Well, yes, but this operates on the presumption that there is agreement on,
among other things, what constitutes discrimination and what constitutes public
accomodation. But it seems that those are precisely the issues at stake here.
We can't simply say the law defines these terms, though, because the law
defined them under Jim Crow, too, and we rightly abandoned that
system.Richard Dougherty
-----Original Message-----
From: "Engelken, Sheri" <[EMAIL PROTECTED]>
Sent 8/5/2008 11:02:50 AM
To: "Law & Religion issues for Law Academics" <religionlaw@lists.ucla.edu>
Subject: Conflicts between religious exercise and gay rightsReligious beliefs
can serve as justifications for many types of conduct
that we condemn, e.g., slavery, wife-beating, concubinage, genocide.
Discrimination, be it based on race, ethnicity, gender, sexual
preference, or other irrelevant personal status, is to be condemned. No
one forces service providers to run and operate places of public
accommodation. Choosing to do so, when it flies in the face of one's
religious beliefs, is self-selected conflict. The individual
discriminated again is not in a similar "choice" position. And telling
victims of discrimination that they should look for alternatives --
non-discriminatory service providers -- is not a proper solution.
That's reminiscent of black Americans facing Jim Crow practices being
told "we don't serve blacks here" and having to look for and ultimately
find alternative services where such practices weren't in use.
Service providers with discriminatory religious beliefs don't face any
restriction on their beliefs from public accommodations laws. They're
just barred from engaging in unlawful conduct, i.e., refusing to provide
a non-religious service they willingly provide to others not in the
class at issue. This isn't about whether you have to ordain women or
allow people in the class to participate in religious activities in ways
that impinge on religious beliefs. This is about whether providers of
non-religious services (public accommodations) should be permitted to
engage in the unlawful conduct of discrimination.
SJE
Sheri J Engelken
Gonzaga University School of Law
PO Box 3528; 721 N Cincinnati
Spokane, WA 99220
509 313 5891
[EMAIL PROTECTED]
________________________________
From: [EMAIL PROTECTED] on behalf of Brownstein, Alan
Sent: Mon 8/4/2008 5:06 PM
To: Law & Religion issues for Law Academics
Subject: RE: Conflicts between religious exefcise and gay rights and
"cudgels"
As someone who, in times long past, has had the decidedly miserable
experience of looking unsuccessfully for jobs and housing for
significant periods of time, I do not think for a moment that people can
always find alternative jobs or quality places to live from other
providers if they are subject to discrimination. Both jobs and housing
can often be hard to find - even when you are not the victim of
discrimination.
But when alternative services are clearly available, I think Art is
correct that what is at issue here is a clash of protected liberty and
equality rights that cause somewhat analogous harms.
As Vik Amar and I wrote recently,
"Just as it makes no sense to tell a gay person who has been living with
his partner for 20 years to end his relationship, or to stop being gay
and enter into a heterosexual relationship, it makes no sense to tell a
devout religious individual to set his or her convictions about
homosexual conduct aside and adopt a new religion. Neither the gay
person nor the religious adherent can reasonably be asked to change who
they are. Our laws should reflect that reality in both circumstances. "
Alan Brownstein
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of
[EMAIL PROTECTED]
Sent: Monday, August 04, 2008 4:35 PM
To: religionlaw@lists.ucla.edu
Subject: Re: Conflicts between religious exefcise and gay rights and
"cudgels"
Marty Lederman writes:
I would respectfully dissent from [the] suggestion that ... gays and
lesbians really suffer much harm by being denied services or jobs or
housing on the basis of their sexual orientation because they "could get
such services -- often at a higher quality -- just fine from lots of
other providers." ... With all respect, I think this sort of standard
libertarian skepticism about the need for antidiscrimination laws
significantly trivializes very serious harms.
- I don't doubt that some people suffer very serious harms from being
denied goods and services based on their race, religion, sexual
orientation, etc., even if they could easily obtain the same goods and
services elsewhere.
- Nor, however, do I doubt that some people suffer very serious harms
from being forced to serve certain other people in certain ways, when
providing such service contravenes their sincerely-held religious or
moral beliefs.
- And it seems to me that the harms in these two cases are essentially
identical: some combination of emotional distress and moral outrage.
- So is there any reason (other than where our personal sympathies
happen to lie) to assume that the harm in case #1 is categorically
greater than the harm in case #2, or that the harm in case #2 is
categorically greater than the harm in case #1?
- Given that equal protection and religious freedom are both
constitutional values, is there any reason why the legal system should
categorically favor the person suffering harm in case #1 over the person
suffering harm in case #2, or the person suffering harm in case #2 over
the person suffering harm in case #1?
Art Spitzer
**************
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