Thursday, September 24, 2009

Lying, even in a good cause, is wrong

The latest News from UUA Advocacy and Witness ,"Act Now to Pass the Employment Non Discrimination Act!", does just that when it says, " shows our elected officials that as Unitarian Universalists, we stand on the side of love for equality AND religious freedom.", and "ENDA's opponents say that it interferes with their religious freedom, but we know that this is not true." It IS true, it DOES interfere with their religious freedom.

For many Christians- especially the more fundamental ones most likely to be affected by this act- the term "religious institutions" is not limited to a church or a church bookstore. The law may make a distinction between a bakery owned and staffed by Christians and a monastery whose monks bake bread, but they do not- they take "Wherever two or more are gathered in my name" seriously. The government may say the banner on the wall of the construction company that says, "Everything we do is dedicated to the greater glory of God" is mere decoration, but they do not. They do not compartmentalize their faith from the rest of their lives; they believe that religion is not just for Sunday in just this building, but something they must live every moment.

Perhaps the people who wrote that advocacy letter are unaware of this, despite being college graduates working in a religious institution, but my Congressman, being Muslim, is well aware of it, as are both my Senators. Were I to take that tack in a letter to them, they would presume it to be just another email generated letter from a special interest group... which, in fact, it would be; and they'd know that if my name is in their Farley Files, and it might be as I've met all three of them.

Much of what I hear in church, and much of what I read from bloggers and the UUA tells me that many UUs have never studied and don't really understand their Christian neighbors. They lecture Christians over social justice issues, assert "truths" that Christians know ain't so. I often feel like beginning every such discussion by quoting Benjamin Franklin from 1776: "These men, no matter how much we may disagree with them, they are not ribbon clerks to be ordered about - they are proud, accomplished men, the cream of their colonies. And whether you like them or not, they and the people they represent will be part of this new nation that YOU hope to create. Now, either learn how to live with them, or pack up and go home! In any case, stop acting like a Boston fishwife."

Far better to argue from the truth- yes, this is an infringement of your rights- but none of our rights are absolute. Freedom of speech and press have restrictions, ranging from shouting "fire" to McCain-Feingold. Freedom of assembly is restricted by the requirement of permits. And freedom of religion has restrictions, too; we forbid human sacrifice, even when voluntary; we forbid the use of certain drugs, we require parents to get medical care for their children. Rights are an always fluid balancing act between the individual and the compelling interests of society- and at this time, the balance must be drawn here, for these reasons... Don't tell him "all seriously religious people agree..." (as our previous president was wont to do), because he knows it isn't true.

Honesty really is the best policy. Even if you don't win the first round, you'll win respect, and your words will gain weight in the process. Acting like politicians will only get you the same respect that politicians get- surely we want more than that.

Addendum: CC's comment shows that some clarification of the Christian opposition to ENDA is in order. Many Christians believe that someone who is actively homosexual cannot be a Christian. Homosexual desires, they feel, are a temptation of Satan; one is not responsible for such temptations- ask Job. But acting on those temptations is a conscious decision. Therefore, an active homosexual who feels no remorse and has no intention of trying to change, is unrepentant and cannot be Christian. Therefore, the owner of a Christian company, who has dedicated his endeavors as a testimony to how one can succeed by living God's word feels he cannot hire a homosexual. (this describes many of my former customers) He feels his rights of free association and freedom of religion are abridged by being forced to hire non-Christians. He feels that if the courts have found otherwise since 1968, it only means that the courts have been wrong since 1968.

He is right- it is an abridgement of his rights. It simply isn't rational to say that the freedom of association doesn't mean you can decide who to associate with, or that the freedom of religion doesn't mean you can use your religion beliefs in the exercise of your freedom of association. But, as I noted above, we abridge rights all the time in the public interest. My position is that by getting a business license, society has granted him certain rights and privileges, such as the ability to buy wholesale, to not pay sales tax on most items, etc. He has become a public institution, and owes society certain favors in return- such as complying with anti-discrimination laws. The price of the right to discriminate is to forfeit the special advantages and privileges of a public institution.

I do not know if this was the reasoning in the 1968 decision that said employers may not discriminate on the grounds of religion. If it was, then the court admitted that it was interfering with the right of free association and free exercise of religion, and I agree with the court; it was a balance between individual rights and society's needs. ENDA would be a further abridgement of those rights; justified, yes, but still an abridgement. If the courts ruled that there was no right of free association in the first place, then they came to the right decision via the wrong path. It wouldn't be the first time.


Bill Baar said...

Where a Church of slogans and slogans can be dangerous things. They substitute for thinking, judgment, and argumentation. They're mental shields.

Chalicechick said...

I feel like this is a stupid question but, HOW does this bill interfere with religious freedom?

Two points:

1. Religious institutions are already given BROAD exceptions under title VII and its subsequent revisions when it comes to discrimination law. That's why the organizations that want female Catholic priests don't try to get them by suing Catholic Churches for religious discrimination*.

It is VERY unlikely that the bill will be passed in a form that gives gays and lesbians more protections than it gives other protected groups, in fact I haven't even seen anybody asking for that.

2. As for Christian-owned businesses, while a Christian religious institution is not required to hire a Jew if a Jew is the most qualified person for the job, a Christian-owned business is required to not discriminate on the basis of race, creed, religion, sex or national origin, no matter how many biblical passages they can cite to "show" that Jews are evil or that women shouldn't be working or whatever.

Religious institutions notwithstanding, US law has not defined "the right to hire and fire based on your own religious beliefs" as a part of freedom of religion since at least 1968. So in giving gay and transgender folks the same protections, you're really only slightly extending existing laws and in a way that doesn't impinge on religious freedom as it is currently defined.


* From the US Code
(a) Inapplicability of subchapter to certain aliens and employees of religious entities

This subchapter shall not apply to an employer with respect to the employment of aliens outside any State, or to a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities.

Joel Monka said...

CC- I decided to post my response to your comment as an addendum to the original post. The short version: if US law has not defined "the right to hire and fire based on your own religious beliefs" as a part of freedom of religion or the freedom of association since at least 1968, that doesn't make it true, it only makes it law. It cannot be defended logically. If you admit that you're abridging those rights in the public interest, you can defend that both legally and logically because we limit rights all the time.

Do you know which argument the court used in 1968? I know I could Google for it, but I thought you might have studied it recently and have a better legal perspective.

Chalicechick said...

Short answer: As far as legislative history goes, nobody really talked about freedom of religion when they law was passed because it was mostly focused around race and most people's objections to the bill were not religious ones. Women were snuck into the bill at the last minute and whatever "women's rights are against the bible" arguments people had made in the past had pretty much been legislatively dealt with by then. Religion, Creed and National Origin are also in there but as far as I can tell their inclusion caused no fuss.

Even when the government is not talking specifically about your religion in the legislative history, it is safe to assume that for any given law, someone might have a religious objection to it and that the legislators think that there is a sufficiently compelling state interest in whatever they are doing to outweigh it.

If Congress passes a law against punching random strangers in the face, then you can feel safe in assuming that if they knew about the existence of "the Church of Punching Random Strangers in the Face" they did not care.

What's the Compelling State Interest here? In this case, discrimination leads to qualified people without jobs. Qualified people without jobs leads to poor people who could have had jobs. Poor people who could have had jobs lead to the government paying for their stuff when it wouldn't have had to if it weren't for discrimination. Thus a compelling state interest.

Also, lots of smart hardworking people are not white, anglo-saxon protestant American males. All things being equal, the more smart hardworking people in an economy, the stronger the economy will be. On a national level, the potential cost of race discrimination or discrimination of any other sort must be staggering. A more abstract state interest, but I would say it is a compelling one.

On your other point, if we already have a law that says you can't discriminate in hiring decisions based on your religion, I don't see why saying it again and adding another group is really a "further" abridgment of rights the government made it perfectly clear that you didn't have forty years ago.

If this bill doesn't get passed, you're still going to have no right to discriminate against people due to your religion, you will just have fewer traits enumerated.

If you think it is central to your religious freedom for you to be able to hire and fire whomever you want, then you need to be fighting for a whole new law abolishing all title VII protections.

Somehow I doubt these newly-minted civil libertarians who are complaining now are going to do that once gay rights is off the table, but it would be the only way to actually have that freedom that they haven't had for 40 years and suddenly miss.


Bill Baar said...

How are we going to know someone is gay with a law like this?

We had a similar question in Chicago with a proposal to include Gay Owned businesses for set-aside programs. So how do you tell the owner is Gay?

Considering all the fake women-owned business we've had getting contracts in Chicago, it's an important question.

Chalicechick said...

If you didn't know they were gay, you can't have discriminated against them because they were gay, so they will have a very difficult time proving that you did.

As far as I can tell, the best defense against a discrimination claim is to hire the most qualified people and not let your employees run around making slurs. Those also seem like the best ways to run a business.


Bill Baar said...

The employer's defense will be he/she didn't know the person was gay.

The plaintiffs claim will be the employer discriminated against them because they seemed Gay. That will be the compliant from Gay and non-Gay alike.

This will be a mess.

ogre said...

Bill, it appears that you're making the argument that anything that I choose to affirm has some religious character or content in my life is open to my interpreting it as being religion... and insisting on my right to discriminate because of it.

Let's step back. The Constitution doesn't support that.

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereo..."

Can't tend to establish religion, nor prohibit the free exercise of religion.

The latter clause is protecting the practice of religion. But even stated as an absolute, the law recognizes that rights end up in conflict, and that the conflict has to be adjudicated, so that the marchlands are demarcated....

The claim that one has the absolute right to proclaim that one's religious beliefs permit one to mistreat others has been pretty narrowly constrained. It applies ONLY to religious institution--those that are about the practice of religion. Not about the financing of the practice of religion.

The argument that it imposes on the conscience of an individual to have to equally serve, employ, treat, care for, do business with... has a pretty solid answer. Feel free to feel put upon. Act on it, if you please--and expect it to be treated as a violation of the law. If it's so important, feel free to engage in civil disobedience. Just remember that means that you're willing to accept the consequences.

(Some) Christians to whine about having to not discriminate.

Feel free. The law imposes on individual belief and opinion all the time.

Bill Baar said...

Where do you see the religion in my comments. I don't see much religion in the whole issue of "Gay Rights".

I think the left's gone on a bit of a "rights" binge and this issue of discrimination against Gays in employment an example.

I don't know how to prove someone is Gay, or how to prove someone knows someone is Gay. Is an employer can my defense be look I didn't discriminate against alleged Gay applicant because I've hired all these other Gays?

Having been in the working world for 32 years and having seen my share of EEO complaints, I don't know how this one will pan out, or for that matter, that it solves all that much.

PS And what laws impose on belief? I'd be hard pressed to name those.