A Philosopher's Blog

The Church & The State II: Discrimination

Posted in Ethics, Law, Metaphysics, Philosophy, Religion by Michael LaBossiere on February 15, 2012
English: Schopfheim: Catholic Church Deutsch: ...

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In the United States, the American’s with Disabilities Act makes it illegal to discriminate against people based on their disabilities. Unless, apparently, the institution doing the discrimination is a church.

A disabled woman who was teaching at a religious school was fired and filed a claim under this act. The rather clever reply by the lawyers was to rely on the ministerial exception clause.

This clause was originally intended to grant religious groups the liberty to discriminate in their hiring (and firing) practices so as to allow them to act in accord with the doctrines of their faith.  To use the obvious example, the Catholic Church is allowed an exemption to practice gender discrimination based on its doctrine that only men can be priests.

On the face of it, it seems blindingly obvious that this exception was not intended to allow religious groups to simply fire people with impunity in regards to the anti-discrimination laws. While the application of the law is certainly a matter of interest, what I find more interesting is the exception itself.

On the one hand, this exception does have a certain appeal. After all, history shows that laws can be used to oppress or otherwise mistreat religious groups and one way to afford protection for religious freedom is to provide such “escape mechanisms” in laws that might be misused. Given that freedom of belief and freedom from oppression seem to be legitimate and worthwhile freedoms, this sort of exception has some merit.

On the other hand, there is the obvious concern that the mere fact that something is a religious belief should not be grounds for allowing an exception to the general law. In the case of this specific law, if churches can simply apply the exception when they fire people, churches would be effectively immune to anti-discrimination laws. This would allow them the freedom to engage in actions that seem to clearly be immoral (such as firing people on the basis of age, gender, sexual orientation, ethnicity or any other quality) and otherwise illegal merely because they are religious groups.

It might be countered that religious groups must have the liberty to hire and fire as they wish, otherwise religious freedom is in danger.  However, handing religious groups a license to discriminate hardly seems to be a necessary step in preserving religious liberty and, as such, this sort of broad exception seems to be morally unjustified.

There is also the obvious concern that while the right to religious freedom is worth considering, there are other rights as well. In the case of hiring and firing, it would seem that people have the moral (and legal) right not to be discriminated against and it does not seem obvious that the right to religious freedom should simply trump other rights.

For example, suppose a devout group of Thugee established a church of Kali in the United States and argued that religious freedom gave them the right to be exempt from the laws forbidding murder and theft. This, obviously enough, would be regarded as absurd. After all, the right not to be robbed and murdered outweighs the right of religious freedom.

As another example, suppose that a religious group that practiced polygamy claimed an exception based on religious views. This would, obviously enough, be denied. In fact, polygamy is illegal (although apparently sometimes tolerated). As such, religious freedom would once again not trump the law.

As a third example, suppose that a religious group wanted to hire or fire people in ways that violated  anti-discrimination laws. This, oddly enough, seems to be okay. However, the obvious question must be asked: why should religious groups be given an exception here? The answer seems to be that they should not, unless we wish to allow them the other exceptions.

Another point of concern is, obviously enough, why religious groups should get such exceptions. After all, there are other groups that hold discriminatory views (racist groups, for example) and it would seem to be, well, discrimination not to allow these groups to discriminate based on their beliefs. After all, these people are no doubt as sincere and devoted in their beliefs as religious folk and it seems rather difficult to prove that their is a magical something about religious beliefs that entitle religious groups to special exemptions that are denied to other groups.

Of course, if a religious group could prove that they have got it right when it comes to their desired exemptions, then that would be another matter. For example, if Catholics could prove that just as only women can biologically be mothers only men can be metaphysically priests, then they would be justly exempt from the law regarding gender discrimination in the case of priests.

Doing this should be easy enough. When a religious group claims a special exemption, all that needs to be done is for their deity to show up and sign the appropriate form after establishing his/her/its divine identity. For the religious groups who have the true view, this should present no problem. Naturally, groups whose deity fails to make an appearance (or that fails to send a suitably divine or infernal non-human agent, such as an angel) must be regarded as having gotten things wrong and thus would not be entitled to an exception. After all, a group that cannot prove that its  exemption from the law is justified should not be allowed that exemption. Obviously, referring to made up beliefs does not count as justification.

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21 Responses

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  1. anon said, on February 15, 2012 at 10:11 am

    “Naturally, groups whose deity fails to make an appearance (or that fails to send a suitably divine or infernal non-human agent, such as an angel) must be regarded as having gotten things wrong and thus would not be entitled to an exception.”

    All religions: “well my deity(/ies) made ME special so I can sign it for ‘t/him’. My proof, well if you don’t believe like I do then you can’t see it.”

  2. ajmacdonaldjr said, on February 15, 2012 at 11:40 am

    “As another example, suppose that a religious group that practiced polygamy claimed an exception based on religious views. This would, obviously enough, be denied. In fact, polygamy is illegal (although apparently sometimes tolerated). As such, religious freedom would once again not trump the law.”

    “The “1890 Manifesto”, sometimes simply called “The Manifesto”, is a statement which officially disavowed the continuing practice of plural marriage in The Church of Jesus Christ of Latter-day Saints (LDS Church). Issued by church president Wilford Woodruff in September 1890, the Manifesto was a response to mounting anti-polygamy pressure from the United States Congress, which by 1890 had disincorporated the church, escheated its assets to the U.S. federal government, and imprisoned many prominent polygamist Mormons.”

    Here’s a separation of church and state issue for you professor: As a Catholic, neither I nor my church will EVER accept, endorse, approve of, or perform gay marriages. EVER. And no state government, federal government, nor preponderance of the US electorate will EVER force us to accept and acknowledge gay marriages as “marriages”.

    NEVER.

    EVER.

    BTW, the Amish don’t pay taxes, but they do drive their horse-drawn buggies on our public roads. What say you about that?

    • anon said, on February 15, 2012 at 12:01 pm

      Polygamy & religion

      http://www.breitbart.com/article.php?id=D8VT6DVG0&show_article=1

      Sorry, but “marriage” is often times a legal contract defined by the state (like it is in the US), not by a particular religion. Your view of “marriage” is different from the legal version of marriage. You can be butt hurt (lol) over two gay people getting married but they will still receive the same legal benefits (http://en.wikipedia.org/wiki/Rights_and_responsibilities_of_marriages_in_the_United_States) of any other “marriage”. Would you not be so “hurt” if all marriages (in legal terms) were replaced with the term “civil unions”? That way anybody/anything can get “married” since it is only pretend, and only those in civil unions will be provided the benefits of such as defined by the state.

      “BTW, the Amish don’t pay taxes, but they do drive their horse-drawn buggies on our public roads. What say you about that?”
      — I’d say that you are wrong:

      http://en.wikipedia.org/wiki/Amish -> “Like other citizens, Amish pay sales and property taxes. However, Amish buggies, bicyclists, and pedestrians use public highways, but need not pay either motor vehicle registration fees or motor fuel taxes[43]. Under their beliefs and traditions, the Amish do not agree with the idea of social security benefits and have a religious objection to insurance. On this basis, the United States Internal Revenue Service agreed in 1961 that they did not need to pay Social Security related taxes. The U.S. Supreme Court subsequently overturned this ruling, but maintained that Amish could be exempt from such payment when self-employed, like all self-employed individuals”

      I dunno about non Amish buggies but bicyclists, pedestrians, and typically other vehicles under certain CC’s (like 50 cc scooters) don’t have to pay vehicle registration either.

      • ajmacdonaldjr said, on February 15, 2012 at 5:05 pm

        Thanks for the info about the Amish and taxes. So they don’t pay road use or fuel taxes, which is what pays for the roads, and they don’t pay federal taxes, which also pays for the roads they use. I still think this is a free ride. Sales taxes and property taxes do not go toward roads. I am all in favor of gay civil unions, but since they are not happy with this, and since they insist on calling it marriage and making us redefine the word “marriage” (something I liken to sociological rape (i.e., shoving gay MARRIAGE down our throats) I only wish to point out that neither I nor my church EVER has to accept this OR practice it and there is nothing they can do about it. THIS FACT, I think, will be what sticks in their craw. I have the feeling the gay marriage folks will NOT be satisfied until Catholics are forced, by the state, to accept and practice gay marriage. What many people fail to realize is that we will NOT.

        • dhammett said, on February 15, 2012 at 6:17 pm

          ajm: One comment here: I wish everyone would ease up on the “shove it down our throats” imagery. I heard John Boehner spewing those words when Republicans were decrying the Obama’s Health Care proposals. But that was a cry of desperation. The bill was nearly 2000 pages long! Who among us would want to be tied down and have something that large forced down his/her unwilling esophagus?

          But its usage is particularly dismaying in discussions of gay marriage and homosexuality. First, it’s unseemly, for reasons that should be so obvious they need not be mentioned here. Note: If that reference is too vague, write that in a reply, and I’ll try to clear it up. Second, history so far seems to indicate that homosexuals aren’t out to force anyone, regardless of belief or political persuasion to become homosexual. I’m not even certain how that would be accomplished. . . Do they kidnap us from restrooms one by one or in groups, spirit us away to a ‘special’ unholy place, and perform mysterious, unspeakable rites that brainwash us into taking up the gay lifestyle? How do they manage to change God’s plan for us? Perhaps someone could bring me up to speed on all this.

          The solution to overcoming these unreasonable fears seems easily within reach of the believer. Simply know in your heart that The Great Straight-to-Gay Conversion is impossible. Believe it. You know it. Won’t happen. Fear not.

    • Michael LaBossiere said, on February 15, 2012 at 2:22 pm

      They should contribute if they use the public roads-but apparently they do.

      • anon said, on February 15, 2012 at 3:32 pm

        It would be nice but the question then ends up being what would be a good, easy to do/maintain, and fair(ish) way to get them to do so. Coming up with a way might also help find new ways to fund roads (instead of gas taxes) since people are starting to drive more fuel efficient vehicles and drive less (for now). I have a couple of ideas (like “pay what you want” tolls for them) but nothing that seems particularly good.

      • ajmacdonaldjr said, on February 15, 2012 at 4:58 pm

        I’m pretty sure the Amish don’t pay taxes, and they will not serve in the military either.

      • ajmacdonaldjr said, on February 15, 2012 at 7:25 pm

        Apparently they do pay some taxes, although I don’t think the taxes they pay go directly toward paying specifically for road usage, although I suppose it all goes into the same big pot anyways. Personally, I think everyone should pay their fair share, meaning a flat tax for everyone and no more progressive income tax, which allows some lower income people with kids to collect refunds in the thousands of dollars. A flat tax of 9.99% that is fixed and never to increase would be, I think, a fair tax for everyone. Percentage is fair whereas progressive taxation becomes punitive as the money you make increases. I also favor abolishing the income tax on wage and salary earners. I think only corporations should pay income taxes on profit. But then, I also think it’s time for state ownership of Big Oil.

        • anon said, on February 16, 2012 at 12:30 pm

          Flat taxes are punitive as the amount of money you make decreases and flat taxes with rebates/refunds aren’t flat taxes anymore. The less money you make, the larger the % of your income it takes to survive (shelter/food/clothes(/transportation)). Progressive taxes work (and to me, are just) because of decreasing marginal utility.

          It seems that the reason why most people don’t like progressive taxes is because they have no idea how the system even works in the first place. A lot tend to think that if they earn a single dollar more and are put into a higher tax bracket that ALL of their income will be taxed at that rate instead of just the $ that falls into that bracket.

          Abolishing income tax on wage and salary earners, although a nice sounding idea (I’ve thought the same thing before), won’t actually work out that well in reality because people will shift how they get their money today (labor/dividends/capital gains) into “labor” and just get everything tax free. Owners of business will just start to pay themselves tax free money and their business will make 0 profit. Owners will most likely just “loan” money to their company so it has operating income but then take it out for themselves later so it will be tax free. Also, people who have high incomes but don’t really add much, if any value to society will contine to be more powerful than those who actually do a lot of work that DOES benefit society simply because they have more money.

          Personally, either ALL forms of income should be included together (easiest way) or (in a “better world”) taxes on labor (especially on that which benefits society the most) would be reduced and taxes on dividend income/capital gains/non actual labor would be increased.

          State ownership of big oil? I’d rather just have the government break them up in to smaller pieces. There are still external factors to consider (of other countries that allow/are “big oil”) but those can be mitigated though various means (treaties w/ other countries to help prevent large oil companies from operating there, etc).

  3. T. J. Babson said, on February 15, 2012 at 6:52 pm

    “…the U.S. Supreme Court on Wednesday unanimously held that the First Amendment precludes the application of federal employment-discrimination laws to religious institutions’ personnel decisions involving workers with religious duties.”

    Unanimous decision of the SC. Workers with “religious duties.” These items were not mentioned in Mike’s post. Seems reasonable that if a job requires “religious duties” we have entered the realm of religion.

    More philosophic journalism, or maybe journalistic philosophy, from Mike.

    • Michael LaBossiere said, on February 16, 2012 at 11:52 am

      Is the supreme court always right?

      As far as religious duties go, there is still the question of granting such exemptions. Take my example of the faithful of Kali. Suppose that I am a good an faithful priest of Kali and my religion requires me to murder people. Should I thus be granted an exemption because of my faith? If our principle is that faith trumps civil law, then I must. If we accept a principle that the laws of the state can override the rules of faith, then it would also seem to apply to Christianity and its doctrines.

      It might be said that murder should not be exempted because it is bad, but the same can be said of discrimination. Or is it that we should let religions get away with some stuff, yet not other stuff? If so, what principles do we use to set the standard for what is okay to allow on the basis of faith and what we should not allow? Do we allow discrimination but not polygamy, for example? If so, why?

      • anon said, on February 16, 2012 at 12:47 pm

        Unfortunately to most religious people I’d assume it would be along the lines of “let me do what I want to do and let me prevent those of other religions of from doing what I don’t want them to do” and that is as far as you’ll ever get with them. In my experience with Christians, the ones that are more “fundamentalist” believe that the US is a christian nation and thus what they believe is ok (should be legal), anything else that others (including other christian denominations) believe, that is contradictory, is bad and not ok (should be illegal) and that is not discriminatory at all.

      • T. J. Babson said, on February 16, 2012 at 2:11 pm

        “Is the supreme court always right?”

        No, but a unanimous decision suggests the legal reasoning is pretty clear and uncontroversial.

        Also, I would argue that if a religion is not free to determine who can perform “religious duties” then this is clear impediment to “free exercise” of religion: “the Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…”

        Some religions, notably Islam, sanction violence against unbelievers, yet you have defended Islam many times on your blog. I would refer you to your previous posts on this matter.

        • Michael LaBossiere said, on February 17, 2012 at 10:55 am

          I have defended Islam on the grounds of religious freedom, but I have never argued that religious freedom justifies allowing religions an exemption to law. Now, laws can be shown to be unjust or bad, but that is another matter.

          We actually do have plenty of laws that prohibit the free exercise of key tenets of religions. For example, polygamy is outlawed. Also, using my Kali example, her worshipers’ practices of theft and murder are outlawed. One could go through the bible page by page and find things that are legally prohibited, yet in the religious text (like the stoning of disobedient children).

          The treatment of the freedom of religion seems very similar to the treatment of the right to keep and bear arms: the courts allow many, many restrictions while balking at others (often based on politics rather than principle).

          • Anonymous said, on February 17, 2012 at 1:26 pm

            You’re being obtuse, Mike. Whenever problems with Islam are notes, you invariably just point to problems with Christianity (mostly with historical Christianity, which wans’t nearly as bad as you portray it or the West would not have so far out-stripped Islamic nations). But it seems to me that the old saying is true: ” Making a target of modern Christians is rather like hunting cows.”

            Magus

            • Michael LaBossiere said, on February 17, 2012 at 4:14 pm

              Hardly. I’ve never argued that Muslims should be excluded from the law. Mainly I just “defended” Islam by arguing that it is an error to attribute to all Muslims the beliefs of the most radical elements. I also extended the same principle to everyone else.

          • T. J. Babson said, on February 17, 2012 at 2:08 pm

            Actually, the outlawing of polygamy only means that the polygamous marriage won’t be recognized by the state. What is to stop a church from marrying people independently of the state? The religious conception of marriage doesn’t require secular things like survivor benefits, etc.

            • Anonymous said, on February 17, 2012 at 3:01 pm

              Nothing. Nothing stops people from getting married to multiple people, objects, or imaginary things as long as that marriage isn’t legally binding (aka a civil marriage). A lot of this crap seems to stem from the usage of the word marriage and its multiple meanings.

              Honestly, any person (that is able to legally sign contracts at the time) should have the right to marry (as in a civil marriage) one or more other persons (who are able to legally sign contracts at the time). After all, a typical marriage is just a couple signing a contract stating that they will combine themselves in a legally binding manner. As far as other types of marriage, I really couldn’t care less and I don’t see why anybody else really should either.

            • Michael LaBossiere said, on February 17, 2012 at 4:20 pm

              That is reasonable. My view is that the legal and economic aspects of marriage contracts should fall under legal contracts rather than being called marriage. That way churches could have their own marriages and discriminate as they wish (since it would have no consequences to people outside the church) while the legal aspects would be a distinct matter. This would also tend to undercut many arguments against same sex-marriage. After all, who argues that people cannot enter into legal contracts within their own gender?

            • Michael LaBossiere said, on February 17, 2012 at 4:16 pm

              I’m reasonably sure that the state has stepped in to arrest folks when they engage in polygamy, especially in cases of marrying underage girls (which some faiths accept). As I recall, the state does not grant faith based exceptions for coerced marriages.


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