- Introductory case: A Muslim flight attendant who won't serve alcohol
- Enumerating the general principles at work
- A Muslim student's home-engineered clock is taken for a bomb
- A Christian cake shop that doesn't cater same-sex weddings
- A county clerk refuses to issue marriage licenses
- Conclusion
Introductory case: A Muslim flight attendant who won't serve alcohol
There is a news article about a Muslim flight attendant who is in danger of losing her job. She refuses to serve alcohol on flights, as such service would go against her faith.
This story seems to be a decent initial test case for evaluating our positions, without the usual political cheerleading getting in the way of our thinking. So we'll start out here, and later consider other similar cases, using the principles we use in this case.
As for me, I think that we are doing something very wrong if the structure of our society requires people to violate their sincerely held religious beliefs. If we do so, we impoverish the diversity, tolerance, and freedom in our world while making it more dogmatic and tyrannical. This is so obvious, and already expressed so clearly by the first amendment, that it's actually a little embarrassing to have to write it out. Yet, here we are.
This is doubly true when a simple shifting of duties can so easily accommodate the religious conviction in question. Seriously, someone else can't take over for her when a passenger requests a drink, while she does extra work elsewhere? If we can't figure out this trivially simple logistics problem because we're all too busy taking sides, then we really are in trouble. What do we gain by forcing this woman to serve alcohol? More importantly, what do we lose?
This is an important condition: that she MUST take up extra duties elsewhere to make up for her inability to serve alcohol. Whether or not this is possible is where the line gets drawn in deciding if the airline ought to fire her. In this case, there's no question that it is possible, as serving alcohol is a minuscule part of a flight attendant's duties. (If this somehow turns out not to be the case, then I have no problem with the airline firing her.) Implementing this reassignment of duties is a trivially simple matter.
At this point, some people go off the deep end and say that if an employee cannot perform ANY PART of their job duties, no matter minor that part is, then the business has an absolute right to fire her. But this position is simplistic, one-sided, and concerned only with preserving the power of the business. It would allow a business to fire any imperfect employee - which is of course any employee, period. Instead, we must consider both sides - the business has the right to operate without undue interference or obstacles, but an employee also has the right to protect herself from being forced to violate her identity. These concerns must be evaluated and weighed. The above-mentioned condition is where these concerns meet: the employee must take up extra duties to make up for the trouble to the business, and if this accommodation is not possible she should be fired. In the case of our flight attendant, it's pretty clear that the accommodation is easily possible.
So then, the choice here is simple. The airline can simply shuffle some duties around - something so trivially easy that even a five-year-old can understand it - with no loss. Or, it can fire her. If we can't make the right choice here because we're too busy getting wrapped up in political cheerleading, we're in deep trouble.
Another possible objection would be to claim that firing the flight attendant has nothing to do with religious freedom: the flight attendant would not be fired for being Muslim (which would be discriminatory), but for refusing to serve alcohol (which is just a part of her job). Anyone else making the same refusal would also be let go. But line of thought fails on multiple levels. First, if the airline were to fire a non-Muslim with a genuine conviction against serving alcohol, it would still be making the wrong choice, even if it's only concerned with its own profits: note the cost of firing, hiring, and training, compared to no loss for the airline in making the accommodation. Accommodation is better even in the case of non-Muslims. Our Muslim flight attendant is therefore not pleading for some special privilege associated only with religion. She is simply appealing to the universal principles of common sense and basic decency.
But much more importantly, this idea of divorcing identity from action is fundamentally misguided, and fails on any other application. So, our flight attendant is allowed to BE Muslim, but she's not allowed to ACT Muslim? Behold the catalog of fails this leads to, in a multitude of analogous cases:
A Jewish holocaust survivor works as an artist in a graphics design firm. His identity doesn't matter much for his job, until his firm is commissioned by a Buddhist temple to draw some swastikas for a brochure. Due to his past trauma, he asks his boss to shift around the project assignments so that he can work on something else instead. But his boss replies, "Look, being an artist is your job. You must draw what the customer wants. To accommodate you may negatively affect the firm's bottom line. I know that you ARE a Jew, and I have no problem with that, but you're not allowed to ACT Jewish, by bringing up your past history or your people's past history. If you insist on ACTING Jewish, you're fired."
A female P.E. instructor is working at a school, and for the new school year, they're bringing back a swimming class. Unfortunately, all previous swim instructors were male, so they don't have any female swimsuits for adult teachers. As part of the school's dress code, all articles of clothing - including swimsuits - must be provided by the school. When she goes to the principal to ask for a female swimsuit, she is told, "Look, I know that you ARE a woman, and I have no problem with that. But you're not allowed to ACT like a woman if that will hurt your job performance. Wearing a swimsuit is part of your job. You'll just have to wear one of the past instructor's male swimsuits we have available. Ordering another swimsuit would definitely impact the school's budget in a negative way. If you insist on ACTING like a woman and demand a woman's swimsuit, you'll be fired."
A gay man works as a general handy-man around the school in a small, conservative town. He does gardening, plumbing, cleaning, and other such jobs after school is out. His work doesn't involve much interaction with the students or the parents - except at the annual "Back to School Night", for which he represents the school by serving as the greeter. He plans to marry a man that he loves, but doesn't want to create drama in his small, conservative town. So he goes to the principal and asks to be let off this one duty, with a corresponding pay cut. There he is told, "Look, I have no problem with the fact that you ARE gay. But I do have a problem with you ACTING gay by getting married. I'm not being discriminatory, because even if you were straight, I wouldn't want you to marry a man, and we would not be having this discussion if you would just marry a woman instead. Representing the school is part of your duties, and your effectiveness there would obviously decrease if you married a gay man in a town like ours. I don't want to have to look for another greeter, therefore you are forbidden to marry. Otherwise, you're fired."
A transsexual woman starts at a new job, and runs into the usual problems with the bathrooms. Fortunately, the building has many single-occupancy bathrooms, but unfortunately they're all currently labeled as either for male or female. Not wanting to cause a stir at her new job, she asks the building supervisor to simply designate some of them as unisex bathrooms so that she doesn't have to bother anyone. The supervisor replies, "Look, I know that you think that you ARE a woman, and I have no problem with that. But working in this building is obviously a part of your job description, and you are not allowed to ACT like a women if that would disrupt the building and the use of its facilities. Furthermore, ordering new bathroom signs would undoubtedly impact the company's bottom line negatively. So, you must use the men's bathrooms. Otherwise you lose your job."
A Muslim is working as a flight attendant, and on rare occasions a passenger requests alcohol, which her religion forbids for her to serve. So she asks for a simple reassignment of duties - she'll do some other work while being excused from having to serve alcohol. But the airline replies, "I know that you ARE a Muslim - in fact, you can call yourself whatever you'd like - but you're not allowed to ACT Muslim. That would interfere with your duties as a flight attendant. We furthermore deny your request for a different set of responsibilities, as that may be detrimental to our business. Violate your conscience, or face termination."Who among us thinks any of this is okay? Identity without actions is meaningless. It's absurd to say things like "you can BE gay, as long as you don't ACT gay". The solution to these problems does NOT involve dictating what is allowed to someone with a marginalized identity, and it does NOT involve the ones in authority trampling everything to get their way. The solution in these cases consists of making a simple choice between two options:
Option A: Force the employee to perform an action that would profoundly violate their identity, by threatening them with the loss of their livelihoood. Or,
Option B: Accommodate the employee's simple request, which has no significant negative effect for the employer.This is not a hard choice. It is, as I said before, actually trivially simple. It is so easy that even a five-year-old can understand it and get it right. If you can't figure out something this easy because of some preconceived notions, you need to reject those notions and rethink your life.
Enumerating the general principles at work
Now, we want to extract the core principles involved in cases like this.
Let's begin by summarizing my position: the flight attendant's sincerely held religious beliefs ought to be protected, but the airline also has a right to operate without undue hardship. This calls for a careful consideration of the claims of each party, to see whether both concerns can satisfactorily addressed. The solution I proposed was this: the flight attendant ought not to be forced to serve alcohol, but she must make up for this in taking up other duties, so that the net effect on the airline is negligible. Whether or not she CAN make up for it determines whether this accommodation ought to be accepted: for instance, if she were a bartender instead of a flight attendant, clearly she would not be able to make up for not serving alcohol, therefore the accommodation would not work out, and I would fully support the business in firing her. However, since serving alcohol is a minuscule part of a flight attendant's job, it would be trivially simple to shuffle around the duties so that she does something else while another flight attendant serves the drinks. Thus, she should be accommodated.
I was furthermore against the simplistic idea that "if she can't do her job, she ought to be fired". To say that the business has an absolute power to fire an employee for not doing a part of her job - even if that part is a minuscule portion of the job description - would mean that the business could fire any imperfect employee. That is to say, it could fire any employee, period. That would simply be a case of the business trampling over the employee with its power, with no regard for balance, fair play, or the rights of the employee.
So, let's explicitly state the general principles involved here:
Also note that I'm not particularly concerned about the law of the land. Human laws derive their legitimacy from natural laws - in our case, from what is right and wrong as established by moral principles. If we understand the principles well, the implementation of their particulars in our laws will be straightforward. That is why I'm primarily concerned with the principles.
With these principles, we are now ready to tackle other similar cases where religious freedom, societal power, minority rights, and government authority intersect.
Ahmed Mohamed is a 14-year old Muslim student who was arrested for bringing in a home-assembled digital clock to school. If you haven't heard this story already, please read up on it. The remainder of this post will assume your familiarity with the story.
Now, because this is a recent event, new facts may emerge that changes the character of the story. Of course, I am all for taking into account any new relevant information, and for people always digging deeper for more facts. However, since I have to apply the above principles to SOMETHING, and because I cannot read every single article out there about Ahmed, I have decided to take the story, as it appears on Wikipedia today (9/21/15), as canon. Remember that my chief concern is the application of the above principles: I am confident that, regardless of any additional information, the principles can be applied to arrive at a correct conclusion. That will be true even if that conclusion changes based on the new information.
Now to the matter at hand: first, Ahmed has the right to live according to his identity - that of being a Muslim student interested in engineering. He is free to put together digital clocks and bring them to school to show to people.
But the school also has a right to ensure its smooth operation and a duty to ensure the safety of its students and staff. At this point, I should point out that the appearance of Ahmed's clock is a legitimate cause for concern. This is true completely independent of any questions about Islamophobia or racism. Imagine that you're a teacher, and you came across this device with nobody nearby. It's been left behind beneath a random student's desk, and it's making beeping sounds. Would that not cause at least a small bit of concern? You would certainly be derelict in your duties if you simply shrugged your shoulders and walked away.
So, now we have a conflict between the student and the school. The principles stated above says that we should look for a balance. Neither party should get an absolute final say in restricting the freedom of the other: the school ought not to treat the student as a terrorist, but the student also ought not to be allowed to bring dangerous-looking device to school and flaunt it. Instead, we should seek a balanced solution that maximally preserves the rights of both parties. In my view, Ahmed's engineering teacher comes closest to striking this balance: upon looking at the clock, the teacher told Ahmed, "that's really nice", but also advised him to keep the device in his backpack the rest of the day. In this interaction, Ahmed is praised and validated for his achievement, but is also gently told that the appearance of his clock is problematic. The student's rights and the school's concerns are both taken into account and adequately protected.
The one additional thing that the engineering teacher could have done is to ask Ahmed to leave the clock with him until the end of the school day, so that he can to show it off to his other students. This would have enhanced both the recognition of the student's achievement, and also the security of the school. Of course, we can't fault the engineering teacher for not coming up with this solution on the spot - it's something that I came up with only due to perfect hindsight and the benefit of sitting calmly at my desk. But it is this kind of win-win solution, which takes the interests of all parties into account, that we always ought to be looking for.
Unfortunately, the story from this point veers off in the opposite direction, to a one-sided lose-lose scenario. The school acts in a unilateral, antagonistic manner, trampling over the student's concerns while only looking out for its own rights: the clock later beeped in Ahmed's English class, and the teacher requested to see it. Ahmed was then reported to the principal's office (up to here, I think things are okay - if you disrupt class with beeping from a scary-looking device, it's not unreasonable for that to merit a report to the principal's office). From there, the police got called in, and Ahmed is interrogated, handcuffed, and sent to a juvenile detention center. He was denied contact with his family, threatened with expulsion, and suspended for three days.
Clearly, the school massively overreacted. At some point in this chain of events - probably pretty early on - it must have become clear that the clock was not a bomb. At that point the school should have turned back from its course, acknowledged its error, and apologized to Ahmed. It should have upheld his right to make clocks and bring them to school, while gently reminding him to be careful about the threatening appearances of his devices. Instead, it plowed ahead on its one-sided course, and the story was then reported all over the news.
Fortunately, once the story hit the news, American society as a whole reacted to restore the balance by coming to Ahmed's support. He has been invited to the White House by President Obama, along with receiving a great deal of other opportunities and expressions of support. So Ahmed has been greatly wronged by his school, but society as a whole restored the balance by compensating him for that wrong. That is as it should be. The only thing I might wish to have gone differently is if President Obama's invitation was delivered through Ahmed's school or the local police department, instead of over Twitter. That might have done more to directly compensate for the harm caused to Ahmed from these institutions, and allowed them to apologize to Ahmed gracefully. But of course, I can't fault Obama for not implementing that particular solution, which again only comes to me through hindsight and calming distance.
So in the end, the story appears to have come to an acceptable ending. I just can't help but think that all this would have been unnecessary if more authority figures around Ahmed had been able to see things from multiple perspectives, like his engineering teacher had. But instead, so much of our society seems to be driven by a simplistic, antagonizing, ham-fisted, one-sided narrative. It's not hard to imagine that the school administrators were driven by a safety-first, zero-tolerance policies that says "anything that compromises the safety of the school must be stopped". Conversely, the reaction to Ahmed's plight seems to be driven in part by an equally one-sided "LOL, Americans are racist Islamophobes" narrative. Sometimes we get lucky, and these one-sided narratives collide in such a way as to restore balance, as it did in Ahmed's case. But I still worry about what happens when we don't get lucky.
Sweet Cakes by Melissa is a cake shop that was heavily penalized for refusing to cater a same-sex wedding, which they felt was against the principles of their religion. The rules here are the same as in the previous section: I will assume familiarity with the story. I will take only the Wikipedia article as it appears today (9/28) as canon. I care more about what is right rather than what is legal. And lastly, my chief concern is the application of the principles governing the interaction between the majority and the minority.
Let's get right to it: first, the owners of the cake shop have a right to free religious exercise. They should not be forced to participate in an activity that violates their sincerely held beliefs.
But the State of Oregon also has a right to enforce its 'equal accommodation' law, and the same-sex couple has a right to walk into any public business and expect and receive that equal accommodation.
So that is the conflict. How can we resolve it? As before, it would be wrong to simply allow one party to unilaterally impose its will upon the other. That is to say, it would be wrong to simply allow the owners of the cake shop to refuse service, and it would also be wrong to simply force them to violate their conscience and cater the same-sex wedding. Both sides must be taken into account in our solution.
So how can we balance the rights of both parties? Is there a way to protect both the cake shop's free exercise of religion, and the same-sex couple's equal accommodation? I believe there is. In fact, there are multiple, simple ways to preserve the rights of everyone involved in a live-and-let-live fashion, without antagonizing anyone.
The easiest way is to simply outsource the job. Make some arrangements with another cake shop that does not mind catering same-sex weddings, then simply let all customers know that any personalized cake order may be filled by that shop. The owners of the original cake shop would then take the order from the same-sex couple, and hand off the job to the other shop. The customers won't even have to know why this happened. The cake shop wouldn't have to cater a same-sex wedding, and the same-sex couple gets their cake without a hitch.
What if the same-sex couple were to insist on the order being filled by the original cake shop? I think this is an unreasonable demand, for multiple reasons. First, it seems likely that the motivation behind such a demand is "We want to violate your conscience", and not "we want equal accommodation". I am against motivations like these, which seeks to forcefully restrict the freedom of others. As long as the service and the customer experience is not meaningfully different between homosexual and heterosexual couples, the customer's rights have been satisfied and they do not get to furthermore demand that the inner workings of the business itself must conform to their ideology. In addition, such a demand would suggest that the cake shop is not really a public accommodation - that they are more like an artist with a unique, singular talent whom the couple is commissioning for a new project. And of course, the artist is free to accept or reject any new projects in such cases.
On the other hand, what if the cake shop were adamant in not serving the same-sex couple, in any way? This, too, is unreasonable. This position may look like they're saying "we want to make your wedding difficult" rather than "we want to obey our conscience". The fact of the matter is that the cake shop, by refusing to serve the same-sex couple, did cause them some amount of actual inconvenience. They wasted their customer's time and nullified their efforts. This is an actual, material harm that they caused to the couple, and it must be compensated for.
What would be the right amount of compensation in such cases? This, too, can be framed in terms of the previously listed principles: the cake shop has the right to free exercise of their religion and the same-sex couple has the right to equal accommodation. So, if the cake shop has not made any previous outsourcing arrangements, or if their beliefs are so rigid that they cannot even bear to take an order from the same-sex couple, what should happen? The answer is straightforward, at least in theory: the couple should receive enough compensation to restore their experience to be on par with "equal accommodation".
Note that this is a second-best solution, after the "outsourcing" solution mentioned above. Because it is a second-best solution, where the cake shop's demands are higher, the implementation will be much messier and the compensation to the couple must be correspondingly higher. To determine the appropriate level of compensation - enough to make up for the couple's time and effort and achieve "equal accommodation" - let's consider these two scenarios:
It's important to note that the same-sex couple doesn't simply get to choose their own value of X, as that obviously has a massive potential for abuse. X should therefore be based on what the population, as a whole, would choose in such scenarios. Also note that this solution assumes a civil business-customer interaction: words like "bigot", "abomination", or "homophobe" are assumed to have not been thrown around. If they were, that could be handled separately. Lastly, the same-sex couple here is being compensated for their lost time and energy, and not for their hurt feelings beyond simply being turned away. They do not receive any compensation for being offended at the beliefs of the cake shop owners, no more than the cake shop owners receive any compensation for for being offended that two people of the same sex should be getting married. Each party believes the other is wrong; but neither gets to impose their beliefs on the other, and both get to preserve their core identities. Truly, each may say to the other, "we're here, we're queer (from your perspective), get used to it".
If I were the dictator of Oregon and this case came before me, I would rule in favor of the same-sex couple, and order the cake shop to pay about $600 to the couple as compensation for damages (the tenfold increase from $60 is due to the fact that the state had to step in and force the transaction). I would then expand the scope of this decision by turning the case into a class-action suit, allowing any same-sex couple who can demonstrate that they had been similarly discriminated against to receive their $600 from their respective cake shops. Lastly, I would force such cake shops to implement the "outsourcing" solution. Alternatively, these cake shops may issue coupons for $60 off on wedding cakes from other nearby shops to any same-sex couple they turn away. The original cake shops would be responsible for negotiating and implementing this coupon system with the other shops.
The details of that "$60" solution can certainly be improved with more input from better businessmen and lawyers than I. However, the main point is that for both the "outsourcing" and the "$60" solution, the rights of both the cake shop and the same-sex couple can be preserved. The "outsourcing" solution is simple and fair. Even if it comes to the "$60" solution, the two parties can get along with minimal antagonism and with their core identities and rights intact. Both solutions achieve balance, and are vastly to be preferred over any scenario where one party simply imposes its will on the other.
As a final test, let's think about how these solutions work when the identities have been switched around. What if a Christian organization asked a gay-owned cake shop to put a Bible verse - say, Leviticus 20:13 - on a cake? Or what if an interracial couple asked a racist cake shop to make their wedding cake? How about if a white supremacist couple asked a black cake shop owner to write "for the propagation of the superior Aryan race" on their wedding cake? What about when a Buddhist temple wants a swastika-shaped cake from a Jewish cake shop? Can my proposed solutions above handle these cases equally well?
Think through these test scenarios, and consider how the two solutions would be implemented in each case. You'll see that the "outsourcing" solution handles all these cases with no conflict and protects the core identities of all involved parties. It's important to note that it does so completely independent of the moral correctness of any of the parties, which is a good sign. Even the "$60" solution minimizes antagonism and prevents one party from simply trampling over the rights of the other - again independent of the moral correctness of the parties involved.
Of course, nothing like my solutions happened in real life. The same-sex couple was simply turned away from "Sweet Cakes by Melissa" (sigh...), then the court hit the business with a crushing $135,000 fine (arg!). The cake shop then raised over $100,000 in an online campaign before that campaign was shut down (what?), and the owners have stated that they will contest the decision against them. I still have hope that all these one-sided efforts might cancel out to restore balance in our society, but real life continues to worry me.
Kim Davis is the county clerk of Rowan County, Kentucky, who was jailed for some time for refusing to issue marriage licenses. Her rationale was that issuing them to same-sex couples would violate her religious beliefs.
The rules here are again the same as before: I will assume familiarity with the story. I will take only the Wikipedia article as it appears today (10/4) as canon. I care more about what is right rather than what is legal. And lastly, my chief concern is the application of the principles governing the interaction between the majority and the minority.
If you've read this far, you likely know what I'm going to say about Kim Davis: we should seek balance. We cannot allow one clerk to simply deny marriage licenses to a whole county, but we also must not force an individual to violate their religious convictions. A simple, reasonable accommodation for the clerk should be sought. If such accommodation is not possible, we may have to go to second-best solutions, which require more complicated accommodations and therefore more cost to all involved parties, as in the "$60" solution in the previous post. If all attempts fail, then as the last resort, the county clerk may have to be removed from office, or be otherwise compelled to issue the licenses.
The problem in this story is that it's unclear how much accommodation Kim Davis requires. The story essentially starts off from the beginning with her refusing to issue marriage licenses. Now, if that's the end of the issue for her - if there is absolutely no way for same-sex couples to get their licenses while she's in office - then no accommodation is possible. She must resign, or be somehow compelled to issue the licenses.
However, if Davis is only asking for her name to not be on the marriage licenses, then that seems to be a simple matter. We just have to ask, "is this possible? Is it feasible? Is this costly, beyond what can be made up for by Davis?" If it turns out that this is a reasonable accommodation (which seems likely), then it should be made.
But, if this is what Davis wanted, why did she not start off her protest in that way? She could have issued licenses with her name manually crossed out. She could have changed her own name - perhaps to something like "Matthew 19:4-5". There are several different ways for her to circumvented her name appearing on the licenses. Then if she were challenged, she could legitimately say that she was only protecting her own religious freedom, with no intent to restrict the freedom of others.
What if Davis had only been asking that she herself not handle same-sex marriage licenses? Well, she has several deputy clerks. One of them could issue licenses in her stead. There should be no problems with providing that kind of accommodation to Davis - in fact, it seems likely that she could have implemented it herself without any trouble.
Failing all that, Davis might have offered the couples a monetary compensation for them to go to another county clerk, as in the "$60" solution in the previous post. However, this is a distinctly worse solution, even moreso than in the previous post. The differing nature of a cake shop and a government office would dramatically increase the required compensation, to the point where this scheme would likely become unworkable. But at least it would be something - anything to show that there was some way for some kind of arrangement where Davis' religious freedom could be accommodated.
But in starting her protest by simply turning couples away, Davis seemed to be saying that her office will not issue any marriage licenses while she was the county clerk. Under those circumstances, it is entirely appropriate to call for her resignation, or to jail her to force her to act. Fortunately, after the usual legal and media circus, it turned out that it was acceptable for all parties for the marriage licenses to be issued without her name, through a deputy clerk. And that is how things are now done in Rowan County.
So this story seems to come to a reasonable conclusion - everyone wins, or at least doesn't lose. Same-sex couples get their licenses, and Kim Davis keeps her job and her clear conscience. A simple, reasonable accommodation allows for everyone to more or less get along. The "system" seems to have worked.
But as in the previous cases, I see several worrisome things. I wonder about our ability, as a society, to come to these reasonable conclusions. There seems to be a strong tendency for us to become polarized, line up on opposite sides, then cheer for whomever is on our side. Could Kim Davis not have simply started by implementing the reasonable accommodation herself? Why begin by turning people away? The opinions of many people reacting to this issue also seems to be entirely one-dimensional: in the Wikipedia article it says "When asked what Davis should do, 65% said that Davis should resign from office; 23% said that Davis should stay in office and continue to refuse to issue marriage licenses to same-sex couples; and 4% said that Davis should remain in office but issue licenses to all persons legally entitled to one." NONE of those three options come close to the solution they eventually settled on, the one that actually maintains balance among the rights of all parties.
Furthermore, apparently there are some people who are calling into question the validity of the newly issued marriage licenses, the ones without Davis's name that are issued by a deputy. Seriously? What good could come of this? You would invalidate the licences of couples that have already received them, so that you can imperil Davis's religious liberty? That's the lose-lose solution. The only thing it accomplishes is to further antagonize the other side by blowing everything up. It is perhaps the worst way for this story to continue, for pretty much everyone involved.
Once again, here are the general principles involved in these cases:
So... "God bless America". At the end of the day, that is perhaps the only thing that may be said here. He has done so abundantly up till now, and we'll surely need his continuing blessing into the future.
I was furthermore against the simplistic idea that "if she can't do her job, she ought to be fired". To say that the business has an absolute power to fire an employee for not doing a part of her job - even if that part is a minuscule portion of the job description - would mean that the business could fire any imperfect employee. That is to say, it could fire any employee, period. That would simply be a case of the business trampling over the employee with its power, with no regard for balance, fair play, or the rights of the employee.
So, let's explicitly state the general principles involved here:
I believe that people have a right to the free exercise of their religion. This is actually only a small slice of a broader principle: that people have a right to live according to their identity.
Conversely, it is wrong to require people to violate their conscience, their gender, their sexual orientation, their people's history, or other such categories that form one's core identity.
I believe that the many - whether it be a large corporation, a governmental institution, a school, or simply "society" - also has a right to impose order and insure its own smooth operation.
Conversely, it is wrong for an individual or a minority group to disrupt the workings of the majority to satisfy their own needs.
I believe that, in case of a conflict, a balance should be struck. We should take the concerns of all parties into account and weigh them together to achieve a fair solution.
Conversely, I am against one side simply imposing its will on the other. I will oppose any actions whose chief goal is to forcefully restrict the freedom of others, whether it comes from the minority or the majority.
I believe in cooperative, common-sense solutions characterized by nuance and empathy.
Conversely, I am against ham-fisted, absolutist, or antagonistic decision making processes.
Of course, we will not always find perfect solutions that perfectly satisfy all these principles. But especially in such cases, I believe that we should take extra care not to favor the strong over the weak, the large corporation over the individual employee, the majority over the minority, or profits over personal rights.I believe that my position on the issue of the flight attendant embodies all of these principles. I sincerely hope that these principles are things we can all agree on. It's only common sense and basic decency.
Also note that I'm not particularly concerned about the law of the land. Human laws derive their legitimacy from natural laws - in our case, from what is right and wrong as established by moral principles. If we understand the principles well, the implementation of their particulars in our laws will be straightforward. That is why I'm primarily concerned with the principles.
With these principles, we are now ready to tackle other similar cases where religious freedom, societal power, minority rights, and government authority intersect.
A Muslim student's home-engineered clock is taken for a bomb
Ahmed Mohamed is a 14-year old Muslim student who was arrested for bringing in a home-assembled digital clock to school. If you haven't heard this story already, please read up on it. The remainder of this post will assume your familiarity with the story.
Now, because this is a recent event, new facts may emerge that changes the character of the story. Of course, I am all for taking into account any new relevant information, and for people always digging deeper for more facts. However, since I have to apply the above principles to SOMETHING, and because I cannot read every single article out there about Ahmed, I have decided to take the story, as it appears on Wikipedia today (9/21/15), as canon. Remember that my chief concern is the application of the above principles: I am confident that, regardless of any additional information, the principles can be applied to arrive at a correct conclusion. That will be true even if that conclusion changes based on the new information.
Now to the matter at hand: first, Ahmed has the right to live according to his identity - that of being a Muslim student interested in engineering. He is free to put together digital clocks and bring them to school to show to people.
But the school also has a right to ensure its smooth operation and a duty to ensure the safety of its students and staff. At this point, I should point out that the appearance of Ahmed's clock is a legitimate cause for concern. This is true completely independent of any questions about Islamophobia or racism. Imagine that you're a teacher, and you came across this device with nobody nearby. It's been left behind beneath a random student's desk, and it's making beeping sounds. Would that not cause at least a small bit of concern? You would certainly be derelict in your duties if you simply shrugged your shoulders and walked away.
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So, now we have a conflict between the student and the school. The principles stated above says that we should look for a balance. Neither party should get an absolute final say in restricting the freedom of the other: the school ought not to treat the student as a terrorist, but the student also ought not to be allowed to bring dangerous-looking device to school and flaunt it. Instead, we should seek a balanced solution that maximally preserves the rights of both parties. In my view, Ahmed's engineering teacher comes closest to striking this balance: upon looking at the clock, the teacher told Ahmed, "that's really nice", but also advised him to keep the device in his backpack the rest of the day. In this interaction, Ahmed is praised and validated for his achievement, but is also gently told that the appearance of his clock is problematic. The student's rights and the school's concerns are both taken into account and adequately protected.
The one additional thing that the engineering teacher could have done is to ask Ahmed to leave the clock with him until the end of the school day, so that he can to show it off to his other students. This would have enhanced both the recognition of the student's achievement, and also the security of the school. Of course, we can't fault the engineering teacher for not coming up with this solution on the spot - it's something that I came up with only due to perfect hindsight and the benefit of sitting calmly at my desk. But it is this kind of win-win solution, which takes the interests of all parties into account, that we always ought to be looking for.
Unfortunately, the story from this point veers off in the opposite direction, to a one-sided lose-lose scenario. The school acts in a unilateral, antagonistic manner, trampling over the student's concerns while only looking out for its own rights: the clock later beeped in Ahmed's English class, and the teacher requested to see it. Ahmed was then reported to the principal's office (up to here, I think things are okay - if you disrupt class with beeping from a scary-looking device, it's not unreasonable for that to merit a report to the principal's office). From there, the police got called in, and Ahmed is interrogated, handcuffed, and sent to a juvenile detention center. He was denied contact with his family, threatened with expulsion, and suspended for three days.
Clearly, the school massively overreacted. At some point in this chain of events - probably pretty early on - it must have become clear that the clock was not a bomb. At that point the school should have turned back from its course, acknowledged its error, and apologized to Ahmed. It should have upheld his right to make clocks and bring them to school, while gently reminding him to be careful about the threatening appearances of his devices. Instead, it plowed ahead on its one-sided course, and the story was then reported all over the news.
Fortunately, once the story hit the news, American society as a whole reacted to restore the balance by coming to Ahmed's support. He has been invited to the White House by President Obama, along with receiving a great deal of other opportunities and expressions of support. So Ahmed has been greatly wronged by his school, but society as a whole restored the balance by compensating him for that wrong. That is as it should be. The only thing I might wish to have gone differently is if President Obama's invitation was delivered through Ahmed's school or the local police department, instead of over Twitter. That might have done more to directly compensate for the harm caused to Ahmed from these institutions, and allowed them to apologize to Ahmed gracefully. But of course, I can't fault Obama for not implementing that particular solution, which again only comes to me through hindsight and calming distance.
So in the end, the story appears to have come to an acceptable ending. I just can't help but think that all this would have been unnecessary if more authority figures around Ahmed had been able to see things from multiple perspectives, like his engineering teacher had. But instead, so much of our society seems to be driven by a simplistic, antagonizing, ham-fisted, one-sided narrative. It's not hard to imagine that the school administrators were driven by a safety-first, zero-tolerance policies that says "anything that compromises the safety of the school must be stopped". Conversely, the reaction to Ahmed's plight seems to be driven in part by an equally one-sided "LOL, Americans are racist Islamophobes" narrative. Sometimes we get lucky, and these one-sided narratives collide in such a way as to restore balance, as it did in Ahmed's case. But I still worry about what happens when we don't get lucky.
A Christian cake shop that doesn't cater same-sex weddings
Sweet Cakes by Melissa is a cake shop that was heavily penalized for refusing to cater a same-sex wedding, which they felt was against the principles of their religion. The rules here are the same as in the previous section: I will assume familiarity with the story. I will take only the Wikipedia article as it appears today (9/28) as canon. I care more about what is right rather than what is legal. And lastly, my chief concern is the application of the principles governing the interaction between the majority and the minority.
Let's get right to it: first, the owners of the cake shop have a right to free religious exercise. They should not be forced to participate in an activity that violates their sincerely held beliefs.
But the State of Oregon also has a right to enforce its 'equal accommodation' law, and the same-sex couple has a right to walk into any public business and expect and receive that equal accommodation.
So that is the conflict. How can we resolve it? As before, it would be wrong to simply allow one party to unilaterally impose its will upon the other. That is to say, it would be wrong to simply allow the owners of the cake shop to refuse service, and it would also be wrong to simply force them to violate their conscience and cater the same-sex wedding. Both sides must be taken into account in our solution.
So how can we balance the rights of both parties? Is there a way to protect both the cake shop's free exercise of religion, and the same-sex couple's equal accommodation? I believe there is. In fact, there are multiple, simple ways to preserve the rights of everyone involved in a live-and-let-live fashion, without antagonizing anyone.
The easiest way is to simply outsource the job. Make some arrangements with another cake shop that does not mind catering same-sex weddings, then simply let all customers know that any personalized cake order may be filled by that shop. The owners of the original cake shop would then take the order from the same-sex couple, and hand off the job to the other shop. The customers won't even have to know why this happened. The cake shop wouldn't have to cater a same-sex wedding, and the same-sex couple gets their cake without a hitch.
What if the same-sex couple were to insist on the order being filled by the original cake shop? I think this is an unreasonable demand, for multiple reasons. First, it seems likely that the motivation behind such a demand is "We want to violate your conscience", and not "we want equal accommodation". I am against motivations like these, which seeks to forcefully restrict the freedom of others. As long as the service and the customer experience is not meaningfully different between homosexual and heterosexual couples, the customer's rights have been satisfied and they do not get to furthermore demand that the inner workings of the business itself must conform to their ideology. In addition, such a demand would suggest that the cake shop is not really a public accommodation - that they are more like an artist with a unique, singular talent whom the couple is commissioning for a new project. And of course, the artist is free to accept or reject any new projects in such cases.
On the other hand, what if the cake shop were adamant in not serving the same-sex couple, in any way? This, too, is unreasonable. This position may look like they're saying "we want to make your wedding difficult" rather than "we want to obey our conscience". The fact of the matter is that the cake shop, by refusing to serve the same-sex couple, did cause them some amount of actual inconvenience. They wasted their customer's time and nullified their efforts. This is an actual, material harm that they caused to the couple, and it must be compensated for.
What would be the right amount of compensation in such cases? This, too, can be framed in terms of the previously listed principles: the cake shop has the right to free exercise of their religion and the same-sex couple has the right to equal accommodation. So, if the cake shop has not made any previous outsourcing arrangements, or if their beliefs are so rigid that they cannot even bear to take an order from the same-sex couple, what should happen? The answer is straightforward, at least in theory: the couple should receive enough compensation to restore their experience to be on par with "equal accommodation".
Note that this is a second-best solution, after the "outsourcing" solution mentioned above. Because it is a second-best solution, where the cake shop's demands are higher, the implementation will be much messier and the compensation to the couple must be correspondingly higher. To determine the appropriate level of compensation - enough to make up for the couple's time and effort and achieve "equal accommodation" - let's consider these two scenarios:
Scenario 1: you walk into a cake shop, then order a cake without any problems.
Scenario 2: you walk into a cake shop, receive X dollars, and are turned away. You then order the cake from elsewhere.The value of X that makes us equally likely to choose either scenario is the proper compensation. My gut feeling on this is that about $60 should be sufficient to cover most cases. Of course, that value is subject to refinement pending further consideration.
It's important to note that the same-sex couple doesn't simply get to choose their own value of X, as that obviously has a massive potential for abuse. X should therefore be based on what the population, as a whole, would choose in such scenarios. Also note that this solution assumes a civil business-customer interaction: words like "bigot", "abomination", or "homophobe" are assumed to have not been thrown around. If they were, that could be handled separately. Lastly, the same-sex couple here is being compensated for their lost time and energy, and not for their hurt feelings beyond simply being turned away. They do not receive any compensation for being offended at the beliefs of the cake shop owners, no more than the cake shop owners receive any compensation for for being offended that two people of the same sex should be getting married. Each party believes the other is wrong; but neither gets to impose their beliefs on the other, and both get to preserve their core identities. Truly, each may say to the other, "we're here, we're queer (from your perspective), get used to it".
If I were the dictator of Oregon and this case came before me, I would rule in favor of the same-sex couple, and order the cake shop to pay about $600 to the couple as compensation for damages (the tenfold increase from $60 is due to the fact that the state had to step in and force the transaction). I would then expand the scope of this decision by turning the case into a class-action suit, allowing any same-sex couple who can demonstrate that they had been similarly discriminated against to receive their $600 from their respective cake shops. Lastly, I would force such cake shops to implement the "outsourcing" solution. Alternatively, these cake shops may issue coupons for $60 off on wedding cakes from other nearby shops to any same-sex couple they turn away. The original cake shops would be responsible for negotiating and implementing this coupon system with the other shops.
The details of that "$60" solution can certainly be improved with more input from better businessmen and lawyers than I. However, the main point is that for both the "outsourcing" and the "$60" solution, the rights of both the cake shop and the same-sex couple can be preserved. The "outsourcing" solution is simple and fair. Even if it comes to the "$60" solution, the two parties can get along with minimal antagonism and with their core identities and rights intact. Both solutions achieve balance, and are vastly to be preferred over any scenario where one party simply imposes its will on the other.
As a final test, let's think about how these solutions work when the identities have been switched around. What if a Christian organization asked a gay-owned cake shop to put a Bible verse - say, Leviticus 20:13 - on a cake? Or what if an interracial couple asked a racist cake shop to make their wedding cake? How about if a white supremacist couple asked a black cake shop owner to write "for the propagation of the superior Aryan race" on their wedding cake? What about when a Buddhist temple wants a swastika-shaped cake from a Jewish cake shop? Can my proposed solutions above handle these cases equally well?
Think through these test scenarios, and consider how the two solutions would be implemented in each case. You'll see that the "outsourcing" solution handles all these cases with no conflict and protects the core identities of all involved parties. It's important to note that it does so completely independent of the moral correctness of any of the parties, which is a good sign. Even the "$60" solution minimizes antagonism and prevents one party from simply trampling over the rights of the other - again independent of the moral correctness of the parties involved.
Of course, nothing like my solutions happened in real life. The same-sex couple was simply turned away from "Sweet Cakes by Melissa" (sigh...), then the court hit the business with a crushing $135,000 fine (arg!). The cake shop then raised over $100,000 in an online campaign before that campaign was shut down (what?), and the owners have stated that they will contest the decision against them. I still have hope that all these one-sided efforts might cancel out to restore balance in our society, but real life continues to worry me.
A county clerk refuses to issue marriage licenses
Kim Davis is the county clerk of Rowan County, Kentucky, who was jailed for some time for refusing to issue marriage licenses. Her rationale was that issuing them to same-sex couples would violate her religious beliefs.
The rules here are again the same as before: I will assume familiarity with the story. I will take only the Wikipedia article as it appears today (10/4) as canon. I care more about what is right rather than what is legal. And lastly, my chief concern is the application of the principles governing the interaction between the majority and the minority.
If you've read this far, you likely know what I'm going to say about Kim Davis: we should seek balance. We cannot allow one clerk to simply deny marriage licenses to a whole county, but we also must not force an individual to violate their religious convictions. A simple, reasonable accommodation for the clerk should be sought. If such accommodation is not possible, we may have to go to second-best solutions, which require more complicated accommodations and therefore more cost to all involved parties, as in the "$60" solution in the previous post. If all attempts fail, then as the last resort, the county clerk may have to be removed from office, or be otherwise compelled to issue the licenses.
The problem in this story is that it's unclear how much accommodation Kim Davis requires. The story essentially starts off from the beginning with her refusing to issue marriage licenses. Now, if that's the end of the issue for her - if there is absolutely no way for same-sex couples to get their licenses while she's in office - then no accommodation is possible. She must resign, or be somehow compelled to issue the licenses.
However, if Davis is only asking for her name to not be on the marriage licenses, then that seems to be a simple matter. We just have to ask, "is this possible? Is it feasible? Is this costly, beyond what can be made up for by Davis?" If it turns out that this is a reasonable accommodation (which seems likely), then it should be made.
But, if this is what Davis wanted, why did she not start off her protest in that way? She could have issued licenses with her name manually crossed out. She could have changed her own name - perhaps to something like "Matthew 19:4-5". There are several different ways for her to circumvented her name appearing on the licenses. Then if she were challenged, she could legitimately say that she was only protecting her own religious freedom, with no intent to restrict the freedom of others.
What if Davis had only been asking that she herself not handle same-sex marriage licenses? Well, she has several deputy clerks. One of them could issue licenses in her stead. There should be no problems with providing that kind of accommodation to Davis - in fact, it seems likely that she could have implemented it herself without any trouble.
Failing all that, Davis might have offered the couples a monetary compensation for them to go to another county clerk, as in the "$60" solution in the previous post. However, this is a distinctly worse solution, even moreso than in the previous post. The differing nature of a cake shop and a government office would dramatically increase the required compensation, to the point where this scheme would likely become unworkable. But at least it would be something - anything to show that there was some way for some kind of arrangement where Davis' religious freedom could be accommodated.
But in starting her protest by simply turning couples away, Davis seemed to be saying that her office will not issue any marriage licenses while she was the county clerk. Under those circumstances, it is entirely appropriate to call for her resignation, or to jail her to force her to act. Fortunately, after the usual legal and media circus, it turned out that it was acceptable for all parties for the marriage licenses to be issued without her name, through a deputy clerk. And that is how things are now done in Rowan County.
So this story seems to come to a reasonable conclusion - everyone wins, or at least doesn't lose. Same-sex couples get their licenses, and Kim Davis keeps her job and her clear conscience. A simple, reasonable accommodation allows for everyone to more or less get along. The "system" seems to have worked.
But as in the previous cases, I see several worrisome things. I wonder about our ability, as a society, to come to these reasonable conclusions. There seems to be a strong tendency for us to become polarized, line up on opposite sides, then cheer for whomever is on our side. Could Kim Davis not have simply started by implementing the reasonable accommodation herself? Why begin by turning people away? The opinions of many people reacting to this issue also seems to be entirely one-dimensional: in the Wikipedia article it says "When asked what Davis should do, 65% said that Davis should resign from office; 23% said that Davis should stay in office and continue to refuse to issue marriage licenses to same-sex couples; and 4% said that Davis should remain in office but issue licenses to all persons legally entitled to one." NONE of those three options come close to the solution they eventually settled on, the one that actually maintains balance among the rights of all parties.
Furthermore, apparently there are some people who are calling into question the validity of the newly issued marriage licenses, the ones without Davis's name that are issued by a deputy. Seriously? What good could come of this? You would invalidate the licences of couples that have already received them, so that you can imperil Davis's religious liberty? That's the lose-lose solution. The only thing it accomplishes is to further antagonize the other side by blowing everything up. It is perhaps the worst way for this story to continue, for pretty much everyone involved.
Conclusion
Once again, here are the general principles involved in these cases:
I believe that people have a right to the free exercise of their religion. This is actually only a small slice of a broader principle: that people have a right to live according to their identity.
Conversely, it is wrong to require people to violate their conscience, their gender, their sexual orientation, their people's history, or other such categories that form one's core identity.
I believe that the many - whether it be a large corporation, a governmental institution, a school, or simply "society" - also has a right to impose order and insure its own smooth operation.
Conversely, it is wrong for an individual or a minority group to disrupt the workings of the majority to satisfy their own needs.
I believe that, in case of a conflict, a balance should be struck. We should take the concerns of all parties into account and weigh them together to achieve a fair solution.
Conversely, I am against one side simply imposing its will on the other. I will oppose any actions whose chief goal is to forcefully restrict the freedom of others, whether it comes from the minority or the majority.
I believe in cooperative, common-sense solutions characterized by nuance and empathy.
Conversely, I am against ham-fisted, absolutist, or antagonistic decision making processes.
Of course, we will not always find perfect solutions that perfectly satisfy all these principles. But especially in such cases, I believe that we should take extra care not to favor the strong over the weak, the large corporation over the individual employee, the majority over the minority, or profits over personal rights.I sincerely hope that these principles are things we can all agree on. It's only common sense and basic decency. We have, as a society, seem to have not done too poorly by these principles. But too often that only seems to happen through dumb luck, and the one-sided extremist voices often seem to be the loudest and get the most press.
You may next want to read:
Basic Bayesian reasoning: a better way to think (Part 1)
History, moral progress, and moral perfection (part 1)
Another post, from the table of contents
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