Many state laws on sexual-orientation discrimination, and most laws on
same-sex marriage, have exemptions for religious organizations. Some are
broad; some are narrow. Some are well drafted; some are a mess. But they are
mostly there.
Apart from marriage, there is no reason to have religious exemptions for
businesses from laws on sexual-orientation discrimination. No one in the
groups I have been part of has ever suggested such exemptions. Not even the
Kansas bill provides such exemptions.
Chip is correct that no state has explicitly exempted small businesses in
the wedding industry, or in marriage counseling, from its same-sex marriage
legislation. All those laws so far have been in blue states. The absurd
overreach in the Kansas bill, and the resulting political reaction to the
radically different Arizona bill, and some bills caught in the fire
elsewhere with less publicity, may indicate that such exemptions will be
hard to enact even in red states. Or maybe not, if someone offers a well
drafted, narrowly targeted bill when or after same-sex marriage becomes the
law in those states.
I agree with Alan Brownstein that part of the problem in red states is that
they want to protect religious conservatives without protecting gays and
lesbians. Not only does Arizona not have same-sex marriage; it doesn't have
a law on sexual-orientation discrimination. The blue states are mostly the
mirror image. More and more they want to protect gays and lesbians but not
religious conservatives. Hardly any political actors appear to be interested
in protecting the liberty of both sides.
Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA 22903
434-243-8546
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Wednesday, February 26, 2014 11:34 AM
To: Law & Religion issues for Law Academics
Subject: Re: Subject: Re: Kansas/Arizona statutes protecting for-profit
businesses
That is my understanding, Hillel. If Doug, Rick, Tom, or others know of
counterexamples, I'm sure they will bring them forward to the list.
On Wed, Feb 26, 2014 at 11:28 AM, Hillel Y. Levin <hillelle...@gmail.com
<mailto:hillelle...@gmail.com> > wrote:
Chip:
Thanks for the cite! I will take a look.
And just so I understand: are you asserting that none have adopted the
broader exceptions (wedding vendors, etc)?
On Wed, Feb 26, 2014 at 11:23 AM, Ira Lupu <icl...@law.gwu.edu
<mailto:icl...@law.gwu.edu> > wrote:
Hillel:
The same sex marriage laws to which you refer do have "exceptions," for
clergy, houses of worship, and (sometimes) for religious charities and
social services. Bob Tuttle and I analyze and collect some of that here:
http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=105
5
<http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=10
55&context=njlsp> &context=njlsp. There is plenty of other literature on
the subject.
What has happened in other states since we wrote that piece is quite
consistent with the pattern we described. These laws do NOT contain
exceptions for wedding vendors (bakers, caterers, etc.) or public employees
like marriage license clerks. Those are the efforts that have failed, over
and over.
Chip (not Ira, please)
On Wed, Feb 26, 2014 at 11:13 AM, Hillel Y. Levin <hillelle...@gmail.com
<mailto:hillelle...@gmail.com> > wrote:
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.
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