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June 25, 2005
Scouting out Allstate
Thanks to an annoying mailing list I somehow managed to get on, I just learned about an interesting case alleged to involve First Amendment violations and religious persecution by Allstate Insurance. (A guy named J. Matt Barber published an article which mentioned his employment with Allstate, and slammed the evil homos): I'm intrigued by the whole thing, especially because back in December Mr. Barber himself seemed to have gone out of his way to send me the article in question, and I couldn't resist a quick reply: Date: Fri, 31 Dec 2004 20:21:08 -0800 (PST)I never heard back from Mr. Barber, who obviously has bigger fish to fry, and while this whole thing is probably a waste of time, a few points seem worth discussing. There is just as much right to hold antigay views as there is to hold racist views or anti-Semitic views. Whether one bases one's claims on the Bible is irrelevant. If the Boy Scouts have the right to refuse to accept homosexual members, then wouldn't a gay group have just as much right to refuse anti-homosexual members? Does a Jew hater who thinks Hitler was right have a right to work for a Jew? If he claimed justification for his views under the Koran, why would that make any difference? This man has a right to say anything he wants, but I fail to see how the First Amendment (which forbids the government from stopping him) creates any particular duty for Allstate, any more than it would require me to allow comments I disagreed with on this blog. Whether it is wise of Allstate to invite scrutiny from Mr. Barber's supporters (who may well decide to boycott Allstate for disagreeing with him), well, that's a business decision for Allstate. I suppose they could fire all Democrats if they wanted. The thornier issue is of course whether this constitutes religious discrimination. If it could be shown that Barber was terminated for the status of being a Christian, then it would. But as I've said before, religion does not confer any special protection to opinions or actions just because they are said to be grounded in religion. An opinion said to result from religious conviction is no more protected than the same opinion uttered in the absence of religious conviction. I don't see how Allstate can be said to have "violated" this man's religion, as it's not as if they made him work on Sundays, or eat pork. That other people in the company are doing things that violate what he considers God's commands in no way forces him to do anything, or prevents him from doing anything. But here's how Barber's lawyer, David Gibbs III (who WND says "represented Terri Schiavo's family in the final weeks of her life"), sees things: "To have Fortune 100 companies like Allstate firing people for expressing their sincerely held religious beliefs and even their personal viewpoints on their own time demonstrates just how out of kilter things have gotten," Gibbs told WND.It's hard to take seriously the analogy to racial discrimination, but again, I'd return to the Boy Scout analogy, which is legally settled, and fair under the circumstances. Change Allstate to "Boy Scouts, and here's his argument: "I don't believe the Boy Scouts should be able to go in and say, 'We've discovered your pro-homosexuality viewpoint and we're going to fire you.'"Is that what Mr. Gibbs thinks? To be fair, the rule has to work both ways. But I'm not sure fairness is the goal here. More likely, it's publicity. I guess I haven't solved the question of what the rule should be. If an employer has no right to fire on the grounds of homosexuality, should the same employer have the right to fire on the grounds of opposition to homosexuality? I think it depends on whether the employee was fired for a state of mind or for stating what was in his mind. It is one thing to be gay, and another to express the opinion that heterosexuals would be better off gay. The same rule should apply to Christians, Muslims, heterosexuals, and I don't think the First Amendment offers much assistance. Nor does hiding behind it. I'm not sure what the rule should be, but to return to the "sodomy" issue, I think that if an employer disagreed with my biblical assessment and fired me for discussing it, I should have just as much right to fire employees who disagreed with me. As a Pagan Christian/Christian Pagan, I see religious freedom (and religious discrimination) as a two edged sword. posted by Eric on 06.25.05 at 10:47 AM
Comments
Yet another excellent post. Excellent reply to Mr. Barber. Whether or not being attracted to a man or a woman is like being a man or a woman, or is a choice like choosing to worship a God or a Goddess, is irrelevant to the question of privacy and personal freedom, of "liberty both in its spatial and more transcendent dimensions". I disagree with Mr. Barber, but, unlike the Politically Correct Thought Police he mentions, I will defend to the death his right to say it (on his own time, on his own dime). I think a private employer has the right to hire only Christians, only atheists, only homosexuals, only Negroes, etc., if he sees fit. I completely disagree with Mr. Barber that the purpose of sex is reproduction. I believe that the purpose of sex is communion with the Divine. I know that my view of sex is Romantic and Biologically Incorrect as well as Politically Incorrect. I have decided that I now completely disbelieve in the doctrine of evolution and I now openly call myself a creationist. I believe in the ancient creation myths instead. Steven Malcolm Anderson the Lesbian-worshipping man's-man-admiring myth-based egoist · June 25, 2005 04:29 PM Thanks Steven. Legally it doesn't matter what any of us thinks is right; the problem is governed by a legal thicket. Xrlq, thanks for visiting! I might have been making invalid assumptions, but as to the First Amendment, while there's no specific cause of action, "viewpoint discrimination," (see also http://www.chronwatch.com/content/contentDisplay.asp?aid=15327) was alleged -- and that theory is based on the First Amendment. http://www.bsalegal.org/scripts/print.asp?pg=154 I'm not sure I know how to define religious discrimination anymore, but it strikes me that ideally it should be defined as discriminating against "all Jews" or "all Muslims," per se, but that public statements in support of al-Qaida ought not to be protected in the same way. But how the hell IS the line to be drawn? Can such laws be based on common sense? Eric Scheie · June 25, 2005 05:37 PM Should an Aztec priest who believes that it is his duty to sacrifice the hearts of warriors to Huitzilopochtli be employed as a heart surgeon in the U.S. military? Should a Communist be employed in a government position where he has influence over foreign policy or access to military secrets? Should a Communist be hired to teach civics to children or adolescents in a public school? Is asking these questions "McCarthyism"? Steven Malcolm Anderson the Lesbian-worshipping man's-man-admiring myth-based egoist · June 25, 2005 08:36 PM Love that last rhetorical question! Eric Scheie · June 25, 2005 10:46 PM "Just like Allstate can't go in and say, 'We've discovered your ethnicity and we're going to fire you,' I don't believe Allstate should be able to go in and say, 'We've discovered your anti-homosexuality viewpoint and we're going to fire you.'" Sorry, buddy. People like you have been bellowing that the gay rights and civil rights movements aren't comparable in any way, shape, or form because one is about behavior and the other is about genetics. I myself agree for the most part, but it cuts both ways. Writing an article is behavior. I don't know whether this is the legal issue, but it does seem to me unfair for a company not to make the rules clear before an employee has a chance to get himself in trouble. Sean Kinsell · June 26, 2005 02:39 AM Sean wrote: Certainly the driving motive of much "right-to-work" and "workplace discrimination" law is to protect citizens from arbitrary firing or biased hiring that is unrelated to their work performance. Many Americans now share the expectation that they will not be arbitrarily terminated for personal/political speech unrelated to work - even from a private employer. Libertarians may not agree with it, but that is the law in many parts of the country. If a black/gay/woman cannot be fired for who they are or what they do as private citizens ("Sorry, Bruce, but your photo appeared in coverage of the Gay Pride parade, so we must let you go") - then a Christian worker cannot be fired for their private speech/actions. Ben-David · June 26, 2005 06:46 AM These are all good comments. I think there's a tendency (a tendency I admit I share!) to confuse discrimination with the constitutional prohibition on abridging free speech. Private employers, while they may abridge employees' free speech, may not discriminate for illegal purposes. What exactly is privacy? Is this blog, for example, "private" speech?
Eric Scheie · June 26, 2005 07:30 AM I am not a lawyer. As I can say is: Steven Malcolm Anderson the Lesbian-worshipping man's-man-admiring myth-based egoist · June 26, 2005 08:28 AM Ben-David, I thought I'd been clear that I wasn't working the legal angle. The lawyer quoted in the article said himself, "I don't believe Allstate should be able to go in and say...." That sounds like moral or ethical conviction and not a legal argument to me. Sean Kinsell · June 26, 2005 08:51 AM In actuality, I think there is a larger issue here ... How much leeway does an employer have in regulating the legal behavior of its employees when they are not at work? It's been held that businesses can reguire its employees to be non-smokers even if the person never smokes on company time/grounds. As the government lurches evermore into state nanny-ism, so corporations take a clue to regulate employee behavior under an assumption that the timeclock never ends. Darleen · June 26, 2005 12:42 PM It seems that this behavior of writing an article spouting his anti-gay agenda could be seen as creating a hostile work environment. It is fair to assume that Barber worked in an environment where there were homosexual employees. His attitude toward them would surely come off as hostile, even in a passive manner. This has nothing to do with when or where he created the article, it has to do with the attitude that he carries into the work place due to his rigid beliefs. I want to add that having an anti-homosexual viewpoint is not necessarily related to your religion, or lack therof. Sue · June 29, 2005 01:02 PM What anyone has yet to show me is whether this man's viewpoint effected his work. The only way I can support Allstate in their decision to fire this man is when his personal life effected his work life. You do have to leave your religion at the work door, just like you have to leave the rest of your personal life and baggage at the work door. After reading this man's article I don't see how he could be fair and impartial, but if he somehow managed to do it then he has every right to fight for his job. Ruth · June 30, 2005 11:03 AM |
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I'm not sure where your First Amendment reference comes from, but it's not in the article you linked. As a private corporation, Allstate could not violate anyone's First Amendment rights if it wanted to. It may, however, violate other laws, such as Title VII of the Civil Rights Act, as Gibbs alleges. Many states, California for example, also prohibit terminating employees for expressing political, religious or other protected views. I don't know if Illinois has a similar law or not.