Should Discrimination Ever Be Permitted In the Name of Religious Freedom?

The saga of Indiana’s Religious Freedom Restoration Act has intensified the conversation about religious reasons for discrimination. Are there ever any defensible religiously based reasons for discriminating against a protected class?

One source I consulted on this was the Equal Employment Opportunity Commission guidance on religious discrimination. The following section seems relevant to the matter of competing discrimination claims (religious v. something else):

Thus, a religious organization is not permitted to engage in racially discriminatory hiring by asserting that a tenet of its religious beliefs is not associating with people of other races.  Similarly, a religious organization is not permitted to deny fringe benefits to married women but not to married men by asserting a religiously based view that only men can be the head of a household.

EXAMPLE 7
Sex Discrimination Not Excused

Justina works at Tots Day Care Center.  Tots is run by a religious organization that believes that, while women may work outside of the home if they are single or have their husband’s permission, men should be the heads of their households and the primary providers for their families.  Believing that men shoulder a greater financial responsibility than women, the organization pays female teachers less than male teachers.  The organization’s practice of unequal pay based on sex constitutes unlawful discrimination.[49]

The footnote for the case of Justina goes to the following court decision:

EEOC v. Fremont Christian Sch., 781 F.2d 1362 (9th Cir. 1986) (religious school violated Title VII and the Equal Pay Act when it provided “head of household” health insurance benefits only to single persons and married men).

Think about it. There may be bakers and florists and photographers who still believe miscegenation is wrong for religious reasons. Should a photographer’s religious objection to taking pictures at a wedding of two people of different races be protected? Should the act of refusing to take pictures be protected behavior? The EEOC suggest that the answer would be no.
To the example above. If owners of a daycare are forced to pay equal wages to men and women in violation of their religious beliefs, do the owners suffer religious discrimination? According to EEOC v. Fremont Christian, the Christian school engaged in unlawful discrimination by failing to treat married women the same as married men. Thus, sex discrimination trumps religious freedom.
The open question is does the government’s interest in non-discrimination override religious reasons for such discrimination. If so, what set of facts could lead a court to say certain religious objections trump the government’s interest in equal treatment?

Commentary on Indiana's Religious Freedom Restoration Act – Some Good, Some Not so Good

I have been reading a lot about the Religious Freedom Restoration Acts in Indiana and Arkansas. In addition, I have been reading background materials to the bills. The material is inherently interesting and I want to firm up my thinking on the matter.
In doing so, I have run across helpful and unhelpful op-eds and commentary. This post annotates some of those sources. I plan to post some additional information and commentary through the week.
First, I want to post the articles which appear to me to be accurate and are therefore helpful. I may not agree with every conclusion but as far as I can tell the information is right.
What Will the Indiana Religious Freedom Law Really Do? by Jonathan Adler – The accurate articles I present at this point (I may add more) mostly come from the Volokh Conspiracy, a legal blog published by the Washington Post. I think this is the best blog to follow on this issue. Adler’s article refers the reader to an earlier Volokh post about how the RFRA is supposed to work.

Therefore, the rule now is that there is a religious exemption regime as to federal statutes (under the federal RFRA), and as to state statutes in the about half the states that have state RFRAs or state constitutional exemption regimes. Religious objectors in those jurisdictions may demand exemptions from generally applicable laws that substantially burden the objectors’ practice, which the government must grant unless it can show that applying the laws is the least restrictive means of serving a compelling government interest.

In the Indiana case, bakers who don’t want to bake a gay wedding cake may demand an exemption from a jurisdiction law (some cities in Indiana added sexual orientation to their non-discrimination ordinances) which requires non-discrimination based on sexual orientation or gender identity. Unless the government in the jurisdiction can show a compelling government interest in enforcement of the non-discrimination ordinance as the least restrictive means of enforcing fair and equal treatment.
Those who say they want religious freedom but don’t want discrimination aren’t playing fair with the language. At times, religious freedom to some means discrimination against others.
Indiana to Exempt Civil Rights Protections in Religious Freedom Restoration Act by Dale Carpenter – Carpenter breaks down how Indiana’s amendments to the RFRA will work. Carpenter wrote:

Overall, if it passes and is signed, the amendment is a significant carve-out from the state RFRA, the first recognition by the state that sexual orientation and gender identity are matters of legitimate anti-discrimination concern, and an important first step toward a comprehensive anti-discrimination law in the state.

Common sense, a little respect about now might calm the religious waters by Barry Hankins – Hankins, an historian at Baylor University gives a good background on the RFRA controversy. In the end, the RFRA doesn’t guarantee discrimination against gays on religious grounds will prevail in court. According to Hankins:

It’s worth noting that New Mexico has an RFRA and a Human Rights Act that protects gay people. When a photographer there tried to use RFRA to refuse service at a gay commitment ceremony, she lost. The government showed successfully in court that there existed a compelling interest for the state’s anti-discrimination protections. That case has a lot to do with why Arizona, Arkansas and Indiana have now passed their own RFRAs.

Supporters in those states hope their RFRAs will be tougher than New Mexico’s. But be clear, RFRA laws do not give people the right to discriminate against gays. Rather, they say in part that if someone violates an anti-discrimination law on religious grounds, in a court proceeding the burden of proof will fall on the government to show a compelling interest for why the law should trump religious freedom.

The following articles seem less than helpful because they are either inaccurate or make conclusions which can’t be supported by the facts presented.

Intellectual Dishonesty is Winning Every Time by David Carlin – Dr. Carlin is depressed because things aren’t going his way. Carlin accuses the left of intellectual dishonesty when he engages in some of his own. Carlin said that the RFRA

…simply allowed religious believers not to be coerced by government into doing things forbidden by their conscience. Nothing more. Just the way we have always allowed Quakers and other conscientious objectors to refuse to participate in war. It wasn’t that we agreed with the pacifists; we did not. But we used to think that an honest conscience was such a precious thing that it should be respected even when erroneous.

Legal history is filled with decisions where an honest conscience has not been respected if the result is discrimination against a protected class. In some cases (the Quakers, the Amish), conscience has been respected, however in others (leaders of many Southern churches, business owners who want to pay women less than men) conscience has given way to a government interest in fair treatment of all citizens.
RFRA Not Like Jim Crow Laws at All by Jonah Goldberg – Goldberg may be correct that the RFRA is not like Jim Crow but he doesn’t help much by his simplified explanation of Jim Crow laws.  Goldberg argues that segregation laws were primarily economic constructions enforced by the government to forbid tolerant business owners from desegregating. He gives lip service to the pervasive segregation of the laws but then summarizes the situation:

Comparing RFRA laws to Jim Crow laws turns all of this on its head. Jim Crow laws forced tolerant businesses to be intolerant of blacks. No one, anywhere, is suggesting that people who want to do business with same-sex couples should be barred from doing so. The argument is whether the government should force a few ardent Christians (or Jews or Muslims) to participate in a ceremony that violates their faith.

While I think the RFRA law is not like a Jim Crow law, I don’t think Goldberg helps himself or his argument by misleading people about the pervasive nature of segregation in the post-Civil War South.
 
 

Full Text of Amendment to Indiana's Religious Freedom and Restoration Act Being Debated Today

Today, the Indiana Legislature is debating an amendment which would provide significant protections to sexual minorities in Indiana. It would be ironic if the passage of the RFRA led to the achievement of a legislative goal pursued by GLBT activists for a long time.
You can click the link to go to the Indiana legislature’s website to read the amendment, and it is provided here below.

CONFERENCE COMMITTEE REPORT
DIGEST FOR ESB 50
Citations Affected: IC 34-13-9.
Synopsis: Antidiscrimination safeguards. Indicates that the law related to adjudicating a claim or defense that a state or local law, ordinance, or other action substantially burdens the exercise of religion of a person: (1) does not authorize a provider to refuse to offer or provide services, facilities, use of public accommodations, goods, employment, or housing to any member or members of the general public; (2) does not establish a defense to a civil action or criminal prosecution for refusal by a provider to offer or provide services, facilities, use of public accommodations, goods, employment, or housing to any member or members of the general public; and (3) does not negate any rights available under the Constitution of the State of Indiana. Defines the term provider. (This conference committee report deletes the provisions concerning elections in SB 50, as amended by the house, and inserts provisions related to the law governing adjudicating a claim or defense that a state or local law, ordinance, or other action substantially burdens the exercise of religion of a person.)
Effective: July 1, 2015.
CONFERENCE COMMITTEE REPORT
MR. SPEAKER:
Your Conference Committee appointed to confer with a like committee from the Senate upon Engrossed House Amendments to Engrossed Senate Bill No. 50 respectfully reports that
said two committees have conferred and agreed as follows to wit: that the Senate recede from its dissent from all House amendments and that the Senate now concur in all House amendments to the bill and that the bill be further amended as follows:
1 Delete the title and insert the following:
2 A BILL FOR AN ACT to amend the Indiana Code concerning
3 judicial and administrative proceedings.
4 Delete everything after the enacting clause and insert the following:
5 SECTION 1. IC 34-13-9-0.7 IS ADDED TO THE INDIANA CODE
6 AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY
7 1, 2015]: Sec. 0.7. This chapter does not:
8 (1) authorize a provider to refuse to offer or provide services,
9 facilities, use of public accommodations, goods, employment,
10 or housing to any member or members of the general public
11 on the basis of race, color, religion, ancestry, age, national
12 origin, disability, sex, sexual orientation, gender identity, or
13 United States military service;
14 (2) establish a defense to a civil action or criminal prosecution
15 for refusal by a provider to offer or provide services, facilities,
16 use of public accommodations, goods, employment, or housing
17 to any member or members of the general public on the basis
18 of race, color, religion, ancestry, age, national origin,
19 disability, sex, sexual orientation, gender identity, or United
20 States military service; or
21 (3) negate any rights available under the Constitution of the
CC005005/DI 51 2015
2
1 State of Indiana.
2 SECTION 2. IC 34-13-9-7.5 IS ADDED TO THE INDIANA CODE
3 AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY
4 1, 2015]: Sec. 7.5. As used in this chapter, “provider” means one (1)
5 or more individuals, partnerships, associations, organizations,
6 limited liability companies, corporations, and other organized
7 groups of persons. The term does not include:
8 (1) A church or other nonprofit religious organization or
9 society, including an affiliated school, that is exempt from
10 federal income taxation under 26 U.S.C. 501(a), as amended
11 (excluding any activity that generates unrelated business
12 taxable income (as defined in 26 U.S.C. 512, as amended)).
13 (2) A rabbi, priest, preacher, minister, pastor, or designee of
14 a church or other nonprofit religious organization or society
15 when the individual is engaged in a religious or affiliated
16 educational function of the church or other nonprofit
17 religious organization or society.
(Reference is to ESB 50 as reprinted March 17, 2015.)
CC005005/DI 51 2015
Conference Committee Report
on
Engrossed Senate Bill 50
Signed by:
____________________________ ____________________________
Senator Young R Michael Representative Frizzell
Chairperson
____________________________ ____________________________
Senator Broden Representative Lawson L
Senate Conferees House Conferees
CC005005/DI 51 2015

This amendment makes sexual orientation and gender identity categories on par with race and religion. However, the facts of an alleged incident of discrimination would still be a matter for a court to decide. Because, the RFRA requires the government to show a compelling state interest to compel a person to take the pictures, it isn’t clear to me that a photographer who doesn’t believe gay marriage is right would have to provide services. However, I will say that the existence of a civil rights law that includes sexual orientation will make it more likely that a compelling state interest would win in court to require all public businesses to serve all clients.
For an article that I believe accurately describes the situation, see Dale Carpenter at the Volokh Conspiracy. Carpenter’s take on the amendment is generally favorable.
UPDATE: Legislators in Indiana have agreed to vote on the proposed amendment with the expectation that it will pass.
 

ECFA Statement: Faith Christian Church Still Under Investigation

The Washington Post’s Susan Svrluga posted a statement from the Evangelical Council for Financial Accountability about their ongoing examination of Faith Christian Church.

ECFA evaluates and accredits ministry organizations, including churches, only with regard to their compliance with our Seven Standards of Responsible Stewardship. Occasionally we are presented with complaints or accusations about a member organization and while we do not automatically dismiss such concerns, the scope of our investigative authority and purview is, according to our bylaws, necessarily limited to issues directly related to these seven standards. With regard to Faith Christian Church, we are working to ascertain if, in fact, any complaint expressed from former church members falls within the scope of our seven standards.

As I reported recently, ECFA executive vice president John C. Van Drunen has interviewed at least one former member of Faith Christian Church and expressed an intention to interview those who signed a letter of concern to the ECFA.  Given what I have heard from former members, it seems inconceivable that the ECFA would find Faith Christian Church in compliance.
For instance, the first standard of responsible stewardship ends with this statement:

Summary. A member’s commitment to the evangelical Christian faith is the cornerstone of ECFA membership. The word “evangelical” connotes more than mere subscription to a doctrinal statement. It includes commitment to an ethical and moral lifestyle that seeks to conform to a biblical norm. It is the lifestyle envisioned in  ECFA’s own statement of faith: “We believe in the present ministry of the Holy Spirit, by whose indwelling the Christian is enabled to live agodly life” (emphasis added).

Both Christians and secular society often do not distinguish between financial and non-financial issues. A moral scandal would be just as devastating as a financial scandal to the credibility of the organization.

Faith Christian Church has been accused of encouraging the abuse of infants. Multiple remorseful parents and witnesses have come forward with public statements to this effect. If the ECFA is not investigating this aspect of the situation, then they are not adhering to the spirit of this guideline.  There is no universe where the child rearing practices described by former members should be tolerated in an ECFA member church.

In the eyes of many Mars Hill Church former members, the ECFA’s reputation was tarnished by their lack of transparency surrounding financial and leadership issues at the former mega-church. How the ECFA handles this situation will be  a major test of their credibility.

Mark Driscoll's Website Gets a Makeover; Learning for Living Becomes Mark Driscoll Ministries

UPDATE: See the update below…
The comeback appears to be percolating.
Mark Driscoll’s “admin” sent out an email today with news of a revamped website and a new “application-pending registered 501(c)3 non-profit organization” — Mark Driscoll Ministries. Mark Driscoll Ministries has the same address as Living for Learning, the other “application-pending registered 501(c)3 non-profit organization” described on the former version of his website. The new Mark Driscoll Ministries has the same address as Living for Learning – 23632 HWY 99, Suite F 517 Edmonds, WA 98026, which is a UPS store. Possibly Driscoll changed the name because Living for Learning was trademarked.
Driscoll says he will be speaking at the upcoming Hillsong Conferences. Recall that Brian Houston released a statement that Driscoll would not be speaking but rather being interviewed along with his wife Grace.
Driscoll is also working on new material.
Driscoll’s email is below:

It Is Finished!: Jesus’ Death and Resurrection

Hi NNNNN,

We want to say thank you for your prayers

We want to sincerely thank those who have been praying for and supporting us as we work to get Pastor Mark Driscoll’s past and future Bible teaching online.

In this season of Good Friday and Easter Sunday, we are grateful to make this new web site available. It includes the free E-book “It Is Finished!: Jesus’ Death and Resurrection”. The content for this e-book was originally published as chapters 8-9 in the book Doctrine: What Christians Should Believe written by Mark Driscoll and Gerry Breshears.

  • If you want the free E-book click here.
  • If you want us to notify you of new Bible teaching click here.
  • If you want to support the ministry click here.

We are praying for you

We pray that Jesus would encourage you in His love during this season, and give you opportunities to tell others about the good news of His death and resurrection for our salvation. In the meantime, here’s what we will have for you soon, Lord willing:

  • past sermon videos coming back online.
  • past sermon series that have been offline in recent years returning.
  • NEW Jesus-centered Bible teaching from Pastor Mark.
MarkDriscoll.org Admin

 Makes you wonder who the admin is.

UPDATE: A couple of readers brought to my attention that Driscoll’s website is not secure for donations. When I went to the support page just now (https:markdriscoll.org/support attempting to confirm a secure connection), this is what happened:

DriscollsnewwebpageSSL

While I am still looking into the security of Driscoll’s website, those who might want to donate to Driscoll’s ministry (and I am not advocating this) could use this link which appears to be secure. This information came from a reader in the comments section.