For God So Loveth Ye That His Servant In Plano, Texas Doth Giveth Ye An Affordable Oil Change
Charlie Whittington owns the Kwik Kar Lube & Service in Plano, Texas, and he circulated a coupon giving any customer who recites John 3:16 a discount on an oil change. Marshall Wei, although aware of the discount, declined to recite the bible verse and wound up paying $46 for the same oil change other customers who quoted the Christian Bible got for $20. Disparate treatment, yes, but has Mr. Whittington unlawfully discriminated against Wei on the grounds of religion?
At its most basic level, when we talk of “discrimination” in both common parlance and in the law, we mean the treatment of two similarly-situated people differently on the basis of some arbitrary or unreasonable criterion. Technically, we “discriminate” all the time, like a landlord “discriminating” against a tenant unable to pay rent. But ability to pay would generally be considered a reasonable basis to treat one tenant differently than another, where race or sex does not. The law further refines the subject to unlawful discrimination, and seeks to identify the the unreasonable criterion as either within or without certain protected classes. Thus, it is unlawful to discriminate against a person based on their race (race is a protected class) but not on their obesity (weight is not a protected class).
When it’s your religious beliefs that are the basis for unfavorable disparate treatment, you’re likely to think that this is an arbitrary or unreasonable reason; when it’s your religous beliefs taht are the basis for favorable disparate treatment, you’re likely to think that either the disparate treatment is reasonable or not appropriately the government’s business. That’s why if you sort of like John 3:16, you should imagine in your mind that this is a Muslim business owner offering a discount if you recite the Shahada.* If you’re a devout Christian, chances are you would find recital of the Shahada unpleasant at best, even if you crossed your fingers, disclaimed belief, or otherwise were not sincere about saying the religious words.
So this is a religious act, and it is favoritism. To say that this is not religious activity is nonsense. Indeed, in this case, John 3:16 is perhaps the very distilled essence of Christian theology and the reason that its recital pleases the business owner so much is that he finds its religious content pleasing and beneficial. His preference is not under question here; the commercial manner in which he expresses that preference is.
Now, I do perceive a qualitative difference between such a preference exhibited by the government and such a preference exhibited in a private transaction. A libertarian would argue that the law ought not to regulate such preferences in private transactions at all. Problem is (for those folks), the law may very well do exactly that.
The indication from a Texas lawyer quoted in the linked news article is that the Biblical recital coupon is perfectly legal under Texas law. I wouldn’t know if that was true or not. That lawyer also suggests that offering a discount in exchange for a Biblical recital is valid under Federal law; while the article is general in scope I presume the lawyer was referring to the jurisdictional limits of Title VII of the Civil Rights Act of 1964 (as amended), which require that the regulated economic activity impact interstate commerce. If I am right, the lawyer is suggesting that an oil change in Plano, Texas does not impact interstate commerce and therefore is beyond the reach of Title VII. I disagree; existing case law suggests to me that even apparently local transactions are regulated by Title VII. If this were in California instead of Texas, I know that I could make a credible case that a merchant doing something similar to this would be violating Civil Code § 51(b) by engaging in religious discrimination in public commerce. Would I win?
The best argument that I would lose would be, “Hey, all he’s asking you to do is recite the words, he’s not asking you to believe them,” so therefore he’s treating everyone equally. So let’s imagine if a customer said to him, “Hi there, Mr. Oil Change Guy, I know that John 3:16 says ‘For God so loved the world that he gave his one and only Son, that whoever believeth in Him shall not perish but have eternal life,’ but personally, I think that’s a crock of shit, there is no God at all. I just said those words because I want a discount. Now I would like my cheap oil change, please.” What would the owner do then?
If Whittington withheld the discount, it would be pretty clear to almost everyone that there was religious discrimination going on. But what if he gave the discount anyway (perhaps with a heavy heart, but gave it all the same)? That gets us to the harder question. Is being asked to recite a religious phrase in which one disbelieves in order to receive preferential treatment a form of religious discrimination?
Whittington’s intent in demanding the phrase be recited is that his customer say those words. Whittington feels a personal preference for those religious words. He likes hearing them. He thinks that people saying those words is beneficial and good. His intent is that people behave in conformity to those words, and he must think, at some level, that reciting the words will encourage people to both behave and believe as he would prefer they do.
So I think that yes, this is religious discrimination in commerce and it violates Title VII and would violate laws like California’s. Texas’ laws, I do not speak to. But next, there is the normative question.
Should the law regulate this? I think so, and approve of the use of state power to prohibit it. Doing this removes commercial incentives for conformity and thus enhances freedom of religious thought, belief, and expression. A court may be aksed to enforce any contract, including a religiously discriminatory one, so doing so potentially impacts free religious choice and activity and the government should therefore operate under laws that permit individual religious activity to flourish rather than laws that permit individual religous activity to be economically stifled by the accumulated private transactions of the majority religion.
I don’t doubt that Mr. Whittington means well, nor the sincerity of his faith. He’s not an evil man. But I do think he has crossed a line. He wouldn’t want to be asked to recite the Shahala to get a discount from his vendors; so by the same token, he shouldn’t ask me to recite the Bible in order to get a discount from him.
* The Shahala is the basic profession of the Muslim faith: “I testify that there is no God but Allah and that Muhammed is His messenger.”