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Sep 21 2011

Drawing Lines on Religion-Based Discrimination

The Chicago Tribune reports that a gay couple is suing two bed and breakfasts for refusing to rent facilities to them for a civil union ceremony.

The Beall Mansion in Alton told the Wathens via email that it “will just be doing traditional weddings.” The owner of the Timber Creek Bed and Breakfast in Paxton wrote in an email to the couple: “We will never host same-sex civil unions. We will never host same-sex weddings even if they become legal in Illinois. We believe homosexuality is wrong and unnatural based on what the Bible says about it. If that is discrimination, I guess we unfortunately discriminate.”


Here’s the legal situation:

The couple filed a complaint with the Illinois Department of Human Rights, which investigated and found “substantial evidence” that a civil rights violation had been committed.

The August finding allows the Wathens 90 days to file a complaint with the state Human Rights Commission or take civil action in Circuit Court. The Wathens’ attorney, Betty Tsamis of Chicago, told the Tribune that her clients have chosen the latter path and will file lawsuits against both businesses as early as next week.

This action, should it proceed, could bring to the courtroom a debate over the boundary lines between religious freedom and discrimination in Illinois.

Steven Amjad, an attorney representing Timber Creek, said the state constitution guarantees religious freedoms.

“These are business owners that have strong religious convictions. The Legislature has created this (conflict), and the courts will have to sort this out,” he said.

Andrew Koppelman, a professor of political science and law at Northwestern University, said the question is whether the state’s Religious Freedom Restoration Act — which protects religious freedoms from government intrusion — can trump the state’s Human Rights Act, which includes the protection of people based on sexual orientation.

“The hotels seem pretty clearly in violation of the Human Rights Act,” Koppelman said. “And if you’re going to say that somebody is exempted from the human rights law under the Religious Freedom Restoration Act, that would mean that people could discriminate based on religious views. It’s a slippery slope.”

I’ve written recently about the billboard put up in Grand Rapids by my friends at the Center for Inquiry – Michigan. They had a billboard company refuse to put up their sign before finding one that would. After last week’s CFI meeting, I had an interesting conversation with the director of that group, Jeff Seaver, about whether that was illegal discrimination or not. He had actually been asked about that by a local TV reporter and had said something like, “And that’s okay, they’re a private company and they can turn down our business if they want to.” But since then, he’d been thinking about it and he wasn’t so sure that was true.

Sexual orientation is not covered by the anti-discrimination statutes in Michigan, or at the federal level, though it is covered by some states. But religion is covered nationally and in every state and it does cover private businesses. A Christian restaurant could not refuse to serve someone because they’re Jewish or Muslim — or atheist, for that matter. This is well established law and enjoys overwhelming public support, so it’s pretty well settled. So what’s the difference?

On the other hand, a church can, of course, limit its hiring to only those who share the same faith. This is known in legal terms as the ministerial exception. And this is a crucial principle. Freedom of religion would mean nothing if the state could force a Christian church to hire a Buddhist as a minister. But what are the limits of such an exception? What about a religious school? Could the government force a Catholic school to hire an atheist teacher? I think the vast majority of people, even atheists, would say no.

But what about a religious day care center? Or a homeless shelter? Or a restaurant set up by a ministry to fund some charitable activity? Jeff offered this possible distinction: If the activity is explicitly religious in nature, then the exception should apply, but if it’s a service that is not inherently religious in nature and is open to the public, they should be required to accept all takers both in terms of employment and servicing the public. And that seems reasonable, though not a perfect solution.

Some Christians claim that requiring them to serve gay customers in any context is a violation of their religious freedom. But if it is, it is exactly the same as requiring them to serve customers of every race or gender. Discrimination on the basis of race can be and historically has been based on religion as well, yet almost no one seriously argues today that any business should be able to turn away a black person. Who is going to stand up and say that a business should be allowed to refuse to hire women because their sincerely-held religious beliefs tell them that women should stay at home and not work?

Even if someone would make that argument, it’s not going to work, either legally or politically. It’s simply a non-starter. And there is no difference between those situations and discrimination against gay people or atheists. If it is a violation of religious freedom to force businesses to serve or hire gay people and atheists, it is just as much a violation of religious freedom to force them to serve or hire black people or women.

But Prof. Koppelman is right to point out that, legally, the Religious Freedom Restoration Act and its many state versions does complicate this. That law requires that religious groups and individuals be given exemptions from generally applicable laws unless the government can show a compelling state interest in enforcing the law on them specifically in that particular context. And those laws are used everyday to exempt religious groups from zoning regulations and lots of other laws.

It may be that RFRA and other such laws should simply be done away with, that there should be no exemption for religious groups or individuals, period. But then we go back to that ministerial exception, which I think even the most hardened atheist would agree with — no one thinks we should force churches to hire people who are not of the same faith. So perhaps Jeff’s solution is ultimately necessary, a narrowly drawn exception for churches and probably church-run schools, but not for businesses that just happen to be owned by Christians who feel the need to discriminate.

Thoughts?

35 comments

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  1. 1
    mithandir

    Could the government force a Catholic school to hire an atheist teacher? I think the vast majority of people, even atheists, would say no.

    I think this is a bad analogy in this case. There’s a difference between employees and customers. A better analogy would be whether the government could force a catholic school to allow an atheist student. I think that fewer people would say no to that.

  2. 2
    Kevin, Youhao Huo Mao

    yet almost no one seriously argues today that any business should be able to turn away a black person.

    Except for Rand and Ron Paul.

  3. 3
    Deen

    It may be that RFRA and other such laws should simply be done away with, that there should be no exemption for religious groups or individuals, period.

    Completely agree. Religious organizations should just follow the same rules as other non-profit organizations.

    no one thinks we should force churches to hire people who are not of the same faith

    Is this really an issue, though? How often has it happened that someone applied to a minister’s post at a church of a different (and incompatible) faith or denomination? Why would anyone want to do that in the first place?

    I can agree, though, that it is reasonable that when a church advertises for a minister opening, that they set certain requirements, such as graduating a seminary linked to the denomination, or an ordination obtained from someone within the denomination. These may be reasonably seen as necessary requirements for being able to perform the rituals and other tasks that would be part of the position.

    On the other hand, I don’t see why they should be allowed to demand that their janitors, cleaners, secretaries or accountants adhere to certain religious beliefs. Their religious affiliation is not relevant to their job performance at all. Therefore, I don’t think their religious affiliation should be allowed to be a factor in the hiring process at all.

    So if there is going to be a ministerial exception, I’d argue that it should be interpreted as narrowly as possible, and should only apply to those people that actually have a religious function.

    I think we could apply that principle to religious schools as well. A teacher hired to teach religious instruction can be required to possess certain religious credentials, but math teachers should be hired for their skills at teaching math only.

  4. 4
    Aquaria

    Mithandir has a good point, but I think it ties in with what you’re saying.

    I think the christards are in trouble with this one. Most modern judges seem to know there’s a fine line between religions conducting religious business (churches, schools) and people who happen to be religious conducting secular businesses, but that there is a line, and a strong one, that this couple is on the wrong side of. There are a few judges who will be idiots, though, so we’ll have to see.

  5. 5
    dingojack

    A littl OT but:
    How about I create a religion* that specifically commands people to be homosexuals (or perhaps just not hetero). Which religion wins this ‘rock-paper-scissors’ contest in Michigan?
    Dingo
    —-
    * How is ‘a religion’ defined, for legal purposes, anyway? Is the any Federal or State preceedant?

  6. 6
    Deen

    @dingojack: don’t think that’s all too far off-topic. “What counts as a religion” is a long-standing problem when giving special perks to religion. I think this is yet another reason to not have special laws for religions at all.

    You’d think that any church (and any self-respecting right-winger) would shudder at the thought that government gets to decide what is and what isn’t a proper religion, but I guess they want their perks more.

  7. 7
    dingojack

    I’d imagine (IANAL), that since this establishment allows ‘walk-in bookings’ it would be presumed to be ‘open to the public’ therefore no discrimination is allowed. I they want to have their clients ‘by booking only’ then there is no presumption of ‘public access’ so they would be allowed to exclude those they don’t wish to enter or use their facilities. That’s my take on it anyway* – Dingo
    —-
    * I could be wrong; I often am.

  8. 8
    jamessweet

    Thoughts?

    Yep.

    This was an excellent, thoughtful, well-written piece, taking a very balanced and rational look at this problem.

    And it made me want to bash my head against the wall.

    For a “hardened atheist” like me, the fact that these protections are even necessary is infuriating. Surely, it is no better or worse to refuse to hire someone based on their faith or sexual preference, as it would be to refuse to hire them if they thought Jean-Luc Picard would beat James Kirk in a fight (obviously the business owner in question is a fan of ST:TOS). But we don’t need laws to protect against the latter, because virtually everyone sees that type of discrimination as loony.

    It’s not any more loony than discriminating on the basis of religion, of course, but far too many people haven’t figured that out. And that’s the whole reason we need explicit protections for religious freedom. Goddamn that pisses me off.

    So with all due respect, I have written a parody of this post based on the premise: What if we lived in an alternate universe where people got just as pissy about the question of which Star Trek captain would win in a fight?

  9. 9
    ManOutOfTime

    Hopefully this will be very expensive for the inns’ insurance companies and people will take the hint. A lesbian couple of my acquaintance were told by the director of a Xtian daycare their children were not welcome because of the couple’s gayness – nothing personal! Monsters for Jeebus.

  10. 10
    eric

    I agree with all the posters (so far) and Jeff’s later distinction. I think Aquaria said it best: if the ‘business of the business’ is religious, they get the exception. If the business is secular and the owners are religious, they don’t.

    DJ: A littl OT but: How about I create a religion…

    Well, practically speaking the courts are pretty good already at sniffing out sham religions created for the purposes of legal evasion. Most often, tax evasion. They may not be perfect at it, but having to assess a new sect’s sincerity would (IMO) not be anything new for the courts. That would be your first hurdle. Your post to this thread, for example, could probably be used as evidence against your theological sincerity. :)

    The more interesting question would be what if such a sincere sect existed. I think the courts would have to give them the same legal rights they give any other sect. But the courts generally avoid ruling on speculative cases so if you came to them and said ‘what if such a sect existed’ their respones would probably be ‘until they do, and someone brings a civil suit aganist them, we won’t address the question.’

  11. 11
    sbh

    I really don’t see the need for any special religious privilege for any sort of business activity. As far as the ministerial exception is concerned, that really ought to be covered under the issue of job qualifications. In the same way that a karate school might expect an instructor to have a black belt, or a hospital might expect a physician to have the necessary credentials and experience, so a religious institution might expect that its priests or ministers be properly ordained or sanctified or whatever it is they do. After all, if a priest hasn’t received his magic powers from somebody who received his in an unbroken line from St. Peter himself, or whatever, he can’t really do the damn job, can he?

  12. 12
    dingojack

    Eric – How strange, elsewhere in the world lawyers love hypotheticals that test the law.
    But anyway, that still doesn’t really answer my question, what law do they use to determine if a religion is a religion or not. Is a court qualified to make theological distinctions? Would it work in reverse as well? How does that fit in with a seperation of powers? And so on and so forth. – Dingo

  13. 13
    Deen

    @eric in #10: what about Scientology?

    @dingojack in #12: I imagine you specifically meant separation of church and state?

  14. 14
    gingerbaker

    No one has yet brought up the issue that anti discrimination guidelines may not apply to a bed and breakfast IF the owner’s main residence is indeed the bed and breakfast itself.

    If I understand it correctly, it is legal for racist homeowners to refuse to rent a room – to, say, a black man – if that room is part of their actual home, as one’s home remains a bastion with certain special privacy protections.

  15. 15
    wscott

    Interesting discussion. I agree it makes a difference if the work being done is inherently religious, or inherently secular. I also agree there’s a big difference between hiring employees vs. serving customers (or not). Personally, I can see giving churches a certain amount of latitude in hiring practices.
    But this isn’t a church. It’s not a religious organization in any sense. It’s a business, which is refusing to serve people they don’t like. So I don’t see how the ministerial exemption even applies?
    @ gingerbaker: (IANAL) Maybe an individual homeowner can rent to whoever they want. But if they register their home as a licensed B&B, then they are now a business. I would assume they have to follow the same rules as any hotel.
    I hadn’t thought about this in years, but when my wife & I were planning our honeymoon, one B&B did state that they reserved the right to refuse to rent to unmarried couples, citing their religious principles. I didn’t think twice about it at the time – and of course, we were married by the time we stayed there – but it’s a similar issue, no?

  16. 16
    eric

    DJ @12: what law do they use to determine if a religion is a religion or not.

    I don’t think there is one single law. I don’t think there’s a Lemon test for whether something is a real faith, if that’s what you’re looking for. Instead, courts consider the evidence available (like your post) and make a judgement call. But really, you’d have to look up a case on this if you want a specific example, IANAL.

    And there isn’t a single, legally monolithic answer to this question in regards to a faith. For faith X, courts can recognize some organizations as legit while others as illegit. They can send Hovind to jail for tax evasion while recognizing that your local priest isn’t merely using his/her Christianity as a cover to evade taxes.

    ***

    Deen @13: what about Scientology?

    What about it? American courts seem to have accepted it as a sincere faith, German courts call it a cult instead.

    Were you referring to its origin? At this point, L. Ron Hubbard’s motives are probably irrelevant. The relevant question is whether the people in it now think it’s real. (But the Hovind thing applies here too – just because the courts see one scientology outfit as legit, doesn’t automatically mean they’ll see all scientology outfits as legit.)

  17. 17
    Curt Cameron

    Concerning the public debate about legalizing same-sex marriage, many Christians objected to it, saying that they would be forced to perform same-sex cermonies if it were legalized. From my recollection, they were assured by the pro-SSM side that no, they could refuse to perform SSM ceremonies, or Jewish ceremonies, or whichever ones they chose.

    Now we get to a case that hits pretty close to that. If a private business has to cater to same-sex ceremonies, what’s different about a church? I would think that the business is a public accommodation, where the church is not, but I’m not a lawyer.

  18. 18
    Big Boppa

    jamessweet @8

    Picard vs Kirk? Phhhttt, Lt. Ellen Ripley could kick both their sorry asses simultaneously.

  19. 19
    betasattva

    I don’t see a significant government interest in preventing the owners of a small B&B from discriminating against anyone they wish. They have a right to decide who they wish to associate with.

  20. 20
    eric

    curtcameron: If a private business has to cater to same-sex ceremonies, what’s different about a church?

    The business of a church is religion. The business of a catering company is catering. That’s the difference.

    Requiring hotels rent rooms to gays will not lead to individual priests being forced to marry them, any more than requiring hotels to rent to blacks has lead to the state forcing individual priests to perform interracial marriages. We have sat on this slippery slope for the past 60 years without moving. So you’re going to need to find some argument better than the slippery slope one.

  21. 21
    dochopper

    I guess we should be happy they have enough business to turn down down someones Cash.

  22. 22
    stevebowen

    A similar case was brought in the U.K where a gay couple were turned away from a B&B. They won.

  23. 23
    dcsohl

    betasattva@20, doesn’t that exact same argument apply to black people? Or Jews? Are you going to argue that B&B owners should have the right to turn away black people? After all, it’s just one small B&B, right?

  24. 24
    George W.

    I have a reasonable amount of internal conflict on this issue.
    On the one hand, I would like to protect the right of a business to not be legally obliged to hold events at their premises which offend their personal sensibilities or those of their guests.

    I think that events are a potential overt display of certain values- while renting a room or eating in a restaurant would not be. So in this case I am sympathetic to the innkeepers if the issue was a ceremony on-premises and not merely renting a room.
    I would like to think that if a religious cult, racist group, or Focus on the Family wanted to rent my business for a meeting or event that I would have some rights of refusal.
    I would still rent a room to Jehova’s Witnesses, or to KKK members, or blatant homophobes- and address any inappropriate behavior as it emerged. I would still serve them dinner.
    I don’t know how comfortable I would be hosting a wedding where the couple and guests wore KKK gowns, or hosting a convention where people decried gays as “sub-human”.

    That said, I feel for a gay couple looking to have a ceremony at a resort or B&B being turned away because of their sexuality. I think it’s a pretty stupid reason to bar a ceremony on your premises.
    I’m sure some people think that refusing a religious cult convention is stupid, too.

  25. 25
    meadow

    I have a different story about a teacher who claimed the right to hang huge religious banners in his math classroom. First he claimed his goal was to teach American history and values, then agreed that it was for religious reasons.

    Story about it here:
    http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2011/09/13/BAVN1L458A.DTL

    and the Federal Appeals Court ruling here, complete with photos of the huge honkin’ banners at the end: (warning, pdf)

    http://www.ca9.uscourts.gov/datastore/opinions/2011/09/13/10-55445.pdf

    (I’m new here and would love to know where I should have posted this if this is the wrong place.)

  26. 26
    pa747sp

    Surely the point about human rights legislation is that it has to take precedence of other laws, otherwise it is worthless. Why have a law to prevent discrimination based on arbitrary criteria if there are other laws that void it? Isn’t it written into Federal human rights legislation that it overides any state or local authority laws?

  27. 27
    pa747sp

    In NZ, the Human Rights Act applies to all areas of public life, and the only exceptions allowed are written into the Act, so there is no chance that it will be overridden by other statutes. It even applies to the Government, and a lot of other legislation (for instance immigration) law had to be changed to fit within the HRA.

  28. 28
    Shplane, Spess Alium

    Whether or not Catholic schools should be forced to hire non-Catholics shouldn’t be an issue. There shouldn’t be Catholic schools in the first place. Y’know, for all those absurdly obvious reasons why that is true.

  29. 29
    Deen

    @eric in #16: I brought up Scientology because it shows that deciding what makes a valid religion is not a hypothetical issue. And yes, Scientology is likely the most clear case of a religion invented whole cloth for profit motives you’re ever going to see, but that’s not my main point here. The fact that some countries recognize it as a religion and others don’t shows that this is not a decision that is easy to get right – clearly, many got it wrong, no matter what you think the right answer should have been in the case of Scientology.

    I could also mention this successful attempt at using the church of the Flying Spaghetti Monster (an even more clear example of an invented religion, just not for profit motives) to appeal to religious exemptions.

    These sorts of issues put the whole concept of religious exemptions on very shaky grounds.

  30. 30
    Deen

    @meadow: how about here? :)

  31. 31
    Michael Heath

    I want to encourage everyone to pull-up meadow’s second link @ 26. That’s a PDF of the court-ruling with banners at the end of what this teacher hanged in his classroom. The second photo is truly amazing where both banners clearly reveal the, “history lesson not proselytization”, defense a self-evidently absurd assertion.

  32. 32
    democommie

    My sister and brother-in-law used to live in Alton and, IIRC, he was doing some legal work for the town (litigation) some years back. They no longer live there, having moved a few miles north. I’m betting he, despite his strong religious convictions (mackeral snappin’) would advise the owners of the inn to use their fucking heads.

    “On the other hand, I don’t see why they should be allowed to demand that their janitors, cleaners, secretaries or accountants adhere to certain religious beliefs. Their religious affiliation is not relevant to their job performance at all. Therefore, I don’t think their religious affiliation should be allowed to be a factor in the hiring process at all.”

    It’s actually quite defensible. Their TOG* cannot overcome teh GAY infection that possesses the lower level staff. And THAT makes 900′, Laser frikkin’ eyeballs JESUS cry!

    “A lesbian couple of my acquaintance were told by the director of a Xtian daycare their children were not welcome because of the couple’s gayness – nothing personal! Monsters for Jeebus.”**

    * Triple ‘O’ (Omnipotent, Omniscient, Omnipresent) GOD.
    ** Please see explanation for first item, substituting, “children” for “lower level staff”.

  33. 33
    eric

    George W.: I have a reasonable amount of internal conflict on this issue.
    On the one hand, I would like to protect the right of a business to not be legally obliged to hold events at their premises which offend their personal sensibilities or those of their guests.

    I think a little internal conflict is perfectly consistent with the nature of this problem, because the ‘harm’ done depends on who and how many people excercise their option to discriminate. If there are 50 equivalent hotels in a small area and 1 of them doesn’t want to rent a room to me, the harm to me is pretty small. I might accept that society’s desire to let owners run their businesses the way they want trumps my desire to stay there. But if 20, 30, or 40 of those hotels act that way, or if there is only 1 hotel in the area, then that’s clearly a bigger harm to me. But how to capture that in law???? A little discrimination is allowed but not a lot? I can discriminate as long as my neighbors don’t? There doesn’t seem to be a good way to make a law that limits freedom to prevent significant harm, but allows freedom when the result is insignificant harm. Instead, we can have both or neither. And for people like you and me, this causes internal conflict, because what it boils down to is that we want a more optitmal solution than what the law can probably provide.

    Some things are clear-cut to me, though. In some cases whole communities could attempt to use such freedom to entirely cut off services to other people they don’t like. No rooms in this town for blacks; no jobs for the Irish; no access to prophylaxis for the unmarried. That should never be allowed. Even if one sees ‘freedom value’ in allowing limited, private discrimination, the law must step in and say ‘no’ any time the collective, practical effect is community-wide discrimination.

    Deen @30: These sorts of issues put the whole concept of religious exemptions on very shaky grounds.

    I don’t see why. The courts have to make evidence-based exemptions all the time. Is someone really injured enough to get insurance money? Is someone blind enough to qualify for the tax exemption? Just because a problem is fuzzy doesn’t mean the concept behind it is shaky.

    Keep in mind I’m arguing devil’s advocate here. I’d be fine with no religious exemptions for property taxes, etc… I just don’t think separating sham organizations from sincere ones is the legally insurmountable problem you think it is. Will the law make mistakes? Yeah. Is the potential for mistakes a reason to abandon the concept? No, it can’t be – if we applied that logic consistently, we’d have to abandon the legal system altogether, because the whole damn enterprise is an exercise in decision-making under uncertainty!

  34. 34
    meadow

    #31

    Deen, thanks for that. I’d missed it.

  35. 35
    betasattva

    @dcsohl #23, great question. I have to say that there’s a line somewhere where the government shouldn’t be able to tell you you can’t turn away blacks or Jews. The line is somewhere between getting married and the cable company. If pressed, I would say that a couple who owns and lives in a bed & breakfast is closer to marriage than to the cable company.

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