Capital Commentary is the weekly current-affairs publication of CPJ, written to encourage the pursuit of public justice.
Religious Freedom: Cause of Discrimination or Foundation for Diversity?
By Stanley Carlson-Thies
February 23, 2015
A common argument heard today is that when a nonprofit, business, or church serves the public, it should be required to leave behind its sectarian limits, its biases and restrictions, and treat everyone equally, “without discrimination.” Isn’t that what it means to serve “the public,” as opposed to dealing with fellow believers in a private organization or private activity? After all, shouldn’t everyone have a right to receive the services offered to the public without being affronted by alien practices and beliefs, or by standards and convictions that imply that their own values and convictions are lesser, or even wrong?
This line of thought is based on the assumption that what is public is always uniform, and that to exist in and serve the public world requires setting aside religious and other distinctive convictions and practices. But this does not accurately reflect the deep diversity that is found in the public square, both among those offering services and those seeking services. Indeed, our country has been unique historically in its commitment and ability to accommodate all kinds of beliefs and practices in the fabric of our society and national life. Should it be required that we all shed those convictions and identities when we interact outside of our families and places of worship and enter the public square to serve or be served?
Religious Conviction and Serving the Public
Several years ago, the Sikh Coalition came to the defense of a Christian rescue mission that was sued for discrimination. The Sikh Coalition argued in its amicus brief upholding the Boise Rescue Mission, “Many Sikh organizations and houses of worship provide charitable services to homeless persons and others, without regard to the homeless person’s religion,” the brief noted. However, “[i]n exchange, Sikh organizations and houses of worship often require such persons to abide by certain religious traditions of the Sikh faith . . . Persons may be asked to remove their shoes while in a house of worship, to cover their head, and to refrain from tobacco and alcohol.” These requirements aren’t instances of discrimination, but rather are expressions of diversity. They are simply the distinctive ways that Sikh organizations—those shaped by the Sikh religion—offer their help to the public. Fortunately, the courts agreed that the Boise mission had not engaged in illegal discrimination when it, too, offered to the public services shaped by its religious convictions.
This question of discrimination was answered differently when the Christian Legal Society law student chapter at Hastings Law School, part of the University of California system, was charged with discrimination because it required its leadership (but not its general participants) to be faithful to evangelical Christian convictions. In 2010, the US Supreme Court ruled that it is acceptable for a public higher education institution to impose an “all comers” requirement on any club that wants to be a recognized student group. Now many additional public universities have adopted the same stance, barring from recognition those student organizations that formally require their leaders to be committed to the respective groups’ missions and values.
A gay and lesbian rights organization found this to be an odd outcome and a mistaken requirement. They spoke up in defense of the CLS students at Hastings and their amicus brief quoted a scholar who observed, “From the beginnings of the gay civil rights movement, gay organizations have relied on exclusively gay environments in which to feel safe, to build relationships, and to develop political strategy.” The brief went on to note that “[t]here are many exclusively gay social and activity clubs, retreats, vacations, and professional organizations. . . . Gay organizations limit their membership for the same reason that countless expressive associations do so: a belief-centered group cannot maintain its distinctive voice and identity if its members reject its core beliefs.” That is, maintaining “discriminatory” standards for leaders (and even members) is vital to sustaining a countercultural organization, one swimming against the popular tide. And only if that countercultural vision can be maintained, strengthened, and developed can it be offered to the public. Authentic diversity can’t exist in the public square without minorities being allowed their distinct identities.
A Diverse, Not Uniform, Public Square
We need to reconsider what it means to be open to the public and to serve the public’s needs. A place to start is with a vision of the public not as uniform, but rather as diverse and heterogeneous. When people and organizations turn outward to interact with others beyond their own families and memberships, they bring with them their convictions about what is good, what is right, what is just or unjust. The public is made up of persons and organizations that have different, and even divergent, convictions, ideals, and values.
And they often have different, sometimes conflicting, assessments of how best to serve their neighbors. For example, what the Boise Rescue Mission, the Interfaith Sanctuary, and the Boise City and Ada County Housing Authority have in common is their offer of shelter to the homeless and needy, but how they offer it differs. They are all serving the public, not restricting their help to those of their own religious or non-religious values, but each is serving the public in a distinctive way. These different organizations make different—uncommon—contributions to the common good.
But it isn’t simply that various organizations that offer services to the public have distinctive values and differing ways of serving. The public that seeks services is itself diverse, and people in search of a job or career also have varied convictions and aspirations. Many addicts specifically seek faith-based programs, regarding exclusively non-religious assistance as insufficient. And it isn’t random chance that leads certain law students to the CLS student club and others to Outlaw or to Law Students for Reproductive Justice. While some employees of a business or nonprofit may be aggrieved if the health plan isn’t fully subject to the HHS contraceptives mandate, there are others glad to find a workplace consistent with their personal values.
Only if our laws and social practices permit diverse and differentiated organizations (with different ways of serving and different internal operating standards) is it possible for our diverse population of people seeking help and our diverse population of employees seeking work to be able to find compatible organizations consistent with their deepest values.
How much differentiation should be allowed? Isn’t it right and necessary to require nonprofits and businesses to achieve certain minimal standards, certain common requirements, when they open their doors to the public? Isn’t it necessary to set minimum requirements for employment conditions and benefits so that (powerful) employers are not able to cater to their own whims at the expense of (powerless) employees? Yes, this is all true. But the appropriate restrictions are not likely to be found if the assumption is that whatever is “public” must be uniform.
We will do better to follow the recommendation of Democratic public policy analyst William Galston, who notes that a praiseworthy political system is one that is “parsimonious in specifying binding public principles and cautious about employing such principles to intervene in the internal affairs of civil associations. It will, rather, pursue a policy of maximally feasible accommodation, limited only by the core requirements of individual security and civic unity.” (Liberal Pluralism, 2002)
In short, not all “discriminatory” treatment is wrong and should be forbidden. When Alan Sears, head of the Alliance Defending Freedom, which litigates to protect traditional religious values, asked a Southern California photographer to take his family’s Christmas card picture, she refused. “I oppose the goals and objectives of your organization,” she emailed back, “and have no interest in working on its behalf.” Sears was right not to accuse her of discrimination, and it was right that no government agency set out after her for sticking to her own values and refusing to serve this member of the public.
We are a society of heterogeneous convictions: multiple religions, different philosophical systems, varied identities, and contrasting convictions about many serious matters. It is not just, nor workable, to demand that we all shed those convictions and identities when we interact outside of our families and places of worship and enter the public square. Or, more accurately, it is not just, nor workable, to demand as the price of entry to the public square that those persons and organizations with countercultural minority views, people and groups out of sync with the current majority views about religion, sexuality, relationships, and life, must leave their views behind and conduct their lives and their organizations as if they agreed with the majority.
Convictions, conscience, faith, ethics-- these are not mere memes, styles, customs, or habits but are, or should be, bedrock guides, a person’s recognition of what ought to be done even when something else is more convenient or more self-serving. We should challenge each other to conduct ourselves in accordance with our best understanding of what is true, just, and good, even though we disagree in many ways about what is true, just, and good. We should encourage each other and every organization to strive to put into practice the highest values, although we know we do not agree fully on what those highest values are. Even as we work to influence majority opinion and government regulations to reflect what we believe is right, we must acknowledge that popular views and government rules are often wrong. There must be room and respect for challenges and alternative convictions.
Our public square needs religious freedom. We need to protect and foster a zone of respect for people and organizations to live consistently with their convictions and conscience, even when those differ from the majority. Ironically, as our society is becoming more diverse in our beliefs, our governments are energetically setting forth ever more uniform requirements. This is a recipe for increasing conflict and more and more suppression of religious exercise and conscience.
Instead, as Galston recommends, in public attitudes and government policy we ought to be aiming for “maximally feasible accommodation.” That means imposing uniform regulations only when absolutely necessary and there is no practicable other way to achieve critical protections. It means, where possible, creating flexible systems of regulation which call on different communities to strive to do and be the best, even though they do not agree precisely on what is the best. And it means, where necessary, to provide for recognition and accommodation of religious identity, so that people and organizations can, when they regard it as essential, follow their countercultural convictions.
Religious freedom and religious diversity are not abstract principles. Instead, they are a practical way for a political system to respect the profound desire we each have to live both together and in accordance with our deep convictions.
Questions for Reflection & Discussion:
1. Government is our common space and a realm of equal status and equal treatment. Does that mean that everything that is public should also be required by government to be uniform? Why or why not?
2. Persons often fulfill their aims via organizations, and yet no organization can fulfill or operate in accordance with every person’s aims. How then can organizations serve those diverse aims?
3. How important is religious freedom—the freedom to be faithful despite being out of step with the majority—to other people and other communities in our nation?
- Stanley Carlson-Thies is Founder of the Institutional Religious Freedom Alliance, a division of the Center for Public Justice.
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Capital Commentary is a weekly current-affairs publication of the Center for Public Justice. Published since 1996, it is written to encourage the pursuit of justice. Commentaries do not necessarily represent an official position of the Center for Public Justice but are intended to help advance discussion. Articles, with attribution, may be republished according to our publishing guidelines.”