The Right to Discriminate: Why Religion Is Not Special with Regard to Secular Employment

By Nathalie Schmidt.

Published by The International Journal of Religion and Spirituality in Society

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It is frequently argued that LGBT anti-discrimination laws should include exemptions for religious organizations. The purpose of this contribution is to understand whether religious beliefs are indeed so unique that they should override the state’s interest in enforcing labor laws, including the right to non-discrimination. After briefly defining the two judicial principles that ground religious exemptions from general laws in the United States, I explain the twofold problem of discrimination they imply. I then review the most convincing justification for the special treatment of religion, namely the argument that religious beliefs are special because they are immutable in two senses: they are not a choice and they involve immutable duties to a transcendent authority. Assuming, for the sake of argument, that religion is ‘immutable’ in this particular sense, I then assess whether this underlying rationale for the special treatment of religion is compatible with liberal democratic principles, in particular the legal principle of non-discrimination. I argue that this is not the case. When it comes to secular employment positions, the state has no convincing reason for accommodating religious employers’ objection to homosexuality while forcing non-religious employers to abide by non-discrimination rules regardless of their sincerely held beliefs about this moral issue. This means that anti-discrimination provisions have to apply to all or to none.

Keywords: Religious Liberty, Freedom of Conscience, Homosexuality, Discrimination

The International Journal of Religion and Spirituality in Society, Volume 4, Issue 4, March 2015, pp.1-13. Article: Print (Spiral Bound). Article: Electronic (PDF File; 535.858KB).

Nathalie Schmidt

PhD candidate, Political Science (major: Political Theory), Columbia University / Sciences Po Paris (Double PhD), New York City, New York, USA