Hillel writes: "I think that some religious traditionalists/conservatives view themselves as under attack from secularist forces."
I think that is absolutely correct, and one of the major differences between the 1960s and today is that this perspective now has a voice in the legal academy. I think that development, along with other increases in ideological diversity in the academy, is a good thing, even though I tend to disagree with the arguments that are made from the traditionalist/conservative perspective, including the religious-exemptions-for-business arguments being offered in both the marriage and contraception contexts. (Note: As I point out in my article, the exemptions-for-business position is by no means exclusive to traditionalists and conservatives, and there are several other explanations for the position's currency in the academy). As for political strategy, I think Hillel nails it, and I suspect a number of traditionalists/conservatives in the policy realm are going to regret having not listened to some of the legal academics who were urging them to pivot sooner from outright opposition to same-sex marriage to broad religious exemptions. Planting the broad-religious-exemptions flag in purple and red states looked viable just a few months ago, but the tide seems to be rapidly shifting (when FOX News hosts Megyn Kelly and Brit Hume are talking about how the proposed bills might be overreactions, the window may indeed be rapidly closing). On Wed, Feb 26, 2014 at 9:03 AM, Hillel Y. Levin <hillelle...@gmail.com>wrote: > Jim is too humble to say so, but his article is required reading for > anyone interested in the Hobby Lobby, Notre Dame, and related cases. > > Jim, this is necessarily speculative, but I think that some religious > traditionalists/conservatives view themselves as under attack from > secularist forces. These forces are at play in the same-sex marriage > context, but also GLBT non-discrimination laws, the contraception mandate, > and others to boot. In the face of this (real or perceived) broad-based > attack, as well as perhaps the sense that public sentiment is moving > towards secularism in general (and GLBT rights in particular), they may be > trying to plant their flag right here in places that they still have a > majority. > > This could be called cynical, but it could also be called wise. After all, > it is extremely difficult to repeal a religious accommodation clause once > it is enacted, even if the majority comes to regret having enacted it. > > On Wed, Feb 26, 2014 at 11:46 AM, James Oleske <jole...@lclark.edu> wrote: > >> In light of the recent discussions of this issue on the list, and in >> light the various proposals percolating in the states, I've got a question >> for the group and a shameless plug. >> >> First, the shameless plug -- I've just posted a new piece on the issue to >> SSRN (it won't be in print until next year, so comments and suggestions >> would be very welcome): >> >> *Interracial and Same-Sex Marriages: Similar Religious Objections, Very >> Different Responses* >> http://ssrn.com/abstract=2400100 >> >> The article addresses two major questions that have gone largely >> unexamined in the literature to date: First, why has the legal academy been >> so solicitous of religious objections to same-sex marriage when it was >> never receptive to similar objections to interracial marriage? Second, if a >> state were to adopt the leading academic proposal for religious >> exemptions--a proposal that would allow for-profit businesses to >> discriminate against same-sex couples--would the exemptions be vulnerable to >> an equal protection challenge? >> >> >> The "leading academic proposal" I discuss is the >> Laycock/Berg/Garnett/Wilson proposal Chip mentions below, and the principal >> discussion of that proposal begins on page 35 of the draft. A more general >> discussion of exemptions for commercial businesses starts on page 27 of the >> draft. >> >> >> Second, the question for the group: What explains the recent pivot from >> the "marriage specific" proposals (e.g., proposed amendment to Minnesota's >> 2012 marriage recognition legislation; proposed amendment to Washington's >> 2012 marriage recognition legislation; proposed 2014 ballot initiative in >> Oregon; 2014 proposed bills in Kansas, Idaho, South Dakota, Tennessee) to >> the "expansion of RFRA rights" proposals (Arizona, Missouri)? Is it an >> effort to tie into what is expected to be a victory for Hobby Lobby under >> the federal RFRA? >> >> >> - Jim >> >> P.S. My understanding is the same as Chip's -- no state has yet adopted >> marriage exemptions that extend to commercial vendors. Speaking of Chip, >> his article with Bob on this topic is essential reading ( >> http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1055&context=njlsp >> ). >> >>
_______________________________________________ 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.
