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United States Constitution

Religious Liberty

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U.S Postage Stamp, 1957

The authors of the United States Constitution were aware of the dangers presented by state infringement on religious liberty. The First Amendment provides two key protections for citizens. The first is the prohibition against making “law respecting the establishment of religion.” This protects citizens from the tyrannical imposition of a state-backed religion. The second is that congress is forbidden from making any law that prohibits the free exercise of religion.

I support both prohibitions. While many believe it would be a great if their religion was the one being established and imposed via the coercive power of the state, they would not want someone else’s religion imposed upon them. For example, Americans who want to use Christianity as foundation for laws express horror at the prospect of Sharia law being imposed on them. As always, it is wise to consider the actions of the state in accord with the spirit of the Golden Rule: impose laws on others as you would have them impose laws on you. So, just as I would not want to have Sharia law imposed on me, I should not impose faith based law on others.

While I am not particularly active in my exercise of religion (although I am religious in my exercise), I also support the freedom to exercise religion. On the extreme side, imposition on religious liberties are often the starting point of efforts to oppress religious minorities. This can, and has, lead to attempts at extermination. As such, it is wise to make it difficult to get the ball of hate rolling. On the less extreme side, the free exercise of religion is part of the broader moral rights of liberty of conscience, freedom of expression and freedom of belief (which I also support). The American experience has shown that the acceptance of religious freedom, as imperfect as it may be, has helped maintain the stability of the United States. While we have many sects and religions, we do not have sectarian or religious violence at any significant level. While there are, of course, other factors that contribute to this, the freedom of religion has contributed significantly.

In recent years, there have been claims that religious liberty is under attack in the United States. As a holiday tradition, Fox News runs its yearly absurd stories about an alleged war on Christmas. While rampant, soulless consumerism has largely defeated Christmas, there is obviously no war against it. There are also claims that Christians are persecuted in the United States. To support this, people point to the legality of abortion, the legalization of same-sex marriage, and laws protecting LGBT people from discrimination. These are taken by some as attacks on religious liberty. In response, several states have endeavored to roll back these alleged intrusions on liberty, although this has resulted in backlash from the public in some cases.

To appeal to certain evangelical voters (who are not a monolithic bloc) Trump claimed that he would act in accord with their view of religious liberty. As they see it, Trump will enforce the second prohibition and protect citizens in their free exercise of the religion. However, critics can argue that this would violate the first prohibition by imposing religion on others via the law. Since I have argued these issues in other essays, I will not undertake this battle here. Rather, I will hold the supporters of religious liberty to their rhetoric about freedom. To be specific, let it be assumed that religious freedom is something they think should be protected by the state—even when doing so can impose harms on others. To illustrate the harms, consider the impact of not protecting LGBT people from discrimination based on faith as well as the impact of the anti-abortion efforts on women’s health and freedom of choice.

While Trump made a great rhetorical effort to win evangelical voters, he also engaged in sustained attacks on Muslims. He proposed a complete ban on allowing Muslims into the United States, he has called for a registry of Muslims, and has consistently used anti-Muslim rhetoric. While the ban and registry can be taken to violate the prohibition against interfering with the free exercise of religion, this can be countered. It could be argued that banning Muslims from the United States does not prevent them from freely exercising their religion in the United States—they would simply be excluded from coming here because of their religion. It could also be argued that a registry would also not be a violation of this prohibition. While some Muslims might elect to keep their faith private to avoid being put on that list, the registry itself would not forbid the free exercise of religion. Those willing to identify themselves to the government and have their information in a database conveniently available for hate-group hacking would be free to exercise their religion.

Not surprisingly, some Christians dedicated to their own religious liberty support the registry and ban. However, they should consider the matter not just in terms of their own perceived self-interest, but in terms of their professed support for religious liberty as a principle. They should consider reversing the situation: what would be their view of a country that banned Christians and had a registry of Christians? They would presumably be rather critical of such a country and would most likely consider those acts persecution. This reflection should help suggest what is wrong with the ban and registry.

The principle of religious liberty would seem to prohibit the registry and ban—they seem to be clear impositions on the freedom of religion, broadly construed. This can be countered by defining religious freedom more narrowly—limiting it to, for example, the freedom to worship within a religious edifice. This narrow interpretation would, however, preclude using the religious liberty argument in regards to such matters as abortion, contraception and LGBT rights.

Another possible counter is based on the fact that rights do have limits. One basis for limiting rights is the principle of harm: liberty can be restricted to protect others from harm. Using the stock example, the freedom of expression does not grant the right to yell “fire” in a crowded theater. In the case of the Muslim registry and ban, it can be argued that the religious liberty of Muslims can be limited to protect others from harm. This would presumably be developed in terms of terrorism. However, if possible harms to others is used to warrant the Muslim ban and registry, then the same argument can be used in response to the religious liberty arguments about abortion, contraception, and LGBT rights based on the harms they will impose on others. This then becomes a matter of weighing the harms imposed by restricting or allowing religious liberties. Regardless of the specific evaluation, this involves recognizing that the ban and registry violate religious liberty and that religious liberty can be constrained on the grounds of harms.

 

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Occupying & Protesting

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Ammon Bundy and fellow “militia” members occupied the Malheur National Wildlife Refuge in Oregon as a protest of federal land use policies. Ammon Bundy is the son of Cliven Bundy—the rancher who was involved in another armed stand-off with the federal government. Cliven Bundy still owes the American taxpayers over $1 million for grazing his cattle on public land—the sort of sponging off the public that would normally enrage conservatives. While that itself is an interesting issue, my focus will be on discussing the ethics of protest through non-violent armed occupation.

Before getting to the main issue, I will anticipate some concerns about the discussion. First, I will not be addressing the merits of the Bundy protest. Bundy purports to be protesting against the tyranny of the federal government in regards to its land-use policies. Some critics have pointed out that Bundy has benefitted from the federal government, something that seems a bit reminiscent of the infamous cry of “keep your government hands off my Medicare.” While the merit of a specific protest is certainly relevant to the moral status of the protest, my focus is on the general subject of occupation as a means of protest.

Second, I will not be addressing the criticism that if the federal land had been non-violently seized by Muslims protesting Donald Trump or Black Lives Matter activists protesting police treatment of blacks, then the response would have been very different. While the subject of race and protest is important, it is not my focus here. I now turn to the matter of protesting via non-violent armed occupation.

The use of illegal occupation is well established as a means of protest in the United States and was used during the civil rights movement. But, of course, an appeal to tradition is a fallacy—the mere fact that something is well-established does not entail that it is justified. As such, an argument is needed to morally justify occupation as a means of protest.

One argument for occupation as a means of protest is that protestors do not give up their rights simply because they are engaged in a protest. Assuming that they wish to engage in their protest where they would normally have the right to be, then it would seem to follow that they should be allowed to protest there.

One obvious reply to this argument is that people do not automatically have the right to engage in protest in all places they have a right to visit. For example, a public library is open to the public, but it does not follow that people thus have a right to occupy a public library and interfere with its operation. This is because the act of protest would violate the rights of others in a way that would seem to warrant not allowing the protest.

People also protest in areas that are not normally open to the public—or whose use by the public is restricted. This would include privately owned areas as well as public areas that have restrictions. In the case of the Bundy protest, public facilities are being occupied rather than private facilities. However, Bundy and his fellows are certainly using the area in a way that would normally not be allowed—people cannot, in the normal course of things, just take up residence in public buildings. This can also be regarded as a conflict of rights—the right of protest versus the right of private ownership or public use.

These replies can, of course, be overcome by showing that the protest does more good than harm or by showing that the right to protest outweighs the rights of others to use the area that is occupied.  After all, to forbid protests simply because they might inconvenience or annoy people would be absurd. However, to accept protests regardless of the imposition on others would also be absurd. Being a protestor does not grant a person special rights to violate the rights of others, so a protestor who engages in such behavior would be acting wrongly and the protest would thus be morally wrong. After all, if rights are accepted to justify a right to protest, then this would provide a clear foundation for accepting the rights of those who would be imposed upon by the protest. If the protestor who is protesting tyranny becomes a tyrant to others, then the protest certainly loses its moral foundation.

This provides the theoretical framework for assessing whether the Bundy protest is morally acceptable or not: it is a matter of weighing the merit of the protest against the harm done to the rights of other citizens (especially those in the surrounding community).

The above assumes a non-violent occupation of the sort that can be classified as classic civil disobedience of the sort discussed by Thoreau. That is, non-violently breaking the rules (or law) in an act of disobedience intended to bring about change. This approach was also adopted by Gandhi and Dr. King. Bundy has added a new factor—while the occupation has (as of this writing) been peaceful, the “militia” on the site is well armed. It has been claimed that the weapons are for self-defense, which indicates that the “militia” is willing to escalate from non-violent (albeit armed) to violent occupation in response to the alleged tyranny of the federal government. This leads to the matter of the ethics of armed resistance as a means of protest.

Modern political philosophy does provide a justification of such resistance. John Locke, for example, emphasized the moral responsibilities of the state in regards to the good of the people. That is, he does not simply advocate obedience to whatever the laws happen to be, but requires that the laws and the leaders prove worthy of obedience. Laws or leaders that are tyrannical are not to be obeyed, but are to be defied and justly so. He provides the following definition of “tyranny”: “Tyranny is the exercise of power beyond right, which nobody can have a right to.  And this is making use of the power any one has in his hands, not for the good of those who are under it, but for his own private separate advantage.” When the state is acting in a tyrannical manner, it can be justly resisted—at least on Locke’s view. As such, Bundy does have a clear theoretical justification for armed resistance. However, for this justification to be actual, it would need to be shown that federal land use policies are tyrannical to a degree that warrants the use of violence as a means of resistance.

Consistency does, of course, require that the framework be applied to all relevantly similar cases of protests—be they non-violent occupations or armed resistance.

 

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July 4th

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IN CONGRESS, July 4, 1776.

The unanimous Declaration of the thirteen united States of America,

When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.–Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.

He has refused his Assent to Laws, the most wholesome and necessary for the public good.
He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.
He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only.
He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their public Records, for the sole purpose of fatiguing them into compliance with his measures.
He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.
He has refused for a long time, after such dissolutions, to cause others to be elected; whereby the Legislative powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within.
He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands.
He has obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary powers.
He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.
He has erected a multitude of New Offices, and sent hither swarms of Officers to harrass our people, and eat out their substance.
He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.
He has affected to render the Military independent of and superior to the Civil power.
He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation:
For Quartering large bodies of armed troops among us:
For protecting them, by a mock Trial, from punishment for any Murders which they should commit on the Inhabitants of these States:
For cutting off our Trade with all parts of the world:
For imposing Taxes on us without our Consent:
For depriving us in many cases, of the benefits of Trial by Jury:
For transporting us beyond Seas to be tried for pretended offences
For abolishing the free System of English Laws in a neighbouring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies:
For taking away our Charters, abolishing our most valuable Laws, and altering fundamentally the Forms of our Governments:
For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.
He has abdicated Government here, by declaring us out of his Protection and waging War against us.
He has plundered our seas, ravaged our Coasts, burnt our towns, and destroyed the lives of our people.
He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation and tyranny, already begun with circumstances of Cruelty & perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.
He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country, to become the executioners of their friends and Brethren, or to fall themselves by their Hands.
He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages, whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions.

In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.

Nor have We been wanting in attentions to our Brittish brethren. We have warned them from time to time of attempts by their legislature to extend an unwarrantable jurisdiction over us. We have reminded them of the circumstances of our emigration and settlement here. We have appealed to their native justice and magnanimity, and we have conjured them by the ties of our common kindred to disavow these usurpations, which, would inevitably interrupt our connections and correspondence. They too have been deaf to the voice of justice and of consanguinity. We must, therefore, acquiesce in the necessity, which denounces our Separation, and hold them, as we hold the rest of mankind, Enemies in War, in Peace Friends.

We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these United Colonies are, and of Right ought to be Free and Independent States; that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.

Rule of Law & Tyranny

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One interesting narrative about the riots in Baltimore involves the concept of the rule of law. Put roughly, the rule of law is the idea that the law should govern rather than the arbitrary decisions of those in power. The notion is sometimes applied to the citizens as well—namely that the citizens should follow the rule of law to resolve conflicts—as opposed to engaging in activities such as riots or vigilantism.

Thinker such as John Locke have laid out arguments as to why the rule of law is preferable to that of the state of nature. These arguments are generally persuasive, especially since Locke emphasizes the moral responsibilities of the state in regards to the good of the people. That is, he does not simply advocate obedience to whatever the laws happen to be, but requires that the laws and the leaders prove worthy of obedience. Laws or leaders that are tyrannical are not to be obeyed, but are to be defied and justly so.

Since I find Locke’s arguments appealing, it is hardly surprising that I favor rule of law—at least when the laws are good and the leaders are acting for the good of the people. When the government has moral legitimacy, the laws and the leaders have the right to expect people to follow the laws and listen to the leaders. However, when the laws or leaders violate the basic agreement (that the laws are for the good of the people and the leaders are to not be tyrants), then their legitimacy evaporates.

Some conservatives speak of the tyranny of Obama and how the Democrats wish to create a tyrannical state. Interestingly enough, they are right to be worried about tyranny. However, their timeline is in error: tyranny is already here.

John Locke provides the following definition of “tyranny”:  “Tyranny is the exercise of power beyond right, which nobody can have a right to.  And this is making use of the power any one has in his hands, not for the good of those who are under it, but for his own private separate advantage.”

The United States seems to meet this definition. In 2014, researchers at Princeton and Northwestern conducted a study to determine the extent to which laws reflect the views of the majority versus the interests of those in power. This study, titled “Testing Theories of American Politics: Elites, Interest Groups, and Average Citizens” , used data gathered from 1981 to 2002.

The researchers examined about 1,800 polices from that time and matched them against the preferences expressed by three classes: the average American (50th income percentile), the affluent American (the 90th percentile of income) and the large special interest groups.

The results are hardly surprising: “The central point that emerges from our research is that economic elites and organized groups representing business interests have substantial independent impacts on US government policy, while mass-based interest groups and average citizens have little or no independent influence.”

While following these laws would be to conform to the rule of law, it would also be to embrace tyrannical laws—laws crafted for the advantage of those holding power and not the good of the people.

While the people who strike out in riots are probably unfamiliar with the research in question, they do know the obvious: they live within a political and economic system that primarily serves the “private, separate advantage” of the elite class and has little to offer them. As such, it should be no shock that some people do not embrace the rule of such law. If they are striking out against these laws and their riots are a revolt, they are revolting against what seems to be a tyrannical system. That is, one that serves the interests of the powerful few and not the good of the people. Or, to be fair to those who are critical of the riots, perhaps they are just thugs who are breaking things.

Continuing with tyranny, Locke notes that “Where-ever law ends, tyranny begins, if the law be transgressed to another’s harm; and whosoever in authority exceeds the power given him by the law, and makes use of the force he has under his command, to compass that upon the subject, which the law allows not, ceases in that to be a magistrate; and, acting without authority, may be opposed, as any other man, who by force invades the right of another.”

Sadly, this seems to accurately describe the excessive use of force against citizens by some police officers. Baltimore, as has been widely reported, has paid out millions of dollars in settlements due to the wrongful use of force by police against citizens. As people do like to point out, not all police officers are bad and there are excellent officers. However, even a cursory examination of the problems with policing in American cities shows that Locke’s definition of tyranny is routinely met. As such, it is evident that the rule of law was already broken well before the riots.

While Locke did not use this phrase, the rule of law is a two-way street and those who are charged with enforcing the law must also obey that law—otherwise it would be rather unreasonable to expect obedience from the citizens. As such, the most obvious step to restoring rule of law is to ensure that those charged with enforcing the laws are also following the laws.

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Telework of the Future

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While people have been engaged in telework for quite some time, ever-improving technology will expand the range of jobs allowing for this long-distance labor. This, naturally enough, raises a variety of interesting issues.

Some forms of telework are, by today’s standards, rather mundane and mostly (non-controversial. For example, teachers running online classes from home is a standard form of education these days. Other forms are rather more controversial, such as remote assassination conducted via armed drones.

One promising (and problematic) area of teleworking is telemedicine. Currently, most telemedicine is fairly primitive and mainly involves medical personal interacting with patients via video conferencing software (“take two aspirin and skype me in the morning”). Given that surgical robots are now commonly employed, it is simply a matter of time before doctors and nurses routinely operate “doc drones” to perform various medical procedures.

There are many positive aspects to such telemedicine. One is that such doc drones will allow medical personal to safely operate in dangerous areas. To use the obvious example, a doctor could use a drone to treat patients infected with Ebola while running no risk of infection. To use another example, a doctor could use a drone to treat a patient during a battle without risking being shot or blown up.

A second positive aspect is that a doc drone could be deployed in remote areas and places that have little or no local medical personal. For example, areas in the United States that are currently underserved could be served by such doc drones.

A third positive aspect is that if doc drones became cheap enough, normal citizens could have their own doc drone (most likely with limited capabilities relative to hospital grade drones). This would allow for very rapid medical treatment. This would be especially useful given the aging populations in countries such as the United States.

There are, however, some potential downsides to the use of doc drones. One is that the use of doc drones would allow companies to offshore and outsource medical jobs, just as companies have sent programing, manufacturing and technical support jobs overseas. This would allow medical businesses to employ lower paid foreign medical workers in place of higher paid local medical personal. Such businesses could also handle worker complaints about pay or treatment simply by contracting new employees in countries that worse off and hence have medical personal who are even more desperate.  While this would be good for the bottom line, this would be problematic for local medical personal.

It could be contended that this would be good since it would lower the cost of medical care and would also provide medical personal in foreign countries with financial opportunities. In reply, there is the obvious concern about the quality of care (one might wonder if medical care is something that should go to the lowest bidder) and the fact that medical personal would have had better opportunities doing medicine in person. Naturally, those running the medical companies will want to ensure that the foreign medical personal stay in their countries—this could be easily handled by getting Congress to pass tough immigration laws, thus ensuring a ready supply of cheap medical labor.

Another promising area of telework is controlling military drones. The United States currently operates military drones, but given the government’s love of contracting out services it is just a matter of time before battle drones are routinely controlled by private military contractors (or mercenaries, as they used to be called).

The main advantage of using military drones is that the human operators are out of harm’s way. An operator can also quickly shift operations as needed which can reduce deployment times. Employing private contractors also yields numerous advantages, such as being able to operate outside the limits imposed by the laws and rules governing the military. There can also be the usual economic advantages—imagine corporations outsourcing military operations and reaping significant savings from being able to keep wages and benefits for the telesoldiers very low. There is, of course, the concern that employing what amounts to foreign mercenaries might result in some serious moral and practical problems, but perhaps one should just think of the potential profits and let the taxpayers worry about paying for any problems.

There are various other areas in which teleworking would be quite appealing. Such areas would need to be those that require the skills and abilities of a human (that is, they cannot simply be automated), yet can be done via remote control. It would also have to be the case that the cost of teleworking would be cheaper than simply hiring a local human being to do the work. Areas such as table waiting, food preparation, and retail will most likely not see teleworker replacing the low-paid local workers. However, areas with relatively high pay could be worth the cost of converting to telework.

One obvious example is education. While the pay for American professors is relatively low and most professors are now badly paid adjuncts, there are still people outside the United States who would be happy to work for even less. Running an online class, holding virtual office hours and grading work require rather low-cost technology. The education worker would require just a PC and an internet connection. The university would just need access to a server running the appropriate learning management software (such as Blackboard). With translation software, the education worker would not even need to know English to teach American students.

Obviously enough, since administrators would be making the decisions about whose jobs get outsourced, they would not outsource their own jobs. They would remain employed. In fact, with the savings from replacing local faculty they could give themselves raises and hire more administrators. This would progress until the golden age is reached: campuses populated solely by administrators.

Construction, maintenance, repair and other such work might be worth converting to telework. However, this would require that the machines that would be remotely operated would be cheap enough to justify hiring a low paid foreign worker over a local worker. However, a work drone could be operated round the clock by shifts of operators (aside from downtime for repairs and maintenance) and there would be no vacations, worker’s compensation or other such costs. After all, the population of the entire world would be the work force and any workers that started pushing for better pay, vacations or other benefits could be replaced by others who would be willing to work for less. If such people become difficult to find, a foreign intervention or two could set things right and create an available population of people desperate for telework.

Large scale telework would also seem to lower the value of labor—after all, the competition among workers would be worldwide. A person living in Maine who applied for a telejob would be up against people from all around the world, ranging from Argentina to Zimbabwe. While this will be great for the job creators, it will probably be less great for the job fillers.

While this dystopian (from the perspective of the 99%) view of telework seems plausible, it is also worth considering that telework might be beneficial to the laboring masses. After all, it would open up opportunities around the world and telework would require fairly stable areas with adequate resources such as power and the internet (so companies would have an interest in building such infrastructure). As such, telework could make things better for some of the masses. Telework would also be fairly safe, although it could require very long hours and impose considerable stress.

Of course, there are still steps beyond telework and one possible ultimate end might be full automation of all jobs.

 

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Does Religious Freedom Justify Discrimination?

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IndianaThe scene is a bakery in a small town in Indiana. Ralph and Sally, a married couple, run the Straight Bakery with the aid of the pretty young Ruth. Dr. Janet and her fiancé Andrea enter the shop, looking to buy a cake.

Sally greets them with a pleasant smile, which quickly fades when she finds out that Janet and Andrea are a lesbian couple. Pointing at the door, she says “baking you a wedding cake would violate my religious beliefs. Go find Satan’s baker! Leave now!” The couple leave the shop, planning to drive to the next town—their small town has but one bakery.

At the end of the day, Sally leaves the shop. Ralph says he will help Ruth close up the shop. After Sally leaves, Ralph and Ruth indulge in some adultery.

Indiana has recently gotten nation attention for its version of the Religious Freedom Restoration Act. The bill would prevent state and local governments in Indiana from “substantially burdening” the exercise of religion unless it can be proven the state has a compelling interest and is using the least restrictive means for acting on that interest.

Proponents of the bill claim that it is aimed to protect people, such as business owners, with strong religious beliefs from the intrusion of the state. Those who oppose the bill note that it would legalize discrimination and that it is aimed at gays and lesbians. Many other states have similar laws, but some of them have laws that protect people from discrimination based on sexual orientation.

Since the law cannot specify individual religions for protection, it is likely to lead to some interesting consequences, possibly involving Satanism—as happened in my adopted state of Florida. While the legal aspects of this matter are rather important, as a philosopher my main concern is with the ethics of the matter.

On the face of it, religious freedom seems to be good—after all, it would seem to fall under the broader liberty of thought and belief (which is ably supported by Mill in his work on liberty). As such, the bill initially seems to be a morally reasonable defense of a well-established right.

The bill, as opponents argue, would certainly seem to allow people to discriminate against others, provided that they can justify their discrimination on religious grounds. The law cannot, obviously, require that a religion be true, rational, consistent, sensible or even sane—all religions are equally protected. This, of course, could lead to some serious consequences.

Driving home, Sally’s car is struck by a delivery van and she is badly injured. Luckily, Dr. Janet and Andrea (a trained nurse) are right behind the van. As Dr. Janet and Andrea rush to help, they see it is Sally. Dr. Janet, a devout member of the Lesbian Church, has sworn to God that she will not treat any straight bigots. Looking down at the dying Sally, Dr. Janet says “saving you would violate my sincerely held religious beliefs. Sorry. Perhaps you can find another doctor.” Sally dies.

The obvious counter to this sort of scenario is that religious freedom does not grant a person the liberty to deny a person an essential service, such as medical treatment. Using the standard principle of harm as a limit on liberty, the freedom of religion ends when it would cause unwarranted harm to another person. It could also be argued that the moral obligation to others would override the religious freedom of a person, compelling her to act even against her religious beliefs. If so, it would be wrong of Dr. Janet and Andrea to let Sally die. This, of course, rests on either the assumption that harm overrides liberty or the assumption that obligations override liberty. There are well-established and reasonable arguments against both of these assumptions. That said, it would certainly seem that the state would have a compelling interest in not allowing doctors, pharmacists, and others to allow people to die or suffer harm because of their religious beliefs. But, perhaps, religious freedom trumps all these considerations.

After having a good time with Ruth, Ralph showers off the evidence of his sins and then heads for home. Ruth helps herself to some of the money from the register and adjusts the spreadsheet on the business PC to cover up her theft.

Ralph is horrified to learn that Sally has been killed. He takes her to the only funeral home in town, run by the Marsh family (who moved there from Innsmouth). Unfortunately for Ralph, the Marsh family members are devoted worshippers of Dagon and their religious beliefs forbid them from providing their services to Christians. After being ejected from the property, Ralph tries to drive Sally’s body to the next town, but his truck breaks down.

He finds that the nearest shop is Mohamed’s Motors, a Muslim owned business. Bob, the tow truck driver, says that while he is generally fine with Christians, he is unwilling to tow a Christian’s truck. He does recommend his friend Charlie, a Jewish tow truck driver who is willing to tow Christians, provided that it is not on the Sabbath and the Christian is not a bigot.  Ralph cries out to God at the injustices he has suffered, forgetting that he has reaped what he has sown.

In the case of these sorts of important, but not essential, services it could be argued that people would have the right to discriminate. After all, while the person would be inconvenienced (perhaps extremely so), the harm would not be large enough to make the refusal morally wrong. That is, while it would be nice of Bob to tow Ralph’s truck, it would not be wrong for him to refuse and he is under no obligation to do so. It might, of course, be a bad business decision—but that is another matter entirely.

If appeals to harm and obligations fail, then another option is to argue from the social contract. The idea is that people who have businesses or provide services do not exist in a social vacuum: they operate within society. In return for the various goods of society (police protection, protection of the laws, social rights and so on) they are required to render their services and provide their goods to all the members of the civil society without discrimination. This does not require that they like their customers or approve of them. Rather, it requires that they honor the tactic contract: in return for the goods of society that allow one to operate a business, one must provide goods and services to all members of the society. That is the deal one makes when one operates a business in a democratic society that professes liberty and justice for all.

Obviously, people do have the right to refuse goods and services under certain conditions. For example, if a customer went into Ralph & Ruth’s Bakery (Ralph moved on quickly) and insulted Ruth, urinated on the floor and demanded they give him a half price discount, Ruth would be justified in refusing to make him a cake. After all, his behavior would warrant such treatment. However, refusing a well-behaved customer because she is gay, black, Christian, or a woman would not be justified. This is because those qualities are not morally relevant to refusing services. Most importantly, freedom of religion is not a freedom to discriminate.

It might be countered that the government has no right to force a Christian to bake a wedding cake for a gay couple. This is true, in that the person can elect to close his business rather than bake the cake. However, he does not have the moral right to operate a business within civil society if he is going to unjustly discriminate against members of that society. So, in that sense, the state does have the right to force a Christian to bake a wedding cake for a gay couple, just as it can force him to bake a cake for a mixed-race couple, a Jewish couple, or an atheist couple.

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