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Aug 28 2013

How far should accommodation of religion go?

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.

21 comments

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  1. 1
    colnago80

    Perhaps more to the point, does a pharmacy have the right to fire a pharmacist who refuses to fill a prescription for birth control pills? I don’t recall the details but, at one time, there was a pharmacist working for Walmart who refused to fill a birth control pill prescription and was fired. He filed an action against Walmart claiming religious discrimination on the part of the company for firing him.

  2. 2
    psweet

    Two quick points. First, at least in the US, clergy are allowed to refuse to marry two people for any reason whatsoever, I believe, so while I appreciate the argument that we should separate the civil and religious aspects of marriage, this issue isn’t unique to the gay rights movement. Second, the “No Shirt. No Shoes. No Service.” isn’t actually a choice for most restaurants — local health departments tend to make that a requirement for operating the restaurant.

  3. 3
    Alverant

    Religious believes are nothing more than opinions in holy clothing and should be treated as such. Religion should not be used as a means to violate the rights of others or a way to allow people to shirk their responsibilities. If your religion tells you not to do certain parts of your job, then don’t take the job.

  4. 4
    Pen

    There is currently an issue in Britain with a judge who stopped a court case because the defendent wouldn’t remove her niqab. He argued that she needed to be identifiable in court. There are lots of perfectly reasonable ways of doing that, including comparing her fingerprints as she enters the court room to those taken when she was arrested. For now the judge is digging his heels in. But what if we all did the same and insisted that we could appear in court fully veiled? Given that we know juries are susceptible to a person’s appearance, it might not be a bad idea?

  5. 5
    Alverant

    @4
    Comparing fingerprints takes time and requires specialized training. Allowing the niqab also prevents casual visual confirmation by everyone else in the court. I’d say if that’s allowed then so are furry suits by sci-fi convention go-ers when the Kirk vs Picard debates get too rowdy. :)

  6. 6
    maudell

    I think it’s interesting how dissonant the comments here and on the post about Quebec are. Of course, it doesn’t mean anything regarding individual commenters, but I have noticed this trend often (in progressive English-speaking circles with whom I generally agree with politically). Somehow, people are for the equivalency of garment, but are not for the application of legislation to achieve it (I was the only one thinking that a law that bans religious attire for civil servants – including a crucifix – was not necessarily racist. The thing is, every solution brings up problems.

    I am of the opinion that religion should be taken out of the equation, generally speaking. But this inevitably excludes certain communities.

  7. 7
    Leo Buzalsky

    But there is a problem and that is because the civil and religious aspects of marriage have been mixed up in one institution.

    Indeed! I’ve had encounters with a number of people who don’t seem to even be aware that there are multiple aspects. (Would it surprise you that they only recognize the religious aspects? And one of these people was a newlywed herself!)

    Where I’m going to have a slight disagreement is that I don’t think clergy should be to conduct the civil parts as long as there are government employees (as there should be) in the area (sorry for the poorly defined term) that would have to provide such a service. I’d have a problem if clergy were the only people who could provide such a service and then also be allowed to deny certain people. (Such is why I think the military needs humanist chaplains.)

    I do agree, however, that it would probably be best to just completely separate the two, if not for the sake of the ignorant I mentioned above that are somehow oblivious to the fact that there are two parts.

    I will also agree that it is wrong to give pharmacies and other private businesses that are not churches* such exceptions.

    * I see a potential problem with my argument, though: What is a “church”? It would seem to just be a place for worship. But what if a pharmacist put up a giant cross in his pharmacy? Is this now a church? Is his pharmacy now exempt? Tradition would say otherwise (and make it obvious he’s just looking for a legal loop-hole), but we shouldn’t base arguments off of tradition.

  8. 8
    Lassi Hippeläinen

    A pharmacist has no authority to overturn a doctor’s decision. I’m pretty sure that is written (implicitly or explicitly) in the pharmacy’s license. If the customer has a prescription, the pharmacist must deliver. It’s not the customer that has to shop around to get the pills, it’s the pharmacist who shops around to get a job.

    And about clothing, I don’t like limitations. Many “muslim” clothes developed long before Islam. They are actually quite practical for their purpose, i.e. hot climate and sand in the air. They would be a good choise even for a Xian living in Arizona.

  9. 9
    sailor1031

    How far should accommodation of religion go?

    There should be NO accommodation of religion whatever. Religion should be a purely personal, private matter. The problem is defining accurately what things are religion and what things are not.

  10. 10
    colnago80

    As I indicated in #1, that is essentially Walmart’s position. Essentially, do you job or take a hike. I don’t know what the result of the case was.

  11. 11
    sc_770d159609e0f8deaa72849e3731a29d

    And about clothing, I don’t like limitations. Many “muslim” clothes developed long before Islam. They are actually quite practical for their purpose, i.e. hot climate and sand in the air. They would be a good choise even for a Xian living in Arizona.

    in that case should everyone be required to wear such clothing in a suitable climate? Should muslims living in an unsuitable climate- wet, muggy Lancashire, say- be forbidden to wear such clothing? What if eccentric nonmuslims inisist pn wearing such clothing in inappropriate climates or places- would the fact they don’t wear it for religious reasons aggravate or ameliorate their choice?

  12. 12
    sc_770d159609e0f8deaa72849e3731a29d

    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.

    I think that clergymen are only allowed to marry someone under civil law if they also marry them under religious law, so your argument doesn’t hold. Indeed, clergymen are entitled to marry someone under religious law- which the state is not concerned with- but not under civil law. There have been reports of muslim marriages in Britain deliberately carried out on this basis as a way to enable polygamy or to evade legal property and child support rights under British law. Mosques have refused to claim the right to register marriages as civil marriages as well as religious marriages because British civil law grants women and children more rights tham muslim law.

  13. 13
    WMDKitty -- Survivor

    Religious discrimination?

    No.

    He was fired for NOT DOING HIS DAMN JOB.

    If you have a problem filling prescriptions for BC or EC, you shouldn’t be a pharmacist. This douchenozzle used his position as a pharmacist to exert unlawful control over women who are making decisions about their bodies for themselves. I consider that a violation of a woman’s basic human rights.

  14. 14
    WMDKitty -- Survivor

    Ah, not so at all! The “No Shirt No Shoes” signs are 100% unenforceable, as there are no actual health department regulations governing the wearing of shirts and shoes in places of business.

    I go barefoot during the warmer months, and I have yet to have a single person — aside from my mother and one bus driver who is known for making mountains out of molehills — try to deny me service or make me wear shoes.

  15. 15
    MNb

    “A civil registrar of marriages should (and I believe would) be legally obligated”
    Isn’t this the case in the USA, like it is in The Netherlands and Suriname? Amazing.
    Anyone who refuses to perform same sex marriages should quit his/her job. That’s what eventually will happen in The Netherlands (the Dutch respect old rights etc. so it will take a few years).

  16. 16
    MNb

    Ah, pasted in the wrong place. Never mind.

    “He was fired for NOT DOING HIS DAMN JOB”
    The same applies to Dutch civil servants who don’t want to perform same-sex marriage ceremonies. There is a transition period though, so it will take a few years before this fully applies.

  17. 17
    Lassi Hippeläinen

    No. If you want to wear unpractical clothing, it’s your problem, and if I want to wear practical clothing, you shouldn’t have a problem.

  18. 18
    colnago80

    There are a number of jurisdictions in the US that require patrons of restaurants and bars to wear shoes, or at least sandals. AFAIK, none of these laws have been declared unconstitutional.

  19. 19
    WMDKitty -- Survivor

    Yes, but 99% of the time, those signs are entirely unenforceable by law, because there is no statute stating that a patron must wear shoes (or a shirt).

  20. 20
    Mano Singham

    I don’t think you need a specific statute like that. The issue is what kind of restrictions can be imposed under the ‘public accommodation’ rubric of private businesses. For example, some fancy restaurants require jackets. There is no constitutional right to be allowed into such a place without a jacket.

  21. 21
    Randy Lee

    The government will continue its assault on the free agency of individuals until they finally discover that if they place a sign conspicously near the door that reads PRIVATE ESTABLISHMENT, WE RESERVE THE RIGHT TO REFUSE SERVICE FOR ANY REASON INCLUDING THOSE WE DEEM PERSONAL AND PRIVATE. It is only necessary to overcome the presumption that the establishment is a public accommodation for one to be able to exercise their right to engage in selective service.

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