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How the battle for religious freedom became a nonsensical free-for-all
Religious liberty is important — but it doesn't mean employees can do whatever they want
 
How did we wind up here?
How did we wind up here? (AP Photo/Alex Brandon)

Journalists are generally expected to adhere to some sort of code. For traditional news reporters, this may mean avoiding the appearance of being biased. For those at ideologically minded publications, it may mean staying on a certain side of the idea divide. At minimum, most outlets want their staff to avoid wildly unhinged, reputation-damaging rants.

But this is not how Robert Dale Eschliman sees it. The former editor-in-chief of Connecticut's Newton Daily News argues that anti-gay proselytizing on his personal blog is a vital part of his religious expression and therefore an invalid reason for termination. Eschliman says that in firing him, the newspaper illegally discriminated against him based on his religious beliefs.

One might think: Hello, at-will employment. At-will employment — the norm in all U.S. states but Montana — means that an employer isn't required to have or give cause for firing an employee. But that doesn't mean an employer can fire someone for any reason — there are some protected statuses, like race, religion, sex, age, or disability, on which companies can't legally discriminate. (In most states, sexual orientation and gender identity are not protected statuses.)

However, these laws only shield folks from employment actions made directly because of race/religion/etc. "An employer may fire Jane because she failed to perform the required functions of her job, but not because she is in a wheelchair," the National Conference of State Legislatures offers as an example. Similarly, an employer can't discriminate because of religion and is expected to allow for "reasonable accommodations" of religious expression (say, allowing time off for Catholic holy days or breaks for Muslim prayer rituals). Yet the Equal Opportunity Employment Commission (EEOC) also stipulates that accommodating religious practices isn't necessary if "doing so would cause more than a minimal burden on the operations of the employer's business."

In Eschliman's case, we have a newspaper that purports to cover gay rights issues objectively with an editor publicly calling homosexuals the "enemy" and worrying that the "Gaystapo" is going to bring about end times. I don't think it's hard to see how his actions may damage the paper's credibility. Eschliman wasn't fired for privately holding or discussing his anti-homosexual religious beliefs but for choosing to air them on a public blog (since taken down).

In another current case, a U.S. Bank employee is suing after being instructed to stop telling customers "have a blessed day." After customers complained, Kentucky bank teller Polly Neace was warned to stop saying this salutation and also to refrain from chiding customers over taking the Lord's name in vain. "Effective immediately you will no longer discuss the subject of faith or religion with customers and co-workers," the bank instructed. But Neace didn't listen. "I was upset with the fact they were stifling me and not allowing me to act on my beliefs," she told a local Fox News affiliate. When subsequently fired, Neace filed an employment discrimination complaint against U.S. Bank.

"It's a real interesting lawsuit and you are starting to see more litigation in this area with respect to what an employer has to do to accommodate employee's religious beliefs," said Fox 19 legal analyst Mike Allen.

In a third ongoing suit, this one from Florida, nurse Sara Hellwege is alleging employment discrimination after being told she doesn't meet the requirements for a nurse-midwife job with Tampa Family Health Centers. A large part of the position involves prescribing and counseling people about birth control. When inquiring about work, Hellwege mentioned that she opposes many methods of birth control and wouldn't prescribe them, though she'd be happy to counsel women about contraceptive options. The center declined her an interview and Hellwege sued.

In all of these cases, our "victims" seem to believe religious freedom gives them the right to express that religion at any time, in any way, without consequence. And screw freedom of association (also protected by the First Amendment, for the record). Why should companies have the right to only hire people who can fulfill a job's listed duties and not harm a company's bottom line?

This attitude is all the more strange for the fact that, when the proverbial shoe is on the other foot, religious business owners tend to want the freedom not to associate with gays and lesbians. It's almost as if this isn't about real religious liberty at all, but an attempt to wring special protections and allowances from the government.

Of course, that's a popular game for all sorts to play these days. In the name of gay rights, the state must compel Christian bakers to serve same-sex wedding cake! In the name of gender equality, Obama must make bosses cover birth control despite moral objections! Everyone's fighting not for actual access to things — wedding photographs, emergency contraception, nursing jobs — but for symbolic state sanctioning of their access, without compromise.

It's tedious, this balancing of faux rights. Freedom of religion simply cannot mean the right to behave in any manner so long as it's religiously motivated and still gain or retain a job. And luckily, freedom of association (and the free market) means that those devout believers who can't bear not to tell every passerby they're blessed can seek out a job where this is appreciated. A nurse vehemently opposed to contraception could go into any health-care arena other than reproductive medicine. A woman who resents her employer's exclusion of birth-control coverage can seek more liberal pastures elsewhere. You have to give a little, take a little, as the great Jimmy Durante says.

People's rights and interests are always going to run up against one another's. The idea is to structure things in a way that infringes on everyone's liberty the least. But if these recent religious freedom cases are any indication, the God-fearing gang has no more respect for real rights than those who would use the state to compel religious people to act against their morals.

 
Elizabeth Nolan Brown is a staff editor for Reason.com, where she covers issues related to reproductive rights, free speech, food policy, millennials, sex work, and criminal justice. She previously wrote about health, nutrition, and current events for Bustle and other women's websites and for AARP publications.

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