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On Discrimination: When It Isn’t What You Think It Is

2ndApr Little Rock, 1959. Rally at state capitol, protesting the integration of Central High School.

Unless you’ve been living under a rock or have subjected yourself to a total media blackout, you’ve probably seen the massive backlash over the state of Indiana enacting legislation that is largely seen as a way for the state to permit discrimination against certain groups, most specifically LGBT individuals since the introduction of recognized same-sex marriage in that state. As a result, Americans are having conversations about discrimination, religious freedom, and the interplay between the two.

I’ve been involved in many of these conversations, which have largely moved away from the content of the Indiana bill (which is being “clarified” because of how badly Indiana has already suffered in the wake of the bill’s passage) to the topic of discrimination more generally. Ultimately, an argument that I’ve seen several times from those who support the ability of religious business owners to discriminate against whomever they like is stated as a rhetorical question: “Would you force a Muslim food vendor to sell pork to someone? Would you force a Jewish baker to make a cake for a Nazi?” This argument, while perhaps superficially thought-provoking, fundamentally confuses the issues at hand.

As it happens, I’ve used my secular celebrant work as an illustration for distinguishing between discrimination and ethical non-compliance. On this website, I have made it very clear that “I will not discriminate against individuals or couples of any background, race, creed, gender, or sexual orientation.” (There are plenty of other categories that also apply, but I was limited on space. I could also mention ability, physical appearance, gender identity, gender expression, and a number of other factors I won’t discriminate on.) I believe very strongly in providing a service to anyone who wants it, and that is a conviction that I am willing to stand by.

But on my FAQ, I also state that religious material can only be included in a ceremony if it “has literary or poetic merit and avoids excessive mention of supernatural elements,” and I explicitly mention Psalm 23 as an example of religious material that wouldn’t be allowed. Isn’t this discrimination, too, according to the logic of the “religious freedom” supporter above?

The simple answer is “No.”

It’s important to distinguish here between 1) denying someone a service due to personal characteristics and 2) denying someone a service that you don’t provide at all. If a religious couple came to me and wanted me to officiate a ceremony that was secular in nature, I would absolutely do it; the religiosity of the couple would be entirely irrelevant. (In fact, I would be delighted in such a situation!) But if a religious couple demanded that I perform a religious ceremony, I would decline because it’s not a service I would provide to anyone, religious or secular or interfaith, as a matter of professional and personal ethics. In this way, my services would be like that of the Muslim vendor who only sells halal food; the service is provided to any paying customer, regardless of personal characteristics, even while the motivation might be rooted in one’s religious beliefs (or secular values, in my case).

The Jewish baker and the Nazi cake gets trickier, but let me propose a good heuristic (speaking on ethical rather than legal grounds here because I Am Not A Lawyer IANAL ): If your customer is trying to compel you to express an objectionable message, then you are not ethically obligated to fulfill that request, but attempting to deny service because the customer believes or has expressed something objectionable is insufficient. If a neo-Nazi couple wanted me to officiate their wedding, I would do so, but there would be reasonable limits that I would set on what I would be willing to allow in the ceremony before I declined to participate. (I might even feel conflicted assisting offensive people in such a way, but sometimes ethics requires us to act in ways that might be somewhat unpalatable even though they are morally correct.)

I’m not going to say that the line is always easy to draw, but it is manifestly clear that appeals to “religious freedom” are not sufficient to justify discrimination (indeed, I don’t believe that there is any sufficient justification for discrimination on personal grounds). Because I try to be an ethical celebrant, I strongly oppose laws like Indiana’s version of RFRA (and in fact, RFRA on virtually every level, which leads to absurd conclusions like that of Burwell v. Hobby Lobby). It is thus especially important that we not get confused about what discrimination is – and what it isn’t.

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About Galen
Galen is a certified Secular Celebrant with the Center for Inquiry (CFI). The views expressed on this site do not necessarily represent those of CFI. (For more information about Galen, click here.)
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