The province of Quebec proposing a ban on all public sector employees wearing headgear or jewelry that is overtly religious raised the issue of how far a government should go to accommodate the religious preferences of people. My personal view, and one that I think is consistent with the US constitution, is that people should be allowed to wear what they want provided: (a) it does not interfere with how well they can perform their jobs; and (b) the rule should be such that anyone, whether religious or not, should be allowed to wear similar items if they wish.
So if turbans and yarmulkes are allowed, then people who want to wear a similar item on their heads for whatever reason should be allowed to do so. If a crucifix is allowed, then so should a similar item like a brooch. If the hijab is allowed, then so should decorative scarves. In other words, the rules should be written in a neutral way that does not favor one religion over another or religion over non-religion. In Texas recently an atheist successfully invoked this principle and won the right to get his driver’s license photo taken with a colander on his head, claiming that if religious people could have their photos taken with headgear, then as a follower of the Flying Spaghetti Monster he should be able to also. Earlier a Czech and an Austrian had done similar things.
But on the flip side, how far should people who provide services to the public be allowed to let their individual consciences determine if they can deny such service to some people? This issue came up with the passing of same-sex marriage legislation in the UK that expressly provided an exemption to religious bodies that said that they were not obliged to perform same-sex ceremonies if they did not want to. On the surface, this seems reasonable. After all, churches have always had the discretion to refuse to perform ceremonies and have never been obliged to marry any and all opposite-sex couples who ask them to either.
But there is a problem and that is because the civil and religious aspects of marriage have been mixed up in one institution. A civil registrar of marriages should (and I believe would) be legally obligated to perform a civil marriage service to all eligible couples who ask for it and would not be allowed to refuse anyone for religious reasons. So why should a clergyman who has been granted that same power by the state be allowed to deny that service? While they can decline to carry out those parts of the process that are religious, they should not be allowed to not perform the civil part of it.
This problem would go away if the civil and religious elements of marriage were separated and churches did only the religious ceremonies while secular authorities did the civil parts, which is why the complete separation of church and state is such a great idea.
Religious institutions may argue that since same-sex couples have the option of getting married by a civil registrar, they are not being denied a right just because the priest does not do it. This sounds plausible but there is a problem. The issue is to what extent the service being provided is a ‘public accommodation’, one to which all people feel entitled. This has come up with the issue of some pharmacists in the US refusing to provide customers with prescription contraceptives because of their religious objections to artificial forms of birth control. Should they be allowed to do that? After all, it could be argued that people have other pharmacies that they can go to.
Although it seems wrong to allow some pharmacists to force people to have to shop around to get a perfectly legal service, according to this fact sheet provided by the ACLU, federal law does not forbid this practice and whether pharmacists can do so or not depends on the nature of the public accommodation laws of each state and who are the groups named as protected classes that cannot be discriminated against.
A pharmacy’s or pharmacist’s refusal to sell birth control does not violate a woman’s federal constitutional rights. The U.S. Constitution imposes no limitations on nongovernmental institutions like privately owned pharmacies. Even if the refusal takes place in a state-owned pharmacy, a woman has no federal constitutional right to receive contraception. Although the Constitution protects a woman’s right to contraception, it does not ensure that women can access reproductive health services.
This is the same loophole that anti-abortion advocates are using. They are creating increasingly onerous rules that severely restrict the ability for women to gain access to safe abortions, making the constitutional right a hollow one. At what point do the restrictions become so severe that the right itself has been effectively nullified?
So while private business that are open to the public cannot discriminate on the basis of sex, race, and other categories that are protected from discrimination by law, they can refuse to serve someone on the basis of other criteria, which is what allows restaurants to post signs that say “No Shirt. No Shoes. No Service.”
These ‘public accommodation’ cases are popping up all over the place. In New Mexico, commercial wedding photographers Jonathan and Elaine Huguenin were successfully sued by a gay couple because they refused to accept them as clients. The state Supreme Court ruled that “for-profit businesses can’t discriminate against wedding and commitment ceremonies for same-sex couples.” (On a practical level, I am not sure it is a good idea to hire a wedding photographer who is hostile to you, even if that person cannot legally turn you down. You might end up with an awful photo album.) Lyle Denniston says that an appeal is likely from this case and may reach the US Supreme Court in the coming year. Denniston says that another case that is likely to be heard is whether a business operated by a religious family can refuse to deal with gays or lesbians. We also had the case in April of this year of a flower seller in the state of Washington who refused to provide flowers for the wedding of a same-sex couple. The state’s attorney general sued the florist. That case has not as yet been resolved as far as I know.
In his concurring opinion in the New Mexico photography case, justice Richard C. Bosson said that individuals must recognize that conduct and beliefs are different and that compromising some aspect of their personal conduct is necessary if society is to be able to function, and that it does not imply that they are compromising their beliefs.
In the smaller, more focused world of the marketplace, of commerce, of public accommodation, the Huguenins have to channel their conduct, not their beliefs, so as to leave space for other Americans who believe something different. That compromise is part of the glue that holds us together as a nation, the tolerance that lubricates the varied moving parts of us as a people. That sense of respect we owe others, whether or not we believe as they do, illuminates this country, setting it apart from the discord that afflicts much of the rest of the world.
The line that Bosson is trying to draw here with his advocacy of a ‘go along to get along’ approach may not hold up. Many major civil rights victories were won precisely because some people refused to act in ways that contradicted their beliefs and refused to ‘go along’. It will come down to what principles are important enough that they should not be violated and this is something that may have to be judged on a case-by-case basis and will shift with the times.