Tuesday, November 08, 2005

I Feel the Need, the Need for Creed

Should a doctor be forced to provide abortions?
Should a criminal attorney be forced to accept the system of punishment as legitimate, including an oath to uphold all possible punishments, including capital punishment?
Should a food taster with religious objections to meat be forced to eat meat?

I, for one, think not. There was a discussion about this sort of thing on Philosofickle some time ago. I want to revisit it now and focus specifically on the idea of creed.

Not everyone has religious beliefs. But everyone has a creed. After all, a creed is simply a system of belief, principles, or opinions. Thus, everyone has a creed.

Should people be forced to do things which are contrary to their creed? We have an important right to freely exercise our religion, our creed. The government can't make us perform abortions against our will, eat meat against our will, or proclaim that capital punishment is good against our will. The simple point is: we can not and must not force people to do things that are contrary to their creed.

Now, not all of the examples I've suggested are required. Doctors aren't all forced to provide abortions. Criminal attorneys are not forced to take an oath affirming the system of punishment. But some people would argue that doctors can't opt out of abortions. That food tasters can't decline certain dishes. And though I've never heard anyone say that criminal attorneys should take an oath affirming capital punishment as legitimate, the situation runs exactly parallel.

Of course, saying that people shouldn't be forced to do things against their creed leaves open the option that people of a certain creed simply shouldn't enter into specific professions. Maybe someone opposed to abortion shouldn't become an OB/GYN. Maybe a vegetarian shouldn't become a food taster.

But maybe that's discrimination.

And everyone knows that it isn't ok for us to discriminate against people on the basis of race, gender, or creed.

So long as people can reasonably perform the tasks assigned, why must they provide the full range of services? If the task assigned is improving patient health, and they can do that in a myriad of ways, why must all OB/GYN be willing to perform abortions? It seems ok to me if some decide to object based on the convictions of their creed. It also seems acceptable if a food taster says "I won't taste meat", so long as they still taste the other foods placed in front of them. Likewise a criminal attorney can reject the death penalty as a valid punishment if they recognize other forms a legitimate.

Now it also seems to me that it is ok if people suffer the natural consequences of their actions. A doctor who won't perform abortions will get less business. A food taster who won't taste meat will get less business. That's the natural flow of things, and it's an acceptable result.

But regardless of the natural effect we certainly shouldn't prevent them from being employed in that field - because the effect of such would be discrimination on the basis of creed. If you fire someone from food tasting because of their religious convictions, that is discrimination. They can still do the job, they just can't do it quite as well as someone else. (Lower pay might be appropriate depending on the circumstances - it wouldn't be discrimination because it wouldn't be a case of unequal pay for equal work, it would unequal pay for unequal work. But this could turn on individual facts).

Really though, this situation is no different from the person who misses work because of religious holidays. Their work performance is diminished, but not to the point where they aren't still providing a valuable service. The person who is fasting will likely perform more poorly. But we can't fire someone because their creed requires fasting. That would be blatant creedism. Likewise, so is requiring all OB/GYN to perform abortions. Or all criminal attorneys to think capital punishment a justifiable punishment. Or all food tasters to taste all food. If people have conscientious objections based on creed, but can still perform a valuable service, they should not be penalized for their deeply-held beliefs.

If we don't allow conscientious objections we are then requiring all of a certain profession to perform all the tasks. Thus, every OB/GYN must perform abortions, every food taster must eat meat, and every criminal attorney must accept the system of punishment as legitimate. This means that people with opposing creeds cannot enter these professions - one opposed to abortion cannot become an OB/GYN and still live their creed. A religious vegetarian cannot become a food taster and live their creed. And a person opposed to capital punishment cannot become a criminal attorney and live their creed.

And if entire fields of employment are cut off because of creed - if people are forced to choose between creed and job - then we've entered into a very unsavory world. Sure, it's not discrimination in the same sense of the word as it would be if we were keeping people from professions based on skin color or gender. But it's almost as bad. Because a creed is fundamental to who a person is. They can't change the color of their skin. They shouldn't be forced to change their creed.


Racism is bad.
Sexism is bad.
Creedism is bad.

If we're serious about eliminating discrimination in society we need to protect people against creedism. We need to allow conscientious objections in all fields. So long as the individual can still provide valuable services, their creed should not close off any avenue.

Either you're wrong or you're right

20 comments:

the marvelous patric said...

i like the funny posts better. be more funnier.

Matthew B. Novak said...

Sorry Patric, but we all know I'm not funny (I had to say it before someone else did). Seriously though, the funny ones are frequently hard to write. And even my serious ones usually have some humor. And even more importantly, my serious ones are full of terrific insight. It's important to think about/discuss this sort of stuff. It's all about the balance between work and play, serious and silly. I think I hit that balance well, right?

archduke f. f. said...

Matt, I'm not seeing where you get the basis for your argument here. Correct me if I'm wrong, but what you're saying is that someone should be allowed to enter a field where he/she cannot perform all the duties assigned to said field.

Your examples seem fairly compelling at first, but they don't really demonstrate to me the necessity for people who believe in certain creeds to be frozen out of certain fields.

First, the attorney. If someone doesn't believe in the death penalty, then that person shouldn't be a criminal attorney if the death penalty is a possible outcome for his/her cases. An "entire field of employment" is not blocked off to the person, only a small subset within the entire field that is law.

Second, the food taster. Wait, what?

Third, the doctor. If a doctor doesn't want to perform abortions, then that doctor should not focus on one of the few branches of medicine that specifically require a person to perform abortions. My old roommate is in medical school right now, and he refused the abortion rotation on grounds of his creed. Do you know what happened? Nothing: he's going to be doing rural family practice, and as such he should not be reasonably expected to perform an abortion.

The problem is that you're conflating "entire fields of employment" with their subsets.

Now, you argue further that the market will decide if the people who are following their creed can do the job just as well as anyone. If they can, then they'll get a lot of business; if they can't, they won't.

The probem I see with this, however, is that an OB/GYN who is following his creed can decide not to perform an abortion on a hemorrhaging mother. To push the example to the outer limits, let's say this is the only OB/GYN within a 200 mile radius. The hemorrhaging mother has no other choice than this doctor, and if he refuses to fulfill the basic requirements of his job to satisfy his creed she may die. Perhaps I'm overdoing this, but it doesn't seem fair to me that he gets to choose not to perform an operation that he should be reasonably expected to perform just because it doesn't jibe with his philosophy. He shouldn't have ever put himself in a position where he would have to make that decision in the first place. Instead, he should have moved somewhere in the subset of medicine that wouldn't fall under the "assumed to perform abortions" heading.

You write "Should people be forced to do things which are contrary to their creed?". Your underlying assumption here must be that a person is forced to hold a certain type of job, since you ask whether a person should be forced to do things in said job. But the person never had to have that job in the first place, and as such can never be forced to go against any creed.

I may have gotten a little incoherent by the end there. If so, please forgive me. For now I'm going to renounce my Dasein and go to bed.

archduke f. f. said...

Addendum:

At the end you make the parallel between race, sex and creed [more specifically, racism, sexism and (Apollo) creedism] Yet creed is a completely different animal.

Race doesn't preclude one from doing a job. Just because a person is white doesn't mean he can't wash windows. Just because someone is black doesn't mean she can't park cars. Nothing in race makes a person less able to do her job.

Sex is almost the same thing. There are certain jobs where size is an issue (say, firefighter), but if a woman can pass all the physical tests, she ought to be allowed to do the job.

A creed, though, is something that actually affects one's ability to do a job well. Unlike sex and race, a creed can make someone unfit for a certain profession because it creates huge gaps in that person's skill set, gaps that affect other people's rights to life, liberty, etc.

Matthew B. Novak said...

Duke -

We've got a couple things here, so I'll respond to the questions raised in your first comment here, and then a new comment in response to your second one.

For starters, food taster, while not a very realistic profession, is just a parallel example that is relatively clear, so I used it to that effect. Just ignore it if it doesn't work for you.

But yes, basically I'm saying people should be allowed to enter a field where she cannot perform all the duties because of objections based on creed. The question you seem to have is when with the idea of "entire fields of employment".

I think you take this to be overbroad. Though "attorney" is certainly a field of employment, and "criminal attorney" is a subset thereof, it is a large enough subset to really be considered it's own field of employment. Same with doctors. There are all sorts of fields, and doctor is just the general name we give to them all. An OB/GYN is in a different field of employment than a general practicioner or a heart surgeon.

I think you're right, that I needed to be more specific in my language. So let me say that "doctor", "attorney", etc. refers to a general-type of employment, and that those general types are usually not foreclosed by creed. "Entire fields of employment" refers to a set smaller than the general-types of employment. Does that clear that up? I think it's enough of a problem if a field of employment, (i.e. an OB/GYN position) is closed off because of creed, it doesn't have to rise to the "general-type of employment" level to be a problem.

A second response to your challenge here is that sometimes general-types of employment will be foreclosed. Take, for example, a pharmacist. If they object to filling perscriptions for contraceptives there is no "field" in which they can specialize which will allow them to circumvent this problem. Then entire type of employment is foreclosed to someone who objects to filling certain prescriptions. So you see, if we don't allow conscientious objections on the basis of creed, we could end up closing off whole general-types of employment, much less entire specialty fields.

The next point you raise is one of emergency. And I'm happy to stipulate that emergency is a different situation. When a life is threatened the importance of creed has met it's match. Life is of greater value, thus, the doctor's creed is not a basis for refusing life-saving treatment to others.

You end by saying that peole aren't forced to hold certain types of jobs and therefore they can just get jobs which are consistent with their creed.

But the point is precisely that - so long as they can provide significant valuable service, people shouldn't be forced to choose between their type of employment and their creed. If we say "well, find a different job" then we are discriminating on the basis of creed. And that's the problem - not that people are forced to do things against their creed, but that we would be willing to put people in a situation where they must choose between their desired field and their creed. It isn't ok for us to say "you're a pharmacist opposed to contraceptives? Well, either get over it or find a new job."

A creed is something that is fundamental to who a person is. We need to protect people from discrimination on the basis of creed.

Does this help clear up those questions?

Matthew B. Novak said...

To your Addendum:

First, I like the Rocky reference. Awesome.

You're right, a creed can affect one's job performance. Like we pointed out before, a person who is fasting for religious reasons will perform worse then the person not affected by hunger.

But usually creed will not "create huge gaps". Take the pharamacist who objects to contraceptives: She can fill all sorts of prescriptions, provide all sorts of services. Contraceptive are only one small part of a pharmacist's job. That's hardly a "huge gap". So long as the individual can still provide a significant valuable service their creed-based objections shouldn't matter.

Now, there are certain times when creed would prevent an individual from performing the essential services of the job. When creed will create "huge gaps". You're not going to have an athiest minister. But you could have an athiest principle of a religious school. In one case living out their creed would prevent them from providing the relevant services. In the other, their creed may decrease their perfomance in the eyes of their employer, but not to such an extent that they can't do their job.

It's not a bright line test, but it shouldn't be. It'll turn on the facts in each case.

But so long as they can provide significant valuable profession-related service, we should not dismiss people because they have conscientious objections on the basis of creed.

the marvelous patric said...

i would like to add a semi-legitimate comment...

has anyone here seen serenity? a big part of that movie is about people finding what it is they believe and believe in, and what they must do for that belief. a great line in that movie from shepheard book is "why is it everytime i talk about belief, you think i mean god?" so what we need is a belief system for each vocation?

Eric Michael Peterson said...

two things, first thing,
"The next point you raise is one of emergency. And I'm happy to stipulate that emergency is a different situation. When a life is threatened the importance of creed has met it's match. Life is of greater value, thus, the doctor's creed is not a basis for refusing life-saving treatment to others." to quote you matt, your assessment of where creed falls in the hierarchy of value is an opinion, your opinion. you may feel, and you have every right to feel it, that creed would be below life in a hierarchy of value, but that may not be the case to all. take religion, which you pointed to many times as an example; a christian scientist who does not accept the use of modern medicine, or in many cases any medicine outside of prayer for that matter, might refuse the treatment of a child. that lack of treatment then results in the death of said child. i know that is only one case, but in this case a person elevates their religion, which could be easily compared to creed, (and if it is found to not be comparable, can just serve as another example in the hierarchy of values) above life. apply that same thinking to our ob/gyn living in timbucktwo, their creed may mean more than the value of that woman’s life, in which case she dies because of the doctors creed which, safe to say, is unfair to the patient, should that doctor have been hired in the first place then if s/he was unwilling to use the skills their job commanded if need be?
second thing, if a certain employer valued one aspect of a job over another should it be alright for them to not hire an individual with a conflicting creed? lets say company x prizes its employees on their ability to do skill y, if company x is interviewing for a position and applicant z applies but is denied the position because their personal creed prohibits them from doing skill y, which x values highly, is x guilty of discrimination? if person z was not hired due to sexism, racism, religious reasons there is a clear case and x is at fault. But is it different with a creed? if some individuals command more skills or abilities because their creed does not limit them then they can command a hirer wage, as you said in your original post, so is it discrimination for x to hold out for a better applicant than z? i would have to say that it is not discrimination, or it is discrimination, but a kind that is perfectly acceptable ( i am aware of the contradiction formed between modern views of discrimination and acceptability)… in a competitive market those with the most skills will be in highest demand, so it is perfectly reasonable to not hire an individual who can not fulfill all of the tasks an employer is looking for; however i do not mean to say that a person limited by creed could not find work anywhere, just that their options may be severely limited.

one last thing, try and move past the poor grammar and what not, its far too late for me to proofread well.

Matthew B. Novak said...

Eric -

First response -
Your Christian Scientist argument doesn't work because in the case of a minor the parent is acting in the place of the child. They can determine that the child doesn't want treatment. Legal gaurdians get to make those sorts of decisions. Thus in effect it is exactly the same as a person placing their creed above their own life. What I said wasn't ok was for a person to put their creed over someone else's life.

Yes, there's a hierachy of value. And when those values conflict between two persons we need to decide which is more valuable. And, as valuable as a creed might be, life is more fundamental. And this is far from being "an opinion" - it's a well-founded idea, not just some arbitrary preference. Life is the essential block on which society is founded. Protecting life is society's prime goal. Thus, life trumps creed, and all else.

Second - the the extent that their prioritization is reasonable, it is acceptable discrimination for an employer who values one task above all others to avoid employees who cannot complete that task on the basis of creed.

So, let's consider an example: The pharmacist who refuses to fill contraceptive prescritpions. Their boss wants to fire them because the boss feels this is the single most important type of prescritpion to fill. Would such a belief be reasonable? Probably not. So in this case the prioritization of the employer cannot be reasonably sustained, and therefore they can't fire the employee.

But take an opposite case - a pro-life doctor working at an abortion clinic. There are other tasks which can be performed besides providing abortions, but the employer would be reasonable in prioritizing the ability of doctors to actually perform abortions. Thus, a pro-life doctor at an abortion clinic could be fired for their creed-based objection.

Interestingly these examples really just help flesh out the idea I had proposed earlier; that so long as they can provide significant valuable services they cannot be terminated on the basis of creed-based objections. Once they refuse to perform the essential services, then they can be terminated. Make sense?

Eric Michael Peterson said...

similar to our out of town ob/gyn, what if the pharmacist that will not fill the prescription is also located in some small town? if that person is the only one "qualified" to be doing that job in the town then who do the people go to when they want birth control? do they drive the 200 miles to a larger town every time they need it? or do they conform to the creed of the pharmacist?... before you answer that consider that there can be a bit more to the story... this small town can only really afford to have one pharmacist so they put up with the creed limited individual for some time because he is all they have, but one day they have another qualified pharmacist move into town, does the business that employees the pharmacist have the right to fire the first one due to a second one being able to provide more services in an area where certain services are needed but currently limited? i know that this is beginning to argue all types of what-ifs and in most cases a what-if can be found to overrule most things; however, this is not what i am trying to do. the first goal of the above was to provide a case whereas a person doing a job, who chooses not to perform their job or parts of it based on creed, has the right to force others to follow their creed by default. the second goal of the above is to establish a premise for job security on the part of those limited by creed. if someone will not perform some tasks required of a job, but they are hired because they are the only person who will do it at the time, does their employer have the right to replace them if a different individual, not limited by creed, comes along?

Matthew B. Novak said...

Eric -

Well, again you've posed some good questions. But again, I don't think it's anything which defeats my suggestion (I don't know if that's what you're going for, or just trying to clear it up, or what, but I'm just saying).

First off, I want to say that in a small town, just as we need to protect a patient's access more, we also need to protect a person's right to exercise their creed more. It's a situation which heightens the threat to both, so don't forget the other side of the coin.

Secondly, how realistic is it that there will be only one pharmacist within 200 miles? Unless you're living in Alaska, very unlikely. But even in that situation a person who wants birth control, etc. has other alternatives to access, such as driving those 200 miles or ordering prescriptions on-line. Is it less convientent? Yes. But a little bit of inconvienence is hardly reason to not protect a person's right to exercise their creed.

I also want to point out that you used a very inaccurate phrase. You wrote "has the right to force others to follow their creed by default". But that's not the case at all. They aren't forcing others to follow their creed. They aren't saying "you must agree contraceptives are bad" or even "you must not use contraceptives" but only "you can't get them from me". There's a huge difference between "forcing someone to follow [a] creed" and the side-effect of inconvienence. Even if that inconvienence is a large obstacle it does not rise to the level where you force someone to embrace a creed or prevent them from living out their own creed. (Notice also that a creed which said "I think contraceptives are ok" doesn't even necessitate the use thereof. Not using contraceptives is entirely consistent with a creed which sees them as permissible).

Finally, if the new pharmacist moves to town, you may have an argument for firing the one and hiring the other. But I doubt it, because I think the employer could make reasonable accomodation for their current employee - such as giving them a 30 hour week instead of 40, and giving those other 10 to the new pharmacist, at which point the town could get contraceptives during those limited hours, etc. I think you'd need to provide reasonable accomodation to your employees. Now, if they were deciding to hire between the two this could factor into the decision. The non-distribution of contraceptives can certainly count against the one, but it can't eliminate them.

archduke f. f. said...

There's something about this that doesn't sit right.

I hate to keep going back to abstract examples, but it's the way I think best: What if there is a waiter who is a strict vegan. The waiter cannot possibly deliver 90 percent of the food dishes at a restaurant. Yet, he is very good at handling drink orders (other than milk, of course), at chatting up the customers, and at making correct change. Should that person be allowed to be a waiter at least a third of the job is cut off to him? He still creates a good atmosphere in the restaurant, makes the customers happy, etc.

What is the level at which someone can be told that they aren't allowed to do the job? 20 percent? 30? 40? If someone refuses to perform a certain percentage of his job because of moral objections, at what point can we say that maybe the person shouldn't be doing the job?

You said it should be judged on a case-by-case basis (RE: pro-lifer at abortion clinic), but who gets to make the decision? Is it the employer, who has to deal with a certain person? Can the employer be sued by a prospective employee for discrimination on account of his not being hired? If a pharmacist suddenly becomes a Scientologist and can no longer distribute any drugs except vitamins, can she sue if she is fired for not doing his job? You said "essential services," but isn't that subjective? Perhaps that doesn't bother you, but it bothers me a lot that there would be no objective way of determining how much a creed can obstruct a job while still allowing the person to perform the job well enough to keep it.

Matthew B. Novak said...

No, it doesn't bother me at all that there's no objective standard. We don't have an objective standard now for when someone's performance deserves termination, so why should after we factor in this protection?

More importantly though, this is the sort of factual determination that, in law at least, would be decided by juries. There's a simple distinction (though it sometimes gets blurred) between questions of fact (i.e. when can someone perform the essential functions of their job) that juries decide and questions of law (i.e. if the law says "they have the right to conscientious objections based on creed" how do we interpret this statute?), which are decided by judges. In essence, we'd have to leave it up to a jury of our peers in order to determine what qualifies as essential services or not.

Just a gut reaction, I'd say most people would say that the waiter cannot provide those essential services in the example you give. Nor can the scientologist pharmacist. And really, it's an argument that will turn on the facts in each case. Use your common sense in determining what you think is ok.

And yes, under the regime I'm calling for, it would be the employers who make the initial decision whether to employ or terminate. Just like it is now. And yes, the individual can sue. Think about discrimination in it's current context. And employer fires Rummy, and alcoholic. Rummy sues for discrimination under the Americans with Disabilities Act. Now it's up to a jury to determine if the employer fired Rummy because he was an acoholic (discrimination, not ok), or because his job performance had declined to the point where Rummy wasn't providing the essential services (legitimate firing, ok). It's exactly the same situation, and it's proved to be a workable regime.

Yes, there's a subjective element to the system. But that's a good thing, because it allows us flexibility in our determinations. I think that your call for an objective standard in these cases is misplaced, especially in light of the fact that a case-by-case analysis has shown itself to be entirely practical, workable, and efficient.

archduke f. f. said...

See, here's the problem with the debate we're having. It's happening on two different levels, the juridical and the common-sensical.

I think common sense dictates that someone who cannot fulfill birth control prescriptions, prescriptions that were written out by a doctor for reasons unbeknownst to the pharmacist (many women [my sister and a friend from U of C included] have problems with their periods and take birth control to stem the bleeding and other physiological effects), should not be a pharmacist. This is because such a person is unable to perform one of the basic functions of the job.

You, on the other hand, think that this person should be legally entitled to protection from having to do his whole job because he finds some of it distasteful. In a legal sense, you are right: the pharmacist should be allowed to object to fulfilling certain prescriptions on account of his/her creed. But in the realm of common sense it is absurd.

I think the absurdity comes from the fact that only someone who is already entitled (i.e. holding a high-paying job) can make objections based on creed. If someone is holding down a minimum-wage job as a janitor and refuses to kill mice/bugs/pests because he believes in peace to all living creatures, he has no recourse. He is fired, and since he has no money he cannot sue.

So, I agree with you that legally a person should not be able to be discriminated against based on creed. But I still find it completely absurd and illogical and nonsensical that someone would actually take a job where he refuses to perform some of his assigned duties.

Matthew B. Novak said...

So if we made it easier for a poor person to sue you'd be ok with this standard?

Second, there are common sense responses to these problems. If the pharmacist isn't opposed to filling contraceptive prescriptions that are for reasons other than birth controll, then the patient can explain, or have the doctor explain, that to the pharmacist. Common sense response. (Also, I think you're going a bit over-board when you say that filling contraceptive prescriptions is one of the basic functions of a pharmacist's job).

And, while we're at a common sense question, I think common sense dictates that we protect that which is most valuable, i.e. free exercise of religion/creed. I'm extremely pro-patient's rights/health care/access to medication, etc. But I'm willing to acknowledge that our right to live a creed of our choosing is of greater fundamental importance.

People came to the US searching for the freedom to live their creed. If not for the very basic importance of creed our country would never have drawn the numbers of immigrants that it has. We're comparing two very important things. But one of them defines us as people, as a nation. Common sense dictates that we protect that first.

Eric Michael Peterson said...

the questions i am asking are not designed to trap you, i only seek to get a better grasp on your view, as well as fill in some of the gaps that have been left out of the argument.

i know this might seem a bit off, but couldn't this whole process of saying “it is ok for you to not do this part of your job because of your creed” create a problem where as persons are going and getting jobs and then claiming that the hardest part of that job is against their creed? take a chef as an example, a young lady goes out and gets a job at a sea food joint and has no problem making salads and appetizers and all that fun stuff, but lobster is just more difficult for this young lady to make, she just can not do it (i don't know how reasonable this argument is, but the basis of it should still hold regardless). so, rather than be fired from her job for her inability to make the dish, she claims that her creed prevents her from doing it in order to prevent being fired. i am not claiming that this type of loophole would become common, but doesn't it open the door for such a thing to take place... again this was just something i thought of as i was reading through the latest batch of comments.

Matthew B. Novak said...

No, this wouldh't be a problem because you'd require a demonstrated commitment to that creed. You'd have the person describe their beleif, the reasons behind it, etc. You'd ask for more than just their statement that it's against their creed, you'd ask for evidence of their creed. And, if you don't believe them and fire them, and they sue, in court they'd need to convince a jury that this is a sincerely held creed. Not easy to do unless it really is. Thus, I don't think this would ever realistically become a problem.

archduke f. f. said...

In regards to your earlier comment to my comment:

First, 30.6 percent of contraceptive users use the pill, and 62 percent of all women age 15-44 are using contraception. That means approximately 18 percent of women (30.6 percent of 62 percent) in that age range use the pill, which means that almost one in five women of childbearing age need a prescription. Off the top of my head, I can't think of any other drug that would be used by such a high percentage of people. To me, that seems like one of the basic functions of the pharmacist's job.

Secondly, the prescription that the doctor writes, so long as it can be seen as valid, is reason enough for the pharmacist to defer to the doctor. Unless the pharmacist notices two different prescriptions that would combine to harm the person, it is not his place to question the authority of the doctor.

Third, if a pharmacist won't fill a prescription for birth control and is then given evidence that it is for health reasons, should he be allowed to also ask if it is going to be used to prevent conception? And, if so, is he allowed to refuse to give it because of the secondary reason?

Finally, I cannot agree that it is common sense for people who cannot fulfill the functions of their job to actually have such a job. It is common sense that we protect people's creeds, but it is also common sense that if it is likely that you will be asked to go against your creed while on the job, then you shouldn't be doing that job. From reading your posts, I take your definition of common sense in this case to mean that, "Someone who wants to do any job can do any job, but if they find a part of it distasteful then they shouldn't have to do it." My definition of common sense is roughly, "Someone who finds one area of a job distastefuil should not work in a job where that area would come up."

Furthermore, the pharmacist example is quite interesting, because it is one where the person is not actually going against his creed, but is rather forcing someone else to live by the creed. A doctor who refuses to perform an abortion, is--in her opinion--refusing to end a life. A pharmacist, however, is not directly involved in the use of the contraception. Instead, he is merely filling a prescription for pills that may or may not be used in that manner. If he does not fill the prescription, then he is forcing the non-filled person to live by his creed until that person can find another pharmacist. If that person is poor and is not mobile, then that person is forced to live by the creed until she can get out of town, which could be a long time. Should a pharmacist whose creed says suicide is wrong be allowed to stop dispensing sleeping pills because they can be used for suicide?

Again, I am in complete agreement with you that we have the legal duty to protect people's creeds. If a pro-life doctor doing family practice were forced to perform an abortion I would be up in arms, since he should not reasonably be expected to do so. If a retail store changes its policy and begins to sell guns, a member of the staff opposed to guns should not have to sell them. But if someone goes to work at Wal-Mart and is opposed to guns, then he should have to sell them, because he knew going in that it would be reasonably expected of him. If a vegan waiter is working at a vegan restaurant that all of a sudden become a steakhouse, that person should be allowed to change positions in the restaurant so he doesn't have to deal with meat. But these examples are totally different from yours, because you want the world to revolve around each individual person, and common sense says that that doesn't happen. We have a legal obligation to protect people's creeds, but we do not have a common sense obligation to change the description of a job for each individual just so that individual can feel good about himself.

Matthew B. Novak said...

For starters we aren't talking about people who can't fulfill the essential functions of their job. I get the impression that you're having trouble making the distinction between "functions of the job" and "essential functions of the job."

For example, consider the pharmacist again - what is the essential function of their job? Filling prescriptions. At what point can they no longer meet that essential function? Probably soemwhere around when they refuse to fill a quarter of the prescriptions they get. Maybe higher, maybe lower, and reasonable people could disagree about where that line is, I'm just throwing out a suggestion. At some level they won't be fulfilling that essential function. And when that happens, let them go. But you can't fairly say "the essential function is filling birth control prescriptions" without first finding out what percentage of the total prescription requests those make up. And I'd guess it's significantly less than 25%. Heck, I'd guess it's less than 10%.

But ultimately you've just re-raised the entire problem, which is the fact that closing off professions is discrimination on the basis of creed! You say "you don't like abortion, don't be an OB/GYN". But why should we cut off the profession of OB/GYN to people who honestly can do a terrific job helping women with their reproductive health, but refuse to provide one type of treatment? It's one small aspect of the job. And to say "Catholic? Want to live your faith? Then you can't have this job which you really want and would be really good at. Tough beans." That, my friend, is discrimination. It's horribly wrong.

I don't think common sense dictates that we should make people choose between professions and creed. I think common sense dictates that we do everything in our power to accomodate people's ability to live their creed.

You're willing to discriminate on the basis of creed. I'm not.

I want to also say that I acknowledge that people will be inconvienenced from time to time when they run up against a service-provider exercising a creed-based objection. But there's a huge distinction between inconvienence and forcing someone to live a particular creed. The pharmacist isn't forcing the person to think contraceptives are ok, and therefore isn't forcing their creed on the other person. There's a big difference. And yes, inconvience stinks. But it's well worth the price of protecting our freedom to exercise our creed. One is fundamental right. Common sense dictates that we protect that which matters more. Creed matters a hell of a lot more than convienent access to a desired service.

archduke f. f. said...

Well, by now we're running around in circles. Especially since I have said we DO have a legal obligation to protect people's creed, yet you keep saying I am not saying that. I am saying that it is absurd for someone to choose a job where his creed will probably be challenged. That is not being discriminatory, it is being realistic. Legally, it is okay for someone to choose such a job, but it's unfair to the rest of society.

My creed states that you should never inconvenience people unless you have to. I am not being glib: I am philosophically against causing other people distress or harm unless one cannot help it. I suppose this is why I am arguing so vehemently against this on a common sense level. Legally, of course someone who has philosophical objections has to be protected, but I'm never going to like it. I'm never going to like it because people can change their creeds at will (there is no way to know if someone actually has a serious moral objection), they can use their creed to discriminate against others (Cop who is philosophically against homosexuality who decides not to protect homosexuals?), and they will force others to be inconvenienced (if a woman misses one birth control pill, it becomes increasingly likely that the woman will get pregnant; many poor women cannot will not be able to make other accommodations). Again, I will reiterate: Legally, we have an obligation to protect such people, but I don't think those people are being fair to the rest of society by choosing jobs where they will be reasonably expected to do something that goes against their creed.

I think we've exhausted this debate, so this will be my last post. I just have a couple of questions: do you think it's fair for a pharmacist to fill birth control prescriptions for a married woman but not an unmarried one? Can that be considered an objection based on creed, or is that an act of discrimination? And should it be allowed? Finally, should the pharmacist who has the objection be allowed to refuse to give the prescription back to its owner in order to fulfill his creed, or refuse to refer the woman to another pharmacist or pharmacy? The reason I ask these specifically is that all have actually occurred in the last two years and I wonder where you stand on them.