This post is adapted from a speech originally given at a Yale Political Union debate on the topic "Resolved: Religious Organizations Should Abide by Non-Discrimination Law." Other speeches from the debate can be found here.
As we begin, I would like to remind the body that we are considering a question of the separation of Church and State, not of Church and Law. Religious institutions do not possess a blanket exemption from the laws of the United States. We do not tolerate ritualized murder or rape simply because the organization perpetrating these crimes claims to have a direct line to god.
So the question before us is not whether churches are subject to regulation, but whether discrimination is harmful enough to trump concerns that these laws may represent a burden on religious organizations. I believe that discrimination by religious organizations certainly harms the individual denied a job or a promotion, but the danger posed by this kind of discrimination goes far beyond the harm done to a single person. This kind of discrimination harms our democracy because it whittles away at what it means to be a citizen.
Consider what antidiscrimination laws actually do. Simply put, these laws say that, given that a person meets the relevant qualifications for a job, they may not be denied the job based on attributes that are tangential to their qualifications, such as hair color, eye color, or skin color. Antidiscrimination laws affirm the fact that race, sexual orientation, gender, etc are not relevant to citizenship and to membership in our democratic society.
Pervasive discrimination dehumanizes the type of people it discriminates. When a woman is denied a job working in a scientific laboratory because she is a woman, the message being sent is that her existence as a woman is far more relevant than her ability to culture cells. If her gender is acknowledged to be enough of a disability to bar her from scientific work, it is not unreasonable to think that gender might be enough of a disability to justify barring her from voting or serving on juries.
Discrimination anywhere strengthens discrimination everywhere, and the effects of discrimination by religious organization are particularly pernicious. The respect accorded to religious organizations in society allows them to do far more to legitimize the prejudices that fuel discrimination than equivalent discrimination in a secular workplace.
Given the harm done to democracy when religious organizations discriminate, the only possible reason to exempt religious organizations from antidiscrimination laws is if complying with these laws would represent a crippling burden on the organization. This seems to be the position of the opposite side of this debate, who seem to believe the logical consequence of these laws will be the ordination of lesbian priests at gunpoint.
This argument has no merit. As I previously stated, antidiscrimination law simply requires that qualified candidates not be denied employment based on qualities that are unrelated to the requirements of the job.
Even for religious employment, job qualifications can be verified. If the Catholic Church refuses to hire a lesbian for a secretarial position, her typing speed can be compared to the speed required for the job. However, if the Church turns away the lesbian on the grounds that she cannot change wine into blood, no government or court could assess the percent of blood in her wine and determine whether it met some minimal standard for transubstantiation.
Essentially, religious functions will remain protected. Where there is ambiguity about what the qualifications for a job are, and how dependent they are on religious concerns, these ambiguities will be settled on a case by case basis, in front of a judge. As in all discrimination cases, the burden of proof rest on the discriminator, to prove that their criteria are relevant.
If we distort this framework for religious organizations it privileges and elevates discrimination and prejudice. We would, in the name of separating church and state, give the church license to harm our state and our conception of citizenship. Despite their claims, churches have no god-given right to discriminate and damage our democracy. Our laws should reflect that fact.