The politically-correct National Fair Housing Alliance (NFHA) has brought a disturbing lawsuit against an insurance company for an product aimed at church-goers, which provides benefits such as paying “church tithes or donations if the insured suffers a loss of income from a disability.”
The NFHA illogically claims that the product is a form of discrimination against non-religious people, which is as silly as saying that having a Kosher section in a grocery store is discrimination against non-Jews, or a Christian bookstore is discrimination against atheists. In fact, the NFHA’s president, Shanna Smith, promotes just such silly views when she says that that ”If I went to the grocery store to buy some bread, they couldn’t have a section for Christian bread . . .You can’t put a corporate bias into the sale of a product.” (There is, in fact, “monastery bread” sold in grocery stores that is marketed as being made by Christian clergy).
Contrary to Smith’s claims, the civil-rights laws forbid biases against customers, not in favor of particular products. It is not discrimination based on religion or sexual orientation for a conservative Christian businessman to refuse to produce gay-pride parade videos, or a gay businessman to refuse to make copies of reactionary religious tracts. Arlington County, Virginia belatedly recognized that in dropping discrimination charges against a copying service that had gay clients, but refused to produce a gay pride video that contained messages that contradicted the owner’s religious sentiments, recognizing that that was discrimination based on a product’s message, not a customer’s sexual orientation.
As Walter Olson observes, the NFHA complains that
“The benefits of FaithGuard are not available to persons who suffer a covered loss or disability while engaged in similar activities but who are not religious, who do not belong to a church, or who do not attend church or participate in religious activities.”
Of course, as Olson notes,
people in these latter categories would never be inclined to purchase FaithGuard in the first place, any more than people who never step on airplanes would go out of their way to buy flight insurance. Instead, if they worry about the financial risk of accidents, they would select one of the innumerable insurance products readily available with no particular religious component. But to achieve religious nondiscrimination in the eyes of NFHA, it’s apparently crucial not just that we non-churchgoers have access to every sort of risk coverage we might take a notion to buy, but that FaithGuard’s customers not have access to one they might like.
The real motive behind the NFHA lawsuit is hostility to any form of accommodation of religion, not a desire to end discrimination. The Constitution only limits government support for a religion, not private accommodation of it. But left-wing groups like the ACLU that are suspicious of religion, believing that even non-governmental recognition of religion can be dangerous. In the 1995 Meltebeke case, the Oregon chapter of the ACLU unsuccessfully argued that the Establishment Clause limits a private employer’s ability to express his religious beliefs. In court cases in the early 1980s, ACLU affiliates in Lubbock and New York obtained court rulings claiming that “sensitive Establishment Clause” considerations curb students’ right to express their religious convictions in the public schools, even though students are not state actors subject to constitutional constraints. The Supreme Court overruled those cases from the 1980s in Board of Education v. Mergens (1990), by emphasizing that “there is a crucial difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect.” The ACLU, however, often continues to reject this crucial distinction, often ignoring the “state-action” doctrine in cases involving religion, free speech, and equal protection.
Religious activity is just not comparable to any particular form of non-religious activity. That’s why it is treated as sui generis by the First Amendment, which erects both special limits on religious activity by the government (in the Establishment Clause) and special protection for religion in the private sphere (through the Free Exercise Clause). Since religious and non-religious activities are not similarly situated, it is simply not “discriminatory” for an insurer to provide insurance related to religious activities that is not useable by non-religious people, or available for non-religious activities.