As Chip notes, there are profound difficulties in trying "to use law as a instrument to sort the sincere objectors from the bigots and phobes." And until recently, our consistent approach to antidiscrimination laws and religious accommodations implicitly recognized what Chip ultimately concludes below -- "we can't possibly make those distinctions."
Instead, our traditional approach was to allow or refuse religious accommodations from antidiscrimination laws based on the sphere in which that discrimination occurred, not the relative merits of particular instances of discrimination within a particular sphere. The two paradigm spheres were (1) the internal operations of religious institutions, where we shielded from legal consequences all discrimination against otherwise protected classes, and (2) the for-profit commercial sphere, where we shielded from legal consequences no discrimination against protected classes except pursuant to across-the-board size exemptions. In neither sphere did we charge the legal system with the seemingly impossible task of trying to distinguish between invidious and non-invidious instances of the same discrimination. Today, the first half of the paradigm is alive and well (see Hosanna Tabor), but the second half is being vigorously challenged. In addition to the practical challenges of abandoning the second half of the paradigm, it strikes some of us as particularly troubling that proposals for legislative carve-outs in the commercial context only gained widespread currency when the focus turned to the rights of same-sex couples. As I write toward the end of my article: "[A]lthough the Bible quotes Jesus Christ explicitly condemning divorce and remarriage as adultery, and although such remarriages violate the current teachings of the largest Christian denomination in America, state laws prohibiting discrimination based on marital status do not contain exemptions allowing commercial businesses to refuse to facilitate the remarriages of divorced people. Only after same-sex couples were allowed to marry was there an effort to allow business owners to discriminate for religious reasons .... The fact [is] that no state has ever exempted commercial business owners from the obligation to provide equal services for interracial marriages, interfaith marriages, or marriages involving divorced individuals--even though major religious traditions in America have opposed each type of marriage ...." As for religious opposition to interracial marriage in particular, it was not confined to the South in the 1960s, and it is not so confined today. The Restored Church of God -- whose leader has harshly criticized other Churches of God for abandoning the teaching that interracial marriage is a "sin" -- is based in Ohio. And it is not a tiny obscure church -- the U.S. Congressman representing the church's district attended the 2012 ribbon-cutting ceremony for its 40,000-foot facility. If members of the Restored Church of God operate inns, run bakeries, and rent non-owner-occupied apartments in Ohio, should they be allowed to refuse to host interracial weddings, provide cakes for such weddings, extend family health benefits to employees in interracial marriages, and refuse to rent apartments to married interracial couples? Should members of the Catholic Church who adhere to the church's teachings on divorce be allowed to do likewise with respect to weddings and marriages involving divorced people? How about members of churches that oppose interfaith marriages? Should the line be drawn between those who religiously oppose interracial marriage and those who religiously oppose the other three types of marriage? Between the first two categories and the second two categories? Between same-sex marriage and the other three? Are we comfortable with the law attempting to draw any of these lines between different religious beliefs? If not, our traditional approach of focusing instead on covered and non-covered spheres for the operation of antidiscrimination laws would seem to have a great deal to recommend it. - Jim On Thu, Feb 27, 2014 at 6:45 AM, Ira Lupu <icl...@law.gwu.edu> wrote: > I think that the politics of the moment, and the conversations we have > been having (including the reference to Jim Oleske's provocative article > about religious objections to inter-racial marriage compared to religious > objections to same sex marriage, *Interracial and Same-Sex Marriages: > Similar Religious Objections, Very Different Responses* > http://ssrn.com/abstract=2400100, > call for a burrowing into the question of what constitutes anti-gay > bigotry and how it can be distinguished from "sincere religious objections" > to same sex intimacy. The history of racial prejudice in the U.S. > suggests, and Jim's article shows, a deep structure of religious support > and justification for segregation (and for slavery before that). Of > course, many racial bigots did NOT rely on religious justifications (I grew > up in upstate NY, surrounded by bigots who never mentioned religion in > their racial attitudes). But some did so rely, and we now look back on > them and say -- what? Their religion was insincere? Their religion was > culturally determined by geography and Jim Crow culture? (Contrary to what > has been written here, Jim Crow laws required segregation in government > facilities, like public schools, but Jim Crow culture, NOT laws, kept lunch > counters, hotels, restaurants, department stores, etc., segregated. The > public accommodations title of the Civil Rights Act of 1964 may have > pre-empted applications of trespass law, but it did not pre-empt state law > requiring segregation in these private facilities.) All religions, in the > social practices they prescribe, are culturally determined to some extent. > So I think the lesson of the 1960's is that the commitment to Civil Rights > meant we became legally indifferent to whether racism was based on sincere > religious objections or not. Ollie from Ollie's BBQ had to serve people of > color or "get out of the restaurant business," whether or not his desire to > exclude had sincere religious components. > > So what is now different about the LGBT rights movement? Some merchants > who want to refuse to serve have sincere religious objections; some just > have hostility or discomfort (homophobia, if they are really afraid of the > interaction; but surely, many racists had or have Negrophobia.) Should we > try, with our very limited tools, to protect the sincere religious > objectors but not protect the "phobes"? What will we do with sincere > religious objectors who are also "phobes"? (I strongly suspect that a > mixture of religion and phobia are operating within many objectors; their > phobia is buried inside a religious justification, but maybe that's true > for only some, not all.) Or do we give up this (to me, futile) attempt to > use law as a instrument to sort the sincere objectors from the bigots and > phobes, and say, rather simply -- we can't possibly make those > distinctions, and in the end we don't care about them. Your refusal to > serve some classes of people hurts them (stigma, insult, indignity, and > sometimes material harm). Legitimating that refusal to serve in the > wedding industry legitimates it elsewhere; equality is indivisible. So we > are going to treat you like we treated Ollie -- we can't know if your > refusal to serve is sincerely religious, homophobic, or some inseparable > mixture. Whatever it is, get over it or "get out of the business." > > The attempts to treat the current situation as different from the racial > question -- geographic concerns about the Old South; slavery makes race sui > generis -- seem to me deeply unpersuasive. But I would be eager to hear > answers to the questions I pose above about separating religion from > phobia/bigotry, whether it is do-able, and why it is worth the doing, in > light of the mistakes and harms that such a process will invite. > > -- > Ira C. Lupu > F. Elwood & Eleanor Davis Professor of Law, Emeritus > George Washington University Law School > 2000 H St., NW > Washington, DC 20052 > (202)994-7053 > Co-author (with Professor Robert Tuttle) of "Secular Government, Religious > People" (forthcoming, summer 2014, Wm. B. Eerdmans Pub. Co.) > My SSRN papers are here: > http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg > > _______________________________________________ > 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. >
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