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Practicing Religion in a Pluralistic Society

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My first job between high school and college was working for a major national department store retailer. Back then, as a conservative recent homeschool graduate in the brief culture war lull between DOMA in the ‘90s and the state level marriage amendment fights of the ‘00s, I took my employer’s non-discrimination policies for granted. The idea that my faith would lead me to bar trans customers from fitting rooms or to refuse to do wedding registries for same-sex couples simply did not cross my mind. After all, the Bible said to love your neighbor and to do unto others as you would have them do unto you, and I didn’t see any exceptions for, “unless you don’t approve of your neighbor’s identity or actions, then forget about it.”

It wasn’t until some years later that I realized that what I had taken for granted was in fact controversial. Not only that, had I come out as gay while still a student at my private Christian college, it would not only have been legal for my school to kick me out, people would have applauded their religious freedom right to do so.

In this essay I hope to show that not only is there not a religious freedom right that would exempt religious for-profit or non-profit corporations from non-discrimination laws, faith-based discrimination is antithetical to the teachings of scripture.

I want to begin by underscoring the importance of religious freedom as a fundamental right that we all enjoy. I’ve lived and worked in a country that doesn’t have the same religious freedoms that American Christians have and I can absolutely say from experience that the ability to practice one’s faith should not be at the whims of a government. The question at hand is not one of whether people of faith should have religious freedom, but rather what should happen when one person’s religious beliefs impinge on another’s ability to exist and function in a free society.

The free exercise of religion is not an absolute freedom and never has been one. Religious freedom does not extend so far as to allow a person to harm another in the name of free exercise of religion. Because we live in a nation of laws, we are constantly balancing religious freedom with the rights of others not to have their lives and well-being harmed by the religious practices of another.

That’s easy to see when we look at the extremes–even if human sacrifice is a central tenet of your faith, that does not exempt you from laws against murder. To give a less extreme example, the Supreme Court found that a religious belief in proselytization via the distribution of religious literature did not exempt Jehovah’s Witnesses from child labor laws. Their right to practice their religion did not extend to a right to allow small children to endanger themselves by selling newspapers on the street in violation of child labor laws. On the flip side, the Amish have the religious freedom right to exempt their children from compulsory attendance laws after 8th grade, not because religious freedom automatically overrules compulsory attendance, but rather because in the balancing act between religious freedom and the well-being of others, the courts found that an 8th grade education did not harm Amish children’s ability to be fully functioning productive members of society.

Generally speaking, religiously neutral laws of general applicability–that is, laws that don’t target one religion and apply to everyone in society equally–are constitutional. Under the federal Religious Freedom Restoration Act (RFRA), and the state level RFRAs implemented in a number of states, a religiously neutral law of general applicability that nevertheless substantially burdens the exercise of religion must serve a compelling government interest. To go back to the human sacrifice example, the government has a compelling interest in preventing its citizens from murdering each other, so even though a law against murder substantially burdens our erstwhile human sacrificer’s exercise of religion, the government can prevent human sacrifice. On the other hand, in the Hobby Lobby case, the Supreme Court concluded that the Obamacare contraceptive mandate substantially burdened free exercise of religion without meeting the compelling government interest test.

Moving to the topic at hand, the Supreme Court has found, both the pre-RFRA Bob Jones University v. United States (whether Bob Jones University could receive tax exempt status and maintain racially discriminatory policies) and the post-RFRA Christian Legal Society v. Martinez [1] (whether a public university’s policies requiring recognized student clubs be open to all students infringed on a Christian club’s religious freedom) found that non-discrimination laws don’t violate religious freedom. In other words, the government has a compelling interest in preventing discrimination, even if those non-discrimination policies substantially burden the exercise of religion. This is why the Fair Housing Act prohibition on race-based housing discrimination is constitutional, even if it infringes on the landlord’s sincerely held religious belief that renting to an interracial couple would be participating in the couple’s sinful relationship. It’s also why religious colleges that receive federal funds can’t opt out of Title IX gender equity rules, regardless of their beliefs about the roles of women.

So then, since non-discrimination laws are constitutional even without religious exemption provisions, we turn to the question of whether non-discrimination laws should include such provisions as a matter of public policy. Here is why they should not.

We live in a pluralistic society. This would hold true whether society was made up entirely of professing Christians or a mix of people of different faiths and no faith, as is the case in American society. We have no national religion, no compulsory set of beliefs that anyone is required to hold. Americans are free to believe anything and nothing. This isn’t the Church of England in the 16th century, the Holy Roman Empire, Calvin’s Geneva, Spain during the Inquisition, or Saudi Arabia and Iran under Sharia law, where one and only one set of theological beliefs is permitted. With the possible exception of some of my Theonomist readers and a desire to model Calvin’s Geneva, I think I can say with some degree of certainty that wherever you may fall on the question of religious exemptions, no one reading this would like to return to a time before pluralism.

On the most basic level, for a democratic, pluralistic society to function, all members of that society must be given the equal opportunity to participate in society. When one segment of the population is barred from full participation the effects are far reaching. We see that with slavery and Jim Crow–African Americans are still paying the price, economically, physically, and socially for the generations in which they were denied access to full participation through slavery and segregation. Similarly, prior to the passage of the Americans with Disabilities Act, those living with disabilities were prevented from full participation in society because public spaces were inaccessible. Whether through the active discrimination of Jim Crow or the passive discrimination that ignored the needs of those with disabilities, people were prevented from using their talents and denied access to goods and services, and they and society suffered as a result.

Although the debate about religious exemptions is frequently framed in terms of baking cakes or taking photos, make no mistake, what we are actually discussing is whether LGBT people can legally be denied access to large swaths of public life. We saw where that led with Jim Crow. It was so bad that travel guides had to be published so that African American families could travel safely and find places where they could sleep and eat. In some communities, other African American families had to open their homes because otherwise African American travelers had no place to stay. Jim Crow wasn’t just lunch counters or bus seats, it was a system that prevented African Americans from participation in all the areas of public life that white Americans take for granted.

Many of those who enforced segregation did so because of a theological belief that separation of the races was ordained by God and that African Americans were inferior due to the Curse of Ham. Additionally, we know from Gallup polling that support for interracial marriage among white Americans did not cross the 50% mark until some point between 1995 and 1997. If the Fair Housing Act and the Civil Rights Act of 1964 had included a religious exemption, it is safe to say that Jim Crow would have continued on as usual, with segregationist business owners simply carrying on as before, possibly into the present day, by claiming a religious exemption.

Whether supporters of religious exemptions intend to create an outcome for LGBT people not unlike the one African Americans experienced under Jim Crow, the reality is that this is the door they are opening. A society that allows faith-based discrimination is a society that cuts LGBT people off from full participation in society.

We are a nation of laws, and to allow people to write their own laws and follow their own rules based on their particular set of religious beliefs is not a society of equal justice under law, it is a society where people can pick and choose which laws they want to obey.  We would be creating a parallel society where people would be legally allowed to impose their religious beliefs on others who do not share those beliefs. That’s not democracy, and it’s not religious freedom. It’s anarchy.

This is just as true for non-profit organizations as it is for for-profit businesses. With the exception of churches, synagogues, mosques, temples, and other places of worship, the regulation of which would violate the free exercise clause, non-profits should not be exempt from non-discrimination rules. We grant tax exempt status to non-profit entities because those entities exist to serve the public interest. To quote Bob Jones University v. United States:

When the Government grants exemptions or allows deductions all taxpayers are affected; the very fact of the exemption or deduction for the donor means that other taxpayers can be said to be indirect and vicarious “donors.” Charitable exemptions are justified on the basis that the exempt entity confers a public benefit — a benefit which the society or the community may not itself choose or be able to provide, or which supplements and advances the work of public institutions already supported by tax revenues. History buttresses logic to make clear that, to warrant exemption under § 501(c)(3), an institution must fall within a category specified in that section and must demonstrably serve and be in harmony with the public interest.

To allow non-profit organizations to discriminate is to force all taxpayers, regardless of religion, to contribute to a discriminatory institution. This is more than mere religious freedom, it is the imposition of a particular religion on the populous as a whole, and indeed is forcing LGBT people to subsidize an organization from which they are barred from participating.

On a more practical level, the problem is this. In this country we rely on faith-based non-profits to provide a lot of social services. In some communities, Catholic hospitals are the only ones available, the Salvation Army and other faith-based groups do much of the work of providing services to the homeless, and faith-based non-profits provide adoption services, to name a few examples. This is a good thing, and as a public policy matter we should be encouraging faith-based community development and relief work. The government cannot provide a total safety net, and dedicated individuals working in their communities often have a better sense of what their community needs than a bureaucrat hundreds of miles away.

If we are going to rely on faith-based organizations to fill in the social service gaps in our communities, which again, I believe is a good thing and should be encouraged, if those faith-based organizations are free to discriminate based on their religious beliefs, we are cutting certain groups of people off from the social safety net.

For example, if homeless services in a community are handled by a faith-based non-profit that refuses to serve same-sex families, or that forces a trans woman to sleep in a dormitory with men, we are, for all intents and purposes banning homeless LGBT people from social services. This is especially a problem because a disproportionate percentage of homeless youth are LGBT–allowing faith-based discrimination leaves one of the most vulnerable populations without services. Similarly, if all the private adoption agencies in a community are faith-based and prohibit same-sex couples from adopting, allowing that discrimination means we have implemented a de facto ban on LGBT adoption.

Unless we are going to dramatically overhaul the social services support networks in this country to provide everyone everywhere, from the largest city to the smallest rural hamlet, access to religiously-neutral social services, a decision to exempt faith-based groups is a decision to deny LGBT people access to the safety net that the rest of the population enjoys. This is insupportable from a public policy standpoint, but it is also insupportable from a scriptural standpoint. When Jesus says, whatever you did not do for the least of these, you did not do for me, he didn’t include the caveat, “unless the least of these are LGBT, then you’re free to discriminate without guilt.”

Having discussed a public policy framework, let us now move on to the reasons why, regardless of beliefs about the morality of same-sex relationships, Christians should support non-discrimination laws. I will be writing from a Kuyperian sphere sovereignty framework because that’s what I’m most familiar with and is well-suited to a discussion of how Christians should relate to a pluralistic society, however, I believe that arguments can be made based on Anabaptist political theory and two-kingdom theology as well.

I do want to note that while Kuyperian sphere sovereignty has within it the capability of producing an open, pluralistic society where people are free to practice their religion without infringing on the rights of others, Kuyperian thought also provided the theological justification for South African Apartheid. My own encounters with Kuyperian thought in college provided me a way forward from the culture war battles of my youth and showed me a vision of how to live as a Christian in a pluralistic society, and it is to that vision of sphere sovereignty that I look today. It would be remiss, however, to discuss Kuyperianism without acknowledging that the same theological framework contains within it the seeds for some of the greatest human rights violations in the modern democratic world. Depending on how you define your spheres, you can have either outcome, or any mix in between. Consequently, it’s important to take care that you are not implementing a sphere sovereignty framework in a way that oppresses or marginalizes others.

Under a sphere sovereignty framework there are different spheres or domains that are ordained by God, and society functions best when one sphere doesn’t try to overreach into the domain of another sphere. For example, the family unit is a sphere, as is the church, as is the civil government. The civil government should not overreach and meddle in the church’s sphere of ecclesiastical governance, and the church should not try to overreach into the civil government and try to implement religious law in the civil sphere. Doing so would then result in the civil government imposing laws on the spheres of other churches and faiths that would infringe on those groups’ ability to function in their own spheres.

Those spheres aren’t entirely walled off entities, however. For example, ecclesiastical governance does not mean that a church should handle civil crimes in-house. The civil government steps in because even though someone who commits a crime should be subject to church discipline, they’ve also violated civil law and are subject to the penalties for doing so. A church would be inappropriate in suggesting that the civil government stay out of it because the church handled it in-house because the power to punish wrongdoing is within the civil government sphere.

Moving to the discussion at hand, the church sphere, civil government sphere, and the public sphere are all in play in a discussion of non-discrimination laws. The public sphere is that area where all of us operate, and while as people of faith we all bring our religious beliefs (or lack thereof) into the public sphere, the public sphere is not the church. We have a model for what happens when a church or religious sphere operates outside of its bounds within the public sphere–we get something akin to Sharia law in Iran or Saudi Arabia, where religious police are able to enforce ecclesiastical law not just on their own congregants, but on the population as a whole. And while I am not suggesting that religious exemptions are equivalent to Sharia law, they are a form of churches and religious groups enforcing their ecclesiastical law on the community as a whole. Religious exemptions to civil laws allow the religious sphere to overreach into the public sphere and to impose religious law on those who are not members of that faith community. Rather than protecting religious freedom, such exemptions take away the ability of everyone to freely operate within the public sphere.

The danger when the church steps into civil government sphere where it does not belong is that faith becomes inextricably intertwined with politics. If you live by the sword you die by the sword, and when the church takes up the sword of civil government it becomes a political entity. The core mission of the church is to share the Gospel and to care for the widows and the orphans, the poor and needy. When the church is seen by the general population as a tool of enforced discrimination it distracts from the heart of the Gospel.

Rather than expanding the kingdom like Christ did, preaching the good news to the oppressed and the marginalized, the church becomes an agent of oppression and marginalization. Instead of preaching the good news to set the captives free, we are creating captives to structural discrimination.

Moving forward, are we going to show grace and mercy or are we going to show oppression and discrimination? Down one path is an increasingly irrelevant institution representing fear and animus, down the other is a flourishing church that shows the love of Christ to all. Which one will we choose?


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Footnotes: 

 

[1] I was involved in my university’s Christian Legal Society chapter all three years of law school, and speaking from a personal standpoint, our chapter flourished because we followed the university’s non-discrimination policies willingly rather than grudgingly.


 

 

Religious Freedom and Constitutional Democracy

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There is in American political life a strong tendency to see any social or political phenomena as rooted ultimately in individual choice.  States, churches, schools, families, all are said to be best understood by looking to the aims and goals of the persons who made agreements with each other to establish these entities.  The view of these organizations as essentially voluntarist in nature is one of the hallmarks of the classical liberal understanding of political and social life.

 

This liberal individualist approach has all sorts of consequences, but one particularly important consequence is how we understand rights.  In America, people generally understand rights to belong to individuals and not to entities larger than individuals: things like schools or businesses or non-profit organizations.  Rather, rights are attached to the people who establish these things, and not to the things themselves.

 

What does this mean for religious freedom?  First, in the liberal approach, there is strong temptation to reduce religious freedom to mere freedom of conscience for individuals.  While a guarantee of freedom of conscience is vital, this reduction is a problem because religions by definition reach beyond individual conscience.  Even the decision a person might take to keep his or her religious beliefs private is itself a religious decision.  And in fact, most of the ways that people exercise their religion is within communities or organizations.  These people are unlikely to say they have thereby departed from the “religious” to the “secular”—indeed it is their religion that has led them to act at all.

 

The narrowly individualist view of religious freedom thus misunderstands what religion is.  But the individualist position also misunderstands what organizations are.  An entity such as a school is not an “accident”—it does not appear ex nihilo, based on the contracting wills of consenting adults.  Rather, a school is a thing: it has certain tasks and responsibilities that derive neither from the wills of individuals nor the mandate of a state.  As such, it can and must make claims on us and on other institutions as it goes about its work; indeed, we must begin to see that it too has rights—and even religious rights.

 

When we bring together this larger view of organizations with the larger view of religion described above, several implications follow.  Chief among them is the general principle that the state must proceed with a presumption in favor of religious freedoms for institutions, even if such institutions receive state support.  That means that states must demonstrate a compelling interest if they seek to limit associational freedom in some way.  And crucially, that compelling interest cannot be premised on how “secular” are the organization’s activities.  Such approaches are based on the narrow individualist account of religion.  Rather, state actions with respect to these organizations are to be justified by reference to the state’s own task, that of ensuring just social and political relationships among individuals, communities, and organizations.

 

It might be helpful, therefore, to see state restraint with respect to the education of Amish children or contraception in Catholic schools not so much as exemptions from rules, but rather the details of what the rule actually looks like when applied to the religious landscape of American life.  The language of “exemption” can be troubling because it suggests that those who understand faith in non-liberal ways are merely to be tolerated by the rest of us.  And in a genuinely pluralist democracy, the very reasons citizens understand and accept law are themselves contested—and reasonably so.  It should be enough that we know that our neighbors accept the authority of law; we should not require that they accept it for the same reasons that we do.

 

Is this compatible with the liberal version of constitutional democracy as we have come to know it in America?  Perhaps not, and liberal proponents of that vision may be dismayed with the loss of the privileged position that their version of democracy has enjoyed.  They may take comfort, however, in the fact that all are similarly disestablished.  Genuine respect for pluralism demands that liberalism, Catholicism, nationalism, secularism all be denied pride of place, and that our polity be understood to embrace all who reside in a territory, regardless of race, religion, gender, and all the other distinctions that divide.   Pluralism is here to stay; the era of liberal antidisestablishmentarianism must come to an end.