Part II | Outline

Category C | Discrimination

Topic 13 | Conviction is not discrimination

Adhering to one’s religious convictions usually does not involve unlawful discrimination against others. One of the most frequent criticisms of religious freedom is that it is a claim for the right to discriminate against others. This is usually a distortion of religious belief and practice and often rests on a misguided oversimplification about what constitutes unlawful discrimination.

Religious qualifications vs. discriminatory animus  

• Religious qualifications are often used to evaluate membership or good standing within a religious community, often for purposes of conferring certain benefits (e.g., membership, employment, ordination, or marriage). These qualifications are based on the doctrines, beliefs, and customs of a particular faith group; they are intended to maintain the integrity of, and adherence to, the teachings of that particular religion.

  • Criticism. Many critics regard religious qualifications as an excuse to discriminate and an expression of animus.
    

  • Responses  

    • The key distinction between religious qualifications and animus is the purpose or intent. Religious qualifications are motivated by a legitimate doctrinal purpose, based on members’ voluntary association and adherence to group standards, and are a lawful means of overseeing internal administrative decisions. In contrast, animus is motivated by discriminatory intent, based on immutable characteristics rather than voluntary adherence to certain beliefs, and is unlawful.
    • U.S. law includes exemptions that allow religious organizations to base employment and other benefits on religious qualifications. An exemption recognized by common law is the “ministerial exception.”

Traditional religious practices vs. discriminatory animus  

• Many religious traditions and doctrines have been established over centuries, long before the development of modern human rights and nondiscrimination principles. Individuals’ adherence to religious traditions is a manifestation of their deeply held beliefs, values, and spiritual convictions.

  • Criticism. Perceived conflicts between traditional religious teachings and more recently recognized human or civil rights may arise, especially when religious beliefs or practices are used to exclude certain individuals or groups. From the perspective of a non- adherent, it may be difficult to understand why religious organizations seemingly confer benefits “discriminately,” only on their own members.

  • Responses

    • When religious communities confer benefits on their members (e.g., the right to marry within a religious covenant, fellowship and sense of community, or expressive goods and services that promote a shared ideological belief) they exercise the right of religious organizations to autonomy—to self-determine their beliefs, practices, and standards of membership.
    • Branding adherence to tradition as discrimination can oversimplify the complex reality that religious traditions lose their essential intersubjective meaning when stretched or broadened to include everyone, potentially diluting the unique aspects of each religious community.

Creative integrity and compelled speech vs. discriminatory animus

• Some small business owners have asserted the right to refuse to provide expressive services and goods that they consider to contravene their religious beliefs. They claim the right to do so under their right to free exercise of religion or right to freedom of speech.

  • Criticism. Many view refusal of service premised on a religious objection as a violation of antidiscrimination public accommodation or laws and as an excuse to unlawfully discriminate based on animus.

  • Response

    • The U.S. Supreme Court has recognized the constitutional right of small business owners to refuse to provide expressive products or services based on religious objections. The Court held that, under the constitutional right to freedom of speech, government cannot compel artists to use their creative and artistic forms of expression in ways that violate their conscience.