When speaking in terms of employment, what does the word discrimination mean? It is now almost universally admitted in liberal democracies that discrimination according to extraneous categories like skin color is morally wrong, and for that reason in most democracies it is also illegal. But the word is ambiguous. Because of the history of racial discrimination, the word is nowadays used mostly in its pejorative sense; but we still speak occasionally of someone having “discriminating taste,” meaning someone attuned enough to be able to tell the difference between the lasting and valuable as opposed to the shoddy and ephemeral. So when is it proper to discriminate, either in hiring or at any other time? Airlines after all “discriminate” when hiring pilots, in the proper sense, when they test for appropriate motor skills, psychological stability, navigational ability, and so forth. But to judge employability of a pilot on the basis of skin color or gender, being in this instance irrelevant and adventitious to the performance of the job, would obviously qualify as discrimination in the immoral and thus illegal sense.

I am prompted to make these (what I hope are) commonsensical observations because of a controversy stirred up the past week by some remarks made by Pope Benedict to the bishops of England during their recent ad limina visit to Rome. In the course of his address, the pope complained of “unjust limitations on the freedom of religious communities to act in accordance to their beliefs.” This sentence was widely and correctly seen as an attack on an amendment to the Equality Bill now working its way through Parliament, which would forbid any employer, including religious bodies, from discrimination in hiring based on sexual orientation.

According to an article on this issue called “Parliament in his sights: The Pope and the Equality Bill” by Elena Curti in the February 6, 2010 issue of The Tablet, the bishops of England had already entered the fray long before the pope’s address:

Advisers to the bishops’ conference identified problems with the Equality Bill at an early stage. They saw it as loosening the exemption in 2003’s Employment Equality (Sexual Orientation) Regulations, granted to religious organisations and entitling them to exclude individuals from certain posts on the grounds of sexual orientation. The exemption was inserted “so as to avoid conflicting with the strongly held religious convictions of a significant number of the religion’s followers.” According to the National Secular Society, which sent a complaint to the European Commission’s Equal Opportunities Commissioner, it licensed discrimination by organised religion on the grounds of sexual orientation.

The Government had also heard reports that religious groups were using the exemption to exclude people from “non-religious” jobs such as finance directors and cleaners. It introduced an amendment to the Equality Bill stating that individuals could be excluded on the grounds of sexual orientation when “the employment wholly or mainly involves (a) leading or assisting in the observation of liturgical or ritualistic practices of the religion, or (b) promoting or explaining the doctrine of the religion (whether to followers of the religion or to others).” The Churches insisted this new wording significantly narrowed the scope of the exemption. Peers agreed last week when they voted down the amendment.

Advocates for the Equality Bill went predictably ballistic when the amendment was voted down, denounced the pope for his interference in the affairs of another state, and promised demonstrations during the papal visit next September. But as Jonathan Chaplin, a professor at Cambridge University, points out in a recent riposte in the perhaps unlikely venue of the secular-liberal Guardian, the objections are absurd:

All British citizens properly possess the prima facie individual right not to be discriminated against – in matters like employment, housing and social services – on grounds of race, gender or sexual orientation. This is because these involuntary markers of identity are completely irrelevant to such matters. I said “prima facie” because even here there exist widely recognised and uncontroversial exceptions, often arising from the rights of organisations. A rape crisis centre surely has the right to discriminate against men when hiring its counselling staff (perhaps any staff). An African-Caribbean community centre obviously can't be compelled by law to hire a white guy like me as its director. The Labour party is evidently entitled to discriminate on ideological grounds in hiring its research staff.

These are all examples of what the law calls a “genuine occupational requirement” (GOR). The idea is simple and compelling: every independent civil society organisation has a prima facie right to maintain its identity and mission by hiring staff who will support the distinctive purposes of the organisation and uphold its raison d'être. This isn't a “privilege,” as is often tendentiously suggested, but merely a condition of meaningful self-government. Why then cry foul when religious organisations exercise their right to invoke the GOR provision? Why single them out and deny them the same rights enjoyed by others? Yet when they claim such a right, critics … routinely accuse them of seeking to claim “the right to discriminate.” But this is nothing more than a rhetorical ploy concealing a conceptual sleight of hand. Of course churches are defending their right to discriminate in hiring, but this is nothing other than the right [any] own organisation would claim.

Professor Chaplin’s remarks are obviously true, so obvious that they should, as the expression says, “go without saying.” Unfortunately, though, they need to be said; and that fact alone only goes to show how tenacious all religious bodies must be if they are to succeed in fighting off the real aim of such legislation—which is nothing other than legalized discrimination (in the invidious sense) against the free exercise of religion.

Edward T. Oakes, S.J., teaches theology at the University of St. Mary of the Lake, the seminary of the Archdiocese of Chicago.