My question is a bit different than the one Hillel posed. Suppose the
religious exemption permitting discrimination on the basis of sexual
orientation in places of public accommodation/employment is broader than
exemptions provided to religious objectors who believe they are required to
discriminate on the basis of race, gender, or religion. Does that exemption
discriminate on the basis of faith or denomination in that it provides greater
protection to religious objectors whose beliefs prohibit them from serving or
hiring gays and lesbians than it provides to religious objectors whose beliefs
prohibit them from serving or hiring women, or African-Americans, or Jews? What
standard of review should be applied to this challenge?
There are lots of cases in which members of religions that require the use of
marijuana argued that the government discriminated on the basis of religion
when it granted an exemption for the ritual use of peyote but refused to grant
an exemption for the ritual use of marijuana. They almost always lost. The
courts adjudicating these cases weren't always clear what standard of review
they were applying or even whether they were applying a standard of review at
all. But they seemed to think it was necessary to explain why an exemption for
marijuana use was different and less justified than an exemption for peyote
use. And these discussions typically involved an argument that an exemption for
marijuana use was more dangerous and created more problems for law enforcement
than an exemption for peyote use.
Should a similar analysis apply here? And if so, what arguments should a court
accept to justify providing greater protection to religious objectors to civil
rights laws protecting gays and lesbians than are provided to religious
objectors to civil rights laws protecting women , racial minorities, or
religious minorities? There is, of course, an argument that civil rights laws
protecting African-Americans have a unique value and purpose in light of
American history. But what about laws prohibiting gender and religious
discrimination?
Alan
________________________________
From: religionlaw-boun...@lists.ucla.edu <religionlaw-boun...@lists.ucla.edu>
on behalf of Doug Laycock <dlayc...@virginia.edu>
Sent: Wednesday, February 25, 2015 7:01 AM
To: 'Law & Religion issues for Law Academics'
Subject: RE: Anti-discrimination, legislative compromise, and strict scrutiny
Strict scrutiny would not be triggered under Smith/Lukumi, principally because
the legislated exemptions are for religious objectors, do not discriminate on
the basis of faith or denomination, and are a reasonable legislative effort to
exempt the cases where the claim to religious exemption is strongest.
Therefore, they do not imply a value judgment that secular reasons for
exemption are more important than religious reasons for exemption. They imply
only a judgment that religious reasons for exemption are stronger in very small
businesses that generally are personally run by the owner than in larger and
generally more impersonal businesses. Of course that generalization is not
perfect, and the precise line drawn between large and small is inevitably
arbitrary. But there is no discrimination between religious and secular.
Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA 22903
434-243-8546
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Hillel Y. Levin
Sent: Wednesday, February 25, 2015 5:53 AM
To: Law & Religion issues for Law Academics
Subject: Anti-discrimination, legislative compromise, and strict scrutiny
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<mailto:hle...@uga.edu>
hillelle...@gmail.com<mailto:hillelle...@gmail.com>
SSRN Author Page: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=466645
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