Religion & Law

In his recent post, regarding the bishops' opposition to ENDA, Eduardo writes:

[The question is] precisely what sort of discrimination the bishops believe to be ?unjust.?  The letter doesn?t say, but it would be nice to know what they think.  Would it be unjust for a Catholic school to fire a gay janitor simply because he is gay, even if he is celibate? . . .  I guess I?d like to hear what would, in the bishops? view, constitutes unjust discrimination (since it is a category that seems to include less than it excludes)?  The letter is silent on this point.  It?s far more eager to carve out room for ?just? discrimination than it is to specify where discrimination goes too far.

I think Eduardo is right to remind us of the important distinction between "unjust" discrimination and the kind of discrimination that -- in my view, anyway -- probably should not be called "discrimination", because everyone today thinks "discrimination" is wrong when there are, in fact, some instances of "discrimination" that are not wrong-but-tolerable, but utterly unremarkable and not wrong at all (e.g., "discriminating" against boring people, or vegetarians, when putting together a list of dinner-party invitiees).  For me, this distinction is often muddied in discussions of, e.g., "discrimination" on the basis of religion by "faith-based" social-service agencies or by religiously-themed student groups.

I wonder if Eduardo agrees with me that an appropriate appreciation for the church-autonomy principle should lead us to say that, with respect to some decisions by religious authorities, institutions, and employers, the question whether a particular employment-related action in question is "unjust" or "just" discrimination (or, as I would prefer, "discrimination" or not) is not a question that should be submitted for resolution to the civil or political authorities?  (Identifying these decisions, and identifying the authorities and employers we are talking about, will not be easy in every case, of course.)  Thoughts?