Religious Exemptions: What Are The Limits?

The New York Times is doing a series of articles on religous exemptions from generally applicable laws (first and second). This is an interesting subject for me, but not one on which I have fully formed views. In general, I am in favor of the Religious Freedom Restoration Act and similar laws. I think the RFRA sets up a very reasonable standard, in fact one that I think should be applied in all situations where a law impedes an individual's right to self-determination; every law should be narrowly tailored to achieve a compelling state interest and should be the least restrictive means of doing so.

But I also recognize that sometimes one person's self-determination clashes with another's, and there are situations that are much closer calls. Can a pharmacist refuse to dispense birth control? Can a doctor or a hospital refuse to administer even emergency contraceptives to a rape victim? Can a Muslim cab driver refuse to pick up someone from the airport if they've got alcohol in their luggage (75% of the drivers in Minneapolis, according to a recent report, do just that)? Or refuse to pick up a blind person because their seeing eye dog is considered unclean in his religion (which just happened in England)?

Can a doctor or clinic specializing in fertility refuse to work with a lesbian couple to help them conceive a child? How about a more general question, can a doctor or hospital simply refuse to treat gays all together when it comes to elective treatments (I think we can all agree that one's religious liberty does not extend to refusing to treat a patient requiring emergency care)?

The answers to some questions seem obvious to me. For instance, it seems obvious to me that a religious school should not be forced to hire an atheist teacher, or for that matter a gay teacher. Certainly, I support the various ministerial exceptions that prevent the government from interfering with internal church decisions based upon their own doctrine. But some of the questions above don't seem nearly so obvious to me and I can see the arguments on both sides. Can anyone think of a coherent legal standard that would answer those questions in a reasonable and consistent manner? I'd like to hear ideas on it from both those who generally favor such exemptions and from those who do not.

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Well now, I don't agree at all.
A morally righteous doctor should be allowed to elect not to admit a Gay requiring treatment. After all, are Gays even truly human?

By John Gardosik (not verified) on 10 Oct 2006 #permalink

As an aside I think a mjor point of the articles is that there is an increasingly unfair competitive edge given to religious organizations that may compete for dollars with private enterprises. In that regard we have a large and growing problem.

Much bigger than any of the above across the board.

I don't accept your obvious example at all. If a religious school is accepting taxpayer money in any way (like, say, a state funded voucher program) then they should be required to follow state and federal labor laws just like everyone else - and that includes non-discrimination laws.

There are really two standards required here, seeing as most people do not work for themselves. There is a distinction between a pharmacist objecting to dispensing a particular drug and a pharmacy deciding not to carry that drug at all.

Admitting that, I think any solution will be along the lines of the old common law "Common Carrier" principal: If you are in the business of providing x, there is no distinction to be made between persons desiring x; you have to serve them all.

When looked at this way, most of your hard cases vanish. Some of your cases are more difficult, but that is because they are poorly defined: The hospital does not need to provide emergency contraceptic care to the rape victim because the contraception is not the emergency.

For the others, however, it is pretty straightforward; if you object to performing a certain job, don't go into that line of work.

The problem with the NYT articles, I felt, was that too much was framed in economic terms, a la Uber. Take the daycare piece. It's all about how secular institutions have to comply with regulations but religious ones don't, allowing them to outcompete the former. There's almost no discussion of the real issue, the rights of the children to receive satisfactory care and not to be abused or endangered. There's clearly a compelling state interest for regulation here, and free exercise has nothing to do with it. There's nothing in the Bible about putting children in unlicensed daycare.

By Ginger Yellow (not verified) on 10 Oct 2006 #permalink

Uber-

Yes, the NYT articles dealt also with some other issues that I think are pretty clear. No, I do not think that a religious daycare center should be exempt from normal regulations for safety and such. Such exemptions should be given only for those issues that directly implicate their faith and doctrine (and not always in those areas; if their religious faith said it was okay to beat the children, that obviously would not justify such an exemption).

Why should religious beliefs receive special treatment, especially if that treatment allows a person or institution to act in a way that others cannot by law? What other type of philosophical conviction receives special treatment? To me the answer is obvious: everyone has to obey the same laws in the same ways.

NonyNony wrote:

I don't accept your obvious example at all. If a religious school is accepting taxpayer money in any way (like, say, a state funded voucher program) then they should be required to follow state and federal labor laws just like everyone else - and that includes non-discrimination laws.

If they receive state funding, that's a whole different question than whether they should be given exemptions from a generally applicable law. That's just one of the many variables that can change the assessment entirely. But even there, it's not quite so easy as it might seem.

I agree Ed. I just can't believe how many people turn a blind eye to the incredible financial burden churches can place on a community. Here in my area of Texas 2 large churches occupy prime real estate behind Lowes/Home Depot/Wal-MArt. Land that could have been used for increasing the city tax base and lessening the burden on homeowners.

I think churches should be zoned just like residential sections. But I also agree with Mark I have yet to hear a coherent argument as to why religious ideas should receive an ounce of special treatment. It seems to me that is the root problem.

Incidentally, Molly Ivins devotes a chapter of Bushwhacked to this issue. It has a very informative section on the Texas experience mentioned superficially in the NYT article. It's a horrific story, the lesson of which seems to have been forgotten.

Further reporting can be found here, here and here.

By Ginger Yellow (not verified) on 10 Oct 2006 #permalink

Mark wrote:

Why should religious beliefs receive special treatment, especially if that treatment allows a person or institution to act in a way that others cannot by law?

In some situations, I would think we would all agree that there must be an exemption. The ministerial exception comes to mind. Can we at least agree that while the law says an employer cannot discriminate on the basis of religion, a church must be able to do so when hiring ministers and others? Surely you would not argue that a Baptist church be forced to hire an Anglican, or for that matter an atheist, as a minister or sunday school teacher (or choir director, etc)? This would be a clear violation of the church's right to govern itself according to its faith.

Well, there seems to be a double standard here. Specifically, discrimination against someone for their religious beliefs (assumign they are known) is considered illegal, but descriminating against someone because of one's own religious beliefs is ok. How does that work again?

If my religion says that it I have to refuse to deal with any xians, muslims, or jews, then you have a real conflict with how these laws are being handled.

It's fuzzy and very confusing. Although I think an employer should be allowed to fire someone who does not fulfill thier job requirements, even if it's for religious reasons. Fundies who go into pharmacy just because they know they will refuse to issue someone BC pills later do not deserve to be pharmacists.

Cheers.

On the question of vendors refusing to dispense certain products, or serve certain customers, because of their religious convictions, I have to ask: what about the religious convictions of the customers? Are they less important than those of the vendors? What do laws like the RFRA do for their religious freedom?

I see all of this as part of a long-term drive to enshrine the bigoted exercise of power as a religious right -- for the "right" religions, that is.

Which party represented a "culture of entitlement" again?

One of the examples cited in today's NYT article in this series was that of a small congregation opening a gym/health spa as a means in part of attracting congregants (as well as giving young people a reason not to flee the old hometown). I just can't wait for some church to open a non-profit bible-themed casino and a chain of massage parlors. Should be an interesting court battle.

It seems to me that if individuals in certain positions want the right to refuse service to some people or in some situations, then the public has to have balancing rights not to have those individuals in those positions.

For example, suppose a city licenses only a certain number of cabs at a time or permits only a certain number of cabs to be parked at the airport waiting for fares. Then the city ought to have the right to give preference to those drivers who are going to serve the largest number of people. As another example, a tax-supported phramacy school ought to give preference to prospective students who agree in writing to serve everyone.

I can see that individuals have a right not to be forced to violate their consciences in their work. But taxpayers have to have a matching right not to have their money/time/space taken up by those who refuse to provide services equally to everyone.

How about this:
Any job that requires licensing can have rules mandated by the licensing board. So if a licensed pharmacist refuses to sell a customer a product, his license can be revoked by the board. Keep in mind, I have absolutely no idea how licensing/certification works with regard to pharmacists.

It's a tough call. On the one hand, all of the people you give as examples should, in my opinion, go find a job they're comfortable with doing. A scientologist shouldn't become a psychiatrist, and a fundamentalist christian shouldn't become a pharmacist. If someone can seperate their religion from their job, that's great. If they can't, go find a different job.

On the other hand, it seems like businesses should have the right to refuse service to people. If I have something I want to sell, I should be able to choose who I sell it to. If I happen to use stupid criteria to figure out who it is I want to sell it to, that's the way it goes.

I guess the way I would try to frame the standard is this:

1) Anyone working for a company or organization receiving public funding cannot use their religion as a factor in deciding how to do their job, or whether to do it at all. End of story.

2) Anyone providing essential services (which would include emergency contraception, I should think) cannot use their religion for the same things as in 1.

That's as far as I can get before I get confused. I want to say that people who are providing non-essential services can refuse customers if they put up notice of their policies, but do I really want to endorse a sign that says "No Blacks" or "No Gays" on storefronts? I dunno.

"Can we at least agree that while the law says an employer cannot discriminate on the basis of religion, a church must be able to do so when hiring ministers and others?"

That simply doesn't apply. A church or any other organization can say that persons who become ministers must be members of that church (not that specific congregation but that denomination). It would work exactly the same as a company which can have a policy of advancing persons to higher positions only from within the company. This reminds me of an advertisement posted by a Baptist-dominated college in my hometown. They wanted a geology teacher, but as part of the application process, the applicant had to submit a statement of his beliefs. In the same ad they collge proclaimed that that were an EEO organization.

Julia, I disagree that "individuals have a right not to be forced to violate their consciences in their work." I think a person has the right to quit his job rather than be forced to violate his conscience.

The criteria I use for myself when judging these things is venue -- in a religious venue, I grant more rights to the free practice of religion then I do in a secular venue. A church refuses to allow a girlscout troop led by a non-christian to meet there? Fine. It's their venue, they have that right. If a religious hospital refuses to provide certain treatments or to treat certain groups (excepting in emergencies) - well, I don't like it - but I think it should be legal.

But person acting on their own religious viewpoint in a secular venue has not got the same degree of privilege, imo. Kehrsam nailed it with his commment on the 'common carrier' principle. My belief in the sanctity of the earth doesn't give me the right to refuse to sell you non-recycled paper products if you walk up to my counter at the office shop asking for them.

By PennyBright (not verified) on 10 Oct 2006 #permalink

can a doctor or hospital simply refuse to treat gays all together when it comes to elective treatments

A health care provider is supposed to live by an oath, implicitly or explicitly, similar to the Hippocratic oath. Most physicians take one when graduating from medical school. You should ideally be working to heal people of all creeds, religions, races, ethnicities, sexual orientations, etc. Anyone who doesn't should reeveluate why they are a physician in the first place.

I should add that most physicians are trained at public medical schools, where at least half of the cost of attendance is covered by taxpayers. Residents of a state do that because medical school costs are prohibitively expensive and they believe it is a public benefit to have trained doctors. If you attend a public medical school and accept the in-state tuition (that is, the taxpayer subsidy), then you have an obligation to treat everyone who helped you achieve your training.

That's a practical argument, but a more principled argument is that if you believe some people don't deserve medical treatment, then you shouldn't be a physician in the first place.

Mark,

We may be disagreeing only about the meaning of "forced." When I say that "individuals have a right not to be forced to violate their consciences in their work," I mean that "forced" pretty literally.

If an employer tells me I must do X or lose my job, then certainly I have the choice of doing X or losing my job. The employer can't force me to do X; he can only fire me so that I go looking for another job. But a government can essentially force me to do X, by making it impossible for me to go on living my life in any fully meaningful way: the government can imprison me, for example, or in some cases make it impossible for me ever again to work in my field. Also, I certainly didn't mean to suggest that an employer should be forced to continue to pay someone who refuses to serve all the employer's customers.

A pharmacist who refuses to fill birth control prescriptions surely has a right not to be arrested for it, and I think should not lose his/her license for it. And I think that a company that sets up a no-birth-control-available pharmacy has a right to do that, and pharmacists whose consciences forbid fulfilling such prescriptions have a right to work for such a company.

I was making the point that a legal issue that applies here is the involvement of public resources. A person who works for the DMV can't use religious beliefs as a justification to refuse to issue a driving license to any women; the person is getting paid out of tax money. In the case of a person who uses substantial public resources to get licensed as a pharmacist or who accepts one of a limited number of public licenses to drive a cab, it seems to me that the public has a right to set "serves everyone equally" as a standard for providing the public resources.

I like kehrsam's "common carrier" principle - very well-spotted analogy. My worry, though, is: who picks up the tab? Obviously it would be (say) the taxi cab service that was on the receiving end of the lawsuit - to what extent would they be able to pass the buck on to the troublemaking employee?

To the extent to which they could spread the pain around, the employee's religious group would be able to claim persecution - potentially destabilising. To the extent to which they were not able to shed some of the burden, they'd tend to go out of business if they hired too many strongly religious folk, which would lead to actual covert discrimination against some religious groups as a whole.

My suggestion would be: make the company liable for inability to provide a "common carrier" service if employees are recalcitrant. Don't overtly shift any of the blame onto the employees, but suggest that any exemptions that a given employee wants should be written into the employment contract, and that salaries should be adjusted accordingly. That way, companies can work around their more selective employees, and any individual who discriminates in this fashion will impact their own salary in a concrete fashion. The best part is that there will be no sense of persecution - the link between an employee's refusal to perform a task and the reduction in their salary will be intuitively obvious.

By Corkscrew (not verified) on 10 Oct 2006 #permalink

When it comes to providing goods or services, I think that it should be up to the employer to decide whether or not to allow their employees to discriminate/refuse service to a customer based on their religious beliefs. I do not think they should have some legal protection that allows them to do so, against the wishes of the employer. It could be argued that this is a form of religious discrimination in employment but I do not think that such protections should be extended to someone who refuses to do the job they are being hired to do. I.e. if a cab company wishes to allow their employees to discriminate, based on religious conviction, hey go for it. But if they do not and the potential/current employee cannot in good conscience, provide the services the job requires, the employer has a right to pass them over for someone who will.

When it comes to license required positions I think it gets a little more muddled. Using the example of limited cab licenses, I think that the municipal jurisdiction should decide the rules governing that. If they are limited, I think that a municipality has a right to require that cabbies pick up any passenger regardless of religious preferences.

I don't think that any pharmicist has a legal right to refuse to fill any prescrition, based on religious beliefs. I think that the owner of the pharmacy has a right to decide what drugs they will carry, or whether they will allow their employees to refuse to fill scripts for drugs they may object to. But they should not have any legal right to refuse to follow the job description they agreed to when seeking employment.

Lastly, I would argue that any company, hospital or other entity recieving tax dollars or tax exemptions should be required to treat and serve everyone and anyone. And while I agree that a church should not be required to hire outside their sect for positions of leadership within the church, those requirements should not be extended to positions outside the church itself, for non-profit status ventures. Such as administartion of homeless shelters, or any position in a non-profit hospital, religious or not.

And I think that a company that sets up a no-birth-control-available pharmacy has a right to do that...

I disagree. In the case of one pharmacy in a huge city where there's plenty of competition within a reasonable driving distance, this would not be a problem. But in the case of a Wal-Mart pharmacy in the middle of flyover-nowhere, which may be the only pharmacy within a reasonable driving distance, and which may be getting subsidies from a well-funded right-wing church, this would be, in effect, a denial of customers' rights to control the use of their own bodies.

Again, I ask: what about the rights and religious convictions of the customers? Or do all these proposed laws just assume that only businesspersons' religious beliefs are worth protecting?

Are we privatizing totalitarianism?

How about a more general question, can a doctor or hospital simply refuse to treat gays all together when it comes to elective treatments (I think we can all agree that one's religious liberty does not extend to refusing to treat a patient requiring emergency care)?

If such a policy -- and the disgraceful bigotry behind it -- becomes law, then the bigots who practice it will tend to brush off the medical needs of gays as less worthy of their attention, and will try to find ways of pretending that the treatments they would give straights without question are "unnecessary" when it comes to patients who seem gay.

And when such patients -- or their surviving relatives -- sue for malpractice, then the bigots will claim that the lawsuits are a form of "coercion," and an "attack" on their deeply-held principles, designed to intimidate good Christian doctors into giving up their principles yada yada yada...

I'm all in favor of a sensible and honest debate on this issue; but let's not forget that one party to the debate is not honest, not debating in good faith, and utterly hostile to the libertarian principles to which they pretend to appeal. Libertarians have allowed themselves to be manipulated by their mortal enemies before, sometimes without showing the slightest awareness of the scam, and the results have been disastrous for the whole country. I'd really rather not see it happen again.

PS: If we're talking about "freedom of religion" or "freedom of conscience," let's not forget that ANY prejudice can be "justified" on religious grounds. Slave-owners used to quote the Bible to justify slavery, so it's quite possible for a modern racist to say that accepting blacks as equals is against his religion. (Some homophobes have already said that public schools were "attacking" their religion by refusing to condone hatred of gays.)

In my mind, much of this is very simple - if an individual is doing a job in a secular context (cab driver, pharmacist, JP asked to marry a same-sex couple ... writing from Canada, you understand) - then that person indeed has a clear choice - carry out the function or get a different job.

I'm willing to go along (reluctantly) with a church being able to refuse to marry a same-sex couple. And I'm a bit conflicted about doctors and abortions, I'll admit.

By Scott Belyea (not verified) on 10 Oct 2006 #permalink

It's seems to be obvious:
All individuals/organisations that provide services that require licenses (hosptitals, pharmacies, taxis, retail outlets, restaurants, day care centres, &c.) should have to provide those services while obeying all pertinent regulations (non-discrimination, safety, environmental, reporting, et al.) If any does not, then it should lose its licenses to continue practicing that business.

That is what the license is meant to ensure: a competent service for all in a safe location (no roaches in the soup).

If a person (or organisation) has religious qualms about supplying all services implied by his/its license to all customers then he/it has no business being in that line of work.

I think that there's a difference between people excercising their rights to deny service to customers based on religious convictions and companies deciding not to offer certain services based on religious convictions.

Strangely, I'm in favour of the companies being able to excercise that right, and against the individual. Mostly because the companies (in my experience) are more responsible in their choices and are more accountable for their actions. The companies enforce the rules across the board and are influenced by the response of their clientele. Individuals on the other hand seem (again in my experience) to be in it for power, not the ideal, and are arbitrary and unfair in their enforcement of the issues and their decisions are entirely based on how they react in the moment.

I have yet to run into difficulties with a pharmacist who wasn't petty-minded and planning on lording it over me based on their skewed and uninformed religious beliefs (I'm not on BC to prevent getting pregnant, quite the opposite in fact).

Allowing "religious freedom" in a case where the individual cannot have enough information to make an informed decision is not promoting freedom, it's reveling in allowed ignorance.

Kate: Try explaining that important difference to the victims of such discrimination.

The companies enforce the rules across the board and are influenced by the response of their clientele.

And who are "their clientele?" The paying customers, or a church who might own stock in the company, or otherwise have money to influence company policy?

I think the religious freedom clause should be treated the same a freedom of speech. Everyone should be expected to be able to claim it equally, without needing to be recognized to have an accepted "religious" status. So, if 1st amendment doesn't protect shouting "fire" in a theatre, then 1st amendment shouldn't protect a religious institution from avoiding other laws. Unless the action can be equally forced upon every single person in the country, I don't consider it to be constitutional.

I think we are reaching a point where religious organization are allowed exemptions without requiring any compromises from them.

It's amazing what hoops we have jump through to appease religious belief. What a waste of energy.

Another question: what makes pharmacists so special that they get veto power over a woman's ability to control her own body? What about the truck-drivers who deliver the contraceptives? Shouldn't they also get to pull their rigs over, look through their cargo, and toss out anything they don't want to deliver? Hey, bullying the weak -- oops, I mean freedom of religion -- is for everyone, right?

I'm more of a purist than most other commentors regarding how much the government should be allowed to regulate private enterprise. The government should be concerned with public safety issues and nothing else (assuming there is no public money involved). The issue of religion should not even be a factor. If a taxi driver doesn't want to pick someone up, regardless of the reason, then it is between the driver and their employer. If an apartment owner doesn't want to rent to a gay person, then that is the apartment owner's decision. It's their private property. The government should stay out of it.

As far as I'm concerned you can believe any crazy thing you want, but that belief stops at your OWN skin. In other words, when your beliefs negatively affect someone else, you've crossed the line. If you think birth control is bad, fine, you don't have to use it(your partner might think differently though). If you think it's against your religion to get blood transfusions, fine don't get one if you are in an accident. The catch is you do NOT get to make those choices for OTHER people. Provided you are the one dealing with the consequences of your choices then you can believe any crazy thing you want.

In addressing the limits of freedom of conscience it's important to be clear about the structure of autonomous action. For instance, my refusal to assist you in the pursuit of your goals is not, except in very special circumstances, an infringement of your autonomy.

Sometimes things like professional roles, licensure, etc., create special circumstances that are reflected in special obligations. But we need to be careful to strictly define the context in which those obligations arise. As another for instance, I would argue that in the health care professions, the obligations of providers do not extend to the provision of services lacking a sound medical rationale -- i.e., there's no professional obligation to provide services that aren't medically indicated.

By bob koepp (not verified) on 10 Oct 2006 #permalink

Steven,

The problem is, that system breaks down in a hurry in a modern culture. Ghettoes are a problem, even when they exist only in the mind.

Several commenters have made the useful point that it depends upon what the customer's options are. If you are the only provider of a particular good or service in an area, you are probably going to be held to a higher standard of performance. And from a public policy analysis, this is entirely rational.

In general, the current system works pretty well, with most people not having to sacrifice conscience in order to provide necessary services. As I argued earlier, if you have (eg) a problem with pork, it is best to stay out of the meat-packing industry.

Can you discriminate against renting to gays? Of course! -- as long as you have three or fewer units to rent. Beyond that, you are presumed to be in it purely for economic gain, so what does it matter who the renter is, so long as she pays on time and doesn't trash the joint? That is a rational distinction, and the basic pattern that the law should adopt in this area.

Kehrsam, of course it shouldn't matter to a rational person who the renter is, so long as they pay on time and don't trash the place. I believe that most people who discriminate are acting irrationally. But I also believe that people have to right to do as they please with their own property, so long as they don't use it to cause harm to others. Modern culture or not.

Can we at least agree that while the law says an employer cannot discriminate on the basis of religion, a church must be able to do so when hiring ministers and others? Surely you would not argue that a Baptist church be forced to hire an Anglican, or for that matter an atheist, as a minister or sunday school teacher (or choir director, etc)? This would be a clear violation of the church's right to govern itself according to its faith.

Well...

But then there's a separate question. Let's say there's a group called Cult Awareness Network. One of the functions of the Cult Awareness Network is to warn people against the Church of Scientology, whom they consider a dangerous and predatory cult. Given this special situation, shouldn't the Cult Awareness Network be just as able to limit Scientologists from working for them or joining their organization, just the same way a Baptist church would? Because this happened in real life, and Cult Awareness Network got sued into extinction for discrimination. (Well, that and the whole kidnapping thing.)

There does seem to be a bit of a double standard here where "religious exceptions" means extending legal protection to religious views that wouldn't have been protected had they been non-religious views. One has to wonder if there's some way some of these religious exemptions could be rephrased in more secular or even purely secular terms without changing the effect. Most of the reasonable uses of religious exemptions to the law are cases where the person claiming the exemption probably reasonably should have had the exemption even if their motivations were nonreligious. For example, speaking hypothetically, maybe we could look at things in terms of freedom of association, and suppose that the reason why Baptists don't have to hire Anglican preachers is the same reason why California can't force the Democratic Party to let registered Republicans vote in their primaries. (But of course this is an extremely dangerous slope to start down on, because many unreasonable and discriminatory practices could possibly be justified on the same freedom-of-association grounds that one might use, in the hypothetical absence of special religious exemptions, to argue a Baptist church shouldn't have to hire Anglican preachers or Cult Awareness Network shouldn't have to hire Scientologists).

Now, to be clear, though I'm not terribly happy about what I perceive as a double standard here, I don't think the religious exemptions should be removed cut back on-- I personally think a better solution is that they should be expanded, such that they protect atheists and their viewpoints the same way they protect the religious and their viewpoints. The state of the law should not coerce anyone to hold a particular religious viewpoint, and that should extend to both holding and not holding a particular religious viewpoint. As far as I know, the RFRA doesn't really extend this courtesy; it stops the government from burdening religious practice, but doesn't seem to do anything to stop the government from burdening lack of religious practice.

For one example, let's say that one aspect of Christian religious practice is that only opposite-sex couples may marry. If I follow a different religion, or no religion, and so do not share this religious practice, too bad for me; if I want to marry someone of my same sex, the government will not honor this, for reasons which are founded in Christian religious practice rather than any secular purpose. It seems to me the government should give at least as much deference to my reasonable desire not to follow Christian religious observance as they would to the reasonable desire on the part of Christians to follow their religious observance. I don't know if this way of looking at things is something which could be realistically implemented in law, but conceptually it makes certain other issues about this debate much easier. For example, let's look at that example of a pharmacist who claims their religious practice would be burdened if they had to fill prescriptions for contraceptives. The problem there is that if the law said that the town's only pharmacist gets to not fill certain prescriptions because his religious practice bans contraceptives, then the law would be effectively denying to everyone except the pharmacist the right to not practice a religion which bans contraceptives. If we accept (though of course not everyone would agree with me that we should) that the pharmacist's right to practice an anti-contraceptive religion and the customers' right to to not practice an anti-contraceptive religion are equal, and therefore a balance has to be struck, then the balance would have to go to the customers-- because a much greater burden is placed on the customers' religious nonobservance if the government sides with the pharmacist than would be placed on the pharmacist's religious observance if the government sides with the customers.

I have to ask though, in respect of xians, how does this kind of behaviour fit in with "whatsoever you do to the least of my brothers"?
Or are we cherrypicking from the bibble again?

I have to ask though, in respect of xians, how does this kind of behaviour fit in with "whatsoever you do to the least of my brothers"?

Many of us don't believe that it does. In fact, I daresay most of us find it unbelievably repugnant. And in polar opposition to the teachings of Christ.

I'll write more on this tomorrow, I didn't even have a chance to finish reading the comments. But I'd make a distinction between a religious group's hiring practices in relation to its own services, in which being of that religion would seem to be as legitimate a qualification as a belief in evolution would be for hiring a teavher of biology, and the question of a religious person or group which is dealing with the public. (And a third category of providing certain services which are part of the job but prohibited by the religion -- that one I'll deal with tomorrow.)

I do not see a difference between a firmly held belief held for 'secular reasons' and one based on religion. Thus either you eliminate all anti-discrimination laws and public accomodation laws, or you simply tell the holder of such a belief, tough, either obey the law or you can't run your business. I have no doubt that Lester Maddox was as sincere in his belief in segregation as is any Christian homophobe. I know of people who are simply incapable of dealing with the fact of interracial sex, yet if they are running a hotel, they can't refuse to rent to an interracial couple, and they couldn't even if their religion strengthened their belief.
A taxi, or a bus is a common carrier, it might refuse service to a person viewed as a threat, but not if that threat came from a belief that all blacks, or Muslims are threats. A person can't refuse to rent or sell to blacks, even in a traditionally white neighborhood, why should they be allowed to refuse to sell or rent to gays -- or unmarried heterosexual couples, just because their beliefs come from religion. (A quick reference and question, does a 'conscientious objector' in your mind have to have a religious basis for this objection?)

More tomorrow, hopefully more coherently.

Look at the issue this way. If CVS next week hung up a sign and stated "Whites Only". Would that be legal? Or "Christians Only" or better yet, "No Christians Allowed." This whole debate is asinine because it assumes that people trying to gobble up more power in the name of religion will stop at any plateau. Any time a religious organization deals with the public at large, they have the same footing as everyone else - the exact same footing. No skirting building codes, no skirting zoning restrictions, no skirting equal access, no skirting anything that wouldn't get a secular organization sued. Simply as that.

By Russell Claus (not verified) on 11 Oct 2006 #permalink

I just can't believe how many people turn a blind eye to the incredible financial burden churches can place on a community. Here in my area of Texas 2 large churches occupy prime real estate behind Lowes/Home Depot/Wal-MArt. Land that could have been used for increasing the city tax base and lessening the burden on homeowners.

Actually, there was an interesting article in USA Today recently about how many towns are throwing up zoning barriers to prevent new churches, especially little independent store-front churches, from opening in downtown areas (usually, the impediments are against "gathering places", so they aren't explictly singling out religious institutions).

The reasoning seems to be threefold:
1. Churches don't pay property taxes, businesses do.
2. Towns want "main street revitalization", which is better accomplished by a store that's open 8 hours a day, 6 days a week than by a church that's only active a few hours a week.
3. Generations of politicians have written "anti-sin" zoning regulations that restrict certain business activities near churches. A town is going to be very wary about allowing a church on its main street if it means that no restaurant within a 100 yard radius will be allowed to get a liquor license. Cutsie bistros and brewpubs are good for "revitalization" - you don't want to scare them off with the prospect that they'll never be able to serve a glass of beer.

As far as I can see, while we have all come up with different hypotheticals here, the only serious conflict is in regards to medical matters. (The other examples are relatively rare and unimportant. Yes, if I go into a kosher restaurant, I can't order a shrimp cocktail followed by a bacon cheeseburger, but if I tried, I'd be either stupid or deliberately provocative. If I go into one of the various kosher supermarkets in my neighborhood -- as I do, frequently -- I should know I can't buy a pork roast.)

The medical area is possibly the only one where there really is a substantial conflict between religious duties and professional duties, one which can cost lives or have other serious repercussions. (I wrote you about a female blogger who claims, I don't know her or her blog well enough to say more than this, that she was the victim of a condom breakage, attempted over a weekend to get "Plan B," and was turned down because she was, while in a stable relationship, unmarried and hadn't been raped. She was unwilling to spend hours in emergency rooms -- and pay the fee -- when she was unlikely to be presecribed it -- it will be available OTC, but not, in her area, until January. In fact, she wound up pregnant and has declared her intention to get an abortion, and has received truly vicious hate mail for this -- though the tone of her own blog is so angry that her receiving anger in return is less horrible than it might be in other cases.)

It strikes me that here is an example where the sort of government regulation that libertarians oppose could show its use. There should be a requirement that hospitals, doctors, pharmacies, etc. must post, prominently, any similar restrictions, so that a person coming into them will be aware of them -- and that other customers who might not need the specific services could be aware of these policies, and decide to bring their business elsewhere if they disapproved.
If a hospital will not do abortions, let people know about this in advance, maybe require them to mention such rules in any ad for the hospital. If a pharmacist won't supply contraception except to married persons, post it, put it in the ads.
And, as far as hospitals go, if they have such a policy, and it isn't posted prominently, prohibit them from charging for a visit to a clinic or waiting room for those services that are not available.

The utility of the government in providing this sort of protection, this sort of regulation is why I cannot be a libertarian, even if I oppose many types of governmental interferences in personal lives.

One other point. It should be entirely up to the owner, and not to a particular employee, to make such decisions. There ARE certain cases where a 'religious obligation' supercedes a company policy -- the Sikh turban cases are prime examples -- but that involves a person's own conduct, not his interaction with the public. If an employee of a pharmacy refuses to follow rules he considers against his religion, then quit. I see no case for him claiming that his rights have been infringed.

The problem is, that system breaks down in a hurry in a modern culture. Ghettoes are a problem, even when they exist only in the mind.

In particular, one of the problems with ghettoization is that one person can belong to several "outgroups" that face discrimination. For example, if half the landlords in a community refuse to rent to blacks but are OK with renting to gays, and the other half refuse to rent to gays but are OK with blacks, then someone who's both gay and black has nobody who will rent to him. And since outgroups are generally minorities, the number of those who belong to several of them is too large to ignore, but too small to give them any economic clout; a business set up specifically to cater to them isn't going to have a large enough customer base to survive.

Several commenters have made the useful point that it depends upon what the customer's options are. If you are the only provider of a particular good or service in an area, you are probably going to be held to a higher standard of performance. And from a public policy analysis, this is entirely rational.

And it's important to remember that if there's only one provider of a particular good or service in an area, it usually means that the area's economy can't support more than one provider. Which in turn means that the "free-market" solution of setting up a competing, non-discriminatory provider has very little chance of working; the only way such a provider can ever be profitable is to drive the established provider out of business, and that's much easier said than done. A Main Street pharmacy in a rural area, for example, simply cannot compete with the local Wal-Mart pharmacy; the town literally isn't big enough for both of them. It's truly forced out of the area, even though it isn't the government doing the forcing. Some market forces are just too powerful for any individual (or even a fairly good-sized corporation) to overcome.

I think that because certain aspects of healthcare, particularly, presecription medication and medical procedures, are restricted from the general public, they are due special consideration. Example: For saftey reasons, general access to prescription information is denied to the general public. Pharmacists are given special privilege to access these otherwise restricted products by some public governing entity. Since their livelihood is based entirely on privilege granted by a public governmental body, their exercise of that privilege should be fair and equitable. Medical procedures could be viewed in the same context. Another case...what about public defenders who on the basis of religious or ideological grounds does not want to defend a prisoner? Or a judge who has ideological inclinations which may be associated with a case before him/her? Judge Jones seemed to put aside personal ideology in the Dover decision. Couldn't we group doctors and pharmacists into a broader group with the principle that those given the authority to wield certain special rights and powers by the state which are denied the general populace, are obligated to exercise those rights and powers in a fair and equitable manner?

By obstreperous (not verified) on 12 Oct 2006 #permalink

The medical issue is usually relatively straightforward. A physician is under no strict obligation to treat someone and can decline to treat without giving a reason. Once you establish a relationship with that patient, however, and establishing a physician-patient relationship begins the moment they walk into your waiting room, you are obliged to find an equivalent level of care for the patient if you have some personal reservation about providing them care. Refusing care without providing an alternative is malpractice. The sticky situations arise usually in emergencies or urgent situations where its not possible to find an alternative provider. Professional ethics dictates here that you provide the care, regardless of your personal feelings.
To make this concrete, I wouldn't provide care to a psychotic patient who had assaulted me in my office but I would have to find an alternative physician for that patient who can provide equivalent services. If I can't find such a physician, I'm stuck with that patient. If an emergency came up and I was the only physician available, I would have to participate in that patient's care, even if I had made arrangements for them to be cared for by someone else.
The movement among pharmacists to refuse morning after pills runs directly counter to this standard. Pharmacists and other allied health care providers have argued for years that they deserve to be treated as professionals in the same way that physicians are regarded as professionals. This is a valid argument but only if, as a profession, they pursue the same professional standards. If they can't take the heat, they should get out of the kitchen.

By Roger Albin (not verified) on 12 Oct 2006 #permalink

I'd propose the following bright-line rules, based not so much on a notion of religious expression as a notion of privacy and equality before the law:

1) The government is not allowed to discriminate, nor is business sectors heavily regulated by the government. (Equality before the law trumphs religious conviction.)

2) If your business does not fall under rule #1, you can deal with or refuse to deal with whatever customers (but not employees) you want, selected by whatever criteria you want (keeping in mind rule #5). (If you discriminate, you lose customers, so it bears the punishment in itself.)

3) The part of your life that doesn't affect how well you do your job is none of your boss' business, no matter who your boss is. (Privacy trumphs religious conviction.)

4) Religious conviction is no excuse for not doing your job. (Equality before the law again - this time contract law.)

5) Discrimination based on skin colour, gender, sexual preference, marital status, etc. is not permissible, and is not made permissible by religious conviction. (There is a compelling state interest in suppressing discrimination based on characteristics beyond the citizen's control. Religious conviction does not void or supercede this compelling state interest.)

By these rules, your Baptist congregation would not be allowed to discriminated against divorced, female Anglicans in their hiring (#3, #5), but would be allowed to fire their Anglican preacher if she proselytized on the job (#4).

The cab driver in your example would be allowed to refuse to trade with a customer he considered 'unclean' (#2) - although not if he based this judgement solely on the customers skin colour (#5). But if I owned his cab, I'd be allowed - and inclined - to fire him for it (#4).

Finally, the doctor or pharmacist (or banker, for that matter) would be required to provide services to the best of their ability and understanding, on a completely equal basis to all customers - i.e. no refusing to hand out contraceptives (#1) and no refusing to carry out IVF on singles or divorcees or homosexuals (#1, #5).

- JS

To quote Thomas Jefferson:

"A wise and frugal government, which shall restrain men from injuring one another, which shall leave them otherwise free to regulate their own persuits of industry and improvements, and shall not take from the mouth of labor the bread it has earned. This is the sum of good government."

I would say that the government should not be allowed to discriminate, and leave it at that.

Two issues I have not seen mentioned:

1- What is the role of insurance carriers in this? My carrier has contracts with specific pharmacies I am expected to use to get coverage - have insurance companies gotten involved when pharmacists under contract refuse to fill prescriptions?

2 - Not all birth control prescriptions are for birth control. I have two family members taking this medication to control polycystic ovary disease in one case and excessive bleeding in the other. Prescriptions forms do not include the diagnosis for these common problems. Pharmacists are therefore not in a position to make moral judgments when given such prescriptions.