Business As Unusual: Why Religious Freedom Is Not Enough
Joshua Craddock and Noah Heinz are members of The King's College graduating class of 2013 and both are currently attending Harvard Law School. Craddock and Heinz wrote this op-ed in response to Jonah Ortiz's column titled "Religious Freedom and the Right to Oppress," which was published on September 11.
I once had a cross-country coach who talked politics during warm-ups. He mentioned how unfair it was that business owners paid low wages for people with families and limited sick leave. I told him about family friends who ran their businesses on Christian principles. They held Bible studies, gave breadwinners time off when needed, and expanded hours if the employee needed the money. He liked those ideas, but suddenly looked conflicted.
“‘Christian principles’? That sounds good for all the ‘help the widow and orphan’ stuff, but your friend didn’t really follow it in other areas, did he? Like, would he do anything if someone cheated on his wife?”
My coach assumed “doing something” about it would be bad. Would it? What’s wrong with putting pressure on employees to act morally? I may not want to employ an unrepentant adulterer. What if it was with a co-worker? What if I facilitated this? Loving the person at least requires trying to lead them to repentance and a moral life. Moral direction beyond the commercial virtues such as honesty, punctuality, and a good work ethic, is actually common beyond Christian businesses.
The Code of Conduct for JPMorgan Chase’s 250,000+ employees includes a helpful scenario:
“What if … I overheard a colleague referring to one of our coworkers using racist language. What should I do? If you’re comfortable doing so, say something directly to your colleague. Whether you talk to your colleague or not, contact Human Resources or the Code Reporting Hotline. Upholding our Code means sharing concerns, even though it may be easier to look the other way.”
The code also prohibits discrimination based on “gender identity or expression” or “unwelcome jokes” related to a plethora of protected categories. The company celebrates pride month with various talks and testimonials from gay employees, discussions between senior leaders and gay rights activists, a float in pride parades, and an invitation for employees to volunteer as an “ally” with the LGBTQ affinity group. The “ally” status comes with a bright sticker to be placed prominently on the employee’s desk, which, in some offices, is most conspicuous when it is missing. This is fairly typical of many large companies and reflects the management's beliefs.
Does this really have a business rationale? Perhaps if pro-gay advocacy leads to diversity leading to profits it might, but that is rather far afield and disproportionate to the effort. If promoting gay pride has a business rationale, then promoting humility (humble employees are more collaborative), families (mothers and fathers are more responsible and stable), temperance (temperate workers are healthier), church-going, or purity do too. What’s the difference?
Is it that these are personal issues and promoting a moral view may threaten employees? Surely not. An employee who disagrees with gay marriage would feel stigmatized and threatened at most companies–and that is part of the point. If no one was stigmatized, no one would change their behavior. For all the discussion of the evils of stigmatizing people, no one really seems to mind if the victim is a racist or “homophobe.” The principle here should surprise no one: praising the good and punishing evil stigmatizes the wrongdoers. Harvey Mansfield said that you can tell who’s in charge by who is allowed to get angry. The difference between management at JPMorgan or Apple and Chik-Fil-A is not that only the latter takes a stand on moral matters–it’s that one group is in charge, so the other’s not allowed to get angry.
Not every Christian, even at The King’s College, a community aiming to change society using substantively Christian principles, supports Chik-Fil-A. Apparently, Christian businesses are “rather selective with sins they’re afraid of enabling.” Which way does this cut? Should a business owner who fails to encourage his employees to do right in one area just go ahead and be consistent by failing in all areas? Martin Luther King Jr. was a civil rights proponent and also very likely a plagiarist and adulterer. Gee, he seems rather selective with the sins he opposes!
That fallacy, of course, is rather common and therefore forgivable. At a school with several classes on American Political Thought and Practice (not to mention Constitutional Law), a misunderstanding of religious freedom may be worse. Ortiz forgets that Slick Willy signed the federal Religious Freedom Restoration Act (RFRA) into law after the Supreme Court’s 1993 Smith decision, to protect peyote-popping Native Americans from controlled substance laws of general applicability. RFRA statutes require the government to show a compelling state interest before substantially burdening the free exercise rights of individuals, and to use the least restrictive means of achieving that interest.
Ortiz calls RFRA a vehicle for discrimination and immediately proposes draconian discrimination against religious believers. You’re a Catholic nun? Your objection to insuring abortifacient drugs “hinders the rights of others,” so get thee back to thy nunnery. You’re a Sikh federal employee? Get rid of your sacred kirpan or we’ll fire you! You’re an orthodox Jew in jail? No kosher rations for you, you’ll have to choose between shellfish and starvation. (Don’t worry Zion Ranger is on the case!) You’re a Muslim barber who doesn’t cut women’s hair? You–and none but you!–must cut this lesbian’s hair right now, demands Ortiz. The rights of others have been impugned!
Surely we can accommodate citizens’ exercise of religion, even if that exercise limits the extent to which others can demand services from them. In a negative rights regime, this ought to be conclusory. The government should at least have to show a compelling interest before depriving us of our most basic and sacred liberties.
The world Ortiz wants us to live in is an authoritarian playground devoid of free exercise of religion–a godforsaken place like North Korea or Canada. Far better the eminent reasonability of RFRA, or (dare I say it?) the world of free association that permits discrimination. Whether one ought to discriminate is a different question than whether discrimination should be legal. In a free society, individuals would be allowed to determine whether or not they enter into business relationships with others without risking livelihood-destroying fines or prison time.
In addition to misrepresenting religious freedom issues, Ortiz drinks deeply from the poisoned cup of judicial supremacy by saying Kim Davis failed to uphold the law. What law? The law of the State of Kentucky defines marriage as the union of a man and a woman. Perhaps Ortiz believes that Anthony Kennedy–buttressed not by the Constitution, but by the barest Supreme Court majority–holds the power to throw thunderbolts of law-altering dicta down upon the peasants of Rowan County, Kentucky? When Kennedy’s pronouncements are more capricious than Constitutional, that cannot be the case.
The Supreme Court possesses a power of judicial review, not a power of judicial supremacy. They have no monopoly on meaning. The Constitution is the “supreme law of the land,” not the Court’s interpretations. These hold little weight when the Court fails to act within its proper judicial power and instead usurps the legislative power. Constitutional office-holders are sworn to uphold the Constitution as they understand it, not as it is understood by others.
Think of the alternative. Is every elected official obligated to understand and support every Supreme Court decision, past, present, and future when he swears the oath of office? What Christian could swear to uphold the Constitution as interpreted by the Supreme Court in Roe v. Wade? Could an African-American have sworn to uphold Dred Scott or Plessy when they were valid law? Is Lawrence Lessig really unqualified for office because he would not be able to swear to uphold Citizens United v. FEC? If the pronouncements of the Supreme Court redefine the Constitution, then only oathbreakers or those who could in good conscience uphold all precedents of the Supreme Court could serve in government or the armed forces.
Like many other cases, Obergefell was wrongly decided (even most supporters struggle to find coherence in the majority opinion). How did Lincoln say that slavery should be opposed after Dred Scott? His answer is our answer: its holding commands respect as a point of law for the parties involved, but its reasoning deserves contempt, opposition, and resistance. It is not the law of the land.
As Lincoln aptly said in his First Inaugural, “The candid citizen must confess that if the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court . . . the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.” Judicial supremacy destroys the separation of co-equal powers and strangles the republican system.
The Christian tradition historically taught that lesser magistrates ought resist raw abuses of government authority using the power duly vested in them by the authorities themselves. This was the reasoning used by the Founders to justify revolution against the crown: the Colonists were not simply British citizens revolting, but citizens acting under the authority of duly instituted colonial governments. This Principle of the Lesser Magistrate–affirmed in various forms by Luther, Calvin, and Beza, and further codified in the Magdeberg Confession–lends even higher ground to Davis’s stand. She is not merely a private citizen resisting judicial tyranny, but a lesser magistrate using her God-given and Constitutionally-delegated authority. Sic semper tyrannis iudicialis.
Where does this leave the Christian employer, the Christian civil servant, and the Christian pundit? Jesus is lord, in government, in business, at home, and in the universe. There is not one square inch of Hobby Lobby or the Rowan County Courthouse over which Christ does not cry “Mine!” This ought to make a difference, enough to tell my friend that yes, Christian business owners do care about their employees enough to give paid sick leave and criticize adultery. At a college seeking to transform society through the truths of Christianity, we ought not cast off millennia of reasoned Christian consideration on the nature of marriage. Nor should we deride lesser magistrates who interpose on behalf of the higher law upon which all positive law must be based.