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Should Religious Organizations Abide by Non Discrimination Laws?

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On September 15th, 2009, Donna Lieberman, the executive director of the New York Civil Liberties Union spoke at a debate at the Yale Political Union in favor of the resolution "Religious Organizations Should Abide by Non-Discrimination Laws." After two hours of debate, the resolution passed by a vote of 32 in favor, 23 against, and two abstaining. Full minutes of debate can be found at here. Below are the first two student speeches on the topic:

Ramon Gonzalez, a sophomore in the Independent Party, gave the first speech in the negative.

Discrimination. The very word gives rise to a curling sensitivity and discomfort, but in part this reaction arises from a failure to discriminate; our societal objection to discrimination is not against the practice itself (which only means choosing - for example, my indefensible decision to wear this tan blazer) but to "improper" types or motivations for discrimination - race, gender, or religion - that harm the guaranteed expression of self - our heritage, our beliefs, our bodies. The purpose then of non-discrimination laws - laws that prohibit discrimination in employment or membership on the basis of race, religion, sex, or national origin - is to distinguish inappropriate/destructive discrimination while allowing proper discrimination on factors relevant to performance. The leveling of non-discrimination laws must never become so overpowering that they uproot the small and varied gardens of association in our country to send us out to a barren and flat wasteland. But here's the manna: I will argue that the right to discriminate on grounds that would be inappropriate and pernicious in other contexts is in fact central and inseparable to the right to free religious practice.

I believe religious organizations should be able to discriminate on religious and all other grounds in determination of membership and work at their institutions. We talk about religious organizations as communities of believers, and they are just that and they must be able to preserve both qualities: the sense of community and the members who make it up. Religious faith, sexual orientation, gender - all these questions may be touched upon by doctrine and faith; religious belief for many partly involves preserving their designated roles. It is perhaps an unfortunate legacy of our Protestant founding stock that religious belief is generally framed as a right of the individual to offer up their prayers to god on sad, silent nights; but the truth is that for many belief only exists, or at least more fully exists, through a community of fellow believers. Does that extend to the lowly janitor at the parochial school? I would say so, and it is particular wisdom of Christ that he is not lowly but destined to inherit the kingdom of heaven and therefore part of the community. To the motivating case behind today's debate, a teacher at a catholic school who was fired for pregnancy outside of marriage, there is a clear educational equality at play here based on the efficacy of conveying the school's religious message. It may be tragic but that does not mean that it isn't true that an unfaithful man who speaks against abstinence does not bear the protrusion of his hypocrisy under his shirt.

Religious organizations have a greater claim to discriminate because at heart religious association is a choice - we call it a leap of faith precisely because there is no automatic bridge; whereas our parents, race, and gender are plopped down upon us. To deny religious organizations the freedom to select their membership is to undermine the very act of voluntary belief that constitutes true faith. Lord knows religious choices are not easy - there have been many dark nights of the soul - but conversion is possible in a way that other protected categories don't allow.

Religious organizations and faith are beholden to beliefs that always exist in particular moments but in their vision transcend time to commune with the divine. The rules for membership and position represent part of that doctrine and altering them strikes at the core of the religious organization in a way that it doesn't for other groups: if we force that all-white country club to admit blacks, well hey the pool will still work; with a woman priest the wine will no longer become blood.

At the same time, religious groups don't have unlimited rights in the practice of their religion - you can't march nude through New Haven even if you believe in Pan, though maybe you can if you worship at Toad's.

Similarly, not every group tenuously affiliated with a religious practice should be exempt, but haggling over lines misses that there is one and it delineates a sphere of religious exemption from all non-discrimination laws. The real crime of the Salvation Army example is not their policies but the city's abdication of providing social services and its exclusive contract to the Salvation Army.

Furthermore, that sphere cannot be accommodated by the pinpricks of legislative and judicial exemption after the fact. First, because freedom to practice your religion - which means the freedom to practice it with those you see fit and not with those the congregation sees as unfit - is a right protected in the First Amendment and religious groups should not have to appeal each time they wish to exercise it; second, the legislative and judicial process are particularly bad at judging the claims of religious organizations who wish to "discriminate," because the religious reasons for their claimed exemption only appear legitimate from within the faith tradition of the community.

Faith is free-floating but always rooted in doctrine; at its most basic religious organizations must have the right to determine their membership. We may not know who is saved or damned, but that shouldn't allow us to stop religious organizations from trying - through prayer, difficulty, and failure - to find and hold to these lines.

Leah Anthony Libresco, a junior in the Party of the Right, rebutted Mr. Gonzalez. Her usual posts on the Huffington Post 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 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.

More information on the Yale Political Union and its debates can be found at www.yale.edu/ypu.