Back of the Bus

Commentary: OutRight

It has happened again, and it’s going to keep happening.

A Minneapolis bus driver recently complained that an advertisement for a gay magazine that ran on the back of some city buses offended her religious beliefs about homosexuality. The ad depicted the face of a young man and carried the slogan, ”Unleash your inner gay.” The magazine it advertised is not pornographic and nothing in the ad itself was even sexually suggestive.

Nevertheless, the driver told the city transit authority that she could not, in compliance with her faith, drive a bus that carried such an ad. The transit authority at first accommodated her wishes by agreeing to assign her only to buses that didn’t carry the ad.

But after union leaders and some public officials complained that the accommodation sent a message of ”intolerance” and disrespect for the ”diversity” of the city’s riders and other bus drivers, transit officials announced they would ”be reluctant” to grant such requests in the future.

How should those of us who support equal rights for gay people think about incidents like this? Should we magnanimously try to accommodate the deep religious convictions of those who oppose gay civil rights, risking that these objections will proliferate and undermine equality? Or should we reject all such accommodations, no matter how small, subverting the very principles of pluralism and tolerance that the gay civil rights movement has been built upon?

I generally support accommodations for sincere religious objectors, certainly where the accommodation can be made at little or no cost to other legitimate public interests. These other public interests include administrative burdens and hardship to the class of people protected by the law (e.g., an antidiscrimination law).

In the case of the Minneapolis bus driver, the public interest was largely administrative and appeared to be no more than trivial in magnitude. It was easy to assign this single driver to one of the majority of buses that didn’t carry the offending ad. (If half the bus drivers refused to drive buses with ads that offended them, we’d have a different issue.) We have no reason to believe that the driver’s religious objections were not sincere or that they were part of an orchestrated campaign to drive gay-themed ads off the city’s buses.

But for a generous policy of accommodations to work in a diverse society, we must have some reasonable self-restraint on the part of potential objectors. They must search their consciences in good faith to ask whether compliance (in this case, driving the bus to which one is assigned) really would violate a religious command to the contrary. Nobody thinks bus drivers endorse the messages or products in the ads on the buses they drive. I doubt that even most religions that condemn homosexual acts would really require that an adherent not drive the bus under these circumstances.

The risk is that drivers who are simply uncomfortable with certain ads will (either mistakenly or dishonestly) label their objections ”religious” and demand reassignment. This problem is especially great when it comes to anything gay-related because many people still have a gut-level ”ick” reaction to homosexuality. If challenged, they often vaguely attribute this reaction to religious teachings.

A policy of accommodation cannot work if objectors insist on a right to be made comfortable. Our society is much too diverse, religiously and otherwise, for that.

By saying they would ”be reluctant” to reassign offended drivers in the future, transit authorities struck a sensible balance. They leave open the door to a possible accommodation in isolated cases while signaling their skepticism about such claims in a way that may (1) dissuade impostors and (2) cause sincere religious objectors to examine more closely their own religious scruples before requesting an accommodation.

Less persuasive are ”diversity” and ”tolerance” rationales for denying accommodations like this. If transit authorities had accommodated a driver’s religious objections by removing the gay-themed ads or by permitting a driver to refuse entry to homosexual riders, that would truly signal intolerance.

But here, by hypothesis, we can accommodate a religious objector at no apparent cost to anyone. The only thing lost is the corrosive satisfaction of knowing that a dissenter from our values has been made to heel. I’m not sure this satisfaction is all that different in form from the old rationale for sodomy laws, under which the state enforced the nosy preferences of the moral majority even though it could show no appreciable harm to anyone from the activity prohibited.

And why don’t diversity and tolerance include religious dissenters from majoritarian values? It shows no intolerance of gay people to accommodate sincere religious objectors where the accommodation will cause no harm; on the contrary, it shows tolerance for religious diversity.

Keeping the culture war at a manageable level of conflict requires both sides to make some sacrifices. The state should accommodate religious objectors where the cost of doing so is small. But religious objectors should accommodate state interests where doing so is religiously permissible and does little more than make them uncomfortable.

I am not sure either side is capable of this sort of self-restraint. Many people seem to want to turn up the volume and temperature by using every confrontation as a chance to accuse the other side of prejudice and bad faith. It doesn’t have to be that way.

Dale Carpenter is a law professor. He can be reached at OutRight@metroweekly.com.

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