List members who have not had the chance to read Tom and Doug’s brief in Windsor/Perry should do so. It is a powerful statement in support of same-sex couples right to marry while urging some accommodation of religious objectors who consider same-sex marriage to be unacceptable for religious reasons. One need not agree with the specific accommodations Tom and Doug endorse (and I don’t ) to recognize that they see great value in people being able to live their lives authentically and with integrity.
Reading some of the posts in this thread, I am not sure that for some list members, there is any empathy for, or commitment to, religious people being able to be true to their identity, faith and conscience. Am I correct that some list members are arguing that religious identity, faith and conscience should be assigned no weight in balancing religious accommodations against majority preferences or the costs accommodations may impose on others. Are religious liberty and freedom of conscience political goods we will only support if they are entirely without cost? Let me be more specific. Not that long ago, some people in San Francisco considered placing on the ballot an initiative that would ban male circumcision in the City. The initiative did not appear on the ballot. If, however, the state of California passed such a prohibition, would it be insidious or beyond the pale to consider exempting observant Jews (and Moslems) from this requirement? The alternatives to accommodation are apparent. We can demand under threat of sanction that observant Jews adjust to this prohibition by rejecting a command from G-d that Jews have obeyed for 4000 years. Or observant Jewish families planning on having children can go elsewhere and move on to some other state. Shouldn’t accommodation at least be worth considering in this circumstance? And if we assign some weight to religious beliefs in this case, shouldn’t we at least acknowledge the burden other laws impose on people whose beliefs conflict with government mandates? Or are people really arguing that religious identity, faith, and conscience should count for nothing in the face of a law that burdens religious exercise? Alan From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Berg, Thomas C. Sent: Wednesday, February 26, 2014 2:36 PM To: 'Law & Religion issues for Law Academics' Subject: RE: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses Following up on this: gays and lesbians have been told (wrongly) for years to change their orientation or just act on it in private, disregarding their interest in living lives of integrity. It’s therefore ironic if, in the service of gay rights, society simply tells the religious believer to change her belief or—more common, I suppose—just confine it to church, and act in the business world in ways s/he sincerely and conscientiously concludes are inconsistent with the belief. That’s why Doug and I said in our Windsor/Perry brief (supporting same-sex marriage rights and religious exemptions) that there are parallels between gay-rights claims and religious-objector claims. I’m not claiming that the ability to change or compartmentalize these two things is exactly the same. But to dismiss the religious believer’s dilemma altogether shows a lack of sympathy—no concern for his or her interest in living a life of integrity—and ignores one of the central reasons we protect religious freedom in the first place. Broad exemptions in the commercial sphere would expose gays and lesbians to disadvantage based on a central aspect of identity that they should not be asked to change or hide. But if we can craft exemptions where the religious business owner’s integrity interest is at its highest (sole-proprietor or small businesses where the owner is providing personal services focused directly on the marriage) and the effect on married couples is not real loss of access to services (the aim of the size limit and the hardship exception), then it seems to me the religious believer’s integrity interest is stronger in the balance. ----------------------------------------- Thomas C. Berg James L. Oberstar Professor of Law and Public Policy University of St. Thomas School of Law MSL 400, 1000 LaSalle Avenue Minneapolis, MN 55403-2015 Phone: (651) 962-4918 Fax: (651) 962-4996 E-mail: tcb...@stthomas.edu<mailto:tcb...@stthomas.edu> SSRN: http://ssrn.com/author='261564 Weblog: http://www.mirrorofjustice.blogs.com<http://www.mirrorofjustice.blogs.com/mirrorofjustice> ----------------------------------------------------------------------------
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