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Mar 03 2014

The Irrelevance of ‘Sincerely Held Religious Beliefs’

A phrase we are hearing a great deal these days by those who demand religious exemptions from anti-discrimination laws is “sincerely held religious beliefs.” The argument goes like this: it is tyranny for the government to force business owners to serve all customers in cases where doing so would violate their “sincerely held religious beliefs.” But they almost always use this argument only for laws banning discrimination on the basis of sexual orientation, not any of the other prohibited bases for discrimination. But this requires ignoring identical arguments made against those protections in the past.

Shannon Gilreath of the Wake Forest University Law School points out in an Illinois Law Review article that this very same argument was made against the passage of the Civil Rights Act in 1964.

In opposition to the Civil Rights Act of 1964, Senator Robert Byrd read Genesis 9:18–27 (Noah’s curse of the descendants of Ham) into the Congressional Record.21 In Loving, the Virginia trial judge offered an explicitly religious rationale for upholding Virginia’s antimiscegenation law. The slaveholders of history and the
segregationists of today make no distinctions between their biblically based religious beliefs and the systems of subordination they seek to institutionalize as part and parcel of and in the name of those same religious beliefs… Readers would instantly rebel at the idea of a county clerk being able to refuse a marriage license to a Black and white couple, as she suggests clerks should be able to do on moral grounds when faced with a Gay couple. But we are not having this conversation because, as Professor Wilson demonstrates, Gays and Lesbians remain the last group against whom it is permissible to discriminate openly and then call that discrimination “religion.”…

The truth is that the law has dealt with religiously motivated discrimination — as rationalization or sincere belief— before. Certainly, this was true with race. Despite staunch opposition to integration on religious grounds, the Civil Rights Act of 1964 contained no broad religious exemptions…

Professor Wilson’s preferred analogy — preferred over race — of abortion, is an analogy to which gender is undeniably central. But women have fared just as poorly at the hands of religionists. Women have been as much the chattel property of men, first of their fathers and then of their husbands, as Blacks have been the property of whites. The Fourteenth Amendment was argued not to apply to women, with Congressman Thaddeus Stevens pointedly declaring that “[w]hen a distinction is made between two married people or two femmes sole, then it is unequal
legislation; but where all of the same class are dealt with in the same way then there is no pretense of inequality.” In another context, that of suffrage and Section 2 of the Fourteenth Amendment, Senator Howard explained that by “the law of nature . . . women and children were not regarded as the equals of men.” The prevailing cultural attitude regarding women was neatly summed up by the North Carolina Supreme Court, which held that a woman did not have grounds for divorce when her husband had disciplined her by horse-whipping her. The court, citing Genesis 3:16, “Thy desire shall be to thy husband, and he shall rule over thee,” declared that being beaten in this way was not cause for divorce as a matter of law. Even as Black men received the right to vote, women were still denied it. The rape of women by their husbands went unrecognized because women were to become “one flesh” with their husbands. Women have been denied employment because of patriarchal attitudes reinforced through religion and, as to abortion particularly, they have been denied reproductive control largely by effective campaigns organized by religious idealogues.

Professor Wilson argues that it is permissible for businesses and even state employees to discriminate against Gays on religious conscience grounds. I think it is fair to ask her whether there should have been similar religious conscience exceptions to Title VII for those who do not wish to hire or otherwise accommodate women. Why have we drawn the line at Gays? Whatever the answer to this query, claiming, as Wilson does, that Gays are the target of an especial religious animus justifying their subjection to especially discriminatory treatment is, as a matter of history, simply untrue.

Throughout our history, “sincerely held religious beliefs” have been used to justify all manner of discrimination. They were used to justify denying women and black people the right to vote, to maintain legal segregation, to argue that businesses should be allowed to refuse service on the basis of race and gender. Millions and millions of people sincerely believed that their religion demanded such discrimination and made it sinful to serve or hire black people, women or those of other religions. Today, very few people would accept that this is a legitimate basis for discrimination, much less that the anti-discrimination laws that forbid such actions destroy the religious liberty of those who hold such beliefs but are legally prevented from carrying them out.

What we have here is a case of special pleading. Those making this argument will not apply it consistently, they will apply it only to the current prejudice that they hold.

15 comments

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  1. 1
    anubisprime

    Millions and millions of people sincerely believed that their religion demanded such discrimination and made it sinful to serve or hire black people, women or those of other religions. Today, very few people would accept that this is a legitimate basis for discrimination

    Are you sure about that Ed?

    Christians being basically liars for jeebus are famous for goal post dragging…substitute ‘black people, women or those of other religions’ for Atheists, teh gheys, secular activist, and it would seem very little has changed…except ‘other religions’ that one is an oldie but goldie!

  2. 2
    iplon

    It’s an argument that’s doomed to fail from every direction. One interesting reason for this is that it puts the government of the United States in an awkward place where, if they say that it is okay to discriminate against gay individuals based on sincerely held religious beliefs, but not other categories of people based on sincerely held religious beliefs, the the government has explicitly endorsed some religious beliefs as more valid than others on theological grounds, which is unconstitutional.

    Even people who are against gay rights should shudder at that idea.

  3. 3
    matty1

    What I never understand is why sincere religious beliefs are singled out. Suppose a shop worker was a committed vegetarian and had a sincere belief that they ought not to handle meat, why should their objection to working the bacon counter be dismissed and the no more sincere views of their observant Jewish colleague treated as a valid reason?

  4. 4
    steve84

    It simply doesn’t matter how “sincerely” you believe in something. It’s still BS until you can prove it. And how do you determine sincerity anyways? And why are sincerely held religious beliefs more important than sincerely held beliefs based on reason?

  5. 5
    Funny Diva

    ” But they almost always use this argument only for laws banning discrimination on the basis of sexual orientation…”

    Hmmmm…so-called Conscience Clauses have been enshrined in many State laws to enable pharmacists and others to use their “sincerely held religious beliefs” to deny women access to reproductive healthcare. Not just “the morning after pill”, but any legally prescribed hormonal birth control. WA State, iirc has had such a law for many years now.
    Having won that fight in so many places, with so little pushback, I guess I’m not surprised it’s moved on to “don’t make me bake no wedding cake for no homoseckshulz!”

    Just as another example of “The Irrelevance of Sincerely Held Religious Beliefs”. I completely agree that the current BS for Cheezus needs to be called out–I just don’t agree that said BS is “almost always” “only” used to support discrimination on the basis of sexual orientation.

  6. 6
    scienceavenger

    @3 and 4 Because Religious beliefs are constitutionally protected (although I’d argue not as these people would have us believe).

    What really rankles me with these arguments is that its not as if anyone is asking these people to BE gay. That indeed would be asking them to violate their religious views. All society is asking them to do is do business with gays, and I know of no religious edict in Christianity that says “thou shalt not do business with gays”, or any other variety of sinner. In fact, I recall Jesus preaching the opposite.

    Tony Perkins even went so far as to say the religious view had to have a firm basis Biblically, so as to keep people from making up religions on the fly. Fine Tony, quote me chapter and verse. I’ll wait…

  7. 7
    had3

    Steve84; there are several ways to determine sincerity of a belief. Does the person have a history of holding that belief (ie, would his friends say he’s held and expressed those beliefs for years, or days?), when did those beliefs first become manifested in the individual and in what form? What other actions have they taken in support of those beliefs, etc…

  8. 8
    gog

    @Funny Diva #5:

    Challenge: find a pharmacist that has used the conscience clause to deny service to men seeking to fill prescriptions for erectile dysfunction treatments.

    “Your pecker don’t work because God don’t want it to work.”

  9. 9
    D. C. Sessions

    How often to the States with allow employees to use “conscience clauses” to get out of working on religious holidays (e.g. Sundays)? I somehow doubt that all of the hospital staff, police, fire, etc. are there voluntarily — it’s a condition of employment. (Minor exception: observant Jews can usually get Friday night and Saturdays, plus Jewish holidays, by swapping for Sundays, Christmas, Easter, etc.)

  10. 10
    dshetty

    What we have here is a case of special pleading.
    Not libertarians right? They want private businesses to be able to freely discriminate against anyone (and not just for religious reasons!)

  11. 11
    tfkreference

    “How often to the States with allow employees to use “conscience clauses” to get out of working on religious holidays (e.g. Sundays)?”

    I once worked with a Pakistani who used this to get out of working Friday evenings. Had I been our boss, I’d have said, “Sure, Ali, but first point to Mecca,”

  12. 12
    thalwen

    It shouldn’t matter if your beliefs are sincere or not. In fact, it would be more of a Constitutional issue if a law existed to determine whether your beliefs are sincere. You have a right to believe whatever you want – you don’t have the right to impose your beliefs on others, especially if it goes against public policy. Discrimination is bad for society, it is fully permissible to legislate against acting in a discriminatory fashion under the Constitution.
    This is just a stupid smoke-screen because most people don’t understand the basics of government or the Constitution.

  13. 13
    eric

    It shouldn’t matter if your beliefs are sincere or not.

    It does and it will as long as the USG gives out special benefits to religious organizations (such as property tax exemptions). When that happens, it becomes a social public interest that the USG act as good gatekeepers to determine which organizations get those benefits, because we don’t want every single organization under the sun getting them. Just to be clear: YOU benefit by having the government decide which beliefs are sincere or not, because if they didn’t, no corporation in the country would pay property taxes.

    Now you can certainly argue that the USG shouldn’t give any special treatment to religious organizations. But as long as they do, sincerity matters and it’s a good thing that the USG at least tries to assess it.

    In fact, it would be more of a Constitutional issue if a law existed to determine whether your beliefs are sincere.

    Courts look at a lot of factors, like @7 said.

  14. 14
    Hershele Ostropoler

    @11: Then you’d have been in violation of EEO law. “Because the definition of religion is broad and protects beliefs and practices with which the employer may be unfamiliar, the employer should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely-held religious belief.” (EEOC Compliance Manual, section 12, subsection A3)

  15. 15
    tfkreference

    Which is why I’m neither a manager nor a lawyer (though “ordinarily” arguably would not have applied in this situation).

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