Ira: You say that these bills have failed over and over again. If I'm not mistaken, several states that recognize same-sex marriage and/or have non-discrimination laws protecting gays and lesbians *do* have religious exceptions (as does the ENDA that passed the senate not long ago, only to die in the House). Am I mistaken? Do you (or anyone else here!) know of any literature that canvasses the laws in this context?
Many thanks. On Wed, Feb 26, 2014 at 11:07 AM, Ira Lupu <icl...@law.gwu.edu> wrote: > The Kansas bill is very sex/gender specific, and it is not limited to > weddings in any way. The rights it creates appear absolute -- no interest > balancing. It would authorize all sincere religious objectors (persons and > entities, including businesses) to treat same sex marriages/domestic > partnerships, etc. as invalid, even if the 14th A required states to > license and respect such weddings. It would authorize those objectors to > refuse to provide goods and services to anyone celebrating such a wedding > or commitment, and to deny employee spousal benefits to same sex spouses. > > The Arizona bill protects religious freedom generally, and the amendment > extends the coverage explicitly to corporations. The same religious > objections to same sex weddings, marriages, etc. could be made under the > Arizona bill. The AZ bill permits a compelling interest defense (therefore > more "moderate"?), but it also is far more sweeping because it might be > invoked to justify religious discrimination against customers for all sorts > of reasons of status and identity, not limited to sexual orientation. > > Unlike federal RFRA, which was a generic response to Smith and brought > together a coalition of many faith groups and civil liberties groups, the > amendments to Arizona RFRA are driven by exactly the same political forces > as are driving the Kansas bill and others -- opposition to same sex > marriage and same sex intimacy, and an assertion of rights of some business > people to refuse to serve that population. So the good lawyers on this > list can parse the differences in the bills, and we can debate which bill > would do more harm or more good, if you think there is any good here to be > done. But no one can credibly deny that all of these current legislative > efforts are driven by the same political forces. > > Doug Laycock, Tom Berg, Rick Garnett, Robin Wilson and others have for the > past 5 years been pushing narrower versions of these bills in states that > have legislated same sex marriage (NY, Illinois, NH, Hawaii, etc.) Those > efforts have failed over and over again. Now that same sex marriage seems > headed for the red states, we are just seeing broader, uglier, less nuanced > versions of the same agenda. I hope and expect that Gov. Brewer will veto > the AZ bill, and it's nice to see the fierce national pushback against > these attempts to legitimate anti-gay bigotry, whatever its religious > underpinnings in some cases. > > > On Wed, Feb 26, 2014 at 10:03 AM, Scarberry, Mark < > mark.scarbe...@pepperdine.edu> wrote: > >> That should have been "much more moderate/less sweeping." >> >> Mark >> >> Mark S. Scarberry >> Pepperdine University School of y >> >> >> Sent from my Verizon Wireless 4G LTE Smartphone >> >> >> -------- Original message -------- >> From: "Scarberry, Mark" >> Date:02/26/2014 6:47 AM (GMT-08:00) >> To: Law & Religion issues for Law Academics >> Subject: RE: Subject: Re: Kansas/Arizona statutes protecting for-profit >> businesses >> >> Marci's view of the rights of a Walmart under tha AZ bill, and likely >> even the Kansas bill, is simply wrong. >> >> The application in the AZ bill to private enforcement by way of lawsuit >> simply prevents the state from doing indirectly what it can't do directly, >> cf. NY Times v. Sullivan, and makes clear something that already should be >> the case under RFRAs, properly interpreted. >> >> It also is the case that the AZ bill is much more moderate/sweeping >> than the Kansas bill. >> >> Mark S. Scarberry >> Pepperdine University School of Law >> >> Sent from my Verizon Wireless 4G LTE Smartphone >> >> >> -------- Original message -------- >> From: Marci Hamilton >> Date:02/26/2014 5:09 AM (GMT-08:00) >> To: Law & Religion issues for Law Academics >> Cc: Law & Religion issues for Law Academics >> Subject: Re: Subject: Re: Kansas/Arizona statutes protecting for-profit >> businesses >> >> They are similar in that both involve believers demanding a right to >> discriminate due to their religion. If Hobby Lobby wins, Walmart will have >> an argument to get around prohibitions based on race, gender, religion, >> alienage, and disability. >> All they need is one owner or board member and they are good to go. >> >> But here is the critical difference: The state amendment proposals are >> not moderate or almost identical. Rfra applies only against the govt. >> These bills bring private vs private disputes under its misguided, >> concocted standard. It's ugly. >> >> Marci >> >> >> >> Sent from my iPhone >> >> On Feb 25, 2014, at 11:58 PM, Michael Worley <mwor...@byulaw.net> wrote: >> >> I have. My point is your condemnation is not compelling to me when we >> disagree on a either more moderate or almost identical bill (depending on >> how Hobby Lobby comes out). >> >> >> On Tue, Feb 25, 2014 at 8:55 PM, <hamilto...@aol.com> wrote: >> >>> Have you read anything I've written for the last 20 years? >>> >>> >>> Marci A. Hamilton >>> Paul R. Verkuil Chair in Public Law >>> Benjamin N. Cardozo School of Law >>> Yeshiva University >>> 55 Fifth Avenue >>> New York, NY 10003 >>> (212) 790-0215 >>> http://sol-reform.com >>> <https://www.facebook.com/professormarciahamilton?fref=ts> >>> <https://twitter.com/marci_hamilton> >>> >>> >>> >>> -----Original Message----- >>> From: Michael Worley <mwor...@byulaw.net> >>> To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu> >>> Sent: Tue, Feb 25, 2014 8:47 pm >>> Subject: Re: Subject: Re: Kansas/Arizona statutes protecting for-profit >>> businesses >>> >>> Would you say the Federal RFRA is egregious, Marci? >>> >>> >>> On Tue, Feb 25, 2014 at 6:38 PM, Marci Hamilton <hamilto...@aol.com>wrote: >>> >>>> I have read them and both are egregious. >>>> >>>> Sent from my iPhone >>>> >>>> On Feb 25, 2014, at 6:15 PM, "Scarberry, Mark" < >>>> mark.scarbe...@pepperdine.edu> wrote: >>>> >>>> The Arizona bill and the Kansas bill are very different. I don't >>>> have time right now to discuss this further, but all you have to do is to >>>> read the bills. If you do, you will see that the arguments equating the two >>>> are simply and egregiously wrong. I hope no one will comment in any strong >>>> way without actually reading them. >>>> >>>> Mark >>>> >>>> Mark S. Scarberry >>>> Professor of Law >>>> Pepperdine Univ. School of Law >>>> >>>> >>>> >>>> *From:* religionlaw-boun...@lists.ucla.edu [ >>>> mailto:religionlaw-boun...@lists.ucla.edu<religionlaw-boun...@lists.ucla.edu>] >>>> *On Behalf Of *Greg Hamilton >>>> *Sent:* Tuesday, February 25, 2014 1:55 PM >>>> *To:* mich...@californialaw.org; Law & Religion issues for Law >>>> Academics >>>> *Subject:* RE: Subject: Re: Kansas/Arizona statutes protecting >>>> for-profit businesses >>>> >>>> ...and Alan has been championing this bill on the spot at the Arizona >>>> capitol. Sigh. I have fought him over it when he tried to push me into >>>> supporting the Idaho bill which was just as egregious as the Arizona bill, >>>> but perhaps more targeted. >>>> >>>> Gregory W. Hamilton, President >>>> Northwest Religious Liberty Association >>>> 5709 N. 20th Street >>>> Ridgefield, WA 98642 >>>> Office: (360) 857-7040 >>>> Website: www.nrla.com >>>> >>>> <image001.jpg> <http://www.nrla.com/> >>>> >>>> *Championing Religious Freedom and Human Rights for All People of Faith* >>>> >>>> *From:* religionlaw-boun...@lists.ucla.edu [ >>>> mailto:religionlaw-boun...@lists.ucla.edu<religionlaw-boun...@lists.ucla.edu>] >>>> *On Behalf Of *Michael Peabody >>>> *Sent:* Tuesday, February 25, 2014 1:38 PM >>>> *To:* religionlaw@lists.ucla.edu >>>> *Subject:* Subject: Re: Kansas/Arizona statutes protecting for-profit >>>> businesses >>>> >>>> After reading the legislation, it's amazing how broadly it is >>>> drafted. It would seem to not only include permitting discrimination on the >>>> basis of sexual orientation or marital status, but also on the basis of >>>> religion. It would make it very easy for any business with a religious >>>> inkling to refuse to accommodate the religious exercise of employees, or >>>> even terminate them on the basis of religious differences. >>>> >>>> The Hobby Lobby case may go a long way in showing what rights >>>> employers have, and it seems to be part of a general strike against the >>>> application of the Bill of Rights to the states (14th Amendment). >>>> >>>> Any time the principle argument in favor of a potentially dangerous >>>> law is, "What's the worse that can happen?" I think there's reason to get >>>> really nervous. >>>> >>>> There is probably an answer for those who don't want to violate their >>>> religious conscience by accommodating those members of protected classes >>>> that disagree with them, but this legislation is not it. >>>> >>>> Michael D. Peabody, Esq. >>>> Editor >>>> ReligiousLiberty.TV >>>> http://www.religiousliberty.tv >>>> >>>> >>>> >>>> >>>> _______________________________________________ >>>> >>>> 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. >>>> >>>> >>>> _______________________________________________ >>>> 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. >>>> >>> >>> >>> >>> -- >>> Michael Worley >>> BYU Law School, Class of 2014 >>> >>> _______________________________________________ >>> 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. >>> >>> >>> _______________________________________________ >>> 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. >>> >> >> >> >> -- >> Michael Worley >> BYU Law School, Class of 2014 >> >> _______________________________________________ >> 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. >> >> >> _______________________________________________ >> 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. >> > > > > -- > Ira C. Lupu > F. Elwood & Eleanor Davis Professor of Law, Emeritus > George Washington University Law School > 2000 H St., NW > Washington, DC 20052 > (202)994-7053 > Co-author (with Professor Robert Tuttle) of "Secular Government, Religious > People" (forthcoming, summer 2014, Wm. B. Eerdmans Pub. Co.) > My SSRN papers are here: > http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg > > _______________________________________________ > 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. > -- Hillel Y. Levin Associate Professor University of Georgia School of Law 120 Herty Dr. Athens, GA 30602 (678) 641-7452 hle...@uga.edu hillelle...@gmail.com SSRN Author Page: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=466645
_______________________________________________ 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.
