Oh, sorry. You started with a descriptive question of what the E.O. does; I didn't realize that now you're asking the normative question of whether it *should be *treated like all the other criteria other than religion (as it is under the E.O.), or whether there should be an exemption for this form of discrimination that doesn't apply to the others.
You raise BFOQ and the 702 exemption -- but neither is an apt analogy, I think. It's hard to imagine a "straight BFOQ" for government contractors, isn't it? And that's not what the fuss is about, anyway -- those opposing the E.O. aren't saying that being straight is a bona fide OQ. As for the 702 exemption, it does *not *give qualifying employers the right to discriminate on other grounds for religious reasons -- or even the right generally to discriminate on the basis of religion. (A 702-exempt employer can't have a "no Catholics allowed" rule, for instance.) But the exemption that some sought in the E.O. would have categorically allowed such employers to discriminate against LGBTs. There's no analog for that in current antidiscrimination law, far as I'm aware. On Wed, Jul 23, 2014 at 6:12 PM, Volokh, Eugene <vol...@law.ucla.edu> wrote: > Well, hence the “akin.” If we add sexual orientation to > the list of proscribed bases for discrimination, we ought to decide which > model to use. The race model (no discrimination, period, except in the > rare areas where there’s a constitutional right to discriminate)? The sex > model (no discrimination except for BFOQs, which involve situations such as > sexual privacy)? The religion model (no discrimination except for BFOQs, > and when done by religious institutions)? > > > > Eugene > > > > *From:* religionlaw-boun...@lists.ucla.edu [mailto: > religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Marty Lederman > *Sent:* Wednesday, July 23, 2014 2:59 PM > > *To:* Law & Religion issues for Law Academics > *Subject:* Re: Question about the President's executive order on sexual > orientation discrimination > > > > ?? It's not either race discrimination or religious discrimination -- it's > discrimination on the basis of sexual orientation. > > > > On Wed, Jul 23, 2014 at 5:39 PM, Volokh, Eugene <vol...@law.ucla.edu> > wrote: > > I agree -- my point was simply that the debate is in part > over whether to treat sexual orientation discrimination as akin to race > discrimination, or as akin to religious discrimination. > > > > Eugene > > > > *From:* religionlaw-boun...@lists.ucla.edu [mailto: > religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Marty Lederman > *Sent:* Wednesday, July 23, 2014 12:11 PM > > > *To:* Law & Religion issues for Law Academics > *Subject:* Re: Question about the President's executive order on sexual > orientation discrimination > > > > I don't think that's right, Eugene. Or, more to the point, you are correct > that the sec. 204 exemption is not "extended" to sexual orientation > discrimination proscribed in sec. 202 -- but that that's true, as well, > for all other forms of forbidden discrimination, and retaliation, that are > proscribed in section 202 of the E.O. *except the prohibition on > religious discrimination. *That is to say: The 204 exemption is only a > partial exemption from the ban on religious discrimination, allowing > certain contractors to prefer coreligionists even if that would otherwise > violate the ban on religious discrimination. > > > > The exemption - both in 204 and in title VII -- does not give the > organization the right, even on religious grounds, to discriminate on the > basis of sex, or race, or sexual orientation, or the fact that an employee > sued to vindicate one of those protections, etc. > > > > See pages 30-32 of http://balkin.blogspot.com/olc.charitablechoice.pdf > > > > On Wed, Jul 23, 2014 at 12:51 PM, Volokh, Eugene <vol...@law.ucla.edu> > wrote: > > My apologies if I missed this in past list traffic on the > subject, but I just wanted to check my understanding: As I read it, under > an existing executive order, > http://www.dol.gov/ofccp/regs/statutes/eo11246.htm, federal contractors > can’t discriminate based on race, color, religion, sex, or national origin, > but religious institutions are exempt from the ban on* religious > *discrimination, > when it comes to discriminating in favor of “individuals of a particular > religion” (sec. 204). The President’s new executive order, > http://www.whitehouse.gov/the-press-office/2014/07/21/executive-order-further-amendments-executive-order-11478-equal-employmen, > bars federal contractors from discriminating based on sexual orientation > and gender identity, but does not extend the sec. 204 exemption to sexual > orientation discrimination. One argument against this order is (in effect) > that sexual orientation discrimination should be treated more like > religious discrimination (in the sense of being exempted when done by a > religious institution) than like race discrimination (which is not exempted > even when done by a religious institution). > > > > Do I have *the facts *right on this? I’m setting aside here what the > right answer ought to be; I just want to make sure I’m not misunderstanding > the legal scheme. Thanks, > > > > Eugene > > > _______________________________________________ > 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. >
_______________________________________________ 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.
