In his recent post on California Assembly Bill 1441 (which would add "sexual orientation" to the long list of categories against which government funded groups may not discriminate) Clayton Cramer analogizes to pork-eating:

I think there's at least an arguable case that this law, by imposing a standard that is contrary to the religious beliefs of individuals and organizations, is contrary to the First Amendment's guarantee of freedom of religious worship.

For example, let's say that Mississippi passed a law that prohibited use of state funds by any organization that discriminated against pork-eating. The grounds might be that pork is a perfectly safe food, and such discrimination is irrational and contrary to the best economic interests of Mississippi's pork industry. You know that the ACLU would file suit in a flash, claiming that this pork-eater anti-discrimination law, by depriving Jewish or Muslim organizations of an equal shot at applying for Mississippi grants, was a violation of the freedom of religious worship. You could even make a case (quite a bit weaker of a case), that this was a violation of the establishment clause as well, because it put organizations that don't discriminate against pork-eaters at an unfair advantage.

This may be a Catch 22 situation, because the law already prohibits discrimination on the basis of religion (it reads "race, national origin, ethnic group identification, religion, age, sex, sexual orientation, color, or disability").

Here's the full text:

11135. (a) No person in the State of California shall, on the basis of race, national origin, ethnic group identification, religion, age, sex, sexual orientation, color, or disability, be unlawfully denied full and equal access to the benefits of, or be unlawfully subjected to discrimination under, any program or activity that is conducted, operated, or administered by the state or by any state agency, is funded directly by the state, or receives any financial assistance from the state. Notwithstanding Section 11000, this section applies to the California State University.

Unless I am reading the statute incorrectly, wouldn't it already constitute discrimination on the basis of religion to refuse to hire a pork-eater if the objection was religious in nature? And wouldn't it also be religious discrimination for a pork-eating employer to demand that his employees eat pork?

Not so fast! What if the pork-refraining employer also claim that his religion entitled him to discriminate? Is discrimination on the basis of religion permitted if it is based on religion? I don't see how, unless the law is self-canceling.

Thus under current law (even though it is silent on pork) non-pork eaters would not be allowed to discriminate against pork eaters for religious reasons. However, since there is no special protection in the law for pork-eaters, such people might still be discriminated against for non-religious reasons. An example would be a radical vegan employer who refused to hire them because of his moral opposition to meat eating. No protected categories are involved; hence the discrimination would be allowed.

If we move from pork to sexuality, even without the additional category, any organization which refused to hire the "sexual orientation" people (whoever they may be; the law does not say) on religious grounds would be discriminating on the basis of religion -- as would any employer who demanded that his employees be of one sexual orientation or another.

As I see the addition, it encumbers non-religious organizations only. Previously, discrimination based on "sexual-orientation" would have been permitted so long as that was not done for religious reasons.

Unless, of course, imposing a religious test on employees came under an exception or exemption.

Attempting to analyze this stuff is crazy-making, but I'm trying anyway. What gets really crazy is that the statute makes it illegal for an organization to exclude anyone from a "program or activity." Might that mean that ham could not be served lest people be excluded from eating it? What about communion wine and wafers? Aren't they only supposed to be served only to baptized and confirmed practitioners of the religions that serve them? Aren't the others already being excluded? And isn't that discrimination on the basis of religion?

I have to admit, I'm having ongoing conceptual difficulty with the "sexual orientation" phraseology. Not only is it ill-defined, but I'm not certain exactly how and when discrimination is supposed to occur. Clearly, it is not discrimination against anyone to maintain that adultery, homosexuality, or polygamy are "sinful," because that is a belief and a religious opinion. Discrimination would involve not hiring someone, firing someone, or not allowing him to enter a church. Considering the omniscient nature of sin, I'm not entirely sure how the individual religions are supposed to practice discrimination against particular sinners, but let's assume they have some solid religious basis for it. Wouldn't that be analogous to Boy Scouts of America v. Dale, which upheld the right of private organizations to discriminate? But again, I don't see how religions get around the Catch 22 prohibition of discrimination on the basis of religion, unless there is an inherent religious exception. If there is, the addition of "sexual orientation" might be as meaningless as the word "religion" itself. Are Muslims allowed to discriminate against Jews and Christians and vice versa? If they are, then the word "religion" does not mean what it says. So why would "sexual orientation" have any more meaning than "religion"?

I guess we're lucky not to be living in the days when sexual orientation was religion, or religion could be sexual orientation. (Or are phallic cults still alive?)

Cramer also touches on veganism:

Not all of those organizations that get this unfair advantage are religiously based, of course. The ACLU, for example, has no problem with pork-eaters. It is also true that there are non-religious organizations on the other side that would be similarly injured, such as People for the Ethical Treatment of Animals. Still, would there be any serious question as to the effect (and likely intent) of such a law?

It's tough to say where this is all headed. I think there are too many categories already, and I'm amazed there hasn't been complete legal chaos. If AB 1441 passes, animal rights organizations will not be allowed to run ad saying things like "Lesbian meat eaters need not apply." But could they say "Veiled meat eaters need not apply?"

Only if their reasons were religious?

(Or is that not if?)