Thursday, December 27, 2012

Does U.S.Catholic Editor Need Some Empathy For Those That Claim Religious Liberty Concerns ?

That is the feeling I got just after the reading the title of his blog post Religious liberty for businesses: Protected freedom or excuse to discriminate? . I will return to that blog title later on.

Scott Alessi looks at the Hobby Lobby case  ( where he thinks the CEO 's wealth is important for some reason to point out ) , and a group of people that  are having religious libertyobjections to providing some type of services as to same sex marriage ceremonies. In particular he talks about a certain Trolley company woes.

Let me note before proceeding further that the New Mexico photographer case he cites in passing has other major  First Amendment concerns that stand apart from the religious liberty claim, For that see 
Amicus Brief in Elane Photography v. Willock (the New Mexico Wedding Photography Case) whose signers all support the right of same-sex marriage rights by the way.

It seems he is a tad more open to the Hobby Lobby problem though he states  both " illustrate just how easily fighting for a company's "religious freedom" can cross the line".

In the article he puts "religious freedom" and "religious liberty" in scare quotes but note he does not put the word "rights" in scare quotes in that last paragraph. He also declares that these folks would not be " supporting or condoning same-sex marriage by extending the same service he already provides to same-sex couples ".

Well it appears they disagree. Let me add there is a also sort of odd belief in the Separation of  Church / Faith and work that we see from time to timel urking around here.

He ends his piece :

Religious liberty is undoubtedly a valued freedom that should be protected. Just how far it extends into the business world is an issue best left for the courts to determine. But when it comes to denying rights to employees or customers, lets drop the "religious liberty" argument and call it what it really is: discrimination.

Well that is fair to a certain point. There is a facet of religious liberty that allows discrimination. There unprotected discrimination and protected discrimination. There is just discrimination and unjust discrimination.

However today the word discrimination is used sadly in a much one sided way. In fact at the recent controversy at Tufts University  the fight against discrimination was being used to discriminate against other  and  to try impose a new required Orthodoxy. See Can Tufts Handle Religious Pluralism? from F.I.R.E. .

A good place to perhaps gets some need empathy or understanding is Prof Rick Garnett article  Confusion About Discrimination at Public Discourse.  I recommend that piece. In fact I recommend his full Law Review on the subject here .

After discussing just and unjust discrimination Prof Garnett states:

The near-universal, if sometimes unreflective, conviction that “discrimination” is wrong means that assertions of religious freedom are sometimes heard as requests that political authorities tolerate a wrong—i.e., “discrimination”—which they would otherwise prohibit, penalize, or discourage. Such requests then raise the question of whether it is “worth it” for the authorities to do so—that is, whether doing so would complicate too much the government’s own projects, or conflict too glaringly with its values. And so, when they are granted, accommodations are regarded all around as concessions. Sometimes, to be sure, we do and probably should think about honoring rights in terms of protecting, or simply tolerating, a liberty to do even the wrong thing (so long as the wrong thing is not too wrong). Our free-speech decisions and doctrines provide many examples, including the Supreme Court’s recent rulings protecting depictions of animal cruelty, hateful funeral protests, and over-the-top-violent video games.

We should not forget, though, that one dimension of the freedom of religion is, sometimes, precisely the freedom to “discriminate,” and that this freedom should be protected not simply because such discrimination is an all-things-considered tolerable wrong—sometimes it is, sometimes it isn’t—but because it is inextricably tied to something good—a human right—and is, sometimes, beyond political authorities’ legitimate reach.

I noted at the beginning I was not thrilled with the blog title that the Editor at U.S. Catholic used.

I am not sure that most people that have religious liberty concerns are looking for an " excuse " to discriminate  against gay people. They serve gay people all the time in the course of many parts of their normal operation of business.

However they still think there is a difference in serving a person of same sex attraction lunch versus participating and using their talents to enhance the celebration of a same sex union.

 I do not suspect bakers are foregoing selling birthday cakes to people that have same sex attraction. Though some might again have problems participating in enhancing the rites of a same sex union with a wedding cake.

In other words I don't think the assumption should be from the start that people are looking for an "excuse" to pile on a certain group of people , but that they have a real life moral quandary in the VOCATION they are in.

 I think a path toward respecting everyone rights and human dignity plus association rights is a distinction between belief versus  status or immutable characteristics . As per previous example it would be indeed be unjust to discriminate against a person because they have same sex attraction. An example being again the restaurant refusing to serve people they think are gay would be unjust. The choice not to participate in a public rite of belief such as same sex marriage that also implies some sort of attempted sexual union one views as illicit would be a different matter.


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