Nuns, Birth Control, and Gay Wedding Cakes: Should Religion Be a Protected Class in a Diverse…
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Why Religion Should NOT Be a Protected Class (Plus, “But What about the Constitution?!”)

Rejoinder to March 2, 2017 #GTIdeology Happy Hour

There is an obvious pernicious tone to any plainly stated bigotry, religious bigotry included: “I do not like Catholics.” And something is downright ominous about that bigotry in practice: “I would never hire a Catholic.” Or a Presbyterian. Or a Muslim. Or an atheist. Or a Rastafarian. Or a whatever.

It is irrational out-grouping of individuals as a class.

But should that class therefore be a ‘protected class?’ And what about the Constitution? Isn’t religion protected in the First Amendment? Can I even ask that question.

Short answers: No it should not and yes I can.

“But What About the Constitution?!”

We will begin with the constitutional question because it is bedrock: Yes, religion is protected in the First Amendment. But that is not the same thing at all as being a protected class.

At all.

The nut of the difference is that the Constitution protects us from the government. Not from each other. Here is the text of the First Amendment, whence our right to free practice of religion:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; . . .

See that? The First Amendment protects every individual in the United States from laws either prescribing or proscribing religious belief or infringing on practicing those beliefs.

It does not protect you from me.

Here is an obvious illustration: You have every constitutional and legal right to attempt to proselytize me, but you have no such right to do so in my living room. You do not even have the right to pray or read a holy book in my living room. I can simply expel you if I choose and you will leave with your First Amendment rights 100% intact.

Only the government can violate your Constitutional rights.

That is a vital fact, lost on too many, and the necessary starting point of any discussion like this: Whatever our conclusions about protecting religion as characteristic of a protected class, it is not a constitutional question.

If it still strikes you as odd, here is a parallel to consider. The First Amendment also grants your rights to free speech, the press, and assembly. The text continues dirctly from the quote above:

“or abridging the freedom of speech, or of the press, or of the right of the people peaceably to assemble…”

Should the content of protected speech be a characterstic of a ‘protected class?’ Or a journalist’s opinion pieces? Or one’s chosen political associations or social causes? Whether you decide that they should, it is obivously not a constitutional issue.

Consider that I am right now posting something at least somewhat controversial — contending that religion is not a proper charactersitic of a protected class — on Medium; should Medium decide to change its rules (terms of service) to disallow posts like this, it can delete the post, even ban me if I persist. There would be no constitutional violation in such discrimination.

Medium cannot censor me.

Only the government can do that. It does so by making a law prohibiting me from publishing my views. That I am free to espouse and publish them creates no burdensome implication that Medium, nor any other platform or media, therefore, must publish them.

Medium can only discriminate against my views.

It can discriminate quite legally, as can any other platform. That is as it should be. Likewise, should I decide to expel an evangelist from my living room, I have discriminated against her or his views. Quite legally. That is also as it should be.

Private discrimination is a legal issue. Whether religion is a protected class is a valid question to discuss without any fear of disregarding, undermining, or even disagreeing with the Constitution. So the question is simply whether religion should be a class protected from discrimination by other citizens? The nut of the issue lies in the answer to this question:

What makes religion a ‘special belief’ distinct from and superior to any other belief espoused under First Amendment rights that I should not only be free to espouse and practice them but protected because of them?

What Is a Protected Class?

Religion was established as a protected class in the Civil Rights Act of 1964.

That means along with race, color, national origin, [old] age, and sex, religion was identified as a distincitive characteristic of a group of individuals that legally prohibits discrimination.

The difference is glaring.

Unlike race, national origin, age, and sex, religion is not innate. It is volitional. Religion is volitional. Indoctrination and constituent pressures of conformity notwithstanding, every individual chooses which religion to embrace or whether to embrace a religion at all.

Religions recognizes the fact, lest they would neither proselytize nor have new member rites and conversion rituals. Moreover, choosing to embrace a religion (and how much and which parts of it one will embrace) is a value-driven decision that invariably manifests as or reflects behavior.

So the question becomes: What legally and morally distinguishes religion from any other voluntary association and grants it hegemony as a defining characterstic that cannot be discriminated against?

There is no answer to that question.

Is Religion Really a Class?

Because religion is volitional, it deserves no more protection than any other belief or association. That individuals adopt, discard, and change religions through life and that new religions regularly spring up makes the point.

Religion is not an innate defining characteristic of any individual.

There are no objective definitions for any religious label. Even denominational titles, like “Presbyterian” or “Baptist” or “Methodist” do not really mean anthing, as they have been schisming and splitting since 1517. At least 217 Christian denominations exist in the United States and 35,000 “non-denominational” churches, each a denomination unto itself.

Within the vast majority of those denominations, individuals choose how seriously to practice the religion, which parts to embrace, and which parts to ignore. Religion does not define the group.

Individuals each define their own religion.

Moreover, religion is openly and admittedly indefensible. Religious beliefs are those that an individual declares she or he is unwilling or unable to rationally defend but chooses merely to accept “on faith.” That is fine and every individual must be free to make such decisions, but that choice does not preclude you from evaluating their beliefs.

Whose Values Prevail?

If a Christian chooses to believe that a wife should obey her husband, cover her head, and be busy at home, must you endorse her values? Must you endorse similar values if espoused by a Muslim? Must the liberal Christian who believes in gender equality embrace either?

Consider these four questions:

  1. Is every conceivable sincerely held ‘religious belief’ a legitimate characteristic of a protected class?
  2. When discussing religion as a protected class, does it matter to you whether a religion is a minority religion?
  3. When two sincerely held religious convictions conflict, how do we determine which is the proper characteristic of protected class?
  4. Should on religious group be free to discriminate against members of another?

These questions cannot be sorted out to grant every individual equal protection under the law. Ultimately, we are not protecting “religion” but asserting one individual’s values as preferable to another’s.

No law can do that.

Religion is the individual’s volitional expression of her or his choice of myriad conflicting social and personal values. They cannot be ignored, much less protected. Those individual values are the just and functional ground of association.

That is Greatness through the Individual.

About Vince Skolny

Vince Skolny is currently launching the Skolny Organization, a family of for-profit companies, on his radical idea that greatness is only created through the Individual. Its essential purpose of impacting the world by creating and encouraging greatness through the Individual in business, life, and society.

Vince’s publishes his weekly rejoinder to SkolnyOrg’s #GTIdeology Happy Hour twitter discussion here on Medium every Monday.

Pronounced G-T-Ideology and comprising “7 Radical Ideas to Impact the World,” the Skolny Organization’s GTIdeology is a comprehensive ideology for business rooted in Vince’s philosophy of Greatness through the Individual.

Connecting with Vince

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