Religion, discrimination, and civil rights law

The left has fixed its talking point on Indiana’s Religious Freedom Restoration Act (RFRA). As Ruth Marcus expresses it: “Hold whatever religious views you want. . . but if you operate a business, you shouldn’t be allowed to discriminate against people based on who they are, or whom they love.”

The left also invokes the civil rights movement of the 1960s which produced the great Civil Rights Act of 1964 and its ban on a range of certain discriminatory practices including in public accommodations.

Applied to Indiana’s RFRA, the left’s talking point is phony. Indiana permits discrimination based on “whom you love” quite apart from the RFRA. Moreover, the pizza parlor that drew the ire of the left didn’t discriminate against anyone. A member of the family that runs the business merely expressed an opinion.

But there’s a deeper problem with reliance on the anti-discrimination principle and the Civil Rights Act of 1964. Under Title VII of that Act, it is unlawful discrimination not to accommodate the sincerely held religious beliefs and practices of employees unless accommodating them would result in “undue hardship” to the employer.

To be sure,Title VII doesn’t apply to decisions by business owners about whom to serve. But then, it also doesn’t apply to decisions based on sexual preference.

What Title VII does do is embrace the principle that one shouldn’t have to jeopardize one’s livelihood in order to adhere to one’s religious principles (again, unless your adherence creates “undue hardship”). Thus, in the absence of “undue hardship” to the employer, a Jew whose religion requires him not to work during multiple days in September-October must be given those days off; a strict Sabbath observer must be granted relief from shifts that interfere with observance; and so forth.

An employer’s failure to comply with such dictates is deemed unlawful employment discrimination. It may not seem, intuitively, like discrimination. But then, neither is the use of a neutral employment practice, such a test or a college diploma requirement, that has a disparate impact on a racial minority. Even so, under Title VII, that practice is unlawful employment discrimination unless the employer can show that it is justified by sound business considerations.

The principle underlying Title VII’s reasonable accommodation requirement is violated if a photographer, baker, or caterer must choose between adhering to his religious belief and making a living in his chosen profession. Yet this is the choice the gay rights movement and the left want to impose on business owners, via stiff fines and other penalties for refusal to provide services for gay weddings.

Again, the Civil Rights Act of 1964 protects neither business owners who, for religious reasons, don’t want to be involved in gay weddings nor gays who wish to force such involvement. But, as shown above, the business owner’s grievance that arises in one of these showdowns has a stronger connection to the principles actually contained in the Civil Rights Act of 1964 than does the grievance of the gay couple.

The underlying philosophical/legal problem with hollering “discrimination” in cases like this one lies in the fact that it’s a form of question begging: The term “discrimination” is a social concept used to stigmatize decisions we don’t like.

Under Title VII of the 1964 Civil Rights Act, as amended, it stigmatizes the failure to reasonably accommodate religious beliefs and the use of a test that is fairly applied to everyone, two very different practices that don’t, on their face, seem very discriminatory. Congress applied the “discrimination” label because it wanted religious beliefs to be reasonably accommodated and didn’t want blacks to be excluded from jobs due to unneeded barriers, whatever the employer’s intention.

At the same time, all sorts of discriminatory-seeming decisions remain free from stigma. In our latest podcast, John Yoo mentioned a leftist colleague who met his wife through an online dating service. To find his soul mate, the colleague set all manner of requirements and specifications until, according to Yoo, he selected someone just like him.

This sounds like discrimination. Yet, presumably, even the most ardent leftist would not view the process as problematic — not yet anyway.

For these reasons, labels like “discrimination” don’t provide a satisfactory solution to the dilemma posed when a gay couple seeks service for their wedding from a vendor whose religious beliefs compels him not to provide service. If this matter is to be anything other than the raw power struggle the left desires (see Marcus’ column, for example), it should be resolved based on a balancing of the competing equities arising from religious freedom and gay rights.

The principles of the 1964 Civil Rights Act provide a good, common sense framework. The concepts of “reasonable accommodation” and “undue hardship” should be the touchstones.

In all but highly exceptional circumstances, no undue hardship will attach to selecting a wedding photographer who doesn’t think the ceremony violates God’s will. Religious freedom will be preserved and the couple almost surely will get better photographs.

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