Every sorry episode in the long American history of suppression of religious minorities has been justified by the undoubtedly sincere beliefs of the majority at the time that they are on the right side of history and that taking additional steps to force the minority to fall into line is merely to advance progress. More than a half century ago, the public demand for fealty to America in the face of external and internal threats of totalitarian ideologies imposed itself on religious communities who refused to engage in certain public displays of loyalty. Not too long ago, the War on Drugs was extended to prohibit ceremonial use of sacred substances. Quite recently, fears about terrorism have been used to adopt measures that target, profile, and denigrate persons of Muslim faith. And now an expansion of anti-discrimination laws to cover new categories of protected persons, to include new sectors of society, and to apply to new entities, has imposed itself with a heavy hand on certain traditionalist religious groups. In the past, we learned from mistakes in overreaching through policy and accepted accommodations to religious minorities that expanded freedom without substantially undermining key public policies. We need to search for that balance again. Vigilance in defense of religious liberty, especially when the majority is convinced of its righteousness (which is almost always), must be renewed in every generation.
In sum, it is dangerous for anyone exercising political power to come too readily to the certain conclusion that they are not only absolutely correct about the right answer to every issue but absolutely entitled to use whatever means are possible to advance that right answer without any concern for the impact on those who sincerely disagree, with the presumption of every powerful elite that those who think otherwise should learn “to adjust.” To quote Learned Hand, as I did several days ago, “The Spirit of Liberty is the spirit that is not too sure that it is right.” Gregory Sisk Laghi Distinguished Chair in Law University of St. Thomas School of Law (Minnesota) MSL 400, 1000 LaSalle Avenue Minneapolis, MN 55403-2005 651-962-4923 gcs...@stthomas.edu http://personal.stthomas.edu/GCSISK/sisk.html<http://personal2.stthomas.edu/GCSISK/sisk.html> Publications: http://ssrn.com/author=44545 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com Sent: Wednesday, February 26, 2014 2:43 PM To: religionlaw@lists.ucla.edu Subject: Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses 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<http://sol-reform.com/> [Image removed by sender.]<https://www.facebook.com/professormarciahamilton?fref=ts> [Image removed by sender.] <https://twitter.com/marci_hamilton> -----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
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