If the cases I am talking about arise the discriminating party may lose. Doug and I agree on that.
But the law encourages this kind of discrimination (as well as against people of other faiths), and encourages people to push to see how far they can extend their private prejudices into the public sphere. So, the court acting years after the discrimination takes place is hardly a remedy, and it means the person facing the discrimination must initiate legal action. Someone visiting Indiana for a basketball game is unlikely to return to sue. Would't an anti-discrimination law be a better route? You cannot refuse to do for one person what you do for other? That is what this is all about. It is about the sanctioning discrimination. No minister ever has to perform a wedding. So that is off the table. But, people who sell cakes do not perform marriages. They sell cakes. ************************************************* Paul Finkelman Senior Fellow Penn Program on Democracy, Citizenship, and Constitutionalism University of Pennsylvania and Scholar-in-Residence National Constitution Center Philadelphia, Pennsylvania 518-439-7296 (p) 518-605-0296 (c) paul.finkel...@albanylaw.edu<mailto:paul.finkel...@albanylaw.edu> www.paulfinkelman.com<http://www.paulfinkelman.com/> ************************************************* ________________________________ From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Doug Laycock [dlayc...@virginia.edu] Sent: Friday, March 27, 2015 2:46 PM To: 'Law & Religion issues for Law Academics' Subject: RE: Amazing what Hobby Lobby has wrought The wedding cases are special (although not in the view of courts so far), because many religious folks understand marriage to be an inherently religious relationship and a wedding to be an inherently religious event. There are no cases about alleged religious reasons for discriminating against gays generally (save the one in Minnesota 30 years ago, involving employment rather than customers), and I don’t know any denomination that teaches discrimination against gays generally. So cases like Paul’s hypothetical have not arisen, are not likely to arise, and if one of two of them happens, the religious claimant will lose and the precedent will be clear for any would be imitators. 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 Finkelman, Paul Sent: Friday, March 27, 2015 2:27 PM To: Law & Religion issues for Law Academics Subject: RE: Amazing what Hobby Lobby has wrought Doug: I appreciate your analysis of the cases. Case law will not limit private action if the actors think the law allows them to discriminate. But, it seems to me that the Indiana law encourages the exact sort of behavior that has not held up in court. Does it really matter if months or years later some court says a server was wrong, or that a restaurant owes a fine? Isn't the NCAA saying, in effect, that this law creates a very hostile environment for many people, including players and fans? Isn't the issue here that the law is sponsored by people who want to discriminate against gays and that they will use the law to see how far they can push it -- and perhaps not only against gays and lesbians but against people other faiths? If a same sex couple walks into a restaurant (or some other place) holding hands, don't you think there is a reasonable likelihood that some restaurant (or hotel or some other establishment) will kick them out, using the law as their shield. You limit your comments to players -- but what about fans? parents? It is worth noting that businesses and some church groups are planning to boycott Indiana. http://www.slate.com/blogs/outward/2015/03/26/disciples_of_christ_protest_indiana_anti_gay_law_more_of_this_please.html ************************************************* Paul Finkelman Senior Fellow Penn Program on Democracy, Citizenship, and Constitutionalism University of Pennsylvania and Scholar-in-Residence National Constitution Center Philadelphia, Pennsylvania 518-439-7296 (p) 518-605-0296 (c) paul.finkel...@albanylaw.edu<mailto:paul.finkel...@albanylaw.edu> www.paulfinkelman.com<http://www.paulfinkelman.com/> ************************************************* ________________________________ From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [religionlaw-boun...@lists.ucla.edu] on behalf of Doug Laycock [dlayc...@virginia.edu] Sent: Friday, March 27, 2015 2:07 PM To: 'Law & Religion issues for Law Academics' Subject: RE: Amazing what Hobby Lobby has wrought The NCAA is the victim of the most absurd propaganda. There is no conceivable way that the Indiana RFRA would affect any athletes next week. There are no cases of religious believers simply refusing to serve gays; the only cases involve weddings, and the religious objectors have lost every wedding case so far, without getting a single vote. I don’t think that anyone has ever won a religious exemption from a discrimination rule in any case not involving a minister. I would like to protect very small vendors in the wedding business, but I am not at all optimistic. And I am confident that none of the Final Four athletes plan to get married while they’re in Indianapolis next weekend. 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> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Friday, March 27, 2015 1:42 PM To: Law & Religion issues for Law Academics Subject: Amazing what Hobby Lobby has wrought http://www.ncaa.org/about/resources/media-center/news/statement-indiana-religious-freedom-bill If the new Indiana RFRA had been enacted last year, I think it's fair to say, the NCAA would have pulled the Final Four out of Indianapolis; and I think it's safe to predict that the NCAA tourney won't be coming back to Indiana anytime soon. Think about that -- a basketball boycott in Indiana! How far we've come . . . RFRA has gone from being benign, milquetoast legislation that garnered support across the political spectrum 20 years ago -- like Chevrolet and apple pie -- to becoming the political equivalent of a state adopting the confederate flag, or refusing to recognize MLK Day. I doubt this would have happened if the Hobby Lobby Court, like the Court in Lee, Jimmy Swaggart, Tony & Susan Alamo, etc., would have rejected the accommodation claim 9-0. Of course, the market will ultimately undo the damage: In order to preserve states' economic competitiveness, their RFRAs will either be repealed or construed to recreate the pre-Smith FEC regime. The more interesting question is what Justice Alito's initiative augurs for the future of religious accommodations more broadly.
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