RE: bigotry and sincere religious belief

[Conkle, Daniel O.]

Thanks to Alan for his thoughtful and nuanced post.

I can at least imagine judges developing legal doctrines to effectuate this 
sort of approach.  But in the political domain, at least, I'm not optimistic 
that these issues will be resolved by informed and nuanced decision making.  
The passions are too high, and hot-button politics doesn't lend itself to 
nuance.  A couple of days ago, for example, when the Arizona legislation was 
pending, my local newspaper republished a political cartoon from the Sacramento 
Bee; it showed a map of the United States, but Arizona's space on the map was 
labeled "Uganda."  Not much nuance there.

That said, I think Alan's arguments suggest an appropriate move in the 
direction of reasonable accommodation.

Dan

Daniel O. Conkle
Robert H. McKinney Professor of Law
Indiana University Maurer School of Law
Bloomington, Indiana  47405
(812) 855-4331
fax (812) 855-0555
e-mail con...@indiana.edu


From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Alan Brownstein
Sent: Friday, February 28, 2014 1:38 AM
To: Law & Religion issues for Law Academics
Subject: RE: bigotry and sincere religious belief


Let me try to respond to Chip's post. He asks two basic questions. (1) Why 
should we be any more willing to accommodate religious objectors to same-sex 
marriage than we are willing to accommodate religious objectors to inter-racial 
marriages. (Or more broadly why accommodate discrimination against gays and 
lesbians any more than we would accommodate discrimination against 
African-Americans.) (2) Why should we try to distinguish between sincere 
religious objectors to same-sex marriage and bigots since it is probably 
impossible to do that accurately, mistakes will be made, and, in any case, the 
discrimination causes real harm to the victims of discrimination in both cases?



These are good questions, and they are hard questions that are not easy to 
answer. I do not dispute that there are strong arguments opposing my position 
on these issues. But I think my take on this issues is a serious position as 
well.



First, let me make clear that I think Chip and I agree on some important 
points. Discrimination against gays and lesbians and racial discrimination is 
seriously hurtful. As Chip says, the "refusal to serve some classes of people 
hurts them (stigma, insult, indignity, and sometimes material harm)." I also 
think he recognizes that there are some sincere religious individuals who 
oppose same-sex marriage and are not bigots or "phobes." Finally, my guess is 
that he and I would probably agree on 90% or more of the situations in which a 
conflict might arise as to whether or not to accommodate religious objectors to 
same-sex marriage -- and we would agree that an accommodation is not warranted.



On to Chip's questions. As to his first question, I do think race 
discrimination is a unique evil for American society and for our legal system. 
I think slavery was a horror that cannot be analogized easily to other wrongs 
-- terrible as the other wrongs may be. I think the system of violent 
subjugation of African-Americans for the following 100 years was staggering in 
its evil. And racism is not something that our society seems capable of putting 
behind us. It seems to have infected the marrow of our culture and society. I 
have been delighted with the speed with which American culture seems to be 
changing with regard to gay and lesbian rights and legal recognition of same 
sex marriages. I feel no such optimism with regard to the role played by racism 
in our society.



Also, I do not think that race discrimination is the only model or analogy for 
thinking about civil rights laws and anti-discrimination principles. We 
prohibit discrimination against women, against religious minorities, against 
the disabled and the aged. Much of that discrimination has been and is 
invidious. It is hurtful in all the ways that discrimination against gays and 
lesbians is hurtful. Quite a bit of it has been justified by religious beliefs 
and some of it still is. When a religious nonprofit refuses to hire a Jew or a 
Moslem, they may be doing so based on sincere beliefs about the need for, and 
obligations requiring, religious homogeneity in the work environment. Or they 
may be prejudiced. Either way, being denied a job you need that you are 
qualified to perform because of your religion is a hurtful experience.



Despite the harm caused by such discrimination, I think both as a 
constitutional matter and a statutory matter, we are willing to allow more 
exceptions, more accommodations of one kind or another, with regard to these 
other forms of discrimination  than we are with race. So yes I think race is 
different. I also do not think I am suggesting that discrimination against gays 
and lesbians does not involve serious harm when I s

Re: bigotry and sincere religious belief

[Ira Lupu]

I am glad that I put the original question to the list, and I am grateful
to everyone who in good faith offered a reply.  My only additional comment
is on the theme offered by Derek Gaubatz, in his citation to briefs and
works on why same sex marriage should not be recognized as marriage, and
why it is not bigotry to believe that.  This seems to me an argument aimed
at the state (acting through various branches of government).  And it is an
argument that I fully respect re: clergy and houses of worship; they have
an absolute right to decide who receives the blessings and sacraments of
marriage within their own faith tradition.

But the "marriage validity" argument cannot help wedding vendors and other
for-profit firms.  They are not being asked to recognize a same sex wedding
or relationship as legally valid.   Indeed, in New Mexico and Oregon, home
to the very few poster child cases arising from this subject, the state
itself did not so recognize.  Vendors and merchants are asked to provide
goods and services for a ceremony or a reception/party.  No one is asking
them to validate or approve any social or legal significance to that
ceremony or party.  So, unless, they think they are facilitating sin (and
what would that be?  Not the ceremony or the party -- only the physical
intimacy that is associated with the relationship), their religious liberty
does not seem implicated to me.  If this is about sexual sin, there is no
reason to stop at wedding vendors -- the landlords, the mattress sellers,
the employers asked to provide spousal benefits to same sex spouses of
employees, all have the same objection.  And then, Todo, we are indeed back
in Kansas.


On Fri, Feb 28, 2014 at 10:46 AM, Conkle, Daniel O. wrote:

>  Thanks to Alan for his thoughtful and nuanced post.
>
>
>
> I can at least imagine judges developing legal doctrines to effectuate
> this sort of approach.  But in the political domain, at least, I'm not
> optimistic that these issues will be resolved by informed and nuanced
> decision making.  The passions are too high, and hot-button politics
> doesn't lend itself to nuance.  A couple of days ago, for example, when the
> Arizona legislation was pending, my local newspaper republished a political
> cartoon from the Sacramento Bee; it showed a map of the United States, but
> Arizona's space on the map was labeled "Uganda."  Not much nuance there.
>
>
>
> That said, I think Alan's arguments suggest an appropriate move in the
> direction of reasonable accommodation.
>
>
>
> Dan
> 
> Daniel O. Conkle
> Robert H. McKinney Professor of Law
> Indiana University Maurer School of Law
> Bloomington, Indiana  47405
> (812) 855-4331
> fax (812) 855-0555
> e-mail con...@indiana.edu
> 
>
>
>
> *From:* religionlaw-boun...@lists.ucla.edu [mailto:
> religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Alan Brownstein
> *Sent:* Friday, February 28, 2014 1:38 AM
>
> *To:* Law & Religion issues for Law Academics
> *Subject:* RE: bigotry and sincere religious belief
>
>
>
> Let me try to respond to Chip's post. He asks two basic questions. (1) Why
> should we be any more willing to accommodate religious objectors to
> same-sex marriage than we are willing to accommodate religious objectors to
> inter-racial marriages. (Or more broadly why accommodate discrimination
> against gays and lesbians any more than we would accommodate discrimination
> against African-Americans.) (2) Why should we try to distinguish between
> sincere religious objectors to same-sex marriage and bigots since it is
> probably impossible to do that accurately, mistakes will be made, and, in
> any case, the discrimination causes real harm to the victims of
> discrimination in both cases?
>
>
>
> These are good questions, and they are hard questions that are not easy to
> answer. I do not dispute that there are strong arguments opposing my
> position on these issues. But I think my take on this issues is a serious
> position as well.
>
>
>
> First, let me make clear that I think Chip and I agree on some important
> points. Discrimination against gays and lesbians and racial discrimination
> is seriously hurtful. As Chip says, the "refusal to serve some classes of
> people hurts them (stigma, insult, indignity, and sometimes material
> harm)." I also think he recognizes that there are some sincere religious
> individuals who oppose same-sex marriage and are not bigots or "phobes."
> Finally, my guess is that he and I would probably agree on 90% or more of
> the situations in which a conflict might arise as to whether or not to
> accommodate religious objectors to same-sex marriage -- and we would
> agree that an accommodation is not warranted.
>
>
>
> On to Chip's questions. As to his first question, I do think race
> discrimination is a unique evil for American society and for our legal
> system. I think slavery was a horror that cannot be analogized easi

The pain of discrimination and the role of government

[Sisk, Gregory C.]

Over the past day, I've withheld from posting to the list, wanting to hear 
other points of view, see how the conversation unfolds, and learn from others 
(especially from those with whom I tend to disagree and perspectives that 
contrast with mine).  I hope what follows may be woven into the tapestry of 
today's other posts.

In reading posts poignantly describing the pain of suffering discrimination, I 
was reminded of something that I observed on the streets of a major American 
city to which I was traveling.  On a major downtown pedestrian thoroughfare, 
two young people, looking to be in their early twenties, were handing out 
flyers and trying to engage passers-by in conversation.  Their t-shirts, 
leaflets, and spoken words readily identified them as evangelical Christians 
preaching the Gospel.  Their persistence in the face of a rather disdainful 
audience, as well as the tone and message, confirmed that they were speaking 
from the heart and acting in furtherance of what they understood to be a 
genuine calling to share good news with others.

The response was anything but receptive; indeed, it was, no two ways around it, 
frequently hostile and, yes, bigoted.  While most of those walking by simply 
ignored the two or gave them a cold stare as they passed, several made 
derogatory remarks, laughed or jeered loudly, or even told them to "[epithet 
deleted] off."  No one physically accosted the two, and the comments did not 
provoke any violence, so I don't think it could be called disorderly conduct.  
But the targeted response was despicable in manner.

The two evangelists never responded in kind, instead saying "God bless you" or 
"Jesus loves you" to each person.  But it was plain that the hostile treatment 
left its psychological mark.  The young woman, who I am guessing was the 
veteran at street ministry, seemed less impacted.  But the young man was 
shaken, as I could tell from his mannerisms, what looked to be tears in his 
eyes, and the quaver that appeared in his voice after he received a 
particularly vituperative comment.

Now what these two evangelical Christians experienced was plainly 
"discrimination."  And it was blatant and invidious discrimination.  The 
remarks were not merely negative and disrespectful, but many were hateful and 
cruel.  And the basis for the discrimination plainly was their religious 
identity and message.  In the words of more than one poster to this list over 
the past day, these two were suffering an injury to their dignity, the pain of 
rejection, and the shame of stigma based on their identity.

Despite the undeniable fact that these two were the victims of discriminatory 
treatment and that they plainly felt the sting of that discrimination, I am 
guessing that all or most on this list will agree with me that it would be 
inappropriate to use the power of government to prevent such unfortunate 
behavior in the future or to pass a law that would compel those who pass by to 
treat evangelists with respect.  And I think that choice to refrain from use of 
government and law is correct for at least two reasons.

First, a legally binding directive to treat evangelists - or for that matter 
others who present a message - with respect, or instead a government regulation 
that induces such respect at the cost of some type of sanction or withheld 
benefit, would be difficult to separate from an improper government endorsement 
of the message at issue.  At the very least, legal action would put the heavy 
thumb of the government on the side of refraining from expressing opposition or 
indifference to a value-laden message.

But, second, it simply is not the proper role of government to enforce 
standards of courtesy or to wield legal power (as contrasted with appropriate 
exercise of persuasion) to shape human interactions.  I definitely assert a 
moral right to be treated with dignity, but I do not have a legal right in a 
free society to demand that other private citizens extend such courtesy to me 
or even refrain from being discourteous.  (By statute, of course, I do have the 
right to object to even private discrimination on certain grounds when it 
denies me the necessary tools for educational and economic opportunity.  That's 
something on which I'll comment more later - but this post is already too long. 
 My specific point here is that the real pain of discrimination alone, 
unaccompanied by something concrete like an economic deprivation, is like other 
failures in human behavior that are not properly the subject of government and 
where the imprudent use of law often transgresses the fundamental rights of 
some while attempting to address the grievances of others.)

Instead, it belongs to all of us, with personal commitment, through investment 
of time and talents, by telling our stories, and in how we live our lives, to 
enhance human dignity.  We should resist the temptation to delegate that 
responsibility to government, through its use of power or 

RE: bigotry and sincere religious belief

[Sisk, Gregory C.]

A quick and belated response to Chip's message.  Quite right.  My post did not 
resolve the problems raised by RFRA and was deliberately framed not to.  
Indeed, I was not trying to place things into a constitutional category either, 
whether of free speech or free exercise.  Instead, I was asking whether - 
setting to one side other aspects of this problem - we at least could reach 
some consensus for an exemption from anti-discrimination laws for those 
declining to provide a direct service for a ceremony or campaign or message to 
which they object.  If we could draft appropriately narrow language to allow 
the wedding photographer or the event host or the songwriter or the advertising 
agency to exercise freedom to choose the matters to which they apply their 
communicative arts, might we then be able to carve out one small space for 
protecting freedom without undermining the general aims of anti-discrimination 
laws?  Probably not, but worth the try, I do think.

Gregory Sisk
Laghi Distinguished Chair in Law
University of St. Thomas School of Law (Minnesota)
MSL 400, 1000 LaSalle Avenue
Minneapolis, MN  55403-2005
651-962-4923
gcs...@stthomas.edu
http://personal.stthomas.edu/GCSISK/sisk.html
Publications:  http://ssrn.com/author=44545

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Thursday, February 27, 2014 7:40 PM
To: Law & Religion issues for Law Academics
Subject: Re: bigotry and sincere religious belief

Greg Sisk's post re: how to think about the wedding photographer is just the 
compelled speech argument one more time.  In the case of a photographer, a 
First A claim of compelled speech is plausible, though not entirely persuasive. 
 In the case of a baker, florist, wine vendor, or caterer, the argument that 
their providing service to a same sex wedding involves compelling them to speak 
about the moral/religious bona fides of the ceremony is not even plausible.

But there is a deeper issue lurking in Greg's post.  If the photographer has a 
good compelled speech claim, it is entirely independent of religion.  She can 
have any reason, or no reason at all, to refuse to speak.  She can have 
religious objections, homophobic reactions, or aesthetic concerns about taking 
pictures of two brides or two grooms.  Her reasons are totally irrelevant.  
This is the precise lesson of Minersville v. Gobitis (no free exercise 
exemptions from compulsory Flag Salute at school) and West Va Bd of Ed v. 
Barnette (no one can be compelled to salute the American flag).  And if reasons 
are irrelevant, because this is a compelled speech problem, then it extends to 
all weddings -- inter-racial, inter-religious, Italian, Polish, Jewish, etc.  
The photographer cannot be "conscripted" by civil rights laws into taking and 
displaying photos against her will.  Maybe this is a good result; I have my 
doubts.  But it is NOT a religious exemption, and it does NOT require any 
parsing of phobic/bigoted/sincerely religious reasons to abstain. So, under 
Greg's approach, the problem raised by RFRA's, re: separating religious 
sincerity from phobic bigotry, remains entirely unresolved.

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Re: The pain of discrimination and the role of government

[Greg Lipper]

But if those evangelicals walked into the corner bakery afterwards, the law 
would require that they be served – even if the owner hated their religious 
beliefs. And that’s how it should be, I think.


On Feb 28, 2014, at 8:11 PM, Sisk, Gregory C. 
mailto:gcs...@stthomas.edu>> wrote:

Over the past day, I’ve withheld from posting to the list, wanting to hear 
other points of view, see how the conversation unfolds, and learn from others 
(especially from those with whom I tend to disagree and perspectives that 
contrast with mine).  I hope what follows may be woven into the tapestry of 
today’s other posts.

In reading posts poignantly describing the pain of suffering discrimination, I 
was reminded of something that I observed on the streets of a major American 
city to which I was traveling.  On a major downtown pedestrian thoroughfare, 
two young people, looking to be in their early twenties, were handing out 
flyers and trying to engage passers-by in conversation.  Their t-shirts, 
leaflets, and spoken words readily identified them as evangelical Christians 
preaching the Gospel.  Their persistence in the face of a rather disdainful 
audience, as well as the tone and message, confirmed that they were speaking 
from the heart and acting in furtherance of what they understood to be a 
genuine calling to share good news with others.

The response was anything but receptive; indeed, it was, no two ways around it, 
frequently hostile and, yes, bigoted.  While most of those walking by simply 
ignored the two or gave them a cold stare as they passed, several made 
derogatory remarks, laughed or jeered loudly, or even told them to “[epithet 
deleted] off.”  No one physically accosted the two, and the comments did not 
provoke any violence, so I don’t think it could be called disorderly conduct.  
But the targeted response was despicable in manner.

The two evangelists never responded in kind, instead saying “God bless you” or 
“Jesus loves you” to each person.  But it was plain that the hostile treatment 
left its psychological mark.  The young woman, who I am guessing was the 
veteran at street ministry, seemed less impacted.  But the young man was 
shaken, as I could tell from his mannerisms, what looked to be tears in his 
eyes, and the quaver that appeared in his voice after he received a 
particularly vituperative comment.

Now what these two evangelical Christians experienced was plainly 
“discrimination.”  And it was blatant and invidious discrimination.  The 
remarks were not merely negative and disrespectful, but many were hateful and 
cruel.  And the basis for the discrimination plainly was their religious 
identity and message.  In the words of more than one poster to this list over 
the past day, these two were suffering an injury to their dignity, the pain of 
rejection, and the shame of stigma based on their identity.

Despite the undeniable fact that these two were the victims of discriminatory 
treatment and that they plainly felt the sting of that discrimination, I am 
guessing that all or most on this list will agree with me that it would be 
inappropriate to use the power of government to prevent such unfortunate 
behavior in the future or to pass a law that would compel those who pass by to 
treat evangelists with respect.  And I think that choice to refrain from use of 
government and law is correct for at least two reasons.

First, a legally binding directive to treat evangelists – or for that matter 
others who present a message – with respect, or instead a government regulation 
that induces such respect at the cost of some type of sanction or withheld 
benefit, would be difficult to separate from an improper government endorsement 
of the message at issue.  At the very least, legal action would put the heavy 
thumb of the government on the side of refraining from expressing opposition or 
indifference to a value-laden message.

But, second, it simply is not the proper role of government to enforce 
standards of courtesy or to wield legal power (as contrasted with appropriate 
exercise of persuasion) to shape human interactions.  I definitely assert a 
moral right to be treated with dignity, but I do not have a legal right in a 
free society to demand that other private citizens extend such courtesy to me 
or even refrain from being discourteous.  (By statute, of course, I do have the 
right to object to even private discrimination on certain grounds when it 
denies me the necessary tools for educational and economic opportunity.  That’s 
something on which I’ll comment more later – but this post is already too long. 
 My specific point here is that the real pain of discrimination alone, 
unaccompanied by something concrete like an economic deprivation, is like other 
failures in human behavior that are not properly the subject of government and 
where the imprudent use of law often transgresses the fundamental rights of 
some while attempting to address the grievances of others.)

Inst

RE: The pain of discrimination and the role of government

[Scarberry, Mark]

Greg says that "it simply is not the proper role of government to enforce 
standards of courtesy," and that he does  "not have a legal right in a free 
society to demand that other private citizens extend such courtesy to me or 
even refrain from being discourteous." (He also notes that some forms of 
interactions may deprive a person of educational tools, etc. and may properly 
be regulated.)

By coincidence, I received an email today, as a UCLA law alum, from the UCLA 
Law School Dean (Dean Rachel Moran), discussing the law school's commitment to 
non-discrimination, tolerance, and civility. The email included as an 
attachment a letter that was sent to all the students. Professionals should be 
civil, and encouraging civility among future lawyers is a good thing. But a 
demand for civility can turn out to be a demand that one not offend others by 
expressing views that they don't like or by expressing them too forcefully. I 
find it troubling that the letter Dean Moran sent to the students says that 
"[w]e cannot tolerate any form of discrimination or incivility at UCLA Law."

It makes sense not to tolerate wrongful discrimination, though there may be 
disagreement about what actions constitute wrongful discrimination. Consider 
UCLA's discrimination based on LSAT scores among applicants who are perfectly 
qualified to be good lawyers.  (And cf. Christian Legal Society v. Martinez. 
And cf. affirmative action of various kinds.)

But a demand by a state university that students be civil - with whatever 
consequences might follow for the student who is too strident in expressing his 
or her views - may turn out to be a form of censorship.

I wonder whether UCLA would consider it to be uncivil for one student to accuse 
another of being a bigot for not supporting same sex marriage, or for 
supporting broad protection of conscience for those who don't want to be forced 
to facilitate or participate in the solemnization of such marriages. One hopes 
that there will not be a double standard.

I suspect that some of the posts here on these topics might be considered 
uncivil. Should state university students be prohibited from writing or saying 
such things?

Another note concerning the letter Dean Moran sent to the students: One of the 
bullet points is entitled "Interfaith Quiet Room." She writes that "[b]y fall 
2014, we will have a room set aside for students to contemplate, meditate or 
offer private prayers." Discuss.

Mark

Mark S. Scarberry
Professor of Law
Pepperdine Univ. School of Law



From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Sisk, Gregory C.
Sent: Friday, February 28, 2014 5:12 PM
To: 'Law & Religion issues for Law Academics (religionlaw@lists.ucla.edu)'
Subject: The pain of discrimination and the role of government

Over the past day, I've withheld from posting to the list, wanting to hear 
other points of view, see how the conversation unfolds, and learn from others 
(especially from those with whom I tend to disagree and perspectives that 
contrast with mine).  I hope what follows may be woven into the tapestry of 
today's other posts.

In reading posts poignantly describing the pain of suffering discrimination, I 
was reminded of something that I observed on the streets of a major American 
city to which I was traveling.  On a major downtown pedestrian thoroughfare, 
two young people, looking to be in their early twenties, were handing out 
flyers and trying to engage passers-by in conversation.  Their t-shirts, 
leaflets, and spoken words readily identified them as evangelical Christians 
preaching the Gospel.  Their persistence in the face of a rather disdainful 
audience, as well as the tone and message, confirmed that they were speaking 
from the heart and acting in furtherance of what they understood to be a 
genuine calling to share good news with others.

The response was anything but receptive; indeed, it was, no two ways around it, 
frequently hostile and, yes, bigoted.  While most of those walking by simply 
ignored the two or gave them a cold stare as they passed, several made 
derogatory remarks, laughed or jeered loudly, or even told them to "[epithet 
deleted] off."  No one physically accosted the two, and the comments did not 
provoke any violence, so I don't think it could be called disorderly conduct.  
But the targeted response was despicable in manner.

The two evangelists never responded in kind, instead saying "God bless you" or 
"Jesus loves you" to each person.  But it was plain that the hostile treatment 
left its psychological mark.  The young woman, who I am guessing was the 
veteran at street ministry, seemed less impacted.  But the young man was 
shaken, as I could tell from his mannerisms, what looked to be tears in his 
eyes, and the quaver that appeared in his voice after he received a 
particularly vituperative comment.

Now what these two evangelical Christians experienced was plainly 
"discrimination."

RE: The pain of discrimination and the role of government

[Scarberry, Mark]

I should clarify that the email was from the president of the UCLA law alumni 
group. Dean Moran's letter was an attachment to that email.

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Scarberry, Mark
Sent: Friday, February 28, 2014 6:37 PM
To: Law & Religion issues for Law Academics
Subject: RE: The pain of discrimination and the role of government

Greg says that "it simply is not the proper role of government to enforce 
standards of courtesy," and that he does  "not have a legal right in a free 
society to demand that other private citizens extend such courtesy to me or 
even refrain from being discourteous." (He also notes that some forms of 
interactions may deprive a person of educational tools, etc. and may properly 
be regulated.)

By coincidence, I received an email today, as a UCLA law alum, from the UCLA 
Law School Dean (Dean Rachel Moran), discussing the law school's commitment to 
non-discrimination, tolerance, and civility. The email included as an 
attachment a letter that was sent to all the students. Professionals should be 
civil, and encouraging civility among future lawyers is a good thing. But a 
demand for civility can turn out to be a demand that one not offend others by 
expressing views that they don't like or by expressing them too forcefully. I 
find it troubling that the letter Dean Moran sent to the students says that 
"[w]e cannot tolerate any form of discrimination or incivility at UCLA Law."

It makes sense not to tolerate wrongful discrimination, though there may be 
disagreement about what actions constitute wrongful discrimination. Consider 
UCLA's discrimination based on LSAT scores among applicants who are perfectly 
qualified to be good lawyers.  (And cf. Christian Legal Society v. Martinez. 
And cf. affirmative action of various kinds.)

But a demand by a state university that students be civil - with whatever 
consequences might follow for the student who is too strident in expressing his 
or her views - may turn out to be a form of censorship.

I wonder whether UCLA would consider it to be uncivil for one student to accuse 
another of being a bigot for not supporting same sex marriage, or for 
supporting broad protection of conscience for those who don't want to be forced 
to facilitate or participate in the solemnization of such marriages. One hopes 
that there will not be a double standard.

I suspect that some of the posts here on these topics might be considered 
uncivil. Should state university students be prohibited from writing or saying 
such things?

Another note concerning the letter Dean Moran sent to the students: One of the 
bullet points is entitled "Interfaith Quiet Room." She writes that "[b]y fall 
2014, we will have a room set aside for students to contemplate, meditate or 
offer private prayers." Discuss.

Mark

Mark S. Scarberry
Professor of Law
Pepperdine Univ. School of Law



From: 
religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Sisk, Gregory C.
Sent: Friday, February 28, 2014 5:12 PM
To: 'Law & Religion issues for Law Academics 
(religionlaw@lists.ucla.edu)'
Subject: The pain of discrimination and the role of government

Over the past day, I've withheld from posting to the list, wanting to hear 
other points of view, see how the conversation unfolds, and learn from others 
(especially from those with whom I tend to disagree and perspectives that 
contrast with mine).  I hope what follows may be woven into the tapestry of 
today's other posts.

In reading posts poignantly describing the pain of suffering discrimination, I 
was reminded of something that I observed on the streets of a major American 
city to which I was traveling.  On a major downtown pedestrian thoroughfare, 
two young people, looking to be in their early twenties, were handing out 
flyers and trying to engage passers-by in conversation.  Their t-shirts, 
leaflets, and spoken words readily identified them as evangelical Christians 
preaching the Gospel.  Their persistence in the face of a rather disdainful 
audience, as well as the tone and message, confirmed that they were speaking 
from the heart and acting in furtherance of what they understood to be a 
genuine calling to share good news with others.

The response was anything but receptive; indeed, it was, no two ways around it, 
frequently hostile and, yes, bigoted.  While most of those walking by simply 
ignored the two or gave them a cold stare as they passed, several made 
derogatory remarks, laughed or jeered loudly, or even told them to "[epithet 
deleted] off."  No one physically accosted the two, and the comments did not 
provoke any violence, so I don't think it could be called disorderly conduct.  
But the targeted response was despicable in manner.

The two evangelists never responded in kind, instead saying "God bless you" or 
"Jesus 

RE: The pain of discrimination and the role of government

[Sisk, Gregory C.]

But of course!  I quite agree "that's how it should be."  I too believe that 
our two Christian evangelists should be able to walk into Greg Lipper's 
hypothetical bakery and be served.

If that were all that is on the table for legal regulation, then we all could 
breath a sigh of relief and quickly come to an amicable agreement on the lion's 
share of the matter.  I might quibble that an expansion of anti-discrimination 
laws to accomplish this simple purpose is a solution in search of a problem, 
given that there are no reports in the media of an epidemic of bakeries or 
grocery stores or other merchants that are refusing to take money from people 
until after checking their sexual orientation or religious or other 
identification card.  In addition, we might still have a much lower stakes 
debate about whether even the principle of basic affording of basic merchant 
goods to everyone should admit to a rare exception where the harm is minimal 
and the idiosyncratic religious claim is severe.  But, again, I'd acknowledge 
that we’d be at least 99 percent of the way there if this were all we are 
talking about.

Unfortunately, unless I've misread the many posts over the last couple of 
weeks, this does not appear to be all that is demanded by advocates of a 
broader anti-discrimination regime that admits of no religious liberty 
exceptions.

Suppose that our two Christian evangelists walk into Greg Lipper’s hypothetical 
bakery and the baker says, “you’re welcome to come in and buy baked goods, but 
I won’t allow any Christian leafleting or prosyletizing of my customers.”  I 
imagine that nearly all of us would agree that the baker would be well within 
his rights to refuse to allow his bakery to be a venue to promote the 
evangelist's message.  Would everyone still agree if the baker applies this 
no-leafletting policy in a “discriminatory” way?  Suppose that the baker does 
not permit the Christian evangelists to hand out flyers, but then he circulates 
for customer signatures his own petition asking Governor Brewer to veto the 
Religious Freedom Restoration Act amendments?  I would hope that most of us 
would stand by the baker here,.  But such a freedom for the baker to so 
"discriminate" is hard to reconcile with some comments on this list suggesting 
a more absolute value for anti-discrimination.

Or suppose that our intrepid Christian evangelists, exhausted after a Friday 
afternoon of preaching and receiving regular epithets from a hostile street 
audience, arrive at our baker’s door, hungry and thirsty, only to find the 
baker putting out the "closed sign", as he explains, “I’m Jewish, so I’m 
closing on Friday evening as the Sabbath is beginning.”  Should our Christian 
evangelists be heard to make a legal claim that the baker is "discriminating" 
against non-Jews by denying them service on a Friday evening -- and on 
explicitly religious grounds no less?  Again, I hope list members would not 
reach that conclusion.  But then I've been reading posted messages saying that 
merchants of differing religious views should be required "to adjust" to the 
demands of the majority.

In sum, my prior points about the over- and mis-use of "discrimination" to 
characterize choices, as well as the danger of allowing government to pressure 
people into proper and decent behavior, do not disappear when we reach the door 
to a business.

Greg Sisk


From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Greg Lipper [lip...@au.org]
Sent: Friday, February 28, 2014 7:25 PM
To: Law & Religion issues for Law Academics
Subject: Re: The pain of discrimination and the role of government

But if those evangelicals walked into the corner bakery afterwards, the law 
would require that they be served – even if the owner hated their religious 
beliefs. And that’s how it should be, I think.


On Feb 28, 2014, at 8:11 PM, Sisk, Gregory C. 
mailto:gcs...@stthomas.edu>> wrote:

Over the past day, I’ve withheld from posting to the list, wanting to hear 
other points of view, see how the conversation unfolds, and learn from others 
(especially from those with whom I tend to disagree and perspectives that 
contrast with mine).  I hope what follows may be woven into the tapestry of 
today’s other posts.

In reading posts poignantly describing the pain of suffering discrimination, I 
was reminded of something that I observed on the streets of a major American 
city to which I was traveling.  On a major downtown pedestrian thoroughfare, 
two young people, looking to be in their early twenties, were handing out 
flyers and trying to engage passers-by in conversation.  Their t-shirts, 
leaflets, and spoken words readily identified them as evangelical Christians 
preaching the Gospel.  Their persistence in the face of a rather disdainful 
audience, as well as the tone and message, confirmed that they were speaking 
from the heart and acting in furtherance of what they 

RE: The pain of discrimination and the role of government

[Scarberry, Mark]

And, as it turns out, Dean Moran also sent the letter as an attachment to her 
own email that she sent to alumni.

Mark Scarberry
Pepperdine
UCLA Law School Class of 1978


Sent from my Verizon Wireless 4G LTE Smartphone


 Original message 
From: "Scarberry, Mark"
Date:02/28/2014 6:41 PM (GMT-08:00)
To: Law & Religion issues for Law Academics
Subject: RE: The pain of discrimination and the role of government

I should clarify that the email was from the president of the UCLA law alumni 
group. Dean Moran’s letter was an attachment to that email.

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Scarberry, Mark
Sent: Friday, February 28, 2014 6:37 PM
To: Law & Religion issues for Law Academics
Subject: RE: The pain of discrimination and the role of government

Greg says that “it simply is not the proper role of government to enforce 
standards of courtesy,” and that he does  “not have a legal right in a free 
society to demand that other private citizens extend such courtesy to me or 
even refrain from being discourteous.” (He also notes that some forms of 
interactions may deprive a person of educational tools, etc. and may properly 
be regulated.)

By coincidence, I received an email today, as a UCLA law alum, from the UCLA 
Law School Dean (Dean Rachel Moran), discussing the law school’s commitment to 
non-discrimination, tolerance, and civility. The email included as an 
attachment a letter that was sent to all the students. Professionals should be 
civil, and encouraging civility among future lawyers is a good thing. But a 
demand for civility can turn out to be a demand that one not offend others by 
expressing views that they don’t like or by expressing them too forcefully. I 
find it troubling that the letter Dean Moran sent to the students says that 
“[w]e cannot tolerate any form of discrimination or incivility at UCLA Law.”

It makes sense not to tolerate wrongful discrimination, though there may be 
disagreement about what actions constitute wrongful discrimination. Consider 
UCLA’s discrimination based on LSAT scores among applicants who are perfectly 
qualified to be good lawyers.  (And cf. Christian Legal Society v. Martinez. 
And cf. affirmative action of various kinds.)

But a demand by a state university that students be civil – with whatever 
consequences might follow for the student who is too strident in expressing his 
or her views – may turn out to be a form of censorship.

I wonder whether UCLA would consider it to be uncivil for one student to accuse 
another of being a bigot for not supporting same sex marriage, or for 
supporting broad protection of conscience for those who don’t want to be forced 
to facilitate or participate in the solemnization of such marriages. One hopes 
that there will not be a double standard.

I suspect that some of the posts here on these topics might be considered 
uncivil. Should state university students be prohibited from writing or saying 
such things?

Another note concerning the letter Dean Moran sent to the students: One of the 
bullet points is entitled “Interfaith Quiet Room.” She writes that “[b]y fall 
2014, we will have a room set aside for students to contemplate, meditate or 
offer private prayers.” Discuss.

Mark

Mark S. Scarberry
Professor of Law
Pepperdine Univ. School of Law



From: 
religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Sisk, Gregory C.
Sent: Friday, February 28, 2014 5:12 PM
To: 'Law & Religion issues for Law Academics 
(religionlaw@lists.ucla.edu)'
Subject: The pain of discrimination and the role of government

Over the past day, I’ve withheld from posting to the list, wanting to hear 
other points of view, see how the conversation unfolds, and learn from others 
(especially from those with whom I tend to disagree and perspectives that 
contrast with mine).  I hope what follows may be woven into the tapestry of 
today’s other posts.

In reading posts poignantly describing the pain of suffering discrimination, I 
was reminded of something that I observed on the streets of a major American 
city to which I was traveling.  On a major downtown pedestrian thoroughfare, 
two young people, looking to be in their early twenties, were handing out 
flyers and trying to engage passers-by in conversation.  Their t-shirts, 
leaflets, and spoken words readily identified them as evangelical Christians 
preaching the Gospel.  Their persistence in the face of a rather disdainful 
audience, as well as the tone and message, confirmed that they were speaking 
from the heart and acting in furtherance of what they understood to be a 
genuine calling to share good news with others.

The response was anything but receptive; indeed, it was, no two ways around it, 
frequently hostile and, yes, bigoted.  While most of those walking by simply 
ignored the two or