When Creed and Commerce Collide
Case 1: You land at the Minneapolis-St Paul Airport and hail a taxi to take you to a friend's home for the First Seder. You are bringing along a box labeled "Kedem Wine" for the Four Cups. The cabdriver tells you, "Sorry, but as a Muslim I do not transport alcohol in my cab." You look for another cab, and learn that three-quarters of the cabdrivers at that airport are Muslims. (1)
Case 2: A woman walks into a small drugstore and hands the owner-pharmacist a prescription to fill. He responds, "Sorry, but I'm Catholic, so I don't deal in birth-control pills."
Case 3: A Jewish nurse applies for a job at a large hospital. The Director of Nursing tells her, "We are interested in hiring you, but I must tell you now that all our nurses must work every other Saturday. Are you OK with that?"
The applicant replies, "No, Saturday is my Sabbath and I do not work on that day."
"Then I'm sorry," the Director answers, "we cannot hire you."
All these hypothetical cases, taken from real-life occurrences, involve someone putting their religious beliefs and rules above their economic interests. In the first case, the Muslim cabdriver must go back to end of the line of cabs to wait for his next fare. (1) In the second case, the pharmacist risks a state-imposed penalty for refusing to fill a legal prescription. In our third case, the nurse loses a job-opportunity.
Are the laws and practices of this country fair to religious people? Do accomodations of the beliefs of professionals and/or businesspeople unfairly burden the public? Where should we draw the line between freedom of religion and the right to obtain goods and services from public-providers on a fair basis?
The classical "libertarian" position in all these (and similar) cases is clear: every business owner has the inherent right to decide with whom he will do business and what services or products he will provide. Until 1964 this was the legal policy of the United States Government, but not the policy of all states.
In the South, some state laws mandated racial segregation of various privately-owned public facilities, such as buses, restaurants, and so forth. (Many of these same states had also mandated segregation of public schools, which was ruled unconstitutional by the US Supreme Court in 1954.) Other states allowed the owners of businesses to decide whether or not to serve anyone, and many chose to serve only white people. Meanwhile, many northern states (including Wisconsin) had passed laws expressly forbidding racial discrimination in public facilities.
In 1963 President John F Kennedy proposed a Civil Rights Bill that would require anyone engaged in interstate commerce to provide service on equal terms to all customers, regardless of race, religion, or national origin. Discrimination in employment would also be outlawed. The bill languished in Congress until after the assassination of President Kennedy, after which President Lyndon Johnson actively pushed the bill. It was amended in the Senate to also ban discrimination based upon sex, a provision introduced by the only woman senator at the time, Margaret Chase Smith (R, Maine).
Senator Barry Goldwater of Arizona, then seeking the 1964 Republican presidential nomination, opposed the bill as an unconstitutional federal intrusion into the rights of people to choose whom to hire and with whom to do business. Though not a racist himself, Goldwater lent some intellectual respectability to the case for racial segregation. White supremacists eagerly embraced Goldwater; he won the GOP nomination with solid support from all southern states.
The Civil Rights Bill of 1964 was passed, despite Goldwater's opposition, and he subsequently lost the Presidential Election in a landslide, carrying only Arizona and the Deep South. The Act was upheld by the US Supreme Court. The nation had clearly chosen the stance that businesses dealing with the general public could not arbritarily exclude members of minority groups from either services or jobs. (Churches and private clubs were not covered by this law.)
Now, 43 years after the debate on this bill, even the most right-wing politicians accept laws against racial discrimination (at both state and federal levels) as valid, and virtually no one defends the right of racial exclusion today. Instead, the debate has shifted to questions such as affirmative action, religious rights, rights of homosexuals, and gender-equality issues. A law was passed to require employers to accomodate the religious practices of employees, but it was struck down by the US Supreme Court. Under current federal law, an employer is banned from refusing to hire someone because the applicant is a Jew (for example), but need not excuse the person from working on Jewish holidays.
Meanwhile, the federal government itself, has shown a remarkable deference to the religious beliefs of Americans. When the draft was in effect (from 1941 through 1973), the Selective Service Act exempted religious pacifists from military service (2), but made no such exemption for other types of objection, such as political beliefs. Today, the rules of federal civil service (but not military service) protect the rights of Sabbath observers.
Given the legal status quo, it is futile to argue today for the old libertarian position that businessmen have an absolute right to choose how to conduct their enterprises. Goldwaterism is dead. Yet, those who cherish freedom can still resist the imposition of new onerous rules to join those already in effect. There is good reason to believe that the public demand for more regulation actually crested during the LBJ Great Society efforts of the Mid-Sixties, and the public today prefers less government.
Accordingly, I would support the right of the Muslim cabdrivers to refuse to haul alcohol, the right of the pharmacist to refuse to deal in contraceptives (3), and the right of the hospital to demand employees work on Saturday. "Let freedom ring!"
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(1) Milwaukee Journal Sentinel Op-Ed Page, Jan. 24, 2007.
(2) The US Supreme Court ruled in 1970 that deeply-held pacifist beliefs, even if not based on religion, also qualified for the exemption. Those men classified as "conscientious objectors" under the Selective Service Act were required to perform alternative, non-military national service for the same two year period as draftees.
(3) I proposed in the Glazerbeam of June 7, 2005, that pharmacies that did not deal in contraceptives should be conspicuously identified as "Limited Service" to prevent embarassment of patients .
Case 2: A woman walks into a small drugstore and hands the owner-pharmacist a prescription to fill. He responds, "Sorry, but I'm Catholic, so I don't deal in birth-control pills."
Case 3: A Jewish nurse applies for a job at a large hospital. The Director of Nursing tells her, "We are interested in hiring you, but I must tell you now that all our nurses must work every other Saturday. Are you OK with that?"
The applicant replies, "No, Saturday is my Sabbath and I do not work on that day."
"Then I'm sorry," the Director answers, "we cannot hire you."
All these hypothetical cases, taken from real-life occurrences, involve someone putting their religious beliefs and rules above their economic interests. In the first case, the Muslim cabdriver must go back to end of the line of cabs to wait for his next fare. (1) In the second case, the pharmacist risks a state-imposed penalty for refusing to fill a legal prescription. In our third case, the nurse loses a job-opportunity.
Are the laws and practices of this country fair to religious people? Do accomodations of the beliefs of professionals and/or businesspeople unfairly burden the public? Where should we draw the line between freedom of religion and the right to obtain goods and services from public-providers on a fair basis?
The classical "libertarian" position in all these (and similar) cases is clear: every business owner has the inherent right to decide with whom he will do business and what services or products he will provide. Until 1964 this was the legal policy of the United States Government, but not the policy of all states.
In the South, some state laws mandated racial segregation of various privately-owned public facilities, such as buses, restaurants, and so forth. (Many of these same states had also mandated segregation of public schools, which was ruled unconstitutional by the US Supreme Court in 1954.) Other states allowed the owners of businesses to decide whether or not to serve anyone, and many chose to serve only white people. Meanwhile, many northern states (including Wisconsin) had passed laws expressly forbidding racial discrimination in public facilities.
In 1963 President John F Kennedy proposed a Civil Rights Bill that would require anyone engaged in interstate commerce to provide service on equal terms to all customers, regardless of race, religion, or national origin. Discrimination in employment would also be outlawed. The bill languished in Congress until after the assassination of President Kennedy, after which President Lyndon Johnson actively pushed the bill. It was amended in the Senate to also ban discrimination based upon sex, a provision introduced by the only woman senator at the time, Margaret Chase Smith (R, Maine).
Senator Barry Goldwater of Arizona, then seeking the 1964 Republican presidential nomination, opposed the bill as an unconstitutional federal intrusion into the rights of people to choose whom to hire and with whom to do business. Though not a racist himself, Goldwater lent some intellectual respectability to the case for racial segregation. White supremacists eagerly embraced Goldwater; he won the GOP nomination with solid support from all southern states.
The Civil Rights Bill of 1964 was passed, despite Goldwater's opposition, and he subsequently lost the Presidential Election in a landslide, carrying only Arizona and the Deep South. The Act was upheld by the US Supreme Court. The nation had clearly chosen the stance that businesses dealing with the general public could not arbritarily exclude members of minority groups from either services or jobs. (Churches and private clubs were not covered by this law.)
Now, 43 years after the debate on this bill, even the most right-wing politicians accept laws against racial discrimination (at both state and federal levels) as valid, and virtually no one defends the right of racial exclusion today. Instead, the debate has shifted to questions such as affirmative action, religious rights, rights of homosexuals, and gender-equality issues. A law was passed to require employers to accomodate the religious practices of employees, but it was struck down by the US Supreme Court. Under current federal law, an employer is banned from refusing to hire someone because the applicant is a Jew (for example), but need not excuse the person from working on Jewish holidays.
Meanwhile, the federal government itself, has shown a remarkable deference to the religious beliefs of Americans. When the draft was in effect (from 1941 through 1973), the Selective Service Act exempted religious pacifists from military service (2), but made no such exemption for other types of objection, such as political beliefs. Today, the rules of federal civil service (but not military service) protect the rights of Sabbath observers.
Given the legal status quo, it is futile to argue today for the old libertarian position that businessmen have an absolute right to choose how to conduct their enterprises. Goldwaterism is dead. Yet, those who cherish freedom can still resist the imposition of new onerous rules to join those already in effect. There is good reason to believe that the public demand for more regulation actually crested during the LBJ Great Society efforts of the Mid-Sixties, and the public today prefers less government.
Accordingly, I would support the right of the Muslim cabdrivers to refuse to haul alcohol, the right of the pharmacist to refuse to deal in contraceptives (3), and the right of the hospital to demand employees work on Saturday. "Let freedom ring!"
------------------------------------------------------------------------------------------------------------
(1) Milwaukee Journal Sentinel Op-Ed Page, Jan. 24, 2007.
(2) The US Supreme Court ruled in 1970 that deeply-held pacifist beliefs, even if not based on religion, also qualified for the exemption. Those men classified as "conscientious objectors" under the Selective Service Act were required to perform alternative, non-military national service for the same two year period as draftees.
(3) I proposed in the Glazerbeam of June 7, 2005, that pharmacies that did not deal in contraceptives should be conspicuously identified as "Limited Service" to prevent embarassment of patients .
posted by Gerald S Glazer at 7:02 PM
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