J. Matt Barber was fired by Allstate apparently for writing this pathetically stupid article on homosexuality. His firing raises lots of interesting issues.
First off, were I in charge I wouldn't have fired him, or disciplined him in any way. He wrote the article on his own time and as long as it didn't interfere with work, I think it is unfair for this private corporation to interfere with what the guy does in his off hours. And were this a government job, the firing would be illegal, on Free Speech grounds.
But we take our Free Speech rights against the government, not against private corporations. Corporations, under the doctrine of employment-at-will, may fire an employee for speech with which the corporation disagrees as well as for good reason, bad reason, or no reason at all. Unless of course, the complainant can tie the firing to one of the many exceptions carved out against employment at will, most notably, discrimination. But, as my students and most ordinary people have a hard time appreciating, something isn't "illegal discrimination" if it appears merely to be unfair or irrational. Rather the discrimination must relate to one of the "protected categories," and those are few and limited in number. At the federal level we have, "race, color, ethnic origin, gender, religion, pregnancy, age and disability." More at the state and local level. But if your claim isn't on the list (for instance, they fired me because I refused to cut my long hair) then you can be fired or otherwise discriminated against for it under the doctrine of employment-at-will.
So this guy is arguing "religious discrimination." Is that right? They didn't say, "you are a Christian or a Catholic or a whatever, therefore you are fired." Presumably, the firm knew he was a devout Christian for many years and had no problem with him...until that is, he wrote this pathetically stupid article on his own time.
As Mr. Barber notes: "I explained to Allstate that the article was a reflection of my personal Christian beliefs, and that I had every right to both write it and to have it published...."
Does he have a case under current law? Well, given that this is a private corporation, the First Amendment's Free Exercise Clause is not at issue. However, Title VII does forbid private entities from engaging in religious discrimination and also does impose a burden to accommodate religious beliefs or practices. The EEOC's website says, "Employers must reasonably accommodate employees' sincerely held religious beliefs or practices unless doing so would impose an undue hardship on the employer." But also that, "An employer is not required to accommodate an employee's religious beliefs and practices if doing so would impose an undue hardship on the employers' legitimate business interests."
That's case right there. I'm not sure how it should or would come out under current law. On the one hand stating or writing something along the lines of "my religious beliefs tell me that all voluntarily chosen homosexual acts are immoral" clearly is an expression of a religious belief that one would think companies have a duty to accommodate under Title VII. But this guy's article goes far beyond that citing, you got it, Paul Cameron's phony, debunked social science:
As a result of the concerted effort by liberals to mask the devastating effects of the gay lifestyle, many people are shocked to learn that the average life expectancy of a homosexual male is only about 45 years old -- 30 years younger than that of a heterosexual male.
And many fundamentalist Christian dupes of Paul Cameron are even more "shocked" to learn that they are peddling a phony statistic.
The guy is also guilty of making extremely stupid arguments. Was it his Christianity or his stupidity that got him fired?:
For one to believe that homosexual behavior, the act of sodomy in particular, follows the biological order of things, one must ignore the fact that sodomy violates natural law -- you know... wrong plumbing...square hole/round peg. The whole thing really is a testament to man's creativity. Give us something good, and we'll bend over backwards to twist it into something else.
I wonder if this guy, like 90% of other heterosexuals has oral sex with his wife, which in every way violates the "wrong plumbing" norm that he is trying to put forth. Or if not, then why isn't he railing against that which is far more common than what homosexuals do?
Without delving into the overly descriptive mechanics, suffice it to say that, scientifically speaking, the sexual act was designed for procreation -- nothing more, nothing less... I know, not very romantic, but we're talking science here. Further, the design behind the human digestive system was solely and entirely intended for digestion, not for makeshift sexual activity -- there's not a sex organ in the mix. The notion that the act of sodomy is a natural, biological event simply does not square with biological reality. It may be PC but it sure ain't BC.
Well, if "sexual act[s are] designed for procreation -- nothing more, nothing less," that would require him to railing against contraception, even between good married Christian couples -- again, something practiced far more widely than homosexuality -- and every bit as "un-BC."
What's also interesting about this case is the way it sheds light on "civil rights" laws. Gays often get accused of unfairly making an analogy to blacks. In fact, in the offending article, that's exactly what Mr. Barber says:
[W]hat is homosexuality? Is it a status -- a state of being -- a word that typifies one's membership in a suspect, minority class no different than Black or Female? Let's consider... To be Black or Female, one need only be Black or Female. Membership in either class is contingent upon nothing. It's a state of being, which represents entirely neutral qualities (i.e., skin color and/or gender). On the other hand, homosexuality is contingent upon something... behavior -- a person's actions -- choices made -- their "sexual preference." It's the end result of choosing to define one's identity based upon with whom, and how one elects to have sex.
But the WND article quotes David Gibbs, of The Christian Law Association, the attorney representing Barber in the Title VII claim:
Gibbs compared the situation to that of racial discrimination.
"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.'"
This reminds me of a point made by Steve Miller in his classic article about discrimination:
David Boaz...has highlighted the issue of consistency about different protected classes. "Conservatives say gays shouldn't be protected, but blacks should, because being gay is something you choose, unlike your race," he writes. "But their reasoning is doubly wrong in that case: Most of us believe you DON'T choose your sexual orientation; but you DO choose your religion, which category conservatives want to protect." In fact, religious rightists, especially those who are "born again," stress that their brand of faith is something freely chosen. And, of course, many choose to adopt a faith different from their upbringing, while others abandon faith entirely.
Some conservative African-Americans, most notably General Colin Powell, claim that gays don't deserve protections because you can hide your sexual orientation, but not your race. While that's true enough, you can also hide your religious beliefs, yet no "anti gay rights" conservative to date has been willing to abandon hypocrisy and say that civil rights protections also should not extend to religion.
In fact, a growing number of civil rights cases before the federal courts focus on claims of workplace discrimination against fundamentalist Christians and Orthodox Jews. Many of these involve the plaintiffs' claim that requiring them to work on certain religious holidays amounts to discrimination, even though all employees are expected to work on those days (talk about demanding special rights!).
Let me also note that while First Amendment and Article VI of the Constitution reflect a norm of government neutrality towards religion, as with Free Speech (which right we have against government, not private employing entities), the rationale for government religious neutrality does not easily extend to the private sector. Indeed, while the First Amendment has been with us since the beginning, it wasn't until 1964 with Title VII that private entities were forbidden from discriminating on the basis of religion.
Even if one accepts that private entities should be neutral on the basis of race, why should private entities be neutral on the basis of religion, which by nature involves controversial beliefs? Religious rightists like Mr. Barber argue vociferously that private entities should be able to discriminate on the basis of sexual orientation. If so, then why not religion?
For instance, it's often argued that "Christian" owners should be able to refuse to rent their property to gay couples or hire them in their businesses. Let's put the shoe on the other foot -- there are a lot of gay property and business owners as well. Why then shouldn't a gay property owner or business owner be able to categorically refuse to rent to or hire orthodox Christians who hold views on homosexuality which he finds repugnant? If the gay person did this, he would be violating Title VII as well as many state and local laws. Such discrimination against gay people, however, is legal at the federal level and under most state and local anti-discrimination codes.