Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
The various cases going on regarding religious accommodation on the job only reinforces my argument that the religious right's rhetoric about "special rights" when it comes to anything that protects gays from discrimination is absurd and hypocritical. Whenever there is a bill like ENDA that would add sexual orientation to the list of categories that cannot be used as a basis for discrimination by employers, we hear constant blathering from the Christian right that gays and lesbians are demanding "special rights"; the fact that Christians are already covered agianst such discrimination at the Federal level and in all 50 states is enough to show that this claim is ridiculous; to claim that someone else wants a "special right" when you yourself already have that right is about as hypocritical as it gets.
But as it turns out, their hypocrisy is even worse. Not only do these folks already have the right not to be discriminated against in employment, rights they seek to deny to others and rights they would scream bloody murder about if anyone tried to take that protection away from them (and no one has ever proposed to do so), but they also demand the right to refuse to do the job they were hired for if they so choose, on the basis of their religious objections - without being fired for that refusal. Gays and lesbians have only asked that they not be fired for being gay; they've never demanded any accommodation for their sexuality. Yet these same Christian groups that throw a hissy fit about not being allowed to discriminate against gays demand, at the same time, that they be allowed to refuse to do the job they were hired for if it offends their sensibilities.
Imagine for a moment that sexual orientation was already covered under Federal anti-discrimination law and an employer could not fire someone just for being gay. That is, imagine that gays and lesbians had exactly the same protection against employment discrimination that Christians already have. Now imagine that a gay waiter claims that their employer should accommodate their desire not to serve customers who aren't gay, or not to serve anyone who is a Christian. The reaction, of course, would be to tell them to go pound sand. You cannot simultaneously demand that you not be discriminated against while demanding the right to engage in such discrimination yourself, which is what they are demanding they be allowed to do. No one would take such a claim seriously.
Why, then, do we take it seriously when a religious person demands the right to discriminate against the customers they were hired to serve? We wouldn't allow a gay person to refuse to serve a straight customer in any setting. Why should we allow a straight doctor to refuse to do artificial insemination on a lesbian couple? Or allow a Muslim cab driver to refuse to pick up a customer with a dog, or one who has alcohol? Or allow a Christian pharmacist to refuse to serve customers who want birth control pills. What if they refused to dispense AIDS medications? Would that change our thinking at all?
Federal law does require that employers make reasonable accommodations for the religious beliefs of employees. That naturally requires that we answer what constitutes reasonable accommodation. Is it ever reasonable for an employee to refuse to serve a customer seeking a service or produce that the employee knew it was their job to provide when they applied? I'm not sure it is. At the very least, I think it would be perfectly reasonable for an employer to choose to employ someone who does not demand such accommodations before they hire someone who does. This isn't the same thing as being handicapped; this is someone demanding that their subjective feelings be accommodated. Why should employers be required to hire someone whose subjective feelings prevent them from doing the job over someone willing and able to do the job in all of its facets?
Should a company have to hire someone who demands not to have to wait on any gay customers, or those he perceives to be gay? Should they have to accommodate such a religious belief and say that anytime you wait on someone who you think is gay, you can walk away and someone else will come and serve them? What if their religious beliefs demand that men not cut their beards and they refuse to wait on anyone who doesn't have a beard? How about if they believe that women should always wear dresses and refuse to wait on any woman in pants? These are not absurd examples. We're already seeing such claims, like the Muslim cabbies who refuse to pick up a passenger with a dog (even blind ones with a seeing eye dog) or who have alcohol with them. In all of these cases they are essentially saying, "We shouldn't have to serve anyone we deem to be a sinner."
Let's look at it from another angle. Why are religious beliefs treated more seriously than non-religious beliefs when demanding accommodation? What is the difference between someone who claims, for religious reasons, that they should be able to refuse to wait on gay people and someone who, for non-religious ideological reasons, says they don't want to wait on blacks, or hippies, or women? We would not dream of forcing a company to accommodate someone's non-religious bigotries, why do we think it's okay to force them to accommodate someone's religious bigotries?
I'm not opposed to religious exemptions in all cases. Indeed, I have argued in the past for a broad application of the ministerial exception. I've also argued strongly in favor of RFRA-style exemptions from legal requirements, including non-discrimination requirements, and even for exempting religious adoption agencies from complying with non-discrimination legislation. But it seems to me that there are two important distinctions that are overlooked here.
The first is between religious accommodation for things like religious holidays. It is perfectly reasonable for an employer to accommodate, for example, someone's sabbath beliefs. If you have two employees, one a Christian and one a Jew, then you have the Christian work on Saturday and the Jew work on Sunday so that you can accommodate their respective days of worship. The same can and should be done for religious holidays. But that is a different type of accommodation from what we're talking about here, accommodating someone's refusal to wait on a certain subset of a business' customers because you find them immoral.
The second is the distinction between a religious exemption from government mandates and a religious exemption from a private employer's mandates. The government has far more restrictions on what it can and cannot do in this regard than a private employer does, but we must keep in mind that a business exists in order to serve their customers. If an employee refuses to serve a portion of the customers that come in to a business, I don't see why we should force the business to employ them or to accommodate their desire to avoid people they think are doing immoral things.
Comments
I think the reason why we require businesses to accomodate religious beliefs is because the alternitive is to have courts evaluating the relative worth of different religious beliefs. I fail to see how insisting that a magic man in the sky says I can't work on certain day of the week is any more absurd than insisting that the same magic man says I can't serve a certain customer. The only question for the law to consider is if accomodating my irrational belief is reasonable or if it imposes an undue burden on my employer. While I personally agree that there is a difference between a physical limitation and a moral limitation, I do not believe that the law currently recognizes such a differentiation.
Religious beliefs are treated differently than non-religious beliefs because the law says that they have to be. If we are going to protect people from discrimination based on their religious beliefs, than we do not get to pick and choose which beliefs we are going to protect.
Posted by: Ratel | May 8, 2007 10:15 AM
In addition, you end up with people doing stupid things because they only THINK they are applying their religious beliefs. I once went to pick up a prescription for estrogen pills for my (now-ex) wife. The pharmacist went to great lengths as to how I needed her present for "counseling" before he would let me have the pills. He had the whole spiel down about "sanctity of life," etc.
After he finally quit yammering, I got to explain to him that she had an hysterectomy at a very young age and the pills were purely for hormone therapy. Procreation was not a possibility. As he had been sharing the discussion very loudly with the line of people behind me, he got to be an ass in front of a dozen people instead of just me.
Just do your job. If there is something you feel you can't do, quit. If you quit, accept the consequences. This is not rocket science, nor is government intervention required.
Posted by: kehrsam | May 8, 2007 10:30 AM
Sounds to me like he was offering his services as a counselor, presumably without a license. Aren't there laws against that?
One could argue that he did not plan to charge for the counseling, but might not the quid pro quo of "You get the pills if you listen to me" constitute a payment arrangement?
Posted by: xebecs | May 8, 2007 11:47 AM
Kehrsam, I kept reading your post waiting for the line '..and then I punched him..' and, not finding it, marvel at your restraint.
Posted by: Matthew Young | May 8, 2007 12:18 PM
I would also apply the "special rights" label to faith-based initiatives. Religious groups have always been eligible to apply for funding to administer federal programs, but under the faith-based initiatives, they have the "special right" of eligibility for such funding without meeting the requirements, e.g. non-discrimination of employees.
Posted by: Mustafa Mond, FCD | May 8, 2007 12:21 PM
Ed, I'm curious about something. I've seen you write many times about anti-discrimination legislation to protect homosexuals, as well as the ministerial exception, etc etc, but I've been wondering. Do you feel that anti-discrimination legislation that applies to private employers is appropriate at all? Is your position that, since we already have anti-discrimination laws, they should include gays too, or do you believe all these anti-discrimination laws are good in and of themselves? Again, I'm only really talking about legislation that affects private business, not the government. How about private businesses that receive government contracts/funding? Just curious.
Also, a question about the purpose of this post. As Ratel says:
Indeed, and I think you well know that. But I think your point here that the law shouldn't say they have to be, from a moral perspective. Is that the case?
Posted by: nicole | May 8, 2007 12:43 PM
The ultimate function of any employee is to make customers happy and generate income for the company.
Someone who is incapable of performing that function, or unwilling, deserves termination. (I'm not talking about physical handicaps.)
The Christian waiter who refuses to serve gay patrons does the same damage to his employer as does a drunken, incompetent auto worker who fails to correctly attach the spark plug wires on the assembly line. In both cases, customers are pissed off, likely will not return and the bottom line suffers.
I don't think too many would argue with firing the drunk auto worker. Why do we even discuss the Christian waiter or Muslim cab driver who drives away customers?
Fire them - end of story.
Posted by: ZacharySmith | May 8, 2007 12:47 PM
If we are going to protect people from discrimination based on their religious beliefs, than we do not get to pick and choose which beliefs we are going to protect.
No, but we DO get to pick and choose which ACTIONS we allow. You can believe and preach whatever beliefs you want to, but your actions are constrained by law and basic morality. And when you're on company time and space, they're also constrained by company policy and the requirements of your job.
Here's yet another angle, Ed: if a company as a whole, such as Wal-Mart, is not allowed to practice discrimination, why should individual employees of the same company be allowed to practice it for ANY reason, religious or otherwise?
Posted by: Raging Bee | May 8, 2007 12:49 PM
In trying to sort through the issues being raised, it's important to distinguish between discriminating against people with whom one disagrees (which is usually illegal) and refusing to engage in activities which one believes to be immoral.
Posted by: bob koepp | May 8, 2007 12:58 PM
nicole wrote:
Honestly, I'm torn on the issue and I won't pretend to have a coherent position on it. I would say that if we are going to have such legislation there is no reason to apply those protections to race, religion and gender but not to sexual orientation. But on the question of whether such laws should exist at all, whether government should be telling business owners who they must hire at all, I think it's a clash of compelling principles with reality. I recall Tim Sandefur writing something a while back about how discrimination by enough private employers can become de facto government discrimination that can violate the equal protection clause and I think he's right. All you have to do is look at the Jim Crow south of 50 years ago, where it was not unusual for virtually all of the business owners in a large area to refuse to hire or serve blacks. And while this may be private businesses, if they all refuse to serve or hire a group of people, what's the functional difference between that and official government discrimination? Purely as a practical matter, there have undoubtedly been times when there was so much pervasive bias that the cumulative effect of all those non-governmental decisions established a de facto government that oppressed one group and denied them their most basic rights. Is that still the case? I think one can make a solid argument that in today's environment, where discrimination is frowned upon by most people, such laws are not as necessary. But I have no doubt that laws like the Civil Rights Act have changed America for the better.
On the question of whether the law says we have to treat religious beliefs differently from non-religious beliefs, that's true of the government but not of private employers. The first amendment does not require that we force employers to accommodate irrational religious beliefs but not irrational non-religious beliefs. The goal of a business is not the same as the government; the goal of the business is to serve the customers. And if an employee refuses to serve a portion of the customers in a business, whether for religious reasons or non-religious reasons, I see no reason why a business should be forced to accommodate them.
Posted by: Ed Brayton | May 8, 2007 1:09 PM
Yeah, I'm torn on this stuff too. I feel the exact same "clash of compelling principles with reality."
I think what bothers me most about such laws is that the list of things protected are all "immutable characteristics" but one - religion. Religion has got to be the most mutable thing around: a huge element of so many religions is conversion. Black people in the Jim Crow south couldn't become unBlack, they were discriminated against based on an innate characteristic. But the guy who tries to refuse me birth control pills, well, he's making a choice there and I don't see why that choice should be nearly as protected.
(I'm praying this doesn't lead to discussion of whether homosexuality is a choice. That's boring, and I'm much more concerned with the special treatment of religious beliefs.)
Posted by: nicole | May 8, 2007 1:49 PM
Special bathroom accommodations for gays and lesbians
I'm a gay man with a brother that is gay also. I also have two straight brothers that I never saw an inkling of them being homophobic. I was however, shocked when my brother who lives in D.C. told me about a bit of propaganda about gays are now requiring their own bathrooms. He believed it!! I said Steve; this is the oldest bit of propaganda that's been around for years now. It started in Colorado about ten years ago. If it were indeed true don't you think that the media would be all over it because the outrageousness of such a requirement. Don't believe everything you read. Much of it is put out by the Christian right. The Jerry Falwells and the other emotionally impaired groups that follow this type of demogogary like sheep. These people don't have the ability to actually think for themselves and therefore give up their god given abilities to think through issues in a reasonable manner because fear is at the center of how these demagogues work.
The followers of these religious radicals are not the brightest or the smartest that America has to offer. The scariest part is there are so many of them. Fear is a very powerful motivator. If any of this nonsense were true it would not be just a little snippet of an article in a newspaper or something one would hear on the Bill O'Reilly show. I said just stop and think for a moment the huge news coverage this would actually get if it were truly from a reliable news agency. Don't worry anyone. The public bathrooms will continue to smell as they always have. If there indeed were special bathrooms, everyone would want to use them because they wouldn't stink. Most gay men have a better aim and clean up after themselves. Thank you, Aaron www.aaronjasonsilver.com
Posted by: aaron jason silver | May 8, 2007 1:52 PM
Nicole wrote:
It's even worse than that when you consider how often we hear arguments from the anti-gay crowd that sexual orientation is totally different from race because it's a "choice", but then they still demand protection for religion. Which is, as you point out, far more of a mutable choice than sexual orientation could ever be.
Posted by: Ed Brayton | May 8, 2007 2:02 PM
Suppose I were to demand of my employer that I not be required to work on Fridays, because my favorite bar has a trivia contest and beer specials all afternoon every Friday, and that I be allowed to work Sundays instead. Most employers are going to reject my request, and I would obviously have no legal recourse against them. Why, however, should the employer be forced to accomodate me if my reason is, "God said I had to go to church on Friday?" Is the latter argument really any more valid that the former, or more deserving of legal protection?
I'm not trying to be all PZ about this, but I just don't understand why freely-made personal choices acquire special legal protection if they are cloaked in the mantle of religious belief.
Posted by: Nick | May 8, 2007 2:05 PM
I think a helpful analogy about hiring practices is this:
Does the owner of a music shop have to hire a deaf person as a salesperson? Of course not, since this is not a job that can be reasonably done by someone which has no idea what music is. While he couldn't refuse to hire the same person for any position which can be done without hearing, such as handling stocks, accounts, orders and other stuff, he is (I think) protected from lawsuits based on the first example.
Similarly, the owner of a pharmacy should reasonably expect that his employees which are working the counter serve all customers, as their job description specifies, and should be protected from being sued on this basis. If you aren't willing to do the job you were hired for, and this job is legal, it's your problem.
Posted by: ParanoidMarvin | May 8, 2007 2:58 PM
Are any pharmacists refusing to dispense boner drugs?
Posted by: khan | May 8, 2007 4:16 PM
Nichole wrote:
This is so wrong on so many levels it is hard to know where to begin.
Here are just a few: (1) Even if a particular religion or belief system may be "mutable", this does not lead to the conclusion that moral imperatives don't exist. (2) If immutability is the standard for ethical correctness, then someone who is invincibly ignorant or incomprehending would have an ethical superiority over someone who wasn't - and that doesn't make any sense. (3) Relativism is not assumable - it has to be justified. Simply saying that it is true is not sufficient to make it so.
Finally, let me forthrightly state a suspicion I have that has nothing to do with ethical philosophy. I suspect your raising of this issue of "mutability" is a back-door way of questioning the validity of religious principles in general. Obviously, if you question that these may be valid principles at all, you won't see the point of incorporating their protection into a law. If that is the case, I wish you would come out and say it. If it isn't the case, then what exactly are you trying to get at here?
Posted by: Poly | May 8, 2007 6:06 PM
Poly wrote:
I know this was said to Nicole, but I'll answer it. The answer is that you are misreading what is being said. The point is not that religious principles have no validity; it is that religious reasons for refusing to do one's job are no more "principled" or worthy of protection than non-religious reasons for refusing to do one's job. This seems self-evident to me. If someone applies for a job in customer service and says, "I refuse to wait on black people because I hate black people", no one in their right mind would hesitate for a moment to say that no employer in his right mind would hire that person, nor should the government force them to accommodate such lunacy. But if someone else applies for the same job and says, "I refuse to wait on black people because the Bible says black people are the descendants of Ham and are of the devil" (and yes, this is not at all an uncommon religious belief in some Christian circles), why is it any more necessary or justified to force an employer to accommodate the second person merely because they phrased their irrational nonsense in religious terms while the first one didn't? My argument is that employers should not be required to accommodate any subjective feeling on the part of an employee that prevents them from doing the job they were hired for to serve the customers of that business whether those subjective feelings are based on religion or not.
Posted by: Ed Brayton | May 8, 2007 6:33 PM
Poly,
What's going on is that the opponents of adding sexual orientation to lists of non-discrimination criteria will often to so by trotting out one of their so called "ex-gays" and proclaiming that sexual orientation is a chosen behavior whereas the other characteristics that are being protected are immutable parts of the individual. The claim being made is that is something is ineligible for inclusion because of its mutability--at the individual level--then religion is equally as suspect. People change them all the time. People aren't born with one particular religious belief. It's something they can change at well at any point in their life.
But I doubt that's what you were going for. You were going for why religion is special. It's not.
Posted by: MAJeff | May 8, 2007 6:37 PM
Poly said, in part:
Are you referring to the moral imperatives of religion itself? If so, I don't see what that has to do with anything I wrote. If you're referring to a moral imperative of accomodating religious belief, well that's exactly what I'm questioning. So I'm not sure about this point. I wasn't saying that immutability in itself was somehow ethically correct, I don't think that makes any sense either. I just think that in general, we treat people differently with respect to things they can't change (e.g. eye color, skin color) than with respect to things they can (e.g. obnoxiousness, racism). It would make sense to me, in a logical way, if you couldn't fire someone because of his skin color but you could fire him because of his bad attitude. Relativism with regard to what? I'm just not getting this last point. Well the first point I was making was that I was very uncomfortable with any anti-discrimination legislation in principle. What I find most morally questionable is telling the owner of a private business who he may or may not hire or fire and why. Unfortunately, the real world intrudes and it's difficult to discount, as Ed pointed out, for example, the situation in the south 100 years ago. As I said above, I'm torn on this issue, and can't fully support anti-discrimination laws in general.
I don't think it's very fair to insinuate that a non-religious person can't discuss the validity of protecting attributes over beliefs - they are different. I don't see this as the incorporation of the protection of religious principles into law. I see it more as Ed puts it when he questions:
Posted by: nicole | May 8, 2007 6:59 PM
Ed and MAJeff both responded while I was writing my comment, and I would like to point out my agreement with both of their comments above.
Posted by: nicole | May 8, 2007 7:02 PM
I don't know about that, but I have seen on TV news that some physicians are refusing to write scrips for 'em when the male in question is unmarried.
Posted by: twincats | May 8, 2007 11:58 PM
Poly -
I am really curious, why you find it so important that society bow before your, or anyone elses, religious beliefs? It's not just this thread, but comments I have read in several others, that make me ask this. I ask because I have noted this attitude among multitudes of Christians, including some at my own church (I am also presuming you're a Christian, I apologise if I am mistaken).
This is especialy timely for me, as I have been watching from both sides, the battle over gay rights, here in Oregon. It is unbelievabley pervasive, this notion that somehow giving gays the same rights and securities that everyone else has an inherent right to is somehow restricting the rights of Christians.
From a theological perspective that I do not entirely share, (though I am not entirely against) this is not God's world. The World, as it were, does not belong to Christians. The bible is clear that while we live in the world, we are not to partake of worldly things. In the World, evil runs rampant - Christians are to avoid worldly desires and live pure and holy lives, while trying to bring others to Gods grace.
I truly and honestly don't understand why Christians expect the World, to accomodate their beliefs. I mean, many employers would, regardless of legal consequences. I daresay Wal Mart had a choice whether or not to hire a nut that refuses to do the job described as a pharmacist in their store. They made accomodations for him. If, even after those accomodations had not been sufficient, he should have decided that his beliefs were more important than his job, and left.
This attitude of pushing the world to conform to the beliefs of Christians, just seems to me, to be the antithesis of the notion of free will that Christ taught. Indeed the notion that is an inherent necessity to salvation through Jesus Christ. I just try to get people to respect me, to find the reflection of Christ's love through me and thus respect my faith. When it comes to seeking accomodation for my faith, I just don't seek positions that would compromise that. It is not the worlds responsability to accomodate my beliefs, rather, it's my job not to compromise them.
Please don't take this as snark, I am honestly curious where your theological basis for such demands come from.
Posted by: DuWayne | May 9, 2007 1:08 AM
I appreciate the posting today. It reminds of me of a movie I recently saw, God & Gays: Bridging the Gap. It's really helped me and people from my church and workplace get the gay community's perspective of what this is all like for them. Seems we do a lot of public discourse and not stop to think of how this all is truly affective real people in the wake. Check out the movie: www.godandgaysthemovie.com/documentary
Posted by: Molly | May 9, 2007 4:56 PM