If we are talking about conflicts between gay rights and religious liberty, surely this is a coin that has two sides to it. Many gay people see religion as a sword that is being used to burden their liberty and equality rights. What we have are two groups claiming basic autonomy rights with each seeing the other side as a threat to be feared, rather than as people with basic liberty interests that need to be accommodated. When we have one side of the debate arguing that to avoid potential conflicts with religious liberty, gay people should be denied the right to marry or to be protected against discrimination in housing or employment, it is hardly surprising that the other side of the debate is going to offer little sympathy to requests for religious accommodation.
I continue to believe that while there will be some real conflicts between religious liberty and gay rights in some circumstances, at a deeper level these two assertions of autonomy rights can and should be positively reinforcing each other. Sometimes this happens inadvertantly. The Equal Access Act has helped gay and lesbian clubs be recognized at schools. But this was done over the opposition of people who insisted that freedom of association and speech for religious students should not be extended to gay students. To have the mutual reinforcement of autonomy rights (that I think is possible) happen at a broader, practical level, however, there would have to be some commitment to compromise from both sides. Minor shameless plug, Doug. Take a look at the Findlaw column (published last Friday) that Vik Amar and I recently wrote. Alan Brownstein UC Davis School of Law ________________________________ From: [EMAIL PROTECTED] [EMAIL PROTECTED] On Behalf Of Douglas Laycock [EMAIL PROTECTED] Sent: Monday, August 04, 2008 7:13 AM To: religionlaw@lists.ucla.edu Subject: Defamation of Religion - and Gay Rights Mr. Diamond is quite right to see gay rights as the likely source of this kind of litigation in the US. Marc Stern at the American Jewish Congress (and a participant on this list) has a great chapter forthcoming on litigation to date over conflicts between gay rights and religious liberty and free speech. The Canadian speech cases are terrifying; the US cases in the context of schools and employment are quite unprotective of speech. This chapter is forthcoming in a book (now comes the shamless plug) that I edited with Robin Fretwell Wilson at Washington & Lee and Anthony Picarello, formerly at the Becket Fund and now the General Counsel to the Conference of Catholic Bishops. The book is Same-Sex Marriage and Religious Liberty: Emerging Conflicts, due out from Rowman & Littlefield in September. Other contributors are Jonathan Turley at GW, Chai Feldbum at Georgetown, Doug Kmiec at Pepperdine, Charles Reid at St. Thomas (Minnesota), Wilson, and me. I won't vouch for my chapter, but I'll vouch for all the others. Quoting Paul Diamond <[EMAIL PROTECTED]>: > The issue of 'defamation of religion' and/or 'hate speech' is a disturbing > and confusing legal development in the United Kingdom/ Europe. It may be > something that Americans are not over concerned about due to the strong > protections granted by US Courts under the First Amendment. > > However, I believe this is a subject that US academics and attorneys need to > address. I make no political point, but if there is a Democratic White > House and Congress this November, surely 'sexual orientation' will be added > as a category of 'hate crime'. This development will be solely 'home grown' > and it will no doubt be developed by US Courts upon European Human Rights > decisions: Lawrence/Roper etc. > > Restrictions on speech arose first in Germany in holocaust denial laws > (premised that the truth must be protected/preserved) in circumstances of a > pressing social need; to the current situation where truth is not a defence > if the subjective 'feelings' of the adherent are distressed. > > One of the disturbing aspects of 'hate crime' law in the United Kingdom is > not the Court decisions (which are poor enough), but the abuse of the > executive to determine free speech permissiveness. This is done by a > combination of police intimidation (arrests, but subsequent release of > individuals- Police has wide 'qualified immunity' in UK) and use of State > agencies (BBC, awards, grants) to attack certain groups and protect others. > Very often the Courts simply do not enter the free speech debate, but the > citizen knows what can be said and what can't be said. Readers of the List > will rest assured that these laws are never enforced in relation to > criticism of the US/ Israel which are can be in openly racist terminology. > > The best that can be said is that it is an attempt by the State to micro > manage debate and to civilise discourse, but in the light of the above, this > is not convincing. > > One of the absurd aspects of the concept of 'defamation of religion' is the > failure to recognise the inherently competitive nature of religions- surely > the greatest freedom of all is the freedom to go to Hell and be told about > it!!!! > > Paul Diamond, barrister. > > > > ----- Original Message ----- > From: "Esenberg, Richard" <[EMAIL PROTECTED]> > To: "Law & Religion issues for Law Academics" <religionlaw@lists.ucla.edu> > Cc: <[EMAIL PROTECTED]> > Sent: Saturday, August 02, 2008 4:38 AM > Subject: RE: LOFTON / Re: Defamation of Religion > > >> I agree with Robert Lipkin that there is a thing called religion as >> difficult as it may be to define. Certainly, there are things that we can >> confidently say is not it. >> >> What I have a problem with is the notion that government can be neutral >> among religions or between religion or irreligion. In particular, I am >> skeptical that a useful test for whether it has done so - or has managed >> to come as close as it ought to be expected to come - is captured by >> whether it has managed to avoid explicitly religious language. The state >> lost the Sklar and Montgomery cases because it started to talk theology >> (theology toward which I have a certain amount of sympathy) but I can't >> see why the insult to those who read their faith differently would be any >> less exclusionary or stigmatizing for the avoidance of such language. If I >> am a conservative evangelical who regards biblical injunctions against >> homosexuality as authoritive, I don't know why I would regard myself as >> not being made a disfavored member of the political community or not >> believing that the state has acted to disapprove my religious beliefs >> because it has avoided theological language. To the con! >> trary, if the state engages my sacred text (even, by my lights, >> erroneously), it has treated me with more respect than if it dismisses my >> views as bigotry. >> >> This is why, I think, the whole defamation against religion concept is an >> idea at war with itself. Those who promote the idea seem to want to say >> that, for example, the relatively mild criticisms of Islam by Mark Steyn >> (if you want a different villain than CAIR, try Bill Donahue) should bear >> legal sanction, But, if they are right, we need to know why secular >> messages that are far more inconsistent with or dismissive of integral >> religious presuppositions, e.g.,, assertions by the San Francisco Board >> of Examiners about Catholic teachings on homosexuality and the moral >> authority of the Church. >> >> >> Rick Esenberg >> Marquette University Law School >> ________________________________ >> From: [EMAIL PROTECTED] >> [EMAIL PROTECTED] On Behalf Of [EMAIL PROTECTED] >> [EMAIL PROTECTED] >> Sent: Friday, August 01, 2008 9:45 AM >> To: religionlaw@lists.ucla.edu >> Cc: [EMAIL PROTECTED] >> Subject: Re: LOFTON / Re: Defamation of Religion >> >> Insisting there is no religion--it doesn't exist--but "religion" >> can nevertheless be used intelligibly (as a bracket term). suggests that >> one has an elaborate argument that no matter how much it might vary from >> ordinary intelligent discourse, he or she wants to impose on you. I think >> I'll pass on examining that argument, but go right ahead and articulate >> anyway. >> >> Bobby >> >> Robert Justin Lipkin >> Professor of Law >> Widener University School of Law >> Delaware >> >> Ratio Juris, Contributor: http://ratiojuris.blogspot.com/ >> Essentially Contested America, Editor-In-Chief >> http://www.essentiallycontestedamerica.org/ >> >> In a message dated 8/1/2008 10:33:28 A.M. Eastern Daylight Time, >> [EMAIL PROTECTED] writes: >> In point of fact, strictly speaking, there is no such thing that actually >> exists that is called "religion." That's why I put it in quotes. >> "Religion" is an abstract category that no one actually practices any more >> than someone plays "sports" or eats "food." Thus, I do not believe you can >> "trivialize" that which does not actually exist. As for creating >> "conceptual and practical confusion," I believe this happens when one >> talks about unreal things as if they are real. In any event, if someone >> denies that all governments are "religious" in origin, and based on some >> kind of "religion," let's test what I say. Name me a government that you >> say is not "religious" and I'll show you how it is. Thank you. >> >> John Lofton, Editor, TheAmericanView.com >> Recovering Republican >> >> "Accursed is that peace of which revolt from God is the bond, and blessed >> are those contentions by which it is necessary to maintain the kingdom of >> Christ." -- John Calvin. >> >> >> -----Original Message----- >> From: [EMAIL PROTECTED] >> To: religionlaw@lists.ucla.edu >> Sent: Fri, 1 Aug 2008 6:52 am >> Subject: Re: LOFTON / Re: Defamation of Religion >> >> This certainly trivializes the concept of "religion." A government >> that persecutes theists, defames religion in general, and so forth is >> religious? I suppose the argument is that such a government simply adopts >> the "wrong" religion. I suppose similarly each individual is religious no >> matter what that person's view is about the existence of God or the >> practice of religion. Taking this route, however, creates both conceptual >> and practical confusion, but one is, of course, free to take it. To what >> end? >> >> Bobby >> >> Robert Justin Lipkin >> Professor of Law >> Widener University School of Law >> Delaware >> >> Ratio Juris, Contributor: http://ratiojuris.blogspot.com/ >> Essentially Contested America, Editor-In-Chief >> <http://www.essentiallycontestedamerica.org/> >> http://www.essentiallycontestedamerica.org/ >> >> In a message dated 7/31/2008 5:38:45 P.M. Eastern Daylight Time, >> [EMAIL PROTECTED] writes: >> ALL government is "religious." The only question is: Which "religion" will >> a government be based on. >> <http://www.essentiallycontestedamerica.org/> >> >> >> >> ________________________________ >> Get fantasy football with free live scoring. Sign up for FanHouse Fantasy >> Football >> today<http://www.fanhouse.com/fantasyaffair?ncid=aolspr00050000000020>.<http://www.essentiallycontestedamerica.org/> >> >> _______________________________________________ >> To post, send message to >> Religionlaw@lists.ucla.edu<mailto:Religionlaw@lists.ucla.edu> >> To subscribe, unsubscribe, change options, or get password, see >> <http://www.essentiallycontestedamerica.org/>http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw<http://www.essentiallycontestedamerica.org/%3Ehttp://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw> >> >> Please note that messages sent to this large list cannot be viewed as >> private. >> Anyone can subscribe to the list and read messages that are posted; people >> can >> read the Web archives; and list members can (rightly or wrongly) forward >> the >> messages to others. >> <http://www.essentiallycontestedamerica.org/> >> >> ________________________________ >> The Famous, the Infamous, the Lame - in your browser. Get the TMZ Toolbar >> Now<http://toolbar.aol.com/tmz/download.html?NCID=aolcmp00050000000014>! >> <http://www.essentiallycontestedamerica.org/> >> >> >> _______________________________________________ >> To post, send message to Religionlaw@lists.ucla.edu >> To subscribe, unsubscribe, change options, or get password, see >> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw >> >> Please note that messages sent to this large list cannot be viewed as >> private. Anyone can subscribe to the list and read messages that are >> posted; people can read the Web archives; and list members can (rightly or >> wrongly) forward the messages to others. >> >> >> >> ________________________________ >> Get fantasy football with free live scoring. Sign up for FanHouse Fantasy >> Football >> today<http://www.fanhouse.com/fantasyaffair?ncid=aolspr00050000000020>. >> _______________________________________________ >> To post, send message to Religionlaw@lists.ucla.edu >> To subscribe, unsubscribe, change options, or get password, see >> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw >> >> Please note that messages sent to this large list cannot be viewed as >> private. Anyone can subscribe to the list and read messages that are >> posted; people can read the Web archives; and list members can (rightly or >> wrongly) forward the messages to others. >> >> No virus found in this incoming message. >> Checked by AVG - http://www.avg.com<http://www.avg.com/> >> Version: 8.0.138 / Virus Database: 270.5.10/1586 - Release Date: >> 01/08/2008 18:59 >> >> >> > > _______________________________________________ > To post, send message to Religionlaw@lists.ucla.edu > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be viewed as > private. Anyone can subscribe to the list and read messages that are > posted; people can read the Web archives; and list members can > (rightly or wrongly) forward the messages to others. > > > Douglas Laycock Yale Kamisar Collegiate Professor of Law University of Michigan Law School 625 S. State St. Ann Arbor, MI 48109-1215 734-647-9713
_______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
