Opinions of Peter Belmont
Speaking Truth to Power
| I Reject Protection of Religion-Based Behavior Except for Believers as Such |
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by Peter A. Belmont / 2015-09-08
American law has seen some very strange excursions lately in the matter of protecting the claimed-rights of people-or-other-entities to do or refuse to do actions based on someone’s religious belief. First, What are my “Narrowest Protections”? I think that American law should allow people, not only in their character as “people” but also in their character as “employees”, “government servants”, “owners of businesses”, etc., to follow their sincere religious convictions providing that doing so does no substantial harm to others. Since I seek to prevent “substantial” harms, I think it proper to demand that the “religious convictions” be “sincere”. And, no, I cannot help tell you what “sincere” or “substantial” mean. For the moment that’s a judgment call, There may be broad agreement on these next points: Wearing religiously customary clothing generally does no harm and should be allowed. Saying prayers and the like on one’s own time similarly generally does no harm. Closing businesses early or on days other than Sunday generally does no harm. On the other hand, if someone’s religious belief calls for human sacrifice, I don’t think he or she should be allowed to answer that call, no matter how sincere the belief. In particular, if someone’s religious belief seems to call on her or him to murder abortionists or anyone else, I don’t think he or she should be allowed to answer that call, no matter how sincere the belief. If the federal, state, or local government has passed a law which has survived Constitutional test, no-one should be able to violate that law simply because they have a religious belief, no matter how sincerely held by them, which forbids compliance with the law. OK, Where Does That Leave Us? If businesses are generally required to provide statute-compliant health insurance for employees, and if the statute requires provision of birth control, abortion, (or if it requires treatment of auto accident injuries, cancer, etc.), then no business (and no business owner, whether sole proprietor, partner, or share-holder, and no business executive) should be allowed to refuse to provide statute-compliant health insurance for any reason—including the sincere religious beliefs of any person. Because it is the business, and not the business-owner or business-executive which is directed by statute to provide the insurance. The statutory requirement does not step on the toes of the owner. The owner is not commanded by statute to do anything. It is the business that is commanded. And the owner can always sell the business or wind it down if he or she doesn’t wish to stay in business. On this view, the “Hobby Lobby” matter was, wrongly decided. Similarly, a public servant such as a county clerk whose job description includes issuance of marriage licenses must do his or her job (and issue those marriage licenses in compliance with local statutes and constitutional law) whether or not such public employee approves of such issuance. It is the “county clerk” and not the “person” acting as county clerk who is commanded to provide the service. The “person” can hold religious beliefs. And the person who does not want to do the job can always resign. The “county clerk” as such, however, cannot hold religious beliefs and cannot disobey the laws which govern the performance of the duties of “county clerk” even for religious beliefs sincerely held by the “person” who holds the job of “county clerk”. In this view, the contentions of Kim Davis were properly denied by the courts. Of course, if it is merely the county clerk’s office that is commanded to issue licenses, and not the clerks individually, then the Kim Davis’s of this world can be excused from issuing licenses that they find offensive [mixed race licenses? same-sex licenses?, winter-spring licenses?] if at least one clerk can be found who will do the work of the clerk’s office in a way that does not unduly burden applicants or clerks. I have trouble drawing the lines as they apply to religious entities (churches, church-affiliated schools and hospitals and the like). If a business has employees, and if the law forbids discrimination in matters of employment, then such a business should not be allowed to refuse to hire (or to continue in employment, or to promote, etc.) people protected against discrimination. If gay people are protected as a class, an employer cannot discriminate against gay people. If people married within same-sex marriages are protected against discrimination, then an employer cannot discriminate against such people. What about a church whose religious teaching forbids “gay” behavior or same-sex marriage”? What about church-run business (perhaps a school or hospital) where the church’s religious teaching forbids “gay” behavior or same-sex marriage”? I think I’d allow the church to engage in otherwise-prohibited discrimination in the employment of religious employees (priests, ministers) but not in the employment of non-religious employees (janitors, drivers, cooks). And I don’t think I’d allow any otherwise-prohibited discrimination in employment in the case of church-run businesses (such as schools and hospitals) except for employees engaged solely in religious duties (such as teachers of religion in the schools, ministers serving hospital patients). Why? Because the church can exist and provide every religious service to its religious community without running those businesses and one must draw the line somewhere. If the community standards for medical care include the provision of birth control and (in some cases) abortions, hospitals subject to such community standards must provide those services even if they are church-run by a church whose religious teaching forbids those things. After all, if a member of that church goes to that hospital, he or she need not request birth control or abortion services. The patient’s religious views will be respected. But if the medical staff refuse to provide such services then the hospital is no longer compliant. A hospital cannot entertain a religious belief, no matter what the religious beliefs of its owners, operators, or employees. Does This Cover All the Cases This discussion is sure to omit many interesting cases. But we should get guidance from the “do no harm” idea. If a doctor or nurse doesn’t want to work on a religious holiday, that’s fine providing that observing that schedule does no harm to patients. If a doctor or nurse doesn’t want to perform an abortion, that’s fine providing that the hospital has another doctor or nurse who will. Else there is harm. |
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