently sinful? Fine. Don’t do it. That is your inalienable right. It does not follow however that you are free to discriminate against people who do engage in same gender sex (or are at least inclined to do so) when those people’s sexual behavior has nothing to do with their employment with you or with the services you provide to the public. Not discriminating against them when you hire employees doesn’t violate your freedom of religion. Providing them with the services you offer to the public generally doesn’t violate your freedom of religion. You are free to believe anything you want. You are not free to impose those beliefs upon others by discriminating against them in matters in which the law has forbidden discrimination. That, it seems to me, is a resolution that respects both the religious freedom of all people and the right of all people to be free from discrimination.

The question of the relationship between belief and behavior has a long history in American law. Thomas Jefferson, for example, made a clear distinction with regard to the law between belief and practice. He said that one’s belief “lies solely between man and his God” and that therefore the law can affect actions but not opinions. The United States Supreme Court quoted Jefferson’s statement in the case of Reynolds v. United States, 98 U.S. 145 (1878). That case dealt with a law against polygamy and a claim by a Mormon defendant that he had a religious duty to practice it. The Supreme Court held that a law prohibiting polygamy did not violate the defendant’s freedom of religion because it dealt with behavior, which the state can regulate, not belief, which the state cannot regulate. Reynolds was free to believe whatever he wanted about marriage. He was not free to engage in behavior that the state had decided for public policy reasons to ban. That distinction between belief and action has been part of the American law on freedom of religion ever since. The recent Supreme Court decision on an employer’s right to exclude certain types of coverage from employee health insurance on the basis of the employer’s religious beliefs certainly seems to contradict that principle. Allowing people to discriminate against LGBT people on the basis of religious belief where that discrimination has been prohibited by law clearly would violate that principle.

Let me make the matter more personal. Much of what the federal government does violates my religious beliefs. I believe in Christian nonviolence and oppose all war. I must nonetheless pay all of my federal taxes and may not refuse to pay any portion of them on the basis of that belief. Every time I make a tax payment to the federal government I feel like I must go to confession, but I would be prosecuted and probably imprisoned if I withheld part of my tax payment because some of what the government does with my money violates my religious beliefs. The government may not regulate my beliefs. Those religious beliefs are protected by the First Amendment to the US Constitution. The government may however regulate my actions. It can require me to pay for things that violate the tenets of my faith.

It’s no different in the health insurance coverage case, the majority of the Supreme Court to the contrary notwithstanding. What an employee does with employer provided health insurance may violate the employer’s religious beliefs. Fine. The government has nothing to say about those beliefs. The government may, however, decide as a matter of public policy that health insurance must cover all medically recognized services. It may decide that what to do or not do with that coverage is up to the individual covered, not to that individual’s employer. In setting that policy the government is not regulating religious belief. It is regulating actions in the public realm not beliefs in the private realm.

Of course, as in all complex legal matters, there is actually no black line between what behavior the state may regulate and what behavior it may not regulate. A person going to a worship service of her choice is of course behavior. Yet assuming that nothing illegal happens at the service to which she goes the government absolutely may not stop her from going. The First Amendment specifically protects the “exercise” of religion not merely belief. A court must decide what actions constitute the constitutionally protected exercise of religion and what actions do not. The law of religious freedom is not unique in this regard. The courts make decisions all the time about what is constitutionally protected and what is not. A classic example is that one is not free to cry fire in a crowded theater when there is no fire. The state may prosecute a person for doing so, and it is not a defense that the accused person has constitutionally protected freedom of speech. This old saw is a classic example of the state balancing two goods, freedom of speech on the one hand and the safety of people gathered together on the other. Courts do such balancing all the time in a wide variety of cases, and they can certainly do it with regard to freedom of religion as well (or as badly) as they do in other cases.

So what finally can we say about the relationship between freedom of religion and the law of non-discrimination? First, we must protect true freedom of religion at all cost. It is a foundational value of our country. Yet the basic principle must be that religious belief does not justify engaging in actions that the state has properly determined violate public policy. To put it another way, my religious belief does not entitle me to act in the public arena in ways that the larger society has determined are sufficiently harmful to be outlawed or regulated. To cite an extreme example from Reynolds v. United States, religious belief does not justify human sacrifice. Human sacrifice is still murder even if the people who perform it believe it to be their religious duty. Believe all you want that your god wants human sacrifice. You just can’t do it. Believe all you want that contraception is sinful, you just can’t impose that belief on your employees through their health insurance. Believe all you want that LGBT people are sinners. You just can’t discriminate against them in ways the law forbids. The issue here is not really one of belief. It is one of actions. The law says certain types of discrimination are illegal, and the strong public policy behind that law outweighs anyone’s right to impose their religious beliefs on others or to make others bear the burden of those religious beliefs. We can both protect religious belief and the freedom of those who do not share those beliefs and whom the law protects from discrimination. five of the justices of the United States Supreme Court apparently can’t grasp that truth. They certainly didn’t in the Hobby Lobby case. Perhaps the rest of us can.