Legal Analysis and Commentary from Justia

The “Me Me Me Generation” of Believers

Egoism ConceptJoel Stein has labeled the current generation the “Me Me Me Generation” in a fascinating article in Time. The focus of the article was on the self-centered generation of Millennials who have been raised with scads of “participation trophies” and parents who mistakenly believed that shoring up self-esteem was more important to success than was shoring up character and people skills. Stein pointed to the fact that our younger generation lives mostly through screens, whether those on phones, on tablets, or on computers, and believes somehow that it is entitled to success without experiencing hard knocks or even the passage of time.  Stein also cited studies showing that the incidence of narcissistic personality disorder (NPD) among millennials is high.  Quite correctly, he concludes that this is no revolution, but rather a movement that began with their parents’ generation, the Baby Boomers, otherwise known as the “Me Generation.”

This same worldview has infected debates over religious liberty, where individuals are now demanding the right to construct their workplaces, communities, and schools in the image of their personal religious viewpoint.  This is religious narcissism.  While there are serious reasons to be concerned about the Me Me Me Generation’s work ethic and its future, and to be annoyed with its self-centeredness, which is doing millennials no favors in the workplace or at home, the attitude that is being urged on religious believers poses a the more significant threat, in my view.

The Wall Street Journal reported this week that religious discrimination claims in the workplace claims are on the rise.  The article included stories of employees who made the following demands: (1) a claim to the right not to use biometric hand-scanning technology, made by a Christian evangelical who believes that Satan will place his mark on people’s hands or foreheads according to the Bible; (2) a claim to the right to wear a hijab, or full headscarf, by Muslim women working at Abercrombie and Fitch; and (3) the right not to transport liquor by Muslim drivers.   Add to this the perennial claims for Sabbath observance and for a right to wear other articles of clothing, such as turbans for Sikhs, and long skirts by various religious believers.

Such claims against private employers are brought through the Equal Employment Opportunity Commission (EEOC) or its state counterparts.  The standard in such cases is whether accommodation places an “undue hardship” on the business.   As the story points out, religious claimants don’t always win, but employers must litigate the cases, and more cases are being brought.

The mark of this new wave of religious narcissism is that the believers are assuming and demanding that they have legal rights to impress their religious demands and worldview on others.  The attitude means that those against whom they are pushing, who don’t share their religious world view, must then push back to assert their disagreement, or acquiesce in the takeover of the culture by those with whom they disagree.  It is a wedge.

Employees Aren’t the Only Ones in the Workplace Trying to Shape the Workplace to Reflect Their Beliefs

The problem of religious believers expecting the world to reflect their religious viewpoint is not just a characteristic of employees.  As I have written in this recent column, employers like Hobby Lobby and other for-profit companies are demanding the “right” to shape their health care plans to fit their personal religious worldview, regardless of the religious beliefs of their employees.  The companies are asserting a right to exclude medications for women from the company’s health plan according to their religious worldview.

As the Wall Street Journal’s article discussed above portends, I fully expect employees to respond to such claims with their own EEOC claims against such employers for discriminating on the basis of religion and gender in their health care plans.  For-profit companies with over 15 employees, who are therefore subject to Title VII, can’t distribute salaries based on religion or gender, so why should they be able to distribute health care on those parameters?   So far, the employees’ religious viewpoints and needs have occupied the background as Hobby Lobby, Conestoga Wood, and the Catholic bishops have loudly beaten their religious chests in public and their lawyers have pontificated about their “rights” to make the workplace in their religious world view.   This is, again, religious narcissism.

Religious Narcissism and the Law

There is no question that the vast majority of these claims are sincere, but the question is what the legal system should do with such claims.  And, in the big picture, where are we headed in this extraordinarily religiously diverse culture?

What we are seeing is an agenda of one-way accommodation, wherein the religious believer is the center of the universe and the society is supposed to make way for virtually all of his or her beliefs and practices.  That theoretically is supposed to apply to every single believer.  Each one of us is, on this theory, a self-enclosed universe wherein we have no obligations to be a part of the larger society, and only an obligation to our religious beliefs.  It is a recipe for intolerance, self-centered practices, and, ultimately, if permitted to fester, religious war.

To put it plainly, this is a theory of Me-Me-Me, or, just plain narcissism.  It is codified in the Religious Freedom Restoration Act (RFRA), which is intended to nullify all but the most necessary laws.  RFRA is the vehicle that employers are using to fight having to create health plans that accommodate their employees’ religious beliefs and not just their own, and the means by which the Milwaukee Archdiocese so far has been able to shield a fraudulent transfer of funds to avoid paying child sex abuse victims.   In other words, it is decidedly not a force for good, but rather mischief and wrong.

It’s Time for Two-Way Accommodation   

What is needed in a culture of diversity is two-way accommodation.  And the law is the medium through which we can achieve such peaceful accommodation.  The Supreme Court absolutely got it right in Employment Div. v. Smith when it held that religious liberty does not mean that one can be a law unto oneself.  Instead, religious believers have obligations to neutral, generally applicable laws just like everyone else.  While regulating belief and engaging in discrimination is unconstitutional, religious believers are not special citizens whose allegiance to the law is optional.

To their discredit, religious organizations went wild against that decision, in part, because their attempts to overcome all laws in conflict with religion had been outed.  They had obtained limited success following Justice Brennan’s decision in Sherbert v. Verner but had never obtained a right to strict scrutiny of every law in the country.   Suddenly, the Supreme Court in Smith had unmasked their few victories as meager, and handed them a definitive defeat.  The Court was right, and they were wrong, but that has rarely stopped a lobbyist from crossing the street to the Capital.

Instead of stepping back and saying, yes, they had pushed too far, the religious organizations passionately embraced the untenable position that they actually should be able to trump every law other than the small number of laws that are absolutely necessary.  The next step was to mislead Congress and President Clinton into enacting the deeply misguided RFRA.

Accordingly, they betrayed the intent of the Religion Clauses, which was never intended to force mandatory accommodation of religion.  (I know that Judge, and now Professor, Michael McConnell wrote an article saying that mandatory accommodation is historically correct, but his work has been definitively rejected by the Supreme Court and undercut by the research of Professors Philip Hamburger and Ellis West.)  In fact, the framing generation was quite concerned about the live potential for religious liberty to turn into licentiousness, and invested in safety and peace, as I discuss in this article.

Two-way accommodation, as the Supreme Court outlined it in Smith, is a rule that says that neutral, generally applicable laws are constitutional, but individuals or organizations can seek permissive accommodation through legislation.  I would add to the Smith reasoning that the religious believers have an obligation to prove to legislators that the accommodation they seek is not dangerous and is consistent with the public good, as I set forth at length in my book God vs. the Gavel: Religion and the Rule of Law.  This is roughly equivalent to what the EEOC has established in the private sphere.

There are good accommodations, including the peyote exemption for religious observers like the Native American Church (assuming the drug is not given to children), and the accommodation for public school students to wear religious garb like a hijab or turban even if it is otherwise banned by the school’s dress code, and the military’s accommodation of religious headgear.  There are also terrible accommodations, like the exceptions for medical neglect, which have permitted parents to let their children suffer and even die for the parents’ faith.  My point is simply that accommodation coming from the government (and private employers) is not uncommon, and, as the Smith Court noted, to be expected.

At the same time, a key point has been lost amidst the loud cries for religious liberty from the entitled: religious organizations and believers must, and do, adjust to the wider culture, just as the government can accommodate religious practices.  They are not frozen relics, but living organizations.  The Church of Jesus Christ of Latter-Day Saints abandoned polygamy in the late Nineteenth Century in response to the law of the land.  Every state had banned polygamy long before the Utah Territory was formed, and Congress extended this blanket prohibition to Utah, ultimately making the elimination of polygamy a condition to statehood.  The Latter-Day Saints shifted their beliefs, and accepted the country’s overwhelming, neutral, and generally applicable rule against polygamy.  (The argument that the anti-polygamy law in Utah was a novel or special law just against the Mormons is bad law office history.)  Utah became a state by accepting this as a condition of statehood and including in the state Constitution Article III, which states, “polygamous or plural marriages are forever prohibited.”   No one can say with any credibility that the Latter-Day Saints were hurt by this accommodation; rather, they have flourished.

The same story can be told about the religious organizations that backed slavery in the American south before the Civil War.  For example, the Protestant Episcopal Church, among others, split into northern and southern segments, which then quietly reunited after the war.  There is no evidence in history that religious organizations always get it right, and, therefore, there is every reason to demand and expect accommodation from both sides.

Enough of the battle lines being drawn by religious believers in the United States.  It is time to shift back to talking about two-way accommodation—accommodation by both believers and those in power, whether it is the state or the private marketplace.  That will require a change from narcissism as the primary platform for arguing for religious liberty, to a position that requires believers to be good faith members of the larger society.

Marci A. HamiltonMarci A. Hamilton is the Paul R. Verkuil Chair in Public Law at the Benjamin N. Cardozo School of Law, Yeshiva University, and the author of God vs. the Gavel: The Perils of Extreme Religious Liberty and Justice Denied: What America Must Do to Protect Its Children. She also runs two active websites covering her areas of expertise, the Religious Freedom Restoration Acts, www.RFRAperils.com, and statutes of limitations for child sex abuse, www.sol-reform.com. Professor Hamilton blogs at Hamilton and Griffin on Rights. Her email address is hamilton02@aol.com.
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  • Ted Harvatin

    WHAT’S WITH THESE BUSINESS OWNERS? THEY ACT LIKE THEY OWN THE PLACE. WE ALL KNOW IT’S THE GOVERNMENT’S PROPERTY.

    • Jerome

      I think what you meant to say was “What’s with this government? They act like companies don’t own their employees. We all know the employees are their property and the employers will make their decisions for them”.

  • cruisemissile

    I love how liberals define “those in power”. I assert that in the relationship between an employee and his employer of 500, the employee is the one “in power”. He can quit at will. He can sue his employer for all sorts of slights, imagined or not. The employer, on the other hand, has huge swaths of jack-booted thugs ready to descend on it if he doesn’t have the handrail at the right height, or doesn’t provide benefits defined by people who most likely have never run a lemonade stand.

    • Jerome

      Ugh. Since Sarah Palin all you Right-Wingers do is play the victim.

      • cruisemissile

        I’m hardly libertarian. But thanks for the substantive response.

    • M. Monroe

      Really? Employees “in power”? Yes, employees can quit at will and they can also be fired at will. If an employee is fired/laid off, the impact on their life is huge. What is the impact on your hypothetical company of 500 if an employee quits? My guess is the jack-booted corporate thugs wouldn’t miss a goose-step.

 

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