The issue of religious-based discrimination has become a contentious one in this country of late, the latest skirmish in a seemingly endless battle known as the “culture wars”. By now most people know that on February 26 Governor Jan Brewer of Arizona vetoed a bill passed in the Arizona legislature that would have given business owners the right to refuse service to gay men, lesbians, and other people on religious grounds. But while I applaud Governor Brewer’s veto (even though it seems clear that she rejected the bill based on its feared negative economic consequences and not because it was just plain wrong) I am sure that we have not heard the last of this issue. Other states are considering similar legislation, and the Supreme Court has yet to rule on a challenge to the Affordable Care Act’s mandate that health insurance policies include contraceptive coverage, such challenge being based on objecting business owners’ religious beliefs regarding the “morality” or using artificial birth control. In the February 27 New York Times, Steve Yarbrough, an Arizona State Senator who supported the vetoed bill was quoted as having said “this bill is not about allowing discrimination. This bill is about preventing discrimination against people who are clearly living out their faith”. Actually, these concepts are not mutually exclusive, and this bill was really about both: it would allow certain types of discrimination to be practiced by people so long as they claimed that their desire to do so was religion-based.
First, a few words about discrimination. It happens all the time, and, depending on the circumstances is perfectly legal, and should be. The question that needs to be asked is “what is the basis of the discrimination, and is it rational and reasonable?” For example, virtually every institution of higher learning in this country discriminates in its entry criteria based on standardized test scores, particularly the SAT. This is acceptable because SAT scores are seen (rightly or wrongly) as a predictor of how well the person will do in the college. Admitting individuals who are incapable of the level of scholarship generally practiced at a college does no favor to either the college or the student. The perception is that SAT scores are rationally related to a college’s mission, and so discrimination based on those scores is seen as rational and reasonable, and is therefore legal. Did you know that the New York City Police Department discriminates based on age? That’s right, if you are over the age of 35 you are ineligible to even take the NYPD’s entrance exam. Again, age is rationally related to a person’s ability to do this fast-paced, physically-demanding job, and so discriminating on that basis is legal. Hell, every time an employer picks one job applicant over another they are engaged in discrimination based on criteria such as education, experience, skill sets etc…, all of which is legal and ethical so long as the basis of the discrimination is rationally related to anticipated job performance. Even in public accommodations we allow some types of discrimination, so long as they are rational. Restaurants can have dress codes. Movie theaters can practice age discrimination by having lower prices for seniors or children, or by not allowing kids in to see R rated movies. Amusement parks often have signs next to certain attractions that say you have to be “this tall” to go on the ride. Such rules are based on understandable safety concerns. All of these are examples of discrimination that is legal because there are rational reasons for them.
But what of religious-based discrimination? There are times when such discrimination is reasonable, rational and legal. For example, if a Methodist Church wants to hire a new minister, they can limit job applicants to Methodist ministers. They are not required to give the position to an otherwise qualified Jewish Rabbi, as being both Methodist and a minister are reasonable job requirements for such a position. But that’s not what we’re talking about here. The Arizona bill, if it had been signed into law, would have allowed discrimination in public accommodations by non-religious business entities and individuals based on the business owner’s or the individual’s religious beliefs, even if not rationally related to the business at hand. That is a whole other kettle of fish.
Religious-based discrimination of this kind is not based on rationality because religion itself is not reason-based. In the movie “Miracle on 34th Street”, the lawyer played by John Payne tells the little girl played by Natalie Wood “faith is believing in something when common sense tells you not to”. Precisely. And if there is no evidence for a particular belief, it cannot be said to be based on “reason”. The Bible has admonitions against homosexual conduct, but it also has admonitions against all sorts of things, including wearing clothes that are a blend of two or more different fabrics. I think most of us would be incredulous if a restaurant refused entry to anyone wearing a cotton/polyester blend suit (my favorite in the summer time; they’re nice and light). But once you allow discrimination based on sincerely held religious beliefs (how do you measure that kind of sincerity, anyway?), how is discrimination based on clothing blends any different than that based on perceived homosexuality? As religion is inherently non-rational, to allow discrimination based on religious beliefs will allow discrimination based on non-rational thinking, which is something that we as a society have rejected, and such rejection has been codified into our laws. Remember, Christianity is not the only religion that the first amendment allows us to practice. You are allowed to make up your own religion, and it can be irrational in just about any way you choose. Suppose I wrote my own holy book that said that when people go bald, it is a sign that they have given over their lives to the devil. (Full disclosure, I myself would be in some trouble in that congregation). I am free to practice that religion and to ban bald people from my clergy and even from my congregation. But if I own a clothing store, I can’t prevent bald people from entering my store based on my religious beliefs, because there is no rational reason to prevent bald people from shopping at a particular store. I think that most of us believe that this is how it should be, but if the Arizona bill had become law, I could have done so. As a country and a society, we only allow discrimination based on rational reasons, but religion (as communicated by the lawyer to the little girl in “Miracle on 34th Street”) is faith-based, not reason-based, and so to allow discrimination based on religious beliefs would, in effect, allow discrimination based on just about anything. It would also fly in the face of our social compact, hard-won over hundreds of years, that to discriminate in public accommodations is wrong and unlawful unless there is a clearly rational and reasonable rationale for doing so.