The Church & The State II: Discrimination
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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