I have been reminded of this episode recently by a couple of recent Canadian human rights controversies and also a bill before the Kansas state legislature, purportedly aimed at protecting the religious freedom of people to discriminate against same-sex couples. From the bill itself:
Now, I should acknowledge that the bill is badly drafted, in that it seems to say that one can withhold ANY services, when the stated intent of the bill's sponsor was that it was really meant only to apply to services etc. related to the marriage or the celebration of marriage. However, the modifying clause comes after the semicolon, which kind of implies that the modifying clause is only meant to apply to employment or employment benefits. Let's give them the benefit of the doubt, though, and suppose they really only meant to protect wedding photographers, caterers, and justices of the peace from having to be exposed to Teh Gay. (And who can blame them for being afraid of that? Certainly not me!) Surely they didn't mean to allow paramedics to refuse to provide first aid at an accident scene where both occupants of a vehicle with a "JUST MARRIED" sign were female.Section 1. Notwithstanding any other provision of law, no individual or religious entity shall be required by any governmental entity to do any of the following, if it would be contrary to the sincerely held religious beliefs of the individual or religious entity regarding sex or gender:(a) Provide any services, accommodations, advantages, facilities, goods, or privileges; provide counseling, adoption, foster care and other social services; or provide employment or employment benefits, related to, or related to the celebration of, any marriage, domestic partnership, civil union or similar arrangement;(b) solemnize any marriage, domestic partnership, civil union or similar arrangement; or(c) treat any marriage, domestic partnership, civil union or similar arrangement as valid.
And also, while the motive of the bill's authors almost certainly was to grant an exception to that subset of Christians who oppose same sex marriage, obviously specifying Christian beliefs would run afoul of the establishment clause of the U.S. Constitution, so no no no no of COURSE it isn't only about Christians. It equally protects Jews, Muslims and Scientologists from being forced to tolerate homosexuality, as well. In principle, it could also protect religious polygamists from being forced to recognize monogamous marriages, or, I don't know, latter-day followers of the Sacred Band of Thebes from having to recognize heterosexual marriages, even.
Fine, it's a silly law on so many levels, but the particular bit of silliness I want to address is this: why does it have to be a religious belief that justifies violating what would otherwise be a legal duty? It isn't just the Kansas bill. In the U.S., various employers are seeking exemptions from having provide health insurance if such insurance covers contraception, on the basis that contraception is against the employers' religion. In Canada, it's well-established that employers must make "reasonable accommodation" for the religious beliefs of their employers, dating back to a case involving a Seventh Day Adventist wanting shifts that didn't involve working on the Sabbath. Last month there was a big controversy about York University ordering a professor to accommodate a Muslim student's wish not to have to work on a group project with female classmates.
I have no problem allowing for exemptions from legal obligations for various reasons, because it is unjust to impose obligations without consideration of the circumstances, but when considering the circumstances, why should religious belief be treated differently from other beliefs? Is it okay for a Christian to refuse to cater a gay wedding, but not for an agnostic?
I suppose one possible rationale for extending special protection to religious belief is that, at least in certain forms of Judeo-Christian belief, there is an overriding extenuating coercion involved. That is, however much one might like to obey the law, one faces infinitely more severe consequences for disobeying divine commands. This is the same rationale for why the courts had trouble with allowing atheists as witnesses; they worried that atheists, not fearing any divine retribution for perjury, would lie with impunity.
But upon closer inspection, this doesn't really support making a special distinction for religious beliefs. A more robust approach would be to apply a general principle that evaluates the reasonableness of the decision under the circumstances, sort of like we do when someone pleads self-defense or duress. We try not to punish people for things they do when they have no realistic alternative. And the belief that they face some much worse fate for obeying the law than for breaking it does not even have to be objectively true; it just has to be reasonable.
I'm not choosing this reasonableness standard as a sly way of ruling out religious beliefs; it can be reasonable to believe what everyone around you has taught you since birth, however ridiculous others outside of the tradition might consider it. What I'm objecting to, rather, is the special exemption we give beliefs that call themselves religious from the standards of reasonableness we expect from everyone else.
In fact, I'm not even demanding that everyone should be held to a standard of reasonableness. There are all sorts of things we can be unreasonable about, but which are our own business. I, for example, utterly refuse to eat mushrooms. There's no rational reason I can cite for my mycophobia; I'm not allergic to them, and I can't even say I just don't like them since even as a child I refused to even try one. I just don't ever want to eat a mushroom, to the point that I've developed a strong personal taboo about it.
But my personal refusal to eat mushrooms is my choice, regardless of its reasons or lack thereof, and I expect my autonomy in this area to be respected, just as we respect the right of a Jew or Muslim to abstain from pork. The only difference is that I do not believe some supernatural being has commanded me to avoid fungus. I take no position on the reasonableness of avoiding pork, because it's none of my business why someone else feels obliged to do something.
And that should be our general principle for law, to respect individual autonomy as much as possible. We ought to try to schedule work shifts to accommodate people who want a particular day of the week off, regardless of whether it's to attend church or to take their kids to the museum, not because churches or museums are important but because individuals should be treated with respect, as "ends in themselves" as Kant put it.
Yes, there will be times when we need to impose an enforceable legal duty that overrides the right to personal autonomy, but we should limit such impositions to where they are necessary to protect human safety and autonomy. We have laws against murder, for example, because the loss of freedom to murder is less than the loss of freedom to do everything else that being murdered prevents. It doesn't matter why one might want to murder someone, even if your god demands human sacrifice; our law-abiding society is still entitled to prevent that. That someone's reasons are "religious" should give them no special weight.
Sometimes, this means people are going to be caught in difficult moral dilemmas. Their religion demands what the law prohibits, or vice versa. I'm sympathetic to that plight, of course. But it's not a special problem that only the devoutly religious face. Atheist and agnostics, too, are often caught between the demands of conscience and those of law. The hard truth of this world is that morality is often very difficult, and there isn't always an easy answer. That's the curse of free will. Is it unfair that Christians may have to choose between defying their god and defying the state? Sure. In exactly the same way it's unfair to everyone else that the law sometimes demands things of us that we don't want to give. The demands of conscience should not be respected more just because they're given the name of religion.
Neither, though, should religious reasons be treated with less respect, which is the mistake the Quebec secular charter makes in trying to ban public employees from wearing religious symbols. Identifying symbols as "religious" in order to ban them is just as silly as doing so in order to promote them, and just as much an affront to human autonomy. It should make no difference why someone wants to wear a crucifix or a hijab or an ankh or a swastika; their decision to wear a symbol or not should only be reviewable if it is demonstrably harms a legitimate public interest.
There might well be good reasons for prohibiting or requiring certain symbols. Government employees are sometimes required to wear badges or uniforms, which perform a valid function in identifying them to the public. They may also be obliged not to wear certain symbols, as the swastika example demonstrates. It doesn't matter why you might want to wear a swastika, and maybe you have perfectly valid personal reasons, but wearing one will almost certainly be interpreted as a hostile sign by most members of the public, however kind and tolerant your actual intent. Likewise, the fact that you were joking or being ironic when you called in a bomb threat isn't a defense agains the criminal charges that will rightly follow.
But the fact that someone's reasons for wanting to do something are religious should be completely irrelevant to the decision to prohibit or require it.
So I'm not advocating the abolishment of religious belief. Rather, I'm just saying that we should abandon "religion" as any kind of special category of belief. With respect to informing human choice, the belief that there's an infinitely powerful and morally authoritative God who really hates it when men marry men is no more and no less privileged than the belief that no such God exists.