by Sherry F. Colb
In my column on Justia's Verdict this week, I discuss the case of a hospital customer service representative, whose employment was terminated because she refused to get a flu shot. The employee brought a lawsuit in federal court against the hospital, alleging religious discrimination under Title VII of the 1964 Civil Rights Act. She rests her claim on the fact that her reason for avoiding the flu shot was her veganism, her refusal to consume animal-derived products (the flu shot is derived from chickens' eggs). The defendant hospital brought a motion to dismiss the lawsuit, arguing that veganism is not a religion for purposes of federal anti-discrimination law, but the federal district court in Ohio denied the motion to dismiss. Citing the Code of Federal Regulations, which define religion as "moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views," it found the concept of "religion" capacious enough to encompass veganism.
In my column, I examine and analyze the implications of the district court's decision to allow the Chenzira lawsuit to proceed. Here I would like to turn my attention to a central distinction between veganism and the religions with which many of us may be familiar, and I would like to explore whether that distinction ought to matter to the law. I refer to the fact that in many religions, a transgression is understood to trigger punishment from an external source.
In a theocracy, of course, one's failure to abide by the official religion may result in a state-imposed punishment, such as being stoned to death for adultery or having a limb amputated for theft. Under a secular form of government, however, punishment for sins may be anticipated as coming come from a supernatural source, taking the form, for example, of hell or reincarnation as a despised creature. By contrast, a person who subscribes to ethical veganism does not anticipate being externally punished for betraying her commitment to veganism, unless she also subscribes to another religion that she understands to require veganism -- perhaps as a logical extension of ahimsa, nonviolence, perhaps as requiring veganism of her in particular, perhaps because she has taken an oath not to participate in inflicting animal suffering and slaughter by consuming animal products. In virtue simply of being vegan, however, she does not thereby take on the threat of external punishment, should she transgress.
Does this distinction matter? First, it is worth noting that many religious people either do not believe in God or do not believe in divine or other external penalties for transgressions. For such individuals, compliance with religious requirements may have nothing to do with a fear of punishment or a hope for heavenly reward. Second, even those people who do believe in hell and other forms of external penalties would probably say that their religious conduct represents something more than simply an attempt to avoid sanctions or an effort to accrue heavenly (or other) extrinsic compensation for their religious observance. Teaching children that they will be punished may help curb the transgressive impulses of the young, but religious adults tend to feel that what they are doing is right, not simply necessary as an expedient to avoid being punished.
Oliver Wendell Holmes, Jr. famously articulated his "bad man" theory of the law, which holds that the legal system exists to motivate people who otherwise would act in utterly selfish and anti-social ways, if given the opportunity to do so and get away with it. People who are inclined to do the right thing because it is the right thing do not need a system of extrinsic rewards and punishments to drive their behavior. It is largely for those people who lack this intrinsic motivation that enforcement systems exist. Taking that same approach, my own understanding of religion is that the highest form of religious observance is that which flows from a desire to do what is right and to refrain from doing what is wrong. Punishments and rewards are simply a backstop for motivating the stragglers (or, to be more deontological about it, a way of doing justice and giving people what they deserve for their deeds, for good or ill).
If I am right that religious belief and observance are motivated largely by conscience rather than fear and greed, then the absence of an external "enforcement scheme" to incentivize an ethical vegan's behavior should have no bearing on the question of whether it "counts" as a religion for legal purposes. A traditionally religious person is not, in other words, saying "You must allow me to obey my religion or else I will have to go to hell." He is, instead, invoking a far less self-oriented reason for asking an employer to permit his religious observance: his desire to pursue the path of justice and righteousness.
To go one step further, I think it is false to suggest that punishments and rewards are exclusively external in the case of religion. When religious people consider violating religious law, they may feel guilty, not (or not only) scared of being punished. In the past, people used to think that only someone who believed in divine punishment could be trusted to tell the truth under oath. This is why a witness's atheism was a ground for impeaching his credibility. Now we have what I hope is a better understanding of how conscience works: we are all (save for psychopaths) motivated by conscience, at least some of the time (when we are conscious of our actions), to do what we believe is right and to avoid doing what we believe is wrong. When we violate our own understanding of our values, we feel guily, which is unpleasant and could be reasonably characterized as punishing. That is one reason that a person can be highly ethical without having to believe in any supernatural punishments and rewards for what she does. Our conscience operates internally, whether we are traditionally religious people or not.
Perhaps even more importantly, there is an internal reward for those who follow their conscience. It is the good feeling of knowing that one is doing what is right and refraining from doing what is wrong. That too is a common feature of all strong ethical commitments, including veganism.