Religious Accomodation and Special Rights Rhetoric

Perhaps the most ubiquitous argument we hear from the religious right when fighting against any policy that would provide legal protection on the basis of sexual orientation is that we shouldn't give "special rights" to homosexuals. It's never explained what exactly a "special right" is, but in order to have any coherent meaning as an argument, the phrase must mean something like "a right that is not available generally, but only protected on the basis of sexual orientation." But it is trivially easy to demonstrate that the opposite is true, that in fact the religious right is not fighting against "special rights", but is fighting to deny to gays the same protections that they already have by virtue of their religious belief.

Eugene Volokh has an interesting essay on his blog about Federal anti-discrimination laws and whether one could construct a religious accomodation argument that would protect sexual orientation as well. I'm doubtful as to his proposal in that regard, but I think his description of current law provides the necessary information to establish the argument mentioned above. He writes:

The law does, however, go beyond simply banning religious discrimination -- it also imposes on employers a duty of "religious accommodation." Even when the employer has a rule that is facially religious-neutral, and not designed in order to discriminate based on religion, it must give religious exemptions from that neutral rule to religious objectors, unless the exemptions would pose an "undue hardship." So, for instance, if an employer has a flat "no headgear" rule, designed with no desire to discriminate based on religion, it must exempt people who feel a religious obligation, or likely even a religious motivation, for wearing a yarmulke or a turban or some other religious headgear -- again, unless the exemption would cause the employer undue hardship...

This duty of religious accommodation applies even to job-related conduct (such as wearing religious headgear or religious jewelry, or in some cases -- where no undue burden on the employer can be shown -- to taking religious holidays off, not participating in performing abortions, and so on). It would even more clearly apply to off-the-job conduct: If an employer, for instance, disapproves of the killing of animals, and has a policy of firing employees who personally participate in the killing of animals even off the job, he must exempt those who are involved in religious sacrifices. (The "undue hardship" threshold is generally pretty low, but mere personal disapproval by the employer of the employee's behavior would not qualify.)

What's more, to qualify for the exemption (again, assuming no undue hardship can be shown by the employer), the employee must merely show that his religious belief is sincere. He needn't show that it's reasonable, that it's mandated by scriptural text, or that it's shared by all or even most of his coreligionists. It is also probably enough to show that the belief is religiously motivated, even if not religiously compelled.

And it goes further than that. Not only must an individual's religious beliefs be accomodated by private employers, religious beliefs and practices can also make one exempt from generally applicable laws. The Religious Freedom Restoration Act mandates that if a generally applicable law - the Controlled Substances Act, for example - places an undue burden on someone's free exercise of religion, they must be exempted from that law unless the government can show that the law is the least restrictive means of achieving a compelling governmental interest.

The result of all of this is to establish in many ways a 2-tier system of legal application. For example, in Gonzales v Centro Espirita earlier this year, the Supreme Court ruled that the Controlled Substances Act could not be applied to a group of American Indians when using a hallucinogenic tea as part of their religious ceremonies. That is, you and I couldn't use this same substance just because we like the effects it gives, but others can use it as long as they do so for religious reasons. Yet in last year's Gonzales v Raich ruling, the Court ruled that no exception could be given from the Controlled Substances Act for the medical use of marijuana, even though an overwhelming majority of California's citizens voted to make such use legal in that state.

By any coherent measure, then, religious beliefs are used as the basis for a wide range of "special rights" that are not available to non-religious beliefs. Gay rights groups have never asked for such special accomodations, only for the same basic protections already provided on the basis of religion, race and national origin. Yet those who benefit from what truly are special rights not given to anyone else condemn even such minimal demands as special rights that should not be given.

This should obviously put an end to the special rights rhetoric of the right, but it won't. No, they have a perfectly good catchphrase that works. It gives a superficial reason to object to giving protections to gays, superficial reasons that are never considered logically. That's the beauty of most catchphrases of this sort - a moment's consideration of the logical meaning and implications of the phrase strips off the veneer and reveals the emptiness underneath. But they never go away because those who use them are either intentionally trying to skirt around the truth, or have no interest in thinking through their beliefs. Thus the old saying that most people think that they're thinking when they're really only rearranging their prejudices.