With one minor exception, I don't disagree with
what Doug has written, although I can't say with any degree of confidence that
the gay-rights groups are being tactically unwise in preferring "a weak gay
rights law without a religious exemption" to a "strong gay rights law with a
strong religious exemption." I tend to think Michael and Doug are correct
on that point, but can we say for certain which option will reap the greater
long-term benefits? I don't know enough about the empirical questions to
speak confidently on that question.
The only point on which I reluctantly part ways
with Doug is in his use of the phrase "gay-rights hostility to religious
liberty." Most gay-rights supporters I know are very strong supporters of
"religious liberty" generally -- certainly of religious (formal) equality
rights. But of course, when such "liberty" takes the form of immunity
from laws designed to allow gays and lesbians full participation in the public
sphere, that's where they (understandably) draw the line. Are civil rights
groups "hostile to religious liberty" because they supported the government's
side in the Bob Jones case? Of course not. Perhaps
they are insufficiently sensitive to the need of certain insular groups,
including religious communities, to "opt out" of social structures in order to
preserve countermajoritarian commitments. Cf. the discussion of
Bob Jones in Bob Cover's Nomos and Narrative. But that's
a far cry from "hostility to religious liberty."
----- Original Message -----
From: "Douglas Laycock" <[EMAIL PROTECTED]>
To: "Law & Religion issues for Law Academics"
<religionlaw@lists.ucla.edu>
Sent: Tuesday, March 21, 2006 9:35 AM
Subject: RE: Religious Groups and Gays and
Lesbians
As Michael McConnell has pointed out, a regime of regulation plus religious exemptions makes it possible to compromise otherwise noncompromisable interests. A strong gay rights law with a strong religious exemption would be easier to enact than a weak gay rights law without a religious exemption. In a proposed regulation has no religious exemptions, religious conscientious objectors have no choice but to declare total war. If a proposed regulation has reliable religious exemptions, the stakes are much less.
Of course we see some of the conservative religious groups declaring total war either way, partly for the reasons Marty suggests, and partly because the pattern of gay-rights hostility to religious liberty has destroyed all confidence that exemptions offered will be sensibly interpreted or permanent. We are in a quite unnecessary impasse, and both sides are very much to blame.
Douglas Laycock
University of Texas Law School
727 E. Dean Keeton St.
Austin, TX 78705
512-232-1341
512-471-6988 (fax)
________________________________
From: [EMAIL PROTECTED] on behalf of Marty Lederman
Sent: Tue 3/21/2006 8:24 AM
To: Law & Religion issues for Law Academics
Subject: Religious Groups and Gays and Lesbians
A very small qualification to this discussion: The examples Doug and Marc cite are, if I'm not mistaken, all cases involving opposition to religious exemptions. Gay- and lesbian-rights groups will generally oppose any exemptions from the laws that protect them, regardless of whether the exemption has anything to do with religion. That should not be at all surprising, or alarming. It's true of virtually any group or organization that has secured certain legal protections, particularly equality protections, or across-the-board restrictions. Thus, for example, I can assure you that the State Department and DEA were vociferously opposed to the requested RFRA exemption for hoasca tea in the recent case -- because they're opposed to any exceptions to performance of treaty obligations or to the Controlled Substances Act. (I was at the table for the discussions within the government, but I don't think I'm revealing any non-obvious secrets by stating this.) This doesn't make them hostile to religion. (Although one might say it makes them hostile to RFRA -- to an exemption regime -- at least as applied to their statutes and treaties. In this, they are no different from virtually every other government agency and component, save OLC and, on occasion, the Civil Rights Division.)
By contrast, sometimes the opposition of certain religious denominations to gays and lesbians is based on, well, opposition to gays and lesbians (or to their behavior), as such, and they oppose treating gays and lesbians equally (usually based on sincere religious convictions).
To put it in terms analogous to Free Exercise debates -- gays and lesbians (and the DEA, and those favoring child-protection and immunization laws, etc.) are opposed to exemptions from generally applicable rules, religious or otherwise. They're akin to the state in Employment Division v. Smith. By contrast, some religions (I don't want to overstate or simplify the case; it's complicated) favor discrimination against gays and lesbians, and that's analogous to the position of the state in cases such as Lukumi and McDaniel v. Paty.
This doesn't mean that gay- and lesbian-rights groups, and the DEA, and . . . . everyone else, shouldn't be more sensitive to claims for religious exemptions, or that they should treat religious objections as morally equivalent to, say, outright bigotry. I'm a strong proponent of RLUIPA, after all. But it would be odd, and contrary to their constituencies' interests, wouldn't it, if such groups actually supported granting certain employers/landlords/schools the right to exclude them from some of the benefits of civil society based solely on their sexual orientation?
----- Original Message -----
From: Marc Stern <mailto:[EMAIL PROTECTED]>
To: Law & Religion issues for Law Academics <mailto:religionlaw@lists.ucla.edu>
Sent: Tuesday, March 21, 2006 8:48 AM
Subject: RE: Catholic Charities Issue
You could add the op[position to enhance d protection for religions workers in the workplace because such legislation might empower claims impinging on gay rights, gay groups that sued Yeshiva University over it refusal to allow gay couples access to a married only dorm in its medical school, the opposition to an exemption for Catholic Charities in Boston, the suit over doctors refusing to assist lesbian couple have a child by artificial insemination and on and on....What ever the merits of particular suits, there has been as pattern of opposition to religious claims in the gay rights context.
.
Marc Stern
f
________________________________
From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Douglas Laycock
Sent: Monday, March 20, 2006 8:25 PM
To: Law & Religion issues for Law Academics
Subject: RE: Catholic Charities Issue
________________________________
From: [EMAIL PROTECTED] on behalf of Newsom Michael
Sent: Mon 3/20/2006 3:36 PM
To: Law & Religion issues for Law Academics
Subject: RE: Catholic Charities Issue
Could you give some examples of gay rights proponents who ignore religious liberty interests?
Doug Laycock's Answer: The gay rights groups organized and led the charge that killed the Religious Liberty Protection Act. They did it by insisting on a categorical exception for all civil rights cases, refusing to rely on the case law that most civil rights claims present compelling interests or their own view that all civil rights claims present compelling interests.
"All civil rights claims" would include challenges to the male-only priesthood. It would include claims of religious discrimination in awarding membership or leadership positions in churches and other religions organizations. In Colorado and several other states, civil rights laws prohibit employers from penalizing "any lawful off-the-job activity." So civil rights claims include any immoral, disreputable, but not illegal act you can think of: using pornography, appearing in pornography, moonlighting at a strip club, gambling heavily in lawful casinos, and similar things that religious organizations might tell their employees not to do. The gay rights groups and the coalition of civil rights organizations they put together refused to listen to any such argument. They wanted a global and absolute civil rights exception; take it or leave it. They produced party-line gridlock over that demand.
At the state and local level, gay rights groups insist on no religious exemption to gay rights laws or, if they can't prevail on that, the narrowest possible definition of religious organizations entitled to exemption.
I assume it was these recurring political conflicts, in which gay rights groups simply refuse to recognize any competing interest on the other side of the table, that Alan Brownstein was referring to, and not the occasional acts of disruptive protest.
Of course many of the conservative religious groups are equally intractable with respect to gay rights organizations. In the particular case of RLPA, most of them were at all time willing to concede the compelling-interest exception, fully understanding that courts were likely to find a compelling interest in most civil rights claims.
Douglas Laycock
University of Texas Law School
727 E. Dean Keeton St.
Austin, TX 78705
512-232-1341
512-471-6988 (fax)
________________________________
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