I don't have any desire for them to go out of "business," but if they are going to be in "business," they need to operate in the marketplace without discrimination. If the business they have chosen does not fit their belief, they need to adjust, or move on. No one is barring religious minorities from professions. What is being suggested is that believers cannot shape the business world and customers to fit their prejudices. The insidious notion that believers have a right not to adjust to the law is the most damaging element of the RFRA movement, not just to those harmed by it, but by the believers who are permitted to avoid dealing with the changes that increase human rights, and demand their consideration and accommodation. Believers have enthusiastically supported the subjugation of blacks, women, children, and homosexuals. Not requiring them to adjust when what they are doing is a violation of human rights is a disservice to all. It is an understanding of religion removed from history, which is false.
The ship has sailed on distinguishing homophobic discrimination and race discrimination. Even if the compelling interest test can be overcome (assuming we are dealing with balancing and not an absolute right), the least restrictive means test remains, and that is the element that drives cases in favor of the religious actor and against those they burden and harm. 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 -----Original Message----- From: Douglas Laycock <dlayc...@virginia.edu> To: 'Law & Religion issues for Law Academics' <religionlaw@lists.ucla.edu> Sent: Wed, Feb 26, 2014 3:31 pm Subject: RE: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses “He needs to change jobs.” As I said, what you really want is for these people to go out of business. Barring religious minorities from professions is a very traditional form of religious persecution. Reviving it here is not the solution to these disagreements over conscience. I think that race is constitutionally unique. And it is clear that in the comparable period with race discrimination laws, resistance was so geographically concentrated, and so widespread within those locations, that exemptions would have defeated the purpose of the law. The government would have had a compelling interest in refusing religious exemptions. I see no reason to think that we are in anything like that situation with respect to gay rights today. If it turns out that we are, then there will be a compelling interest. And under the legislative proposals we have offered, if all the wedding planners in a community refuse to do gay weddings, then all of them lose their exemption. 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 hamilto...@aol.com Sent: Wednesday, February 26, 2014 3:19 PM To: religionlaw@lists.ucla.edu Subject: Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses Would you suggest this if it were based on race rather than homosexuality? If the wedding photographer thinks what the couple is doing, as in getting married under the state's duly enacted laws, is seriously evil, he needs to change jobs. Become a school photographer, though I suppose then he would object to taking pictures of children from same-sex families. I get the clergy and house of worship exemption. I don't get the business exemption. As Chip has said, these "compromise" exemptions have gone nowhere, and in this environment, I would wager that they won't. Marci 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 -----Original Message----- From: Douglas Laycock <dlayc...@virginia.edu> To: 'Law & Religion issues for Law Academics' <religionlaw@lists.ucla.edu> Sent: Wed, Feb 26, 2014 2:56 pm Subject: RE: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses It would protect only very small businesses that are personal extensions of the owner, and where the owner must necessarily be involved in providing the services. We have suggested five or fewer employees as a workable rule that is in the right range. And it would have a hardship exception for local monopolies; ir you’re the only wedding planner in the area, you have to do same-sex weddings too. So it would guarantee that same-sex couples get the goods and services they need. It would not enable that couple to demand those services from the merchant who thinks that what they’re doing is seriously evil. They don’t want personal services from that guy anyway. They want that guy to change his religious views or to go out of business. 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 hamilto...@aol.com Sent: Wednesday, February 26, 2014 2:32 PM To: religionlaw@lists.ucla.edu Subject: Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses Doug--What does such an exemption look like if it is available to anyone other than clergy or a house of worship? Or is that limitation what makes it reasonable? I take it that the Arizona law does not fit your "well-drafted" notion? well drafted, narrowly targeted bill when or after same-sex marriage becomes the law in those states. Marci 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 -----Original Message----- From: Douglas Laycock <dlayc...@virginia.edu> To: 'Law & Religion issues for Law Academics' <religionlaw@lists.ucla.edu> Sent: Wed, Feb 26, 2014 2:24 pm Subject: RE: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses 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> 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> 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=1055&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> 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. _______________________________________________ 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. _______________________________________________ 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.
