The New Jersey state Supreme Court has ruled that a Catholic school was within its rights to fire an unmarried art teacher when she became pregnant. The Court permitted the firing even though the state has a very specific Law Against Discrimination, which explicitly prohibits employers from firing someone over marital status or pregnancy.
So if the state passed a law saying that employers can’t fire an unmarried woman for becoming pregnant, but the school did fire the woman for that, why did the Court side with the school and not the teacher? Because the law has a giant loophole written into it, which says that Catholics are allowed to discriminate, because they are religious. The laws that bind other people do not bind Catholics, because they believe God told them to discriminate against pregnant women, and that is seen as a good reason to let them out of following the law.
This is how the Court reasoned: The New Jersey legislature wrote a religious exception into its anti-discrimination law. That exception says that “it shall not be an unlawful employment practice…for a religious association or organization” to follow “the tenets of its religion in establishing and utilizing criteria for employment of an employee.” St. Theresa’s, the school in question, had a “Code of Ethics” that requires workers to “conduct themselves in a manner that is consistent with the discipline, norms[,] and teachings of the Catholic Church.” When Victoria Crisitello, the teacher, told her boss she was pregnant, she was informed she had “violated the Code of Ethics by engaging in premarital sex and thus could not remain on St. Theresa’s staff.” (Strange for Christians to conclude that just because someone is pregnant, they have definitely had sex, but let’s leave that aside.) The Court found that “it is uncontroverted that St. Theresa’s followed the religious tenets of the Catholic Church in terminating Crisitello.” She was apparently fired because she would not “abide by the principles of the Catholic faith,” and not “for her pregnancy or marital status, per se.”
This is a bunch of dishonest sophistry. It’s like saying “We didn’t decline your promotion because you are Black, we declined your promotion because you violated the tenets of our faith, one of which is: God says white people are supposed to be in upper management.” The Catholic Church’s official rule is that you should not be an unmarried pregnant woman, but if they fire you when you become pregnant, this is not discrimination against an unmarried pregnant woman, it’s merely punishment for not following their rules.
The New Jersey Supreme Court’s interpretation of the law was not necessarily wrong, because the “Law Against Discrimination” does exempt religious people from having to follow all of its provisions. But the Court should have ruled that this exemption was unconstitutional, because it violates the 14th Amendment’s guarantee of equal protection of the laws. Not everyone is equally protected under the law, because it is permitting discrimination against those with the misfortune to have a boss who believes they should be exempt from the law.
That’s all a religious exemption is at the end of the day: A rule that some people are allowed to violate laws because they believe they ought to be allowed to. Or rather, because they believe God told them they shouldn’t have to follow the law, and should get to discriminate against people. If I were an employer in New Jersey, I would have to comply with the Law Against Discrimination, and if I told a worker she was fired because I think pregnancy is gross, she would sue me, and she would win. But I am an atheist, so I don’t get a special loophole. If I was deeply religious, and told her that my faith required me to fire her, she’d be unemployed and have no remedy.
Of course, religious people say that this is not an unfair double standard, but merely the enforcement of the First Amendment’s guarantee of the right of “free exercise” of religion. But the First Amendment isn’t the only law, and it often conflicts with other laws. The right to “free exercise” cannot be an unlimited pass to exempt yourself from laws, otherwise a Church of Child Sacrifice could freely commit ritual infanticide. How much to bend the rules to accommodate “free exercise” requires value judgments about the relative importance of religious freedom versus other goods. You cannot resolve these disputes by simply pointing to the text of the First Amendment; they depend on how subjectively important you think certain legal protections are versus others. In the child sacrifice case, we can hopefully all agree that no matter how sincerely the Church believes it ought to be allowed to commit mass murder, “free exercise” is trumped by the victims’ right to be protected from violence. The Church itself would “weigh the competing values” differently. New Jersey has decided that a woman’s right not to be discriminated against is simply not as important as the Catholic Church’s right to enforce its bizarre, misogynistic, archaic code of “ethics.”
Taken to an extreme, as the Supreme Court wrote in 1878, the acceptance of religious exemptions for lawbreaking “would be to make the professed doctrines of religious belief superior to the law of the land, and, in effect, to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances.” There’s no law anymore if anyone can just say “My faith says no” and do whatever they like. Unfortunately, with the rightward turn of the U.S. judiciary, religious exemptions are becoming more and more common, with courts accepting the argument that people who are really, really faithful get to do all kinds of noxious things the rest of us are prohibited from doing. (For instance, on this theory, the faithful do not have to cover HIV-prevention drugs in employer-sponsored health insurance plans, even if everyone else does have to extend such coverage.)
As a nonbeliever, I have to follow all U.S. laws. I don’t get special permission to discriminate or do things like deny insurance coverage. So the very idea of a “religious exemption” gets under my skin. It seems transparently unfair and anathema to the most basic principle of the rule of law, which is that laws are something everyone has to follow whether they like it or not. But there are some cases that can make it seem like religious exemptions are justified. Consider the 1990 case of Employment Division, Department of Human Resources of Oregon v. Smith, in which the Supreme Court “ruled that prohibiting Native Americans from using peyote in their religious rituals does not violate their constitutional right-to the free exercise of religion.” The Court ruled that “We have never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the state is free to regulate.” In response, Congress passed the Religious Freedom Restoration Act, which required Courts to be more skeptical of laws that burdened the religious liberty of some even if such laws were ostensibly neutral.
To those of us who think it’s outrageous to ban Native Americans from using peyote in rituals, it can look as if the Court’s 1990 case was wrongly decided. It’s clearly an infringement on liberty to use the force of the state against ceremonial peyote use. But this shouldn’t be seen as a specific question of religious liberty. The fact that the peyote was being used ceremonially rather than recreationally should not affect whether it is considered legal. If we allow that to enter our consideration, we are forced to have the state start deciding whether something qualifies as a “ceremony” or a “religion,” a very tricky question. (If I adopt all the aesthetic trappings of religion in my daily activity and style myself Father Robinson, do I thereby earn more liberty? What qualifies as a “legitimate” faith?)
Congress went in wholly the wrong direction by responding to Employment Division v. Smith by “restoring religious liberty.” It should have legalized peyote. The most outrageous infringements on religious liberty are infringements on liberty generally, and we can oppose religious exemptions while still being firm civil libertarians who believe the state should not intrude on our private lives any more than strictly necessary.
Consider the case of dreadlocks in prison. Rastafarian inmates in U.S. prisons have sometimes been told they must remove their dreadlocks for “security reasons.” They object to this on religious grounds, with an inmate named Thomas Walker telling prison officials that cutting his dreadlocks would “sever [his] physical connection to Jah.” (He was shaved anyway.) Courts have been sympathetic to this claim of a religious exemption, although prison officials can be barbaric and simply flout the law, as in this instance:
“In 2017, the United States Court of Appeals for the Fifth Circuit directed Louisiana that it must grant religious exceptions and allow Rastafarian men like Mr. Landor to keep their dreadlocks in prison. Yet, when Mr. Landor handed that decision to the prison officials just weeks prior to his release, they tossed the court’s opinion, shackled him to a table, and had him shaven completely bald.”
This is despicable. But I think it is despicable to forcibly shave someone regardless of whether or not they are Rastafarian. To me, requiring anyone to cut their hair merely because they’re in prison is dehumanizing and wrong. I don’t think anyone should need to prove that they’re the adherents of a particular faith in which hair has a certain significance in order to be permitted to retain their hair. What if it’s just really important to their sense of self? Is that not enough?
Throwing away religious liberty exceptions does not mean empowering a totalitarian and intrusive state. In many domains, it means expanding liberty, by guaranteeing freedoms to all rather than reserving them for people who subscribe to certain belief systems. Everyone should be permitted to use peyote, not just those who have a religious reason to use it. Of course, it does mean there will be some restrictions on “free exercise” that people won’t like: Yes, anti-discrimination laws will apply to all, and if you become a wedding cake baker, you have to bake cakes for everyone, not just the particular people God tells you that you should bake cakes for. The law will indeed compel some restrictions on the right to mistreat other people over their race, gender, marital status, pregnancy status, etc., and you won’t be able to say that because you belong to a church where discrimination is a sacrament, anarchy should be practiced in your case and only your case. I don’t see this as any kind of dystopia, in fact I believe that restrictions on harmful religious practices that hurt other people (such as, for instance, making unmarried pregnant women struggle to find jobs or depriving people of contraception) are justified. I still believe in robust rights of public speech and private activity, with strict limits on state power. But I see no reason why my neighbor should get a different set of laws than I do, merely because they have a faith and I don’t.
