Sent again with prior posts trimmed to conform to list size limits. Mark S. Scarberry Pepperdine University School of Law
Sent from my iPad But then it's bigotry to oppose religious exemptions with regard to federal law per the federal RFRA, and, if you are a Kentuckian, to oppose religious exemptions under the KY RFRA. So opponents of giving an exemption to Davis for KY law purposes are anti-religious bigots. No. Neither position need flow from bigotry as a matter of con law unless we think the majority in Obergefell was dishonest and that the Court in Smith was dishonest in saying that religious persons could seek protection by way of the political process. (Nor do I think either position need flow from bigotry as a matter of morality and common understanding. Cf. the President, seeking reelection in an earlier reincarnation.) Of course a generally applicable RFRA is better, as a matter of protection of minority faiths, than a case-by-case legislative grant of exemptions for particular practices. I am willing to say that opponents of RFRAs aren't necessarily bigots. Would that proponents of same-sex marriage would reciprocate with regard to that issue. (I realize that some list members do.) But of course the promise of a regime of tolerance made by opponents of Prop. 8, who told us that fears of intolerance were completely unfounded, has become inoperative. Signing off for the day. Mark Mark S. Scarberry Pepperdine University School of Law Sent from my iPad On Sep 7, 2015, at 10:02 AM, "Steven Jamar" <stevenja...@gmail.com<mailto:stevenja...@gmail.com>> wrote: What is “bigotry.” Do you judge it from the target or do you judge it from the point of view of the accused person? Is there an external standard or is it purely subjective? Is this a sensible statement: “Davis’s actions are bigoted under the law of the land though she herself is not a bigot?” I don’t think so. At some point it is about actions, and philosophical groundings of intentions. Note that in Davis’s case, it is anot a situation of unintended consequences. The actions align perfectly with her intention. So again, is it bigot is as bigot does, or is it subjective rationalization? FWIW, I think the motivations of a person, and the grounding of those motivations do matter even though the effect is identical. But they matter far more in a moral sense than in a legal sense. Davis is demanding that her beliefs be respected and that she be allowed to act in accordance with them (that was, of course not what Reynolds said), but she is disrespecting both the beliefs of others and the law of the land. And she is a government official. The two claims are not equivalent. Steve Jamar On Sep 7, 2015, at 8:31 AM, Kwall, Roberta <rkw...@depaul.edu<mailto:rkw...@depaul.edu>> wrote: I don't know how many folks on this list have actually taught Obergefell yet given that it is so early in the semester but having done so just last week, I wanted to share my experience doing so. I was a bit surprised that one student strongly articulated the view that Davis is operating out of bigotry. This required me to think--very quickly--of how to respond. Instinctively, I redirected the conversation by 1) pushing back on the bigotry issue by articulating why she would feel as she does from a theological standpoint, assuming good faith and 2) refocusing the attention on the legal aspects of the case (by emphasizing many of the points folks on this list have made over the past several days). Given that I typically do not teach topics that are polarizing in this way, this was a pretty new experience for me (even though I am a veteran teacher!). After class, a student (who happens to be African American) emailed me saying she doesn't agree with same-sex marriage and she has learned to refrain from articulating her views given the negative reactions she has received in the past from others. She said she also felt somewhat uncomfortable. I invited her to come speak with me (which she will do tomorrow). My point here is that apart from the constitutional nuances of all of these fascinating discussions, as teachers we have the real world challenge of dealing with student bias (one way or the other) in the classroom. I am curious how others have handled such situations. One last point about bias--The Myth of the Cultural Jew which Sandy mentioned yesterday is essentially all about how bias of one sort of another works its way into the law (specifically there, Jewish law). Throughout this discussion, I have been pondering whether a Kim Davis type situation would arise with an observant Jew in her situation. I think it would be very different because according to Jewish law there is a principle stating "the law of the land is the law." In other words, if Kim Davis was an observant Jew, I think she would have a far less strong free exercise argument (although there may be some observant Jews who might disagree with that). In fact, many observant (even Orthodox) Jews draw a distinction concerning same-sex marriage when it comes to secular vs. Jewish marriage (although again, there is a range on this point as well). On a related point, Michael Helfand just published a very interesting piece in Mosaic Magazine which discusses RFRA and some of the issues related to these posts. Roberta Rosenthal Kwall Raymond P. Niro Professor Founding Director, DePaul University College of Law Center for Intellectual Property Law & Information Technology Author of The Myth of the Cultural Jew: Culture and Law in Jewish Tradition http://amzn.to/15f7bLH You can view my papers on the Social Science Research Network (SSRN) at the following URL: http://ssrn.com/author=345249
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