Friends: As you are likely aware, the LDS church recently announced support for legislation prohibiting discrimination on the basis of sexual orientation in Utah, so long as such legislation included religious accommodations. LDS leaders were not explicit about the precise contours of the accommodations they seek, but I have the distinct sense that they would insist on broader accommodations than have been written into law elsewhere.
Suppose that supporters of anti-discrimination legislation were able to accept a compromise with LDS leaders that included accommodations for some for-profit service providers/employers/landlords so long as gays and lesbians could find alternative providers without much difficulty. (Similar to pharmacist conscience clauses with respect to dispensation of contraception in some states.) Alternatively, suppose that categorical exceptions were carved out for small businesses and small-time landlords. Hypothetically, what if businesses with fewer than 20 employees were excluded from coverage, as were landlords with fewer than 5 properties. Now suppose that a religious objector who did not meet the criteria for the religious accommodation or categorical exception sued under the FEC. Given the exceptions built into the compromise legislation, would strict scrutiny automatically apply, under the theory that with the compromise legislation, the law is not generally applicable? And if so, how would the case come out, given that the compromise legislation necessarily drew somewhat arbitrary lines? I am aware that the question of what triggers strict scrutiny is subject to considerable debate in the literature, and that those who require a showing of animus to trigger Lukumi's strict scrutiny would not find any here. But for those who do not believe that animus is required, how would this come out? My sense is that this difficulty might stand in the way of any legislative compromise. -- Hillel Y. Levin Associate Professor University of Georgia School of Law 120 Herty Dr. Athens, GA 30602 (678) 641-7452 hle...@uga.edu hillelle...@gmail.com SSRN Author Page: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=466645
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