I think the saddest thing on the list is that most of us are closer to one another than we think, if we can still reason together and extend good faith to one another. I understand that strongly held views and difficult experiences make such a dialogue difficult. And I do not that my own clumsiness in expression slows the progress toward understanding. But I was expressing my agreement with you, Jean. And in the hypotheticals that I was posing, and will expand tomorrow, I was working toward drawing the very kinds of lines that you describe as outlining a "distinct difference." Still, what I agree should be regarded as a "distinct difference" is not so clearly drawn in the arguments that some have been making about the need for and appropriate reach of anti-discrimination laws. And I suspect we would have some differences as well on those differences. But we have to get there by dialogue, finding what falls on which side of the line. And in doing so, being human, we will fumble on our way there.
In sum, I think most of us continue to talk past each other in many of these posts and responses. Those who advocate a robust religious liberty exception are not contending that discrimination is a good thing or denying the pain of discrimination or even opposing general application of discrimination laws. Indeed, I haven't heard anyone argue that no discrimination laws at all are justified or even that such anti-discrimination laws should exclude sexual orientation or that religious liberty exceptions should broadly permit denial of goods and services. We may differ on scope and application, as we differ on the underlying justifications for legal intervention in particular sectors and circumstances. But I do think there is less divergence on that underlying point that some of our back-and-forth interjections would suggest. So, again, advocates for religious liberty exceptions should not be painted ast opponents of anti-discrimination laws. Rather, many are arguing for a fundamental liberty interest and asking that it be part of the balance in applying a government policy on discrimination. Differences on how to weigh that balance are not the equivalent of sharp differences on the policy itself. By way of similar example, I have long been something of an absolutist on free speech under the First Amendment, sometimes to the chagrin of my conservative and liberal friends who support restraints on speech (although different restraints). I am deeply suspicious of any attempt by government to regulate speech and strongly supportive of a wide sphere of protected expression. But whether one agrees with my support for a very broad read of free speech rights, it would not be fair to say that I then must be an admirer of pornographers or a cheerleader for those who wish to burn the American flag. Likewise, I am a vigorous advocate in both my scholarship and the courts for the strengthening the right to effective assistance of counsel for criminal defendants, including strict protections of confidentiality. But it would not be fair to then characterize me as a coddler of criminals or harboring ill thoughts toward victims of crime. Here too, we can debate whether my views strengthen due process or instead undermine legitimate prosecution. But we are not disagreeing about the general problem of crime. Greg Sisk ________________________________________ From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Jean Dudley [jean.dud...@gmail.com] Sent: Saturday, March 01, 2014 1:23 PM To: Law & Religion issues for Law Academics Subject: Re: Definition of discrimination. I think the larger sadness of my account is that it and much worse are so very common. I still think that discrimination has to be described in terms of a denial of my rights, and that the vulgarity shouted at me in fact didn't deny me anything tangible. I suppose an argument could be made that I was denied being able to feel safe on a public road at night, but to be fair I'd say that just about every woman in America would be fearful for her safety in the jewelry district of Providence at night. Do I really have a right to expect safety? I don't think I do. I think Mr. Finkleman rebutted your hypothetical wronged evangelists much better than I could, Mr. Sisk. From my position here listening at the windowsill of the Ivory Tower Of Law, it seems to me there is a distinct difference between closing the doors of business in order to fulfill sincerely held religious beliefs and telling a potential customer "begone, foul faggot, and darken my door no more!" While other customers more to the keeper's liking enjoy the wares proffered within. On a final note, in my youth I was an evangelist. Perhaps it was because I went door to door in the bucolic and somnolent town of Salinas, Ca, that I never once faced the sort of disparagement those hypothetical missionaries did. Even the worst sinners would simply say they were busy, or that they had no desire to hear the gospel. Maybe if I'd tried my luck in the infamously callous streets of New York I would have had to endure worse insults. But then it would have only triggered my sense of martyrdom, I supposed, and I would have rejoiced that I was such a good Christian in spite of men's mocking of my efforts. I have since repented of my youthful folly and count myself among the godless atheists now. > On Mar 1, 2014, at 9:09 AM, "Sisk, Gregory C." <gcs...@stthomas.edu> wrote: > > A sad and disturbing story. I'd say that, yes, it was "discrimination" from > the outset and virulently so. "Verbal antagonism" is a form of > discrimination, when it is based on a person's identity, as it obviously was > here (and in my hypothetical as well). Whether what Jean experienced was or > should be actionable as a matter of law, and at what point the discriminatory > conduct changed from offensive speech to illegal threat (when the > introduction of legal constraint is most justified), does not change the > overall nature of the conduct as discrimination. > > As despicable as may be expression, we appreciate that the law is not the > right response to every such situation and that empowering the government to > police emotional harms -- without in any way depreciating the reality and > impact of emotional harms -- may be intrusive into expression and may invite > overreaching of governmental coercion that endangers freedom for all. > Denying public goods and services based on identity is discrimination to be > sure, but so is what my hypothetical Christian evangelists suffered. In the > end, whether the law should prohibit any particular form of discrimination > should turn on whether a concrete economic harm or danger to safety is > established, not simply on characterization of behavior as discriminatory. > Expectations of decency and civility call for all of us as neighbors, > friends, members of a community to speak out and reject hateful words and > intolerant behavior (while protecting always genuine differences of opinion). > We cannot shirk this moral duty by delegating it to government, and given > the dangers of government power, we should not. > > Greg Sisk > > ________________________________ > From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] > on behalf of Jean Dudley [jean.dud...@gmail.com] > Sent: Saturday, March 01, 2014 7:05 AM > To: Law & Religion issues for Law Academics > Subject: Definition of discrimination. > > > On Feb 28, 2014, at Fri, Feb 28, 7:11 PM, Sisk, Gregory C. > <gcs...@stthomas.edu<mailto:gcs...@stthomas.edu>> wrote: > > Now what these two evangelical Christians experienced was plainly > “discrimination.” > > I’m not sure it was. While I’m not an attorney of any stripe or ilk, I’d say > that what those evangelists experienced was (verbal) antagonism. And while > it was indeed vile and despicable, it is protected under free speech, if I’m > not mistaken, provided no one actively threatened them with bodily harm. > > Discrimination would have occurred if the Jewish shop owner had indeed > refused to serve them because they were evangelists, or at least > discrimination in the legal sense, if I understand it. If someone had begun > beating them while yelling anti-evangelist epithets, that would have been a > hate crime or possibly religiously motivated assault, certainly? > > Discrimination is difficult to pin down; but certainly denying publicly > offered goods and services for reasons other than an inability to pay is > discrimination, isn’t it? > > Once, while leaving the local lesbian watering hole in Providence, RI, a car > full of (I suspect rather drunk) young men yelled “Fucking dyke!” at me. My > immediate response was “I’m a walking dyke. I do my fucking at home!” > > At that point one of them threw a glass bottle which smashed many yards away > from me. > > Discrimination? They didn’t deny me from using public roads, but assault? > Maybe. That bottle was more threat than assault, I think. > > Was I scared, in fear of my life? You better believe it, in spite of my rare > quick response to their taunt. Luckily they sped off, and I was able to get > to my car and go home without any physical damage. But common self > preservation told me that drunk young men are dangerous; that is a lesson I > learned from Matthew Sheppard. My prescience was justified by the > badly-aimed glass bottle. > > So tell me, list members, was I “discriminated” against? Was I assaulted? > At what point did their behavior cross from protected speech to criminal > activity? Did it? > > I never did tell my story to the police. I’d already been told that the > Providence police turned a blind eye on such things, and even worse things > routinely. How could I get justice when I didn’t even have a license plate > number or descriptions of the men? > > All the best, > Jean. > > > _______________________________________________ > 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.
