Equality in Sheep’s Clothing:
The Implications of Anti-discrimination Norms for Religious Autonomy
Brett G. Scharffs
This paper examines some of the consequences of applying antidiscrimination norms to religiously affiliated organizations, focusing on recent issues and cases in the United States, Canada, and the European Court of Human Rights. In Massachusetts and the District of Columbia, Catholic adoption agencies have ceased to operate in the face of requirements that they facilitate adoptions by same-sex couples. In Canada, a Divisional Court in Ontario has recently held in Ontario Human Rights commission v. Christian Horizions, that a religiously affiliated organization that ministers to the developmentally disabled violated a lesbian’s rights when it fired her for violating the terms of her employment agreement that forbade adultery and homosexual relationships, on the grounds that it failed to prove that religious adherence is a reasonable and bona fide job qualification. And the European Court of Human Rights has currently pending a set of six German cases involving a variety of religious organizations that have fired or forced into retirement employees who have violated the faith and conduct clauses of their employment contracts, or have been viewed by the religious organization as having insurmountable differences with the religious group. As these cases illustrate, the application of nondiscrimination norms can have significant consequences for religious groups – sometimes unintended, sometimes intended.
How cases like these should be resolved will be determined largely by the prisms through which they are viewed. One way of looking at these cases is through the lens of equality. From this perspective, general and neutral nondiscrimination norms should apply to everyone in an even-handed manner, including religiously-affiliated organizations. Taken to its extreme, this view would deny the right of the Catholic Church to refuse to hire clergy who are not Catholic. Another way of looking at these cases is through the prism of conscientious objection. On this view, analogies to conscientious objection to military service, or of doctors objecting to being required to perform abortions, may provide guidance. Taken to an extreme, this view, in the worried words of the Supreme Court, would allow every person to become a law unto himself. Insights may also be gleaned by examining the consequences for religious groups of the principal civil rights movements of the past fifty years – racial and gender equality – and by questioning which of these precedents should be employed in dealing with contemporary equality claims, including those for same-sex marriage and other gay rights.
In this paper I will argue for a version of religious autonomy that attempts to be sensitive both to the claims of equality and conscientious objection.