by Tommy Schacht, Yale University
In my last Yale Daily News op-ed, “Neutralizing Value Neutralism”, I discussed the limits of the language of tolerance and how protected groups might have legitimate differences that need to be adjudicated by governing bodies. I struggled to come up with examples of categories other than religion, since it was easy to envision how religion might come into conflict with gender identity or sexual orientation. It is more difficult to imagine how different groups like race and age might come into necessary conflict with one another. As I pondered why this may be, I realized that religion was a group unlike many others.
Yale’s non-discrimination statement prevents discrimination against the following groups: sex, race, color, religion, age, disability, status as a protected veteran, or national or ethnic origin, sexual orientation or gender identity or expression. At face value, religion is just another category on a list, but if you look closely, you’ll notice that it is not like the other groups. The others are based on identity; being in the group doesn’t actually say anything about the person in question. All we know about a veteran is that they are veteran; we know nothing about their taste, preferences, ideas, beliefs. As such, non-discrimination against these groups simply entails not treating someone differently simply because they are a member of said group. It means not discriminating against a transgender person for the fact that they are transgender.
People often envision the same thing applying to various faiths. Committing religious discrimination just means discriminating against someone for being in a religion. To many, the First Amendment means that just as one cannot discriminate against women for being women, one cannot discriminate against a Catholic for being a Catholic. However, religion is not that simple. Religion entails certain beliefs and practices, not merely identity. This makes religious discrimination a thornier question. Obviously not all religious practice, for example human sacrifice, is acceptable. There is an obvious balance between religious practice and public interest. However, there are beliefs that might reasonably be protected because they are religiously held. For example, the Little Sisters of the Poor are a group of Catholic nuns who have gone repeatedly to court so their healthcare plans need not include contraception. It is a belief of the Catholic Church that using contraception is immoral; as such, they do not want to provide it for those they cover.
One might imagine that a group of religious sisters who dedicate their lives to the poor might be allowed some leeway in their healthcare plans. However, our society leaves no room for exception and dissent and has thus constructed a quasi-religion of the secular that we must obey. All must conform to a particular vision of the good. It is an odd sort of subordination of religious motivation. What do I mean by this? Let us imagine that the reason that the Little Sisters of the Poor must provide contraception is because it is required by a state-sanctioned religion. We would presumably say that that logic is unsound. We cannot coerce action from one religious group because of the beliefs of another. Yet, when contraception is required by a secular belief system, such coercion becomes acceptable in the eyes of many. The only way this makes sense is if one places secular authority as the definitive source of all morality.
It is quite possible that one may think these actions fall on the wrong side of the balance of state interest and religious practice, which justifies their banning. However, if this is true, then you don’t actually care about religious tolerance. You are treating the religion as being devoid of valuable content. What good is being allowed to be a Christian if you can’t contribute to the common good, as we are commanded to do? A religion is not just a belief. It requires action. It requires living out our faith. A state which restricts the ability to live faithfully in the world doesn’t actually tolerate religion. Any reasonable person would agree that restricting all actions of a faith while allowing people to be a religion is not true religious freedom. True religious freedom requires us to be able to actually practice our religion, not just believe it. A truly tolerant state will recognize the common good without monopolizing it. Otherwise, it is soft tyranny masquerading as tolerance.
The health care plan of the Little Sisters of the Poor does NOT provide for contraception. The sisters are litigating against the requirement that they confirm the reason their plan does not provide birth control is their moral opposition to it. The state then provides birth control out of a special provision guaranteeing birth control for those who work for organizations that oppose it. The sisters’ contention is that the mere signing of the sworn statement that they oppose birth control is immoral because that act then allows their employees to get birth control coverage elsewhere. It’s quire a few steps removed from providing birth control in their health plans, and that is why they are one of the few religious communities contesting it. Most others are ok with signing off on the certification that they morally oppose birth control. In this regard, the balance seems to favor the state’s interest as all the. state is asking is for an affirmation of moral objection.