Go Suns!

[Thomas C. Berg]

Marie raises some good points.  Legal lines are often
philosophically imperfect; they are usually, in the words
of Reinhold Niebuhr, merely "proximate solutions to
insoluble problems."  And as Niebuhr also emphasized, such
general solutions do often create irony in particular
situations.

I rely on the speech-action distinction because it is so
central to the framework of First Amendment law generally.

Masrie also comments that being "pro" (creating a
community) often includes being "con" (excluding others
from the community), I remark with which I agree.  My
distinction was a little different -- between groups that
coalesce (and exclude as well) based on ideology and those
that do so based on status.  I would ask whether a
commercial business is truly committed to a religious
ideology as part of its work practices.  If a
machine-repair shop hired only Baptists but did nothing
else to make Baptist faith a regular part of the workplace,
I would still hold it liable for religious discrimination
because it was not evincing a real commitment to ideology
-- even though some might call its hiring policy "pro" on
its face (i.e. pro-Baptist) as distinguished from an
employer whose policy was more "con" on its face (for
example, "no Hindus need apply").

Tom Berg




On Wed, 12 Aug 1998 11:47:38 -0500 "Marie A. Failinger"
<mfailing at PIPER.HAMLINE.EDU> wrote:

> I don't necessarily disagree with Tom, lines having to be drawn, but they
> do expose some of the twists/ironies about the way we draw lines on
> legally actionable activity:
>     a)the employment cases pit two people who have a great deal at stake
> against each other (the religious/nonreligious employer and the
> religious/nonreligious) while the Suns case pits two parties who have very
> little at stake against each other.  Is it better to reserve law and
> courts to resolve the first case, where the courts/legislatures MUST do
> harm to a legitimate claim, or for the second case, where we should ask
> one of the parties to recede on his/her trivial harm for the sake of some
> higher principle (whatever it might be)?
>     b)the speech/action distinction similarly creates a philosophical
> divide.  For those who think human beings are constituted distinctively by
> speech/ideas, both suppressing and permitting hurtful speech are paths
> designed to cause great harm to human dignity.  By contrast, someone who
> understood human beings more materially, and as actors, would be more
> concerned about both the employer's freedom and the employee's material
> wellbeing.
>     c)Similarly, the distinction
> between discrimination based on status and on belief that others have
> suggested reflects our bias that careful, rational judgments about
> one's own moral position (the human as autonomous  thinker) are entitled
> to more weight than instinctive judgments about what group one belongs to
> and to what extent otherness threatens that group(the human as constituted
> by community), or the preference of objectivity over solidarity.
> Some solidarists would seem to argue that community-creating necessarily
> excludes groups, that pro (whether on status or belief) always includes
> con, thus collapsing Tom's distinction while others like Jodi Dean have
> seemed to claim that it is possible to create community without excluding
> others by taking some sort of Rawlsian external position and being
> faithful to dialogical practice in the creation of community.
>     The fact that there are so many employment discrimination lawsuits
> these days, however, suggests that the pessimists may have it right in
> real life.
>
> Marie Failinger
>
>  On Tue, 11 Aug 1998, Thomas C. Berg wrote:
>
> > 1.  Speech vs. action.  Employers should be free to speak
> > religiously if the speech does not involve or lead to
> > "tangible employment actions" against an employee (to
> > borrow a phrase from the recent sex harassment cases).
> > Except in unusual cases, employers should be free to put
> > Bible verses on paychecks, put religious articles in
> > company newsletters, or conduct voluntary prayer meetings
> > (assuming the meetings are truly voluntary -- if an
> > employee is sanctioned for not attending, that's a quite
> > different case).
> >
> > 2.  The issue of hiring or serving only persons of a
> > particular faith raises more concerns.
> >
> > a)  Hiring vs. serving.  I would generally be inclined to
> > give more room to hire on a religious basis in the
> > for-profit world than to serve on a religious basis.  There
> > can be a legitimate interest in creating a community of
> > like-minded people who work together as an expression of
> > their common faith.  I don't see that such an interest
> > justifies the decision to sell only to certain people, or
> > to sell to them on more favorable terms.  (It is quite
> > different, of course, if we are talking about non-profit
> > organizations selling ideologically related services like
> > education or alcohol rehabilitation.)  Thus, for example,
> > the Suns baseball team should not give a *regular* discount
> > limited to Christians or to church groups.  (What makes the
> > Suns' promotion a silly one to prosecute is that church
> > groups are probably just among a long list of groups that
> > have received special discounts or promotions for
> > particular games.)
> >
> > b)  Creating a religious community vs. excluding some
> > disfavored group.  There is a difference between the
> > employer who tries to create a real religious community in
> > the workplace and one who simply wants to exclude a
> > disfavored group or groups.  We would expect the former to
> > have some substantial religious requirements for hiring --
> > more than just "members of a Christian church" -- and
> > also to include other substantial religious elements such
> > as Bible studies or prayer groups in the workplace.  I
> > would allow the employer who can show such a substantial
> > religious commitment throughout her business to qualify as
> > a "religious organization" under the Title VII exemption
> > from liability for religious discrimination.  This kind of
> > religious commitment in a for-profit business making
> > "secular" items is self-limiting; only truly committed
> > employers will be interested in doing it.  But if an
> > employer doesn't have such other indicia of religious
> > motivation or purpose, then I think there is too great a
> > danger that exempting it will allow widespread
> > discrimination based simply on prejudice rather than on
> > serious religious commitment.  I doubt that the Suns'
> > baseball team showed this kind of religious commitment.
> >
> > Tom
> >
> >
> >
> >
> > On Tue, 11 Aug 1998 09:11:06 -700 Michael McConnell
> > <Mcconnellm at LAW.UTAH.EDU> wrote:
> >
> > > Whether on balance Rick Duncan is right that religious
> > > antidiscrimination laws do more harm than good is impossible to say.
> > > But the thing that makes religious antidiscrimination laws more
> > > problematic than other antidiscrimination laws is that they define as
> > > "discrimination" actions by private persons that express or promote
> > > their religious opinions and convictions. Thus, when the "Suns" seek
> > > to express their support for churchgoing, it is "discrimination."
> > > When a small businessman seeks co-workers who will pray with him
> > > every morning and share a common vocational vision for the
> > > enterprise, that is "discrimination." When a ministry to alcoholics
> > > believes that the solution is to be found, in part, through a
> > > conversion experience, and hires people who are willing to provide
> > > that kind of help, this is "discrimination" (and is illegal unless
> > > the ministry is actually a "religious organization").  Note that
> > > these forms of "discrimination" are *not* animated by dislike or
> > > prejudice against any other persons or groups; they are animated by
> > > the desire to practice and express one's faith. Note also that other
> > > ideological affinity groups are free to engage in analogous forms of
> > > "discrimination." No one tells the Sierra Club it has to hire people
> > > who favor pollution.
> > >
> > > This leads me to the conclusion that prohibitions on religious
> > > discrimination are not precisely parallel to prohibitions on such
> > > things as race or sex discrimination. Those almost always have to do
> > > with group-based prejudice or animus. When the state criminalizes
> > > religious expression and practice in the name of
> > > "anti-discrimination," I think there is a problem.
> > >
> > >
> > >
> > >
> > > -- Michael McConnell (U of Utah)
> >
> > -----------------------------------------
> > Thomas C. Berg, Cumberland Law School
> > Samford University
> > Email: tcberg at samford.edu
> >
>
>
> Marie A. Failinger
> Hamline University School of Law
> mfailing at piper.hamline.edu

-----------------------------------------
Thomas C. Berg, Cumberland Law School
Samford University
Email: tcberg at samford.edu