The recent Catholic manifesto for religious freedom, “Protecting Consciences” (www.usccb.org/conscience), presents a view that seems hard to contest: “What we ask is nothing more than the right to follow our consciences as we live the life of our teachings.” Yet, it cannot be that simple when one person’s conscience directs him to discriminate. Determining when our laws should tolerate religiously motivated discrimination is actually a nuanced question.
The occasion for this manifesto was the recent presidential policy of forcing private health care plans to cover sterilization, abortion-inducing drugs and contraception. Establishments that provide secular services — such as hospitals, universities and the like, even if they are faith based — would have to pay for services that violate their religious convictions.
We all agree, and American law generally affirms, that religious institutions engaging in core religious and educational functions may discriminate in favor of their religious values in all areas of worship and religious education. A Catholic priest may be defrocked for advocating abortion, and a Protestant school may fire clergy for doctrinal violations. The First Amendment protects the rights of religious groups to worship and educate as they see fit. Indeed, it privileges such freedom over the government’s right to mandate equality and non-discrimination for all. Even in extreme cases — such as when a faith mandates racial discrimination in its religious practices — the faith’s right to religious freedom allows it to triumph among its own voluntary faithful in its pews and schools (although it might lose its tax exemption if it persists in extreme practices).
Since the Civil Rights Act of 1964, America has prohibited discrimination based on race, color, religion or national origin. When a person opens a car wash or a law firm or a doctor’s office, even if his faith prohibits interfaith car washing, or working with Jewish lawyers, or treating African-American patients, American law mandates non-discrimination.
This is true even when religious corporations engage in general commercial activity. The Supreme Court recently told us that religion-based discrimination in hiring and firing of clergy in a religious school is permitted and may not be subject to governmental regulation. But when a religious organization hires a garbage disposal company, it cannot favor Goldberg’s Waste Management over O’Conner’s Garbage Collection merely because of the religious identity of the owners.
The broad mandate of equal opportunity for all Americans directs that religious discrimination be prohibited in general commercial settings. Allowing private and individual religious values to trump societal obligations of fairness and equality would spell the end of the American commitment to equal opportunity and promote the rise of discriminatory religious communities.
Consider the case of a law professor who refuses to teach African- American or Muslim students, or a hotelier refusing to provide a room to an interracial couple – such conduct should not be allowed, no matter why it is practiced and the religious views of the one discriminating ought to be of no importance at all.
It’s those kinds of cases that makes so extraordinary the Catholic Church’s claim that “religious people” should never “be forced by the government” to act in a way that “violates” their “consciences.” This is an unprecedented request for the expansion of religious liberties in the United States into general commercial conduct, and it is a bad and dangerous idea. Logically extended, the argument proposed by the Catholic Church to promote religious liberties could in fact return us to the pre-civil rights era, with religions asserting biased “religious convictions” that would promote discrimination.
Indeed, with all the recent controversy surrounding birth control and Catholic hospitals, do any of us imagine that secular law ought to permit Catholic hospitals to discriminate against non-Christian doctors or patients, as they did a century ago? Why then can a Catholic priest deny Eucharist to a non-Catholic in church while a Catholic doctor may not deny medical care to a non-Catholic patient in a Catholic hospital? The answer is simple: when a religious institution undertakes to run a secular institution like a hospital or an adoption agency or a soup kitchen, our society wisely demands as a condition for entry that it agrees to the same rules of non-discrimination as secular institutions.
No one as a commercial actor or a member of a licensed profession has the right to a law of his or her own, or to dictate which laws of general applicability he wants to obey because of his or her private religious beliefs.
To be sure, matters of sexual freedom remain very controversial in the United States and are far from universally recognized as a good thing. Because of that, it might very well be a wise and just policy for the president to recognize the pleas of accommodation in this area for now, both to reduce the tensions running in our society and to ensure that religious institutions do not withdraw from the excellent social work that they do.
This is particularly so in this area now, where the president is acting without a statutory mandate passed by Congress and where such an accommodation is clearly permitted by the law. Of course, even if a law is passed directly mandating insurance access to birth control, churches and synagogues will still be exempt from regulation, but hospitals — even those religiously affiliated — will then need to comply. It reflects well on a pluralistic society like ours for the president to grant such accommodations until Congress passes a law.
But I believe that the more sweeping step of crafting a general claim of personal religious exemption from secular anti-discrimination laws to accommodate concerns for religious freedom would be a bad idea for the United States and should be resisted.
Michael J. Broyde is a law professor at Emory University in Atlanta, and a senior fellow in its Center for the Study of Law and Religion.