One quibble: In the memo Kagan does not "accept the complicity argument full-blown--that is, . . . the idea that a religious landlord might legitimately claim to be morally responsible for the sexual behavior of her tenants and that RFRA is available for such a claim." She doesn't address that issue at all. Instead, she addresses and rejects the view of the court that loss of one's longtime profession is not sufficiently coercive.
Some of you may recall that we had this same discussion on this list back in 1999, when (I believe) the Anchorage case was decided. We had a variety of views about the complicity argument. But I think we had a great deal of consensus on the view that threat of losing one's established business could be sufficiently coercive to satisfy that aspect of the substantial burden analysis. On Sun, Mar 2, 2014 at 9:45 PM, Christopher Lund <l...@wayne.edu> wrote: > Justice Elena Kagan once took on the issues we've been wrestling > with--RFRA, discrimination, complicity in sexual behavior, and for-profit > businesses. The case was *Smith v. FEHC*, and it involved a Christian > landlord who refused to rent to an unmarried couple in violation of > California law. The landlord was running a for-profit business. But she > thought sex outside of marriage was sinful, and believed it sinful for her > to facilitate that by renting the couple an apartment. The California > Supreme Court said no substantial burden under RFRA. Kagan, then at the > White House, wrote a memo forcefully disagreeing and encouraging the > Clinton Administration to consider filing for certiorari. > > > > Is this distinguishable? Sure it is. This is unmarried couples, not gays > and lesbians--and the LGBT community has suffered infinitely more in terms > of discrimination and harassment, both private and governmental. Justice > Kagan also doesn't take a stand on the ultimate question. She only > addresses substantial burden, not compelling interest. But she speaks > passionately in favor of the religious landlord. And she accepts the > complicity argument full-blown--that is, she accepts the idea that a > religious landlord might legitimately claim to be morally responsible for > the sexual behavior of her tenants and that RFRA is available for such a > claim. She accepts it here, even in the context of a for-profit > business. She calls the California Supreme Court's decision "plainly > outrageous." She goes on to say that the decision "could strip RFRA of any > real meaning," and speaks of the importance of "RFRA's guarantee of > religious freedom." > > > > I don't know what Justice Kagan thinks about the underlying issues of > sexual morality here, but I suspect we see things the same way. I believe > gay relationships are of equal morality and dignity as straight > relationships; I find premarital sex to be fine. Frankly, I find it these > things noncontroversial, almost boringly so. But I recognize that there > are people--people very different from me--who see the world differently. > And I'm trying to respect that, as Justice Kagan did. Maybe I've done it > wrong, but that's what I've been trying to do. > > > > There are a lot of good people on the listserv, who see this issue very > differently and who are all quite passionate. I have learned a lot from > the posts by James Oleske, Jean Dudley, Ira Lupu, Steve Jamar, and Greg > Lipper. (Among others that is--I'm not trying to disparage anyone by > omission.) Part of what I have enjoyed about this listserv is that it has > frequently been a community where folks on different sides of legal issues > communicate honestly and respectfully about their positions. I look > forward to continuing in that vein. > > > > Kagan's memo is here, > http://www.volokh.com/wp/wp-content/uploads/2010/06/kagan-religious-freedom-memo.pdf. > It's only a page. > > > > Best, > > Chris > > ___________________________ > > Christopher C. Lund > > Associate Professor of Law > > Wayne State University Law School > > 471 West Palmer St. > > Detroit, MI 48202 > > l...@wayne.edu > > (313) 577-4046 (phone) > > (313) 577-9016 (fax) > > Website--http://law.wayne.edu/profile/christopher.lund/ > > Papers--http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=363402 > > > > > > _______________________________________________ > 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.
