"And who among us knows when other religious exemptions will be sought and gained -- re: Muslims, Jews, Hispanics, immigrants from certain places, etc.? Today's intense culture war will fade, and tomorrow will bring a new one."
Well yeah. That's a fine argument going the other way too. *Today* RFRA is a fight between a conservative religiosocial movement that is simultaneously powerful and waning, simultaneously honored and roundly hated versus a band of sympathetic minorities and their comfortably righteous allies. *Today *the conservative religiosocial movement is in favor of a vision of religious liberty that serves their momentary reactionary goals. *Today* limited-use public forums are used by locally powerful religions to spray religious patina on the state. *Today* the vagaries and impossibilities in religious liberty law cast a shadow that favors discrimination. But the law isn't (just) about today any more than appellate decisions are (just) about the case in front of them. *Tomorrow* that limited-use public forum will allow a Muslim student to speak the pledge of allegiance in Arabic and the day after that a dozen more Muslim students will do the same. (Already nearly happened in upstate new york) *Tomorrow* it will be the Quaker failing to resist the draft under a RFRA claim and the day after that it will be that Quaker on national TV making a passionate case for pacifism in a country convinced that war is the only option. *Tomorrow* it will be the social issue we're all blinkered on and can't possibly anticipate, and a lone unpopular voice offending and protecting us all. Or maybe it won't, but it's the only shot we've got. Power will always find a way to take advantage of any system. Power will always make things unequal. Power will always discard simple pragmatism for maximizing first-order principles. No conceivable system of laws will rescue a morally acceptable number of minorities from the tyranny of the majority, because the morally acceptable number is zero. History has proved that RFRA was a ticking time bomb, but history is also rife with repeated examples of other ticking time bomb enactments with "no clarity, no predictability, and endless opportunity for mischief from both sides and endless possibilities for interpretation" being the only thing that held things together. Say, The Bill of Rights for example. The Fourteenth Amendment. The ICC. Probably how most of us have to keep the peace at the dinner table. On some level, we're just going to have to accept this too shall pass and leave tools so someone, somewhere will be able to make things better. And that's a fight as much about tea-reading as it is noble first-order principles. Kevin Chen On Sun, Apr 5, 2015 at 1:45 PM, Steven Jamar <stevenja...@gmail.com> wrote: > The benefits of clarity in regulation are that it obviates the need for > litigation and it allows for compromise among disparate and often competing > interests as well as allowing for compromise of competing values. If a law > specifically exempts a well-defined business or entity, then the very real > costs of litigation to enforce rights either by the person excluded or by > the business seeking to exclude are avoided. If a law specifically draws > a line and includes specific examples or a limited exclusive list, then to > that extent people can understand and predict results without resorting to > expensive litigation and broad-brush misinterpretation (willful or > otherwise). A law exempting from public accommodation laws cake bakers, > photographers/videographers, and florists would be clear (in many cases at > least), but would cut too broadly — allowing race discrimination, gender > discrimination, religious discrimination, and so on. If the carve-out were > only for one type of discrimination — sexual orientation — and only for > that would the public accommodation law not apply, again one might have > relative clarity and compromise, but, of course, at a social justice cost > for some but with some accommodation of some who wish to discriminate on > that basis. > > Enter religious freedom acts (nothing restorative about them, is there, so > they should be RFAs, not RFRAs). Now it is all up in the air. A broad > exemption is enacted with no clarity, no predictability, and endless > opportunity for mischief from both sides and endless possibilities for > interpretation. And all the comcomitant social costs and litigation > costs. The state RFA approach allows the public accommodation to > discriminate on the basis of sexual orientation and puts the burden on the > victim to sue — which is time consuming and taxing financially, socially, > and emotionally. And it then puts the business owner to having to defend > the action on a fact-specific, individual-specific basis of convincing a > judge and jury that the actions were justified by a religious exercise > being substantially burdened. Well, Hobby Lobby made this easy — just > claim complicity with evil as your burden and you’re home. Then the > burden shifts to the victim — and not the state — to show the compelling > state interest and least restrictive alternative. So would now the state > need to be impleded as a necessary party for complete adjudication? Or > would it intervene? > > The Indiana sort of RFA carve-out is fraught with problems that a specific > provision is not. If the desire is to discriminate against someone on the > basis of their sexual orientation in some businesses, carve out those > businesses. Most will not discriminate either because they don’t feel the > desire to do so or because they see little point in excluding 10% of their > possible business clients. It takes religion out of the equation. > > But to some, this paints too broadly and so some who migh accept some > carve out push it back to religiously-based motivations — but that creates > all the problems noted above. > > In the end, this is another manifestation of the fight between liberty as > license and equality as inclusion. Equality and liberty can often be > mutually supportive at least for some — requiring non-discrimination in > employment on the basis of race is premised on equality — but makes the > historically excluded group more included and thus able to exercise liberty > more — they have more options, more choices, more liberty. > > But a cost of any such regulation is a reduction in choice and liberty for > some. Same is true for zoning ordinances, environmental regulations, OSHA, > and so much more — they all limit the liberty of the person who must comply > with them. > > Hence the concept of “ordered liberty.” Liberty does not equal license. > And never has. The fact that many people dislike the change wrought by the > Reconstruction Amendments to bring equality into the constitution at some > cost to liberty to discriminate against historically excluded and > marginalized groups does not invalidate the dramatic change those > amendments brought about. > > Including those who are LGBT favors the equality principle and gives them > more liberty. But it does cost some liberty to those who would continue to > exclude them — for any reason, including religious beliefs. > > Do you favor equality as inclusion or liberty as license? Or some > compromise, uncomfortable as they can be, between the two? > > As I argued about 20 years ago, we should recognize the legitimacy of the > restrictions on religious exercise as well as the legitimacy of claims > premised on religious exercise and reach principled compromises whenever > possible. And when that doesn’t work — sometimes the principles are not > sufficient to reach a principled compromise, unless the principle itself is > compromise between two first-order concepts like liberty and equality, then > simple pragmatism should rule. > > But such is not the world we live in at present for the most part. But > maybe Indiana and the responses of people to the misguided state RFA and > Indiana’s attempt to fix it are a hopeful sign that some sort of compromise > and working-out of intractable differences will be possible. > > Steve > > > -- > Prof. Steven D. Jamar > Assoc. Dir. of International Programs > Institute for Intellectual Property and Social Justice > http://iipsj.org > http://sdjlaw.org > > "I do not at all resent criticism, even when, for the sake of emphasis, it > for a time parts company with reality." > > Winston Churchill, speech to the House of Commons, 1941 > > > > > _______________________________________________ > 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.
