In Vermont, a country inn declined to provide a wedding reception for a same-sex marriage. In Hawaii, the owner of a bed and breakfast refused a double room to a lesbian couple. Both said providing service would violate their religious faith.
More recently, a federal appeals court judge ruled that the evangelical owners of the Hobby Lobby arts-and-crafts chain may have the right, based on their religious beliefs, to refuse to include contraceptive coverage as part of employees’ health insurance plans. For some time now, pharmacists have asserted — and in many states won — the right to refuse to provide contraception based on religious grounds.
Refusal to serve — and using religion to discriminate — isn’t new. In the mid-1960s, Lester Maddox claimed biblical justification for his refusal to serve blacks at his Atlanta restaurant, which he famously defended with ax handles in his campaign to become Georgia’s governor. Throughout the 19th century, women were refused entry to taverns, professions, and, really, to anything a proprietor decided to exclude them from. The second-class status of women was often, if not always, justified by biblical text.
What do these examples have in common? They all involve the entanglement, or disentanglement, of religion and commerce.
After the Civil Rights Act of 1964, a new benchmark was set for business behavior. Once you hung out your shingle, you could not discriminate on the basis of race, religion, national origin, or sex, regardless of your religious justification or personal belief. Ironically, the re-emergence of attempts to claim constitutional protection for discriminators over those discriminated against is a measure of the success of the expanded vision of the women’s rights and gay rights movements.
On these two issues, a fuller understanding of “equality” has brought us to new contested territory — that women’s health care inevitably includes reproductive health services, and that same-sex relationships deserve the same respect under law as heterosexual relationships now enjoy.
The Affordable Care Act provides a range of reproductive health services for women (including contraception) as an essential part of health care. To deny essential coverage to women but not to men (think prostate surgery, Viagra, etc.) is discriminatory. We’ve been here before; when Congress enacted the Pregnancy Discrimination Act of 1978, it recognized that being pregnant and being female were inextricably connected.
Yet at the same time, the pharmacist refusal example has spread, with odious effects. When some claim the right on religious grounds to refuse to fill a prescription or pay an insurance premium that includes contraceptive coverage, it is not just the employer or educational institution that has an interest at stake. A woman’s freedom of conscience — her ability to exercise her own moral and religious beliefs — is being trumped by the views of her employer.
If refusing to include insurance coverage of women’s reproductive health care becomes legal, women will be forced to choose between their jobs and their own well-being, their autonomy or their pocketbook. And there won’t be much logical distance between those who would deprive them of health care and those who would deprive anyone of a hamburger at a lunch counter.
The fight for women’s equality closely mirrors the fight for legal equality for lesbian, gay, bisexual and transgender Americans. Public opinion has moved toward legalizing same-sex marriage, affirmed by the recent Supreme Court decisions on marriage equality. Just as we must protect women’s access to contraception, we can’t let victories for gay equality be undermined by allowing individual business owners to refuse service based on a religious claim that same-sex marriage is sinful.
We can’t relegate same-sex couples to second-class treatment in the public square. If the refusal doctrine gains more headway, the hard-won progress that enables LGBT Americans to live free of legally sanctioned prejudice will also be short-lived. Without vigilance, the many jurisdictions that have outlawed discrimination in employment and public accommodations based on sexual orientation will see those laws rendered toothless.
The idea that service could be denied based on religious conviction didn’t survive the civil rights revolution and should not be revived now.
(Nancy K. Kaufman is the CEO of the National Council of Jewish Women.)
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