Whispering in the ear of Jan Brewer....
Interesting political intervention from a group of list members who describe themselves as: *Some of us are Republicans; some of us are Democrats. Some of us are religious; some of us are not. Some of us oppose same-sex marriage; some of us support it. Nine of the eleven signers of this letter believe that you should sign the bill; two are unsure.** But all of **us believe that many criticisms of the Arizona bill are deeply misleading.* Unless you followed the politics of gay rights very closely, you would never know that this core group of activists/scholars have a low threshold for outrage as they bombard Governors, legislatures, City Councils, etc. with these parade of horribles whenever same sex marriage (who are we kidding - anything to do with gay rights as proven by this instance) is debated. Most of their letter campaigns fall on deaf ears and they have been criticized by others for presenting a very skewed legal analysis. It was heartening when recently (seriously thanks for the help but what took you so long) another group of law professors openly criticized them for their errors and suggested working together in the future to offer a more balanced presentation of the law in this area. The responses I have seen so far don't offer much hope that they will change their tactics. What is surprising in this instance is the the explicit right wing memes of liberal media bias and sinister gay mafia oppressing poor powerless christian martyrs are front and center without the usual pseudo-academic pas de deux. ADF certainly know how to work the outrage buttons of the right wing blogosphere and the knives were out for this one. This is pure political spin on what we were assured was a minor, technical bill that would in no way further discrimination against gays lesbians. I always assumed Laycock was above the nastier types like the ADF but all is fare in love and war I suppose... In the past, Laycock, et. al. have insisted that they were not taking sides in the culture war against gays, were not motivated by partisanship, and had no hostility to gay lesbian rights - they just were moved by the plight of right wing christian wedding service industry. the invisible victims of those litigious gays. Most of us saw them as foolish and patronizing at best and sugar coated homophobes at worst. Guess we know the answer now... http://www.wnd.com/2014/02/gays-twisting-arizona-bill-say-top-law-profs/ http://www.adfmedia.org/files/SB1062LegalProfsLetter.pdf PS - First rule of PR: know exactly who your marks are. In this tea party era, touting your academic credentials in a bid to gain the ear of Jan Brewer was an odd strategy. What got her attention were the financial threats to the state from corporate interests, who were not motivated by their embrace of gay rights so much as their fear of litigation expenses from cranky employees. Corporate power and money make strange bedfellows PPS - Second Rule: Don't BS David Catania http://www.washingtoncitypaper.com/blogs/citydesk/2009/11/12/david-catania-puts-the-smackdown-on-anti-gay-marriage-law-prof/ PPPS - One of the few redeeming qualities of the Volokh blog is the comment section, where you have a blend of libertarian He-Men, Black helicopter Alex Jone fans, and a small but hilarious band of witty liberals who are pulling their hair out whilst shouting that the emperor has no clothes...Hardly any of them were convinved by a certain guest editorial http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/02/27/guest-post-from-prof-doug-laycock-what-arizona-sb1062-actually-said/ ---Jimmy Green ___ 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.
Re: Whispering in the ear of Jan Brewer....
Let’s think about how this law would operate. A gay person walks into the store and is denied service. Now, this gay person needs to sue to prove the store improperly refused him service because he is gay. So he needs to hire a lawyer, pay the lawyer, and spend a lot of time and effort to show that he was denied service because he was gay. The store now defends, and only needs to say “I have a sincerely held belief that requires that I not be complicit in supporting gays in any way and serving them would make me complicit.” How does the plaintiff negate that claim as to sincerity or as to the belief in the complicity-with-sin theory? How does one judge the substantiality of the impact of this claim on the religious exercise of the defendant? If one buys the sincerity and the complicity theory, isn’t doing anything that the defendent (not a reasonable person, not an ordinary person, but this single individual) going to be, according to this theory “substantial.” Or at least isn’t that the argument being made by those supporting this extension? And since that is nearly impossible to negate factually or evidentiarily (imagine the discovery for this and the evidence for a jury to consider), the burden is effectively not on the defendant to prove much of anything, but rather on the plaintiff to prove not only that the discrimination did in fact take place but now must prove that the state (not the plaintiff) has a compelling interest to stop this sort of discrimination. But isn’t that last bit really an either/or — either this interest is compelling or it is not. And no court has yet held that it is a compelling interest. Now, if a court does hold there is a compelling interest in stopping discrimination against gays, then the whole exercise of the law intended to permit this discrimination is for naught. If a court holds there is no such compelling interest, then the case turns on the naked assertion of the sincerity of belief by the defendant. So I think the characterization of how this law would have worked and its intent and effect as described in the letter is indeed disingenuous. The proposed law was not really just about protecting religious freedom, it was about permitting some people to discriminate against gays by all but immunizing the defendants from suit. The disconnect between theory and practice is dramatic here, and it matters. Steve -- Prof. Steven D. Jamar vox: 202-806-8017 Director of International Programs, Institute for Intellectual Property and Social Justice http://iipsj.org Howard University School of Law fax: 202-806-8567 http://iipsj.com/SDJ/ There is a cult of ignorance in the United States, and there always has been. The strain of anti-intellectualism has been a constant thread winding its way through our political and cultural life, nurtured by the false notion that democracy means that my ignorance is just as good as your knowledge. Isaac Asimov in a column in Newsweek (21 January 1980) On Mar 1, 2014, at 3:14 AM, jim green ugala...@gmail.com wrote: Interesting political intervention from a group of list members who describe themselves as: Some of us are Republicans; some of us are Democrats. Some of us are religious; some of us are not. Some of us oppose same-sex marriage; some of us support it. Nine of the eleven signers of this letter believe that you should sign the bill; two are unsure. But all of us believe that many criticisms of the Arizona bill are deeply misleading. Unless you followed the politics of gay rights very closely, you would never know that this core group of activists/scholars have a low threshold for outrage as they bombard Governors, legislatures, City Councils, etc. with these parade of horribles whenever same sex marriage (who are we kidding - anything to do with gay rights as proven by this instance) is debated. Most of their letter campaigns fall on deaf ears and they have been criticized by others for presenting a very skewed legal analysis. It was heartening when recently (seriously thanks for the help but what took you so long) another group of law professors openly criticized them for their errors and suggested working together in the future to offer a more balanced presentation of the law in this area. The responses I have seen so far don't offer much hope that they will change their tactics. What is surprising in this instance is the the explicit right wing memes of liberal media bias and sinister gay mafia oppressing poor powerless christian martyrs are front and center without the usual pseudo-academic pas de deux. ADF certainly know how to work the outrage buttons of the right wing blogosphere and the knives were out for this one. This is pure political spin on what we were assured was a minor, technical bill that would in no way further discrimination against gays lesbians. I always
Definition of discrimination.
On Feb 28, 2014, at Fri, Feb 28, 7:11 PM, Sisk, Gregory C. gcs...@stthomas.edu wrote: Now what these two evangelical Christians experienced was plainly “discrimination.” I’m not sure it was. While I’m not an attorney of any stripe or ilk, I’d say that what those evangelists experienced was (verbal) antagonism. And while it was indeed vile and despicable, it is protected under free speech, if I’m not mistaken, provided no one actively threatened them with bodily harm. Discrimination would have occurred if the Jewish shop owner had indeed refused to serve them because they were evangelists, or at least discrimination in the legal sense, if I understand it. If someone had begun beating them while yelling anti-evangelist epithets, that would have been a hate crime or possibly religiously motivated assault, certainly? Discrimination is difficult to pin down; but certainly denying publicly offered goods and services for reasons other than an inability to pay is discrimination, isn’t it? Once, while leaving the local lesbian watering hole in Providence, RI, a car full of (I suspect rather drunk) young men yelled “Fucking dyke!” at me. My immediate response was “I’m a walking dyke. I do my fucking at home!” At that point one of them threw a glass bottle which smashed many yards away from me. Discrimination? They didn’t deny me from using public roads, but assault? Maybe. That bottle was more threat than assault, I think. Was I scared, in fear of my life? You better believe it, in spite of my rare quick response to their taunt. Luckily they sped off, and I was able to get to my car and go home without any physical damage. But common self preservation told me that drunk young men are dangerous; that is a lesson I learned from Matthew Sheppard. My prescience was justified by the badly-aimed glass bottle. So tell me, list members, was I “discriminated” against? Was I assaulted? At what point did their behavior cross from protected speech to criminal activity? Did it? I never did tell my story to the police. I’d already been told that the Providence police turned a blind eye on such things, and even worse things routinely. How could I get justice when I didn’t even have a license plate number or descriptions of the men? All the best, Jean. ___ 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.
RE: Definition of discrimination.
A sad and disturbing story. I'd say that, yes, it was discrimination from the outset and virulently so. Verbal antagonism is a form of discrimination, when it is based on a person's identity, as it obviously was here (and in my hypothetical as well). Whether what Jean experienced was or should be actionable as a matter of law, and at what point the discriminatory conduct changed from offensive speech to illegal threat (when the introduction of legal constraint is most justified), does not change the overall nature of the conduct as discrimination. As despicable as may be expression, we appreciate that the law is not the right response to every such situation and that empowering the government to police emotional harms -- without in any way depreciating the reality and impact of emotional harms -- may be intrusive into expression and may invite overreaching of governmental coercion that endangers freedom for all. Denying public goods and services based on identity is discrimination to be sure, but so is what my hypothetical Christian evangelists suffered. In the end, whether the law should prohibit any particular form of discrimination should turn on whether a concrete economic harm or danger to safety is established, not simply on characterization of behavior as discriminatory. Expectations of decency and civility call for all of us as neighbors, friends, members of a community to speak out and reject hateful words and intolerant behavior (while protecting always genuine differences of opinion). We cannot shirk this moral duty by delegating it to government, and given the dangers of government power, we should not. Greg Sisk From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Jean Dudley [jean.dud...@gmail.com] Sent: Saturday, March 01, 2014 7:05 AM To: Law Religion issues for Law Academics Subject: Definition of discrimination. On Feb 28, 2014, at Fri, Feb 28, 7:11 PM, Sisk, Gregory C. gcs...@stthomas.edumailto:gcs...@stthomas.edu wrote: Now what these two evangelical Christians experienced was plainly “discrimination.” I’m not sure it was. While I’m not an attorney of any stripe or ilk, I’d say that what those evangelists experienced was (verbal) antagonism. And while it was indeed vile and despicable, it is protected under free speech, if I’m not mistaken, provided no one actively threatened them with bodily harm. Discrimination would have occurred if the Jewish shop owner had indeed refused to serve them because they were evangelists, or at least discrimination in the legal sense, if I understand it. If someone had begun beating them while yelling anti-evangelist epithets, that would have been a hate crime or possibly religiously motivated assault, certainly? Discrimination is difficult to pin down; but certainly denying publicly offered goods and services for reasons other than an inability to pay is discrimination, isn’t it? Once, while leaving the local lesbian watering hole in Providence, RI, a car full of (I suspect rather drunk) young men yelled “Fucking dyke!” at me. My immediate response was “I’m a walking dyke. I do my fucking at home!” At that point one of them threw a glass bottle which smashed many yards away from me. Discrimination? They didn’t deny me from using public roads, but assault? Maybe. That bottle was more threat than assault, I think. Was I scared, in fear of my life? You better believe it, in spite of my rare quick response to their taunt. Luckily they sped off, and I was able to get to my car and go home without any physical damage. But common self preservation told me that drunk young men are dangerous; that is a lesson I learned from Matthew Sheppard. My prescience was justified by the badly-aimed glass bottle. So tell me, list members, was I “discriminated” against? Was I assaulted? At what point did their behavior cross from protected speech to criminal activity? Did it? I never did tell my story to the police. I’d already been told that the Providence police turned a blind eye on such things, and even worse things routinely. How could I get justice when I didn’t even have a license plate number or descriptions of the men? All the best, Jean. ___ 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.
RE: The pain of discrimination and the role of government
Greg's posting strikes me as a little of the mark in a few ways. The Friday night sale is not at issue. You can close your business whenever you want (it is the opposite of the forced Sunday closing). However, the Florist who refused to provide flowers for a same sex commitment ceremony (and this is not as far as I can tell hypothetical, but real), WAS open for business. If the ceremony had been on Sunday and the Florist said I don't work on Sunday, so I can't set the floral arrangements up that day there would have been no discrimination. And, I don't think ANYONE on this list says the florist has to work on Sunday, just like Greg's hypothetical baker can be closed Friday night. But if the baker or florist is open, most of us (but perhaps not Greg?) believe the florist or baker must serve all customers equally. As for differential rules on leaflets, as far as I know a private business is not a government entity and is not a public forum. So, yes, the business owner can restrict leafleting to whoever she/he wants. There is no illegal discrimination here. What the business cannot do (at least in Az now) is to refuse service on the basis of race, religion, sexual orientation, or any other arbitrary reasons. I suspect that includes political affiliation. I think Greg agrees with this analysis, so I guess, on rereading his post, I am confused as to what point he is trying to make. (But, it would be an interesting question if a store in AZ could say, we don't serve Democrats or we don't serve Republicans -- but how would they really know?) Greg's third point seems to be that we should not worry about discrimination against gays because most businesses are not doing it, and there is not an epidemic of this sort of thing. I can't even imagine how to respond to the concept that discrimination by businesses is ok as long as it does not affect too many (defined by who?) patrons. Since Greg seems to want the government to adopt religious principles, how about a law which says all business owners must treat customers as they would want to be treated (do unto others); should love their neighbors; and unless the business owners are utterly without sin (and can prove it in a court of law), they may not discriminate against others (or cast verbal or economic stones on them) based on the presumed sins of others. In other words, serve your customers, take their money, and go about your business. Paul Finkelman Justice Pike Hall, Jr. Visiting Professor of Law LSU Law Center 110 Union Square Bldg. 1 East Campus Drive Louisiana State University Baton Rouge, LA 70803-0106 518 605 0296 (mobile) * Paul Finkelman, Ph.D. President William McKinley Distinguished Professor of Law Albany Law School 80 New Scotland Avenue Albany, NY 12208 518-445-3386 (p) 518-445-3363 (f) paul.finkel...@albanylaw.edu www.paulfinkelman.com * From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Sisk, Gregory C. [gcs...@stthomas.edu] Sent: Friday, February 28, 2014 10:35 PM To: Law Religion issues for Law Academics Subject: RE: The pain of discrimination and the role of government 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
Re: Definition of discrimination.
Yes, a sad and disturbing story that Jean tells (perhaps a threat of assault, or some other crime). Likewise, a sad story about the evangelists that Greg S. tells (rudeness and worse). But neither story is about discrimination as the law understands it, because passersby had no legal duty to engage in any way with the people they mistreated. We are all free to ignore or interact (peacefully) with strangers on the street, whatever their political or religious cause, personal appearance, etc. And we are all selective in how and when we do engage -- so we discriminate in that sense, like we discriminate when we order from a menu. This is NOT the context of wedding vendor exemptions or marriage license clerk exemptions from anti-discrimination norms. Those norms impose a duty to serve without selectivity based on race. religion, etc. And those kinds of laws are built on a sense that certain groups are vulnerable to widespread exclusion from opportunities -- employment, housing, and (where the law so provides) the right to purchase goods and services from those who hold themselves out to the public as providing such services. So, please, let's not get sidetracked with poor analogies to highly sympathetic but legally quite different situations. To Greg S. - your concern for conscription of creative artists (photographers?) seems quite legitimate. Perhaps such people should just not be covered by anti-discrimination laws at all. But we would have to be very careful to define creative artists quite narrowly -- wine vendors, caterers, bakers, and most others who serve in the wedding industry should NOT fall under that category. To all list members who signed that letter to Gov. Brewer -- it would have been a whole lot better if you had brought that letter to the list's attention yourselves. Whether or not you had a duty to disclose it (in light of your postings on the subject), norms of professional courtesy and candor certainly pointed that way. I'm disappointed that you failed to do so. On Sat, Mar 1, 2014 at 10:09 AM, Sisk, Gregory C. gcs...@stthomas.eduwrote: A sad and disturbing story. I'd say that, yes, it was discrimination from the outset and virulently so. Verbal antagonism is a form of discrimination, when it is based on a person's identity, as it obviously was here (and in my hypothetical as well). Whether what Jean experienced was or should be actionable as a matter of law, and at what point the discriminatory conduct changed from offensive speech to illegal threat (when the introduction of legal constraint is most justified), does not change the overall nature of the conduct as discrimination. As despicable as may be expression, we appreciate that the law is not the right response to every such situation and that empowering the government to police emotional harms -- without in any way depreciating the reality and impact of emotional harms -- may be intrusive into expression and may invite overreaching of governmental coercion that endangers freedom for all. Denying public goods and services based on identity is discrimination to be sure, but so is what my hypothetical Christian evangelists suffered. In the end, whether the law should prohibit any particular form of discrimination should turn on whether a concrete economic harm or danger to safety is established, not simply on characterization of behavior as discriminatory. Expectations of decency and civility call for all of us as neighbors, friends, members of a community to speak out and reject hateful words and intolerant behavior (while protecting always genuine differences of opinion). We cannot shirk this moral duty by delegating it to government, and given the dangers of government power, we should not. Greg Sisk From: religionlaw-boun...@lists.ucla.edu [ religionlaw-boun...@lists.ucla.edu] on behalf of Jean Dudley [ jean.dud...@gmail.com] Sent: Saturday, March 01, 2014 7:05 AM To: Law Religion issues for Law Academics Subject: Definition of discrimination. On Feb 28, 2014, at Fri, Feb 28, 7:11 PM, Sisk, Gregory C. gcs...@stthomas.edumailto:gcs...@stthomas.edu wrote: Now what these two evangelical Christians experienced was plainly discrimination. I'm not sure it was. While I'm not an attorney of any stripe or ilk, I'd say that what those evangelists experienced was (verbal) antagonism. And while it was indeed vile and despicable, it is protected under free speech, if I'm not mistaken, provided no one actively threatened them with bodily harm. Discrimination would have occurred if the Jewish shop owner had indeed refused to serve them because they were evangelists, or at least discrimination in the legal sense, if I understand it. If someone had begun beating them while yelling anti-evangelist epithets, that would have been a hate crime or possibly religiously motivated assault, certainly? Discrimination is difficult to pin
RE: The pain of discrimination and the role of government
The same way they know someone is homosexual, of coruse. I have been waiting for explanations of how the alleged horde of bigots who are itching for an excuse to refuse service to gays propose to identify people who presumably do not begin every business transaction by announcing I'm gay! Unless said customers are on their part deliberately looking for excuses for litigation. But THAT couldn't happen, of course. - Original Message - From: Finkelman, Paul paul.finkel...@albanylaw.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu (But, it would be an interesting question if a store in AZ could say, we don't serve Democrats or we don't serve Republicans -- but how would they really know?) ___ 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.
Re: Definition of discrimination.
Maybe I’ve been wrong about the complicity theory after all. Those who are condemning homosexuality know that at least some people are prone to act in a violent way against gays and so by condemning homosexuality they are complicit in incidents (and far, far worse) of violence against gays. So, to avoid being complicit, they should not state their views, right? If they are being consistent about the complicity with sin problem. Huh. Who knew. No. The complicity theory is not legally tenable, whatever stature it may have among philosophers and religious moral theoreticians. Steve -- Prof. Steven D. Jamar vox: 202-806-8017 Director of International Programs, Institute for Intellectual Property and Social Justice http://iipsj.org Howard University School of Law fax: 202-806-8567 http://iipsj.com/SDJ/ 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 On Mar 1, 2014, at 8:05 AM, Jean Dudley jean.dud...@gmail.com wrote: On Feb 28, 2014, at Fri, Feb 28, 7:11 PM, Sisk, Gregory C. gcs...@stthomas.edu wrote: Now what these two evangelical Christians experienced was plainly “discrimination.” I’m not sure it was. While I’m not an attorney of any stripe or ilk, I’d say that what those evangelists experienced was (verbal) antagonism. And while it was indeed vile and despicable, it is protected under free speech, if I’m not mistaken, provided no one actively threatened them with bodily harm. Discrimination would have occurred if the Jewish shop owner had indeed refused to serve them because they were evangelists, or at least discrimination in the legal sense, if I understand it. If someone had begun beating them while yelling anti-evangelist epithets, that would have been a hate crime or possibly religiously motivated assault, certainly? Discrimination is difficult to pin down; but certainly denying publicly offered goods and services for reasons other than an inability to pay is discrimination, isn’t it? Once, while leaving the local lesbian watering hole in Providence, RI, a car full of (I suspect rather drunk) young men yelled “Fucking dyke!” at me. My immediate response was “I’m a walking dyke. I do my fucking at home!” At that point one of them threw a glass bottle which smashed many yards away from me. Discrimination? They didn’t deny me from using public roads, but assault? Maybe. That bottle was more threat than assault, I think. Was I scared, in fear of my life? You better believe it, in spite of my rare quick response to their taunt. Luckily they sped off, and I was able to get to my car and go home without any physical damage. But common self preservation told me that drunk young men are dangerous; that is a lesson I learned from Matthew Sheppard. My prescience was justified by the badly-aimed glass bottle. So tell me, list members, was I “discriminated” against? Was I assaulted? At what point did their behavior cross from protected speech to criminal activity? Did it? I never did tell my story to the police. I’d already been told that the Providence police turned a blind eye on such things, and even worse things routinely. How could I get justice when I didn’t even have a license plate number or descriptions of the men? All the best, Jean. ___ 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.
Re: Definition of discrimination.
Ira, unless I missed an earlier post, aren't Greg evangelists merely hypothetical? It may be sad, but it is only a story as opposed to Jean's retelling of a history or the facts of the florist who would not serve gay customers. I think Ira is absolutely right that we have to be very careful about how we use the term art in this context. The art claim is someone bogus for a commercial photographer or a commercial artist. We are all artists in some old fashioned sense (look at old apprenticeship contracts). But when you are advertising your profession to the general public you are not usually an artist in the way we generally understand it. I know wedding photographers who are also artists -- but the enterprises are separate. Is my dentist and artist when he fills my teeth? Or the art work of the plumber fixing my pipes? I don't think so. Could an architect say he will not design a house for a gay couple because he is an artist? Or the house painter refuse to paint the house for the same reason? Paul Finkelman Justice Pike Hall, Jr. Visiting Professor of Law LSU Law Center 110 Union Square Bldg. 1 East Campus Drive Louisiana State University Baton Rouge, LA 70803-0106 518 605 0296 (mobile) From: Ira Lupu icl...@law.gwu.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Saturday, March 1, 2014 10:37 AM Subject: Re: Definition of discrimination. Yes, a sad and disturbing story that Jean tells (perhaps a threat of assault, or some other crime). Likewise, a sad story about the evangelists that Greg S. tells (rudeness and worse). But neither story is about discrimination as the law understands it, because passersby had no legal duty to engage in any way with the people they mistreated. We are all free to ignore or interact (peacefully) with strangers on the street, whatever their political or religious cause, personal appearance, etc. And we are all selective in how and when we do engage -- so we discriminate in that sense, like we discriminate when we order from a menu. This is NOT the context of wedding vendor exemptions or marriage license clerk exemptions from anti-discrimination norms. Those norms impose a duty to serve without selectivity based on race. religion, etc. And those kinds of laws are built on a sense that certain groups are vulnerable to widespread exclusion from opportunities -- employment, housing, and (where the law so provides) the right to purchase goods and services from those who hold themselves out to the public as providing such services. So, please, let's not get sidetracked with poor analogies to highly sympathetic but legally quite different situations. To Greg S. - your concern for conscription of creative artists (photographers?) seems quite legitimate. Perhaps such people should just not be covered by anti-discrimination laws at all. But we would have to be very careful to define creative artists quite narrowly -- wine vendors, caterers, bakers, and most others who serve in the wedding industry should NOT fall under that category. To all list members who signed that letter to Gov. Brewer -- it would have been a whole lot better if you had brought that letter to the list's attention yourselves. Whether or not you had a duty to disclose it (in light of your postings on the subject), norms of professional courtesy and candor certainly pointed that way. I'm disappointed that you failed to do so. On Sat, Mar 1, 2014 at 10:09 AM, Sisk, Gregory C. gcs...@stthomas.edu wrote: A sad and disturbing story. I'd say that, yes, it was discrimination from the outset and virulently so. Verbal antagonism is a form of discrimination, when it is based on a person's identity, as it obviously was here (and in my hypothetical as well). Whether what Jean experienced was or should be actionable as a matter of law, and at what point the discriminatory conduct changed from offensive speech to illegal threat (when the introduction of legal constraint is most justified), does not change the overall nature of the conduct as discrimination. As despicable as may be expression, we appreciate that the law is not the right response to every such situation and that empowering the government to police emotional harms -- without in any way depreciating the reality and impact of emotional harms -- may be intrusive into expression and may invite overreaching of governmental coercion that endangers freedom for all. Denying public goods and services based on identity is discrimination to be sure, but so is what my hypothetical Christian evangelists suffered. In the end, whether the law should prohibit any particular form of discrimination should turn on whether a concrete economic harm or danger to safety is established, not simply on characterization of behavior as discriminatory. Expectations of decency and civility call for all of us as neighbors,
Re: The pain of discrimination and the role of government
So the answer to discrimination against gays lesbians is for them to go back into closet! All of these queers mincing around looking for a lawsuit - you've busted us. I suppose I could play the rhetorical games and have you replace gay with christian or explain how heterosexuals flaunt their sexuality without even realizing it - wedding rings, family pictures, water cooler chit chat. But it's exhausting and will only result in a 3 page sermon on Catholic moral theology (one of the few benefits of being an atheist in the country used to be relative freedom from sermons but not so much on here...) This list seems to have devolved into a some Fox news version of legal analysis. Christians and the job creators are the real victims in society, pining for the days when gays knew their place (in the closet or jail) , up is down...etc. ---Jimmy Green On Sat, Mar 1, 2014 at 10:45 AM, Will Linden wlind...@verizon.net wrote: The same way they know someone is homosexual, of coruse. I have been waiting for explanations of how the alleged horde of bigots who are itching for an excuse to refuse service to gays propose to identify people who presumably do not begin every business transaction by announcing I'm gay! Unless said customers are on their part deliberately looking for excuses for litigation. But THAT couldn't happen, of course. - Original Message - From: Finkelman, Paul paul.finkel...@albanylaw.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu (But, it would be an interesting question if a store in AZ could say, we don't serve Democrats or we don't serve Republicans -- but how would they really know?) ___ 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. -- *---jwg* ___ 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.
Irish Debate on Same Sex Marriage
Excellent article in the Guardian about a huge row that has erupted in Ireland over homophobia that addresses some of the same concerns raised on this list - who gets to decide what constitutes homophobia, how did the focus shifted away from the harm done to gay people by discrimination to the feelings and reputation of their opponents, etc. There is also a great video embedded of a speech given by a drag queen that has gone viral and in many ways shifted the Irish debate back on track. http://www.theguardian.com/commentisfree/2014/feb/10/ireland-gay-marriage-homophobes-victims https://www.youtube.com/watch?v=WXayhUzWnl0 -- - jimmy green ___ 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.
RE: The pain of discrimination and the role of government
I assume you are excluding anything to do with a wedding. And the fact that my wife and I may enter a restaurant holding hands, followed by my son and his partner holding hands, doesn't count - right. That would be flaunting. And does it matter if the person is really gay? I have a friend who is very effeminate. When he is denied service, can he sue? How sure should the merchant be that the person is gay? Is he under an obligation to ask. I remember applying for a job after I graduated from law school in 1973. About half way through the interview, I was asked if I had applied to any of the Jewish firms? My religion had never been discussed. When I asked if the firm did not hire Jewish people, I was told simply I might need to apply elsewhere. I suppose there are people here who would like to go back to that - but not me. Joel L. Sogol Attorney at Law 811 21st Ave. Tuscaloosa, Alabama 35401 ph (205) 345-0966 fx (205) 345-0971 email: jlsa...@wwisp.com website: www.joelsogol.com Ben Franklin observed that truth wins a fair fight - which is why we have evidence rules in U.S. courts. -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Will Linden Sent: Saturday, March 01, 2014 9:45 AM To: Law Religion issues for Law Academics Subject: RE: The pain of discrimination and the role of government The same way they know someone is homosexual, of coruse. I have been waiting for explanations of how the alleged horde of bigots who are itching for an excuse to refuse service to gays propose to identify people who presumably do not begin every business transaction by announcing I'm gay! Unless said customers are on their part deliberately looking for excuses for litigation. But THAT couldn't happen, of course. - Original Message - From: Finkelman, Paul paul.finkel...@albanylaw.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu (But, it would be an interesting question if a store in AZ could say, we don't serve Democrats or we don't serve Republicans -- but how would they really know?) ___ 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.
RE: The pain of discrimination and the role of government
Will, the answer is of course they do not always know. But the case in New Mexico which got this started was one where they did know. But, I would turn the question back on you. If you cannot tell, then why do you need the law like the one in Arizona? Obviously people in Arizona think they can tell, which is why they wanted to the law. And if you can tell, how do you tell. It is like Homer Plessy right? The conductor thought he was white until told otherwise. (By the way, Plessy is buried in a white cemetery and in the 1910 and 1920 census was listed as white.) So, someone might think a person is gay, when he or she is not; or straight when he or she is not, and act accordingly. But, can they ask? If I call for the wedding cake can the baker as if it is same sex or mixed-sex marriage? What if I lie, and pay for the cake, and then the baker won't deliver it? What if the Baker goes by first names? If Lee and Jean get married what genders are they? Or Claire and Avery? Is Angel a male or a female? (more boys were named Angel last year than girls according to social security website). Are we back to don't ask, don't tell in the market place. So, if you cannot know, without asking, and you are not told, what happens when the florist, photographer, and cake maker show up to the marriage of John and Sue and it turns out that Sue is a A Boy Named Sue from Johnny Cash's song. Can they refused to deliver the services they contracted for? The only answer must be that such discrimination cannot be allowed and then no one has to worry or ask. Paul Finkelman Justice Pike Hall, Jr. Visiting Professor of Law LSU Law Center 110 Union Square Bldg. 1 East Campus Drive Louisiana State University Baton Rouge, LA 70803-0106 518 605 0296 (mobile) * Paul Finkelman, Ph.D. President William McKinley Distinguished Professor of Law Albany Law School 80 New Scotland Avenue Albany, NY 12208 518-445-3386 (p) 518-445-3363 (f) paul.finkel...@albanylaw.edu www.paulfinkelman.com * From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Will Linden [wlind...@verizon.net] Sent: Saturday, March 01, 2014 10:45 AM To: Law Religion issues for Law Academics Subject: RE: The pain of discrimination and the role of government The same way they know someone is homosexual, of coruse. I have been waiting for explanations of how the alleged horde of bigots who are itching for an excuse to refuse service to gays propose to identify people who presumably do not begin every business transaction by announcing I'm gay! Unless said customers are on their part deliberately looking for excuses for litigation. But THAT couldn't happen, of course. - Original Message - From: Finkelman, Paul paul.finkel...@albanylaw.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu (But, it would be an interesting question if a store in AZ could say, we don't serve Democrats or we don't serve Republicans -- but how would they really know?) ___ 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.
Re: Definition of discrimination.
Creative artists/non-creative is a trap, and courts are scarcely more competent to parse the difference between true art and mere commerce than they are the details of what Christian principles are. A chef-owner at any fine dining establishment is is total creative and expressive control over the restaurant. Maybe the baker isn't all that creative, except in chemistry, but the cake decorator, employed by said baker, certainly is. If we're going to avoid conscripting artists into doing art they don't want to do, the artists themselves need to stop holding themselves out to the public as a business serving the general public. Professor Brownstien's hypothetical Orthodox caterer for example, might solve her problem by making it clear she is in the business of preparing food in accordance to an Orthodox understanding of halakhah, and only at Orthodox-approved events and gatherings, and the courts could accommodate her by reading the definition of public accommodation narrowly. Civil rights law is far outside of my expertise, but I don't see this as a stretch. Likewise, we can sort through the photographers, bakers, hall lessors and other wedding vendors by understanding that some of them are more like professionals: doctors, lawyers, accountants, who are, as Professor Laycock put it, necessarily involved in personal provision of services. These people are (or ought to be) ethically bound to consider whether or not they *can* provide adequate services over their strong convictions, and *avoid* impressing their own beliefs onto that of their clients/patrons, as well explained in *Ward v.* *Polite.* -Kevin Chen On Sat, Mar 1, 2014 at 10:53 AM, Steven Jamar stevenja...@gmail.com wrote: Maybe I've been wrong about the complicity theory after all. Those who are condemning homosexuality know that at least some people are prone to act in a violent way against gays and so by condemning homosexuality they are complicit in incidents (and far, far worse) of violence against gays. So, to avoid being complicit, they should not state their views, right? If they are being consistent about the complicity with sin problem. Huh. Who knew. No. The complicity theory is not legally tenable, whatever stature it may have among philosophers and religious moral theoreticians. Steve -- Prof. Steven D. Jamar vox: 202-806-8017 Director of International Programs, Institute for Intellectual Property and Social Justice http://iipsj.org Howard University School of Law fax: 202-806-8567 http://iipsj.com/SDJ/ 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 On Mar 1, 2014, at 8:05 AM, Jean Dudley jean.dud...@gmail.com wrote: On Feb 28, 2014, at Fri, Feb 28, 7:11 PM, Sisk, Gregory C. gcs...@stthomas.edu wrote: Now what these two evangelical Christians experienced was plainly discrimination. I'm not sure it was. While I'm not an attorney of any stripe or ilk, I'd say that what those evangelists experienced was (verbal) antagonism. And while it was indeed vile and despicable, it is protected under free speech, if I'm not mistaken, provided no one actively threatened them with bodily harm. Discrimination would have occurred if the Jewish shop owner had indeed refused to serve them because they were evangelists, or at least discrimination in the legal sense, if I understand it. If someone had begun beating them while yelling anti-evangelist epithets, that would have been a hate crime or possibly religiously motivated assault, certainly? Discrimination is difficult to pin down; but certainly denying publicly offered goods and services for reasons other than an inability to pay is discrimination, isn't it? Once, while leaving the local lesbian watering hole in Providence, RI, a car full of (I suspect rather drunk) young men yelled Fucking dyke! at me. My immediate response was I'm a walking dyke. I do my fucking at home! At that point one of them threw a glass bottle which smashed many yards away from me. Discrimination? They didn't deny me from using public roads, but assault? Maybe. That bottle was more threat than assault, I think. Was I scared, in fear of my life? You better believe it, in spite of my rare quick response to their taunt. Luckily they sped off, and I was able to get to my car and go home without any physical damage. But common self preservation told me that drunk young men are dangerous; that is a lesson I learned from Matthew Sheppard. My prescience was justified by the badly-aimed glass bottle. So tell me, list members, was I discriminated against? Was I assaulted? At what point did their behavior cross from protected speech to criminal activity? Did it? I never did tell my story to the police. I'd already been told that the Providence police turned a blind eye on such
Discrimination and divination
So let me turn Mr. Sogol's turn-around around A storekeeper tells someone You are frightening the other customers, leave the premises. The party retorts That's what you SAY, but I KNOW it's really becausee I'm gay-- although sexuality had not previously come up. Does he have to prove the storekeeper knew? Or does the storekeeper have to prove the negative that he did NOT know? ___ 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.
Re: Definition of discrimination.
Wow! So now all list members who engage in advocacy -- or in the case of the letter mostly providing information to a public official to remedy public misinformation -- without informing the list, lack candor and professional courtesy? Even if public disclosure was somehow required, the letter was posted publicly and was the subject of press reports. The high level of emotion on this issue has begun to affect even the fairest and most level-headed of our colleagues. Mark Mark S. Scarberry Pepperdine University School of Law Sent from my iPad On Mar 1, 2014, at 7:38 AM, Ira Lupu icl...@law.gwu.edumailto:icl...@law.gwu.edu wrote: Yes, a sad and disturbing story that Jean tells (perhaps a threat of assault, or some other crime). Likewise, a sad story about the evangelists that Greg S. tells (rudeness and worse). But neither story is about discrimination as the law understands it, because passersby had no legal duty to engage in any way with the people they mistreated. We are all free to ignore or interact (peacefully) with strangers on the street, whatever their political or religious cause, personal appearance, etc. And we are all selective in how and when we do engage -- so we discriminate in that sense, like we discriminate when we order from a menu. This is NOT the context of wedding vendor exemptions or marriage license clerk exemptions from anti-discrimination norms. Those norms impose a duty to serve without selectivity based on race. religion, etc. And those kinds of laws are built on a sense that certain groups are vulnerable to widespread exclusion from opportunities -- employment, housing, and (where the law so provides) the right to purchase goods and services from those who hold themselves out to the public as providing such services. So, please, let's not get sidetracked with poor analogies to highly sympathetic but legally quite different situations. To Greg S. - your concern for conscription of creative artists (photographers?) seems quite legitimate. Perhaps such people should just not be covered by anti-discrimination laws at all. But we would have to be very careful to define creative artists quite narrowly -- wine vendors, caterers, bakers, and most others who serve in the wedding industry should NOT fall under that category. To all list members who signed that letter to Gov. Brewer -- it would have been a whole lot better if you had brought that letter to the list's attention yourselves. Whether or not you had a duty to disclose it (in light of your postings on the subject), norms of professional courtesy and candor certainly pointed that way. I'm disappointed that you failed to do so. ___ 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.
Re: Definition of discrimination.
Chip, I have posted very little to the list this week, and I have felt no obligation to post anything. The letter we sent to Gov. Brewer was hardly a secret; I got press calls about it from DC to Los Angeles. It was a busy week, and the list has become pointless, at least on the current topic. We are hearing lots of repetition, lots of invective, lots of exaggeration, lots of ridicule and personal attacks. There are exceptions, of course, and the exceptions are on both sides of the issue. There is plenty of anti-gay bigotry in the country, but I have heard little of that on this list. I have heard a fair amount of anti-religious bigotry. I have heard in many posts a complete and utter unwillingness to give any weight to conscience, or any weight to the believer's sense that he is violating God's will and disrupting his relationship with God -- a complete and utter unwillingness to try to understand how the world looks from the other side. There are still people who view gays and lesbians with similar contempt, and even worse, as Jean's story illustrates. But those people are not on this list. I do not, and have not, vouched for the motives of Arizona Republicans, or for the Alliance Defending Freedom, or for any other religious group. I defend their rights, not their views. The letter to Gov. Brewer was a straightforward legal analysis of the bill, and I stand by it. Both issues addressed by the bill have been litigated elsewhere in cases not involving gay rights, most obviously in Hobby Lobby. There is a clear circuit split on whether RFRA provides a defense to suits by private citizens; the New Mexico case on that issue involved gay rights, but all or most of the others did not. I am going to respond to Mr. Green, and then I hope to resume my silence. There are many tasks that appear more productive than posting to the list in its current mood. And no, I am not going to name names or cite particular posts as examples of the characterizations above. On Sat, 1 Mar 2014 10:37:02 -0500 Ira Lupu icl...@law.gwu.edu wrote: Yes, a sad and disturbing story that Jean tells (perhaps a threat of assault, or some other crime). Likewise, a sad story about the evangelists that Greg S. tells (rudeness and worse). But neither story is about discrimination as the law understands it, because passersby had no legal duty to engage in any way with the people they mistreated. We are all free to ignore or interact (peacefully) with strangers on the street, whatever their political or religious cause, personal appearance, etc. And we are all selective in how and when we do engage -- so we discriminate in that sense, like we discriminate when we order from a menu. This is NOT the context of wedding vendor exemptions or marriage license clerk exemptions from anti-discrimination norms. Those norms impose a duty to serve without selectivity based on race. religion, etc. And those kinds of laws are built on a sense that certain groups are vulnerable to widespread exclusion from opportunities -- employment, housing, and (where the law so provides) the right to purchase goods and services from those who hold themselves out to the public as providing such services. So, please, let's not get sidetracked with poor analogies to highly sympathetic but legally quite different situations. To Greg S. - your concern for conscription of creative artists (photographers?) seems quite legitimate. Perhaps such people should just not be covered by anti-discrimination laws at all. But we would have to be very careful to define creative artists quite narrowly -- wine vendors, caterers, bakers, and most others who serve in the wedding industry should NOT fall under that category. To all list members who signed that letter to Gov. Brewer -- it would have been a whole lot better if you had brought that letter to the list's attention yourselves. Whether or not you had a duty to disclose it (in light of your postings on the subject), norms of professional courtesy and candor certainly pointed that way. I'm disappointed that you failed to do so. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 ___ 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.
Re: The pain of discrimination and the role of government
I agree with Paul’s comments about most of Greg S's hypotheticals. And to put a finer point on my post from yesterday – my bakery would be required to serve the evangelicals even if they were going to serve my baked goods at a church service featuring worship at odds with my own religious beliefs. And that is good for religious freedom: just as race-discrimination laws also prohibit me from refusing to sell a cake to be served at a mixed-race wedding, religious-discrimination laws prohibit me from refusing to sell a cake to be served at a religious ceremony that I oppose (indeed, even if certain views expressed at that religious ceremony are becoming increasingly disfavored in society at large). Greg Gregory M. Lipper Senior Litigation Counsel Americans United for Separation of Church State (202) 466-3234 x210 On Feb 28, 2014, at 10:35 PM, Sisk, Gregory C. gcs...@stthomas.edu wrote: 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. gcs...@stthomas.edumailto:gcs...@stthomas.edu wrote: Over the
Re: Definition of discrimination.
I think the larger sadness of my account is that it and much worse are so very common. I still think that discrimination has to be described in terms of a denial of my rights, and that the vulgarity shouted at me in fact didn't deny me anything tangible. I suppose an argument could be made that I was denied being able to feel safe on a public road at night, but to be fair I'd say that just about every woman in America would be fearful for her safety in the jewelry district of Providence at night. Do I really have a right to expect safety? I don't think I do. I think Mr. Finkleman rebutted your hypothetical wronged evangelists much better than I could, Mr. Sisk. From my position here listening at the windowsill of the Ivory Tower Of Law, it seems to me there is a distinct difference between closing the doors of business in order to fulfill sincerely held religious beliefs and telling a potential customer begone, foul faggot, and darken my door no more! While other customers more to the keeper's liking enjoy the wares proffered within. On a final note, in my youth I was an evangelist. Perhaps it was because I went door to door in the bucolic and somnolent town of Salinas, Ca, that I never once faced the sort of disparagement those hypothetical missionaries did. Even the worst sinners would simply say they were busy, or that they had no desire to hear the gospel. Maybe if I'd tried my luck in the infamously callous streets of New York I would have had to endure worse insults. But then it would have only triggered my sense of martyrdom, I supposed, and I would have rejoiced that I was such a good Christian in spite of men's mocking of my efforts. I have since repented of my youthful folly and count myself among the godless atheists now. On Mar 1, 2014, at 9:09 AM, Sisk, Gregory C. gcs...@stthomas.edu wrote: A sad and disturbing story. I'd say that, yes, it was discrimination from the outset and virulently so. Verbal antagonism is a form of discrimination, when it is based on a person's identity, as it obviously was here (and in my hypothetical as well). Whether what Jean experienced was or should be actionable as a matter of law, and at what point the discriminatory conduct changed from offensive speech to illegal threat (when the introduction of legal constraint is most justified), does not change the overall nature of the conduct as discrimination. As despicable as may be expression, we appreciate that the law is not the right response to every such situation and that empowering the government to police emotional harms -- without in any way depreciating the reality and impact of emotional harms -- may be intrusive into expression and may invite overreaching of governmental coercion that endangers freedom for all. Denying public goods and services based on identity is discrimination to be sure, but so is what my hypothetical Christian evangelists suffered. In the end, whether the law should prohibit any particular form of discrimination should turn on whether a concrete economic harm or danger to safety is established, not simply on characterization of behavior as discriminatory. Expectations of decency and civility call for all of us as neighbors, friends, members of a community to speak out and reject hateful words and intolerant behavior (while protecting always genuine differences of opinion). We cannot shirk this moral duty by delegating it to government, and given the dangers of government power, we should not. Greg Sisk From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Jean Dudley [jean.dud...@gmail.com] Sent: Saturday, March 01, 2014 7:05 AM To: Law Religion issues for Law Academics Subject: Definition of discrimination. On Feb 28, 2014, at Fri, Feb 28, 7:11 PM, Sisk, Gregory C. gcs...@stthomas.edumailto:gcs...@stthomas.edu wrote: Now what these two evangelical Christians experienced was plainly “discrimination.” I’m not sure it was. While I’m not an attorney of any stripe or ilk, I’d say that what those evangelists experienced was (verbal) antagonism. And while it was indeed vile and despicable, it is protected under free speech, if I’m not mistaken, provided no one actively threatened them with bodily harm. Discrimination would have occurred if the Jewish shop owner had indeed refused to serve them because they were evangelists, or at least discrimination in the legal sense, if I understand it. If someone had begun beating them while yelling anti-evangelist epithets, that would have been a hate crime or possibly religiously motivated assault, certainly? Discrimination is difficult to pin down; but certainly denying publicly offered goods and services for reasons other than an inability to pay is discrimination, isn’t it? Once, while leaving the local lesbian watering hole in
RE: Definition of discrimination.
No, the story I told about the abuse directed at Christian evangelists was not just a hypothetical. It was an observed event. And I venture that multiple participants on the list have observed similar responses to street ministers of various kinds over the years. (The extension of the discussion in response to Greg Lipper's hypothetical -- about going in the bakery, etc., was hypothetical.) Greg Sisk From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Paul Finkelman [paul.finkel...@yahoo.com] Sent: Saturday, March 01, 2014 9:51 AM To: Law Religion issues for Law Academics Subject: Re: Definition of discrimination. Ira, unless I missed an earlier post, aren't Greg evangelists merely hypothetical? It may be sad, but it is only a story as opposed to Jean's retelling of a history or the facts of the florist who would not serve gay customers. I think Ira is absolutely right that we have to be very careful about how we use the term art in this context. The art claim is someone bogus for a commercial photographer or a commercial artist. We are all artists in some old fashioned sense (look at old apprenticeship contracts). But when you are advertising your profession to the general public you are not usually an artist in the way we generally understand it. I know wedding photographers who are also artists -- but the enterprises are separate. Is my dentist and artist when he fills my teeth? Or the art work of the plumber fixing my pipes? I don't think so. Could an architect say he will not design a house for a gay couple because he is an artist? Or the house painter refuse to paint the house for the same reason? Paul Finkelman Justice Pike Hall, Jr. Visiting Professor of Law LSU Law Center 110 Union Square Bldg. 1 East Campus Drive Louisiana State University Baton Rouge, LA 70803-0106 518 605 0296 (mobile) From: Ira Lupu icl...@law.gwu.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Saturday, March 1, 2014 10:37 AM Subject: Re: Definition of discrimination. Yes, a sad and disturbing story that Jean tells (perhaps a threat of assault, or some other crime). Likewise, a sad story about the evangelists that Greg S. tells (rudeness and worse). But neither story is about discrimination as the law understands it, because passersby had no legal duty to engage in any way with the people they mistreated. We are all free to ignore or interact (peacefully) with strangers on the street, whatever their political or religious cause, personal appearance, etc. And we are all selective in how and when we do engage -- so we discriminate in that sense, like we discriminate when we order from a menu. This is NOT the context of wedding vendor exemptions or marriage license clerk exemptions from anti-discrimination norms. Those norms impose a duty to serve without selectivity based on race. religion, etc. And those kinds of laws are built on a sense that certain groups are vulnerable to widespread exclusion from opportunities -- employment, housing, and (where the law so provides) the right to purchase goods and services from those who hold themselves out to the public as providing such services. So, please, let's not get sidetracked with poor analogies to highly sympathetic but legally quite different situations. To Greg S. - your concern for conscription of creative artists (photographers?) seems quite legitimate. Perhaps such people should just not be covered by anti-discrimination laws at all. But we would have to be very careful to define creative artists quite narrowly -- wine vendors, caterers, bakers, and most others who serve in the wedding industry should NOT fall under that category. To all list members who signed that letter to Gov. Brewer -- it would have been a whole lot better if you had brought that letter to the list's attention yourselves. Whether or not you had a duty to disclose it (in light of your postings on the subject), norms of professional courtesy and candor certainly pointed that way. I'm disappointed that you failed to do so. On Sat, Mar 1, 2014 at 10:09 AM, Sisk, Gregory C. gcs...@stthomas.edumailto:gcs...@stthomas.edu wrote: A sad and disturbing story. I'd say that, yes, it was discrimination from the outset and virulently so. Verbal antagonism is a form of discrimination, when it is based on a person's identity, as it obviously was here (and in my hypothetical as well). Whether what Jean experienced was or should be actionable as a matter of law, and at what point the discriminatory conduct changed from offensive speech to illegal threat (when the introduction of legal constraint is most justified), does not change the overall nature of the conduct as discrimination. As despicable as may be expression, we appreciate that the law is not the right response to every such
RE: The pain of discrimination and the role of government
No one has made the argument that people should be forced into exclusion or required to deny their essential identity -- quite the opposite -- nor has anyone downplayed the pain of discrimination. To be skeptical about resort to law and government is not at all to the contrary. The most important things are life are seldom susceptible to satisfying political and legal solutions. Indeed, my personal hope is that we might move away from the scorched earth approach of current politics, in which those who win a political majority in a city, state, or nation then seek to use political power to not only advance their own goals but to drive the other into the dust. I think most on the list hold to the aspiration that we could have a discussion among disagreeing friends, extending assumptions of good faith to those with whom we strongly disagree, about how we should live together in a genuinely diverse society inhabited by people with deeply conflicting worldviews. I am enriched by the comments made by a widely diverse set of participants on this list, especially from those with whom I disagree (or think that I disagree). Those comments in turn prompt me to rethink my presumptions, provide me with greater context from a different perspective, cause me to consider new situation or posit new hypotheticals designed (inartfully, to be sure, given my own failings) toward finding points of agreement and disagreement. My legal and political views on a number of contested issues have changed and shifted over the years because of what I have learned from those that I initially saw as opponents -- including significant changes of views traceable in part to debates on various listservs. The Swarthmore student newspaper recently published an interview with Princeton Professor Robert George on his visit to Swarthmore with his close friend, co-teacher, and sparring partner, Professor Cornel West. This excerpt seems pertinent to the present discussion: People on the conservative side should facilitate dialogue and discussion by recognizing their opponents as reasonable people of goodwill who might actually be right and from whom, in any event, there is much to be learned. Those on the left should facilitate dialogue and discussion by recognizing their opponents as reasonable people of goodwill who might actually be right and from whom, in any event, there is much to be learned. We can respect each other while deeply disagreeing even about fundamental matters. I can believe that what you are doing is tragically wrong, and you can believe what I am doing is tragically wrong, and yet we can recognize each other as sincere and thoughtful people who are trying our best to get things right—and who may, in fact, contrary to what we suppose at the moment, actually be right. There are people whom I deeply respect, and for whom I even have great affection, who strongly support elective abortion—something I believe is the gravely unjust killing of innocent human beings, a moral horror of the very first rank. Yet, it would not occur to me to attempt to stigmatize and marginalize them, or to exclude them from the discussion. I would most definitely not say to them: “Well, since you are, from my infallible point of view, fetaphobes and murderers, since you deny innocent and vulnerable children in the womb their most fundamental right, you have no place in the discussion—people of your type don’t belong here.” http://www.swarthmorephoenix.com/2014/02/27/swarthmore-at-its-best-an-interview-with-robert-george/ Greg Sisk From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of jim green [ugala...@gmail.com] Sent: Saturday, March 01, 2014 10:36 AM To: wlind...@verizon.net; Law Religion issues for Law Academics Subject: Re: The pain of discrimination and the role of government So the answer to discrimination against gays lesbians is for them to go back into closet! All of these queers mincing around looking for a lawsuit - you've busted us. I suppose I could play the rhetorical games and have you replace gay with christian or explain how heterosexuals flaunt their sexuality without even realizing it - wedding rings, family pictures, water cooler chit chat. But it's exhausting and will only result in a 3 page sermon on Catholic moral theology (one of the few benefits of being an atheist in the country used to be relative freedom from sermons but not so much on here...) This list seems to have devolved into a some Fox news version of legal analysis. Christians and the job creators are the real victims in society, pining for the days when gays knew their place (in the closet or jail) , up is down...etc. ---Jimmy Green On Sat, Mar 1, 2014 at 10:45 AM, Will Linden wlind...@verizon.netmailto:wlind...@verizon.net wrote: The same way they know someone is homosexual, of coruse. I have been waiting for
Re: Definition of discrimination.
I take the last sentence of Mark's post as a compliment. Thank you. As to disclosure -- in the ordinary course, I would not have such an expectation. Doug Laycock and others consistently write public letters in support of RFRA's, and in support of wedding vendor exemptions from non-discrimination laws. Others who post on the list write public letters on the other side. I have done so once myself (Illinois same sex marriage legislation), and I felt no obligation to post that to the list. We weren't discussing the matter at the time. Several things made AZ different -- the Kansas episode immediately preceding this made the issue white-hot, and the AZ amendments (all in the wake of a series of judicial decisions in various red states, in favor of a federal constitutional right to same sex marriage) certainly appeared to be an attempt to establish statutory rights to claim similar exemptions. The letter clarified some points, of course, but gave no hint of how difficult it might/would be to satisfy the compelling interest standard. In a state like AZ, with no state laws protecting gays and lesbians from discrimination, compelling interest to protect them (by local laws, for example) might be very hard to show. In any event, would it not have been better to disclose the letter than to wait for the inevitable disclosure from someone who was really angry about it? (I'm sure it was public, but I only learned about from an off-list private e-mail.) On Sat, Mar 1, 2014 at 1:31 PM, Scarberry, Mark mark.scarbe...@pepperdine.edu wrote: Wow! So now all list members who engage in advocacy -- or in the case of the letter mostly providing information to a public official to remedy public misinformation -- without informing the list, lack candor and professional courtesy? Even if public disclosure was somehow required, the letter was posted publicly and was the subject of press reports. The high level of emotion on this issue has begun to affect even the fairest and most level-headed of our colleagues. Mark Mark S. Scarberry Pepperdine University School of Law Sent from my iPad On Mar 1, 2014, at 7:38 AM, Ira Lupu icl...@law.gwu.edu wrote: Yes, a sad and disturbing story that Jean tells (perhaps a threat of assault, or some other crime). Likewise, a sad story about the evangelists that Greg S. tells (rudeness and worse). But neither story is about discrimination as the law understands it, because passersby had no legal duty to engage in any way with the people they mistreated. We are all free to ignore or interact (peacefully) with strangers on the street, whatever their political or religious cause, personal appearance, etc. And we are all selective in how and when we do engage -- so we discriminate in that sense, like we discriminate when we order from a menu. This is NOT the context of wedding vendor exemptions or marriage license clerk exemptions from anti-discrimination norms. Those norms impose a duty to serve without selectivity based on race. religion, etc. And those kinds of laws are built on a sense that certain groups are vulnerable to widespread exclusion from opportunities -- employment, housing, and (where the law so provides) the right to purchase goods and services from those who hold themselves out to the public as providing such services. So, please, let's not get sidetracked with poor analogies to highly sympathetic but legally quite different situations. To Greg S. - your concern for conscription of creative artists (photographers?) seems quite legitimate. Perhaps such people should just not be covered by anti-discrimination laws at all. But we would have to be very careful to define creative artists quite narrowly -- wine vendors, caterers, bakers, and most others who serve in the wedding industry should NOT fall under that category. To all list members who signed that letter to Gov. Brewer -- it would have been a whole lot better if you had brought that letter to the list's attention yourselves. Whether or not you had a duty to disclose it (in light of your postings on the subject), norms of professional courtesy and candor certainly pointed that way. I'm disappointed that you failed to do so. ___ 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. -- Ira C. Lupu F. Elwood Eleanor Davis Professor of Law, Emeritus George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 Co-author (with Professor Robert Tuttle) of Secular Government, Religious People
Re: Discrimination and divination
In most of the country, none of your fevered speculation would matter because conservatives, including several academics on this list, have opposed extending non-discrimination laws to include sexuality, much less gender identity (or if they would so cobble such protections with large carve outs that such protection is symbolic at best). So, worry not - you are most likely free to demand that a suspected gay who is frightening your customers - is he singing Abba songs too loudly? - leave tout suite. Now, most americans according to public opinion polls think that laws ALREADY prohibit such blatant discrimination but apparently the vulnerable victims of discrimination are not gays lesbians but fine, upstanding christians who are cowered from expressing the very discrimination that isn't even prohibited by law in most of the country. Why the members of the list aren't outraged by that fact but rather focus their efforts in finding more ways to protect discrimination...well, I think I know the answer but expressing that opinion is tantamount to hating religion and attacking religious freedom according to manyLa plus ca change ---jimmy green On Sat, Mar 1, 2014 at 1:06 PM, Will Linden wlind...@verizon.net wrote: So let me turn Mr. Sogol's turn-around around A storekeeper tells someone You are frightening the other customers, leave the premises. The party retorts That's what you SAY, but I KNOW it's really becausee I'm gay-- although sexuality had not previously come up. Does he have to prove the storekeeper knew? Or does the storekeeper have to prove the negative that he did NOT know? ___ 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. -- *---jwg* ___ 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.
RE: Discrimination and divination
Further posts from Mr. Green will be deleted unread. Mark S. Scarberry Pepperdine University School of Law Sent from my Verizon Wireless 4G LTE Smartphone ___ 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.
Re: Discrimination and divination
So you delete me but not Mr. Linden...why should I expect anything else from you Mark... On Sat, Mar 1, 2014 at 3:37 PM, Scarberry, Mark mark.scarbe...@pepperdine.edu wrote: Further posts from Mr. Green will be deleted unread. Mark S. Scarberry Pepperdine University School of Law Sent from my Verizon Wireless 4G LTE Smartphone ___ 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. -- *---jwg* ___ 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.
Re: Definition of discrimination.
It must be nice to live in Professor's Laycock's world where anti-gay discrimination has been eclipsed by anti-religious bigotry but as a gay man, I don't have the that luxury. I won't waste the lists time by pointing out the blinding privilege it takes to make such a comparison but it happens quite often on this list with little objection. ---Jimmy Green On Sat, Mar 1, 2014 at 2:02 PM, Douglas Laycock dlayc...@virginia.eduwrote: Chip, I have posted very little to the list this week, and I have felt no obligation to post anything. The letter we sent to Gov. Brewer was hardly a secret; I got press calls about it from DC to Los Angeles. It was a busy week, and the list has become pointless, at least on the current topic. We are hearing lots of repetition, lots of invective, lots of exaggeration, lots of ridicule and personal attacks. There are exceptions, of course, and the exceptions are on both sides of the issue. There is plenty of anti-gay bigotry in the country, but I have heard little of that on this list. I have heard a fair amount of anti-religious bigotry. I have heard in many posts a complete and utter unwillingness to give any weight to conscience, or any weight to the believer's sense that he is violating God's will and disrupting his relationship with God -- a complete and utter unwillingness to try to understand how the world looks from the other side. There are still people who view gays and lesbians with similar contempt, and even worse, as Jean's story illustrates. But those people are not on this list. I do not, and have not, vouched for the motives of Arizona Republicans, or for the Alliance Defending Freedom, or for any other religious group. I defend their rights, not their views. The letter to Gov. Brewer was a straightforward legal analysis of the bill, and I stand by it. Both issues addressed by the bill have been litigated elsewhere in cases not involving gay rights, most obviously in Hobby Lobby. There is a clear circuit split on whether RFRA provides a defense to suits by private citizens; the New Mexico case on that issue involved gay rights, but all or most of the others did not. I am going to respond to Mr. Green, and then I hope to resume my silence. There are many tasks that appear more productive than posting to the list in its current mood. And no, I am not going to name names or cite particular posts as examples of the characterizations above. On Sat, 1 Mar 2014 10:37:02 -0500 Ira Lupu icl...@law.gwu.edu wrote: Yes, a sad and disturbing story that Jean tells (perhaps a threat of assault, or some other crime). Likewise, a sad story about the evangelists that Greg S. tells (rudeness and worse). But neither story is about discrimination as the law understands it, because passersby had no legal duty to engage in any way with the people they mistreated. We are all free to ignore or interact (peacefully) with strangers on the street, whatever their political or religious cause, personal appearance, etc. And we are all selective in how and when we do engage -- so we discriminate in that sense, like we discriminate when we order from a menu. This is NOT the context of wedding vendor exemptions or marriage license clerk exemptions from anti-discrimination norms. Those norms impose a duty to serve without selectivity based on race. religion, etc. And those kinds of laws are built on a sense that certain groups are vulnerable to widespread exclusion from opportunities -- employment, housing, and (where the law so provides) the right to purchase goods and services from those who hold themselves out to the public as providing such services. So, please, let's not get sidetracked with poor analogies to highly sympathetic but legally quite different situations. To Greg S. - your concern for conscription of creative artists (photographers?) seems quite legitimate. Perhaps such people should just not be covered by anti-discrimination laws at all. But we would have to be very careful to define creative artists quite narrowly -- wine vendors, caterers, bakers, and most others who serve in the wedding industry should NOT fall under that category. To all list members who signed that letter to Gov. Brewer -- it would have been a whole lot better if you had brought that letter to the list's attention yourselves. Whether or not you had a duty to disclose it (in light of your postings on the subject), norms of professional courtesy and candor certainly pointed that way. I'm disappointed that you failed to do so. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 ___ 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
Re: Definition of discrimination.
Tznkai said: If we're going to avoid conscripting artists into doing art they don't want to do, the artists themselves need to stop holding themselves out to the public as a business serving the general public. I can offer another perspective from beyond the ivory walls of academia. I am an artist, and photography is my medium. I've only photographed one wedding, as a favor to the married couple who are friends of mine. I've made portraits of people, captured iconic landscapes, and documented geological wonders. But I will not submit my work to agencies because I cannot control how my images will be used once they are licensed, and I object to them being used either for religious or certain political agendas. Oddly, that didn't stop Tyndale house publisher from stealing one of my images from my website and using it on the cover of a Christian novel without so much as a by-your-leave or thank you, much less an offer of payment. In the end they paid for a new camera once I confronted them. To be fair, I offer at cost prints or free license to public school teacher who want to use them to teach science. I also have donated images to the national park service for use in ranger talks and publications. I'm assuming that since I haven't made a business from my art, what discrimination I practice is legal. I think my ethics are as valid as any religious objection to complicity with sinful behavior. And so I have withdrawn my art from the sphere of public commerce. Surely Christian artists can do the same. On Mar 1, 2014, at 11:48 AM, tznkai tzn...@gmail.com wrote: If we're going to avoid conscripting artists into doing art they don't want to do, the artists themselves need to stop holding themselves out to the public as a business serving the general public. ___ 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.
From the list custodian
Folks: I think we've been departing in recent days from the politeness and thoughtfulness that has generally made this discussion list especially valuable. Personal attacks are unlikely to persuade anyone -- even bystanders -- and are just likely to poison the well for future debate. Let's all take some deep breaths, and refocus ourselves on substantive discussion of the legal issues. Eugene The list custodian ___ 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.
RE: Definition of discrimination.
I think the saddest thing on the list is that most of us are closer to one another than we think, if we can still reason together and extend good faith to one another. I understand that strongly held views and difficult experiences make such a dialogue difficult. And I do not that my own clumsiness in expression slows the progress toward understanding. But I was expressing my agreement with you, Jean. And in the hypotheticals that I was posing, and will expand tomorrow, I was working toward drawing the very kinds of lines that you describe as outlining a distinct difference. Still, what I agree should be regarded as a distinct difference is not so clearly drawn in the arguments that some have been making about the need for and appropriate reach of anti-discrimination laws. And I suspect we would have some differences as well on those differences. But we have to get there by dialogue, finding what falls on which side of the line. And in doing so, being human, we will fumble on our way there. In sum, I think most of us continue to talk past each other in many of these posts and responses. Those who advocate a robust religious liberty exception are not contending that discrimination is a good thing or denying the pain of discrimination or even opposing general application of discrimination laws. Indeed, I haven't heard anyone argue that no discrimination laws at all are justified or even that such anti-discrimination laws should exclude sexual orientation or that religious liberty exceptions should broadly permit denial of goods and services. We may differ on scope and application, as we differ on the underlying justifications for legal intervention in particular sectors and circumstances. But I do think there is less divergence on that underlying point that some of our back-and-forth interjections would suggest. So, again, advocates for religious liberty exceptions should not be painted ast opponents of anti-discrimination laws. Rather, many are arguing for a fundamental liberty interest and asking that it be part of the balance in applying a government policy on discrimination. Differences on how to weigh that balance are not the equivalent of sharp differences on the policy itself. By way of similar example, I have long been something of an absolutist on free speech under the First Amendment, sometimes to the chagrin of my conservative and liberal friends who support restraints on speech (although different restraints). I am deeply suspicious of any attempt by government to regulate speech and strongly supportive of a wide sphere of protected expression. But whether one agrees with my support for a very broad read of free speech rights, it would not be fair to say that I then must be an admirer of pornographers or a cheerleader for those who wish to burn the American flag. Likewise, I am a vigorous advocate in both my scholarship and the courts for the strengthening the right to effective assistance of counsel for criminal defendants, including strict protections of confidentiality. But it would not be fair to then characterize me as a coddler of criminals or harboring ill thoughts toward victims of crime. Here too, we can debate whether my views strengthen due process or instead undermine legitimate prosecution. But we are not disagreeing about the general problem of crime. Greg Sisk From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Jean Dudley [jean.dud...@gmail.com] Sent: Saturday, March 01, 2014 1:23 PM To: Law Religion issues for Law Academics Subject: Re: Definition of discrimination. I think the larger sadness of my account is that it and much worse are so very common. I still think that discrimination has to be described in terms of a denial of my rights, and that the vulgarity shouted at me in fact didn't deny me anything tangible. I suppose an argument could be made that I was denied being able to feel safe on a public road at night, but to be fair I'd say that just about every woman in America would be fearful for her safety in the jewelry district of Providence at night. Do I really have a right to expect safety? I don't think I do. I think Mr. Finkleman rebutted your hypothetical wronged evangelists much better than I could, Mr. Sisk. From my position here listening at the windowsill of the Ivory Tower Of Law, it seems to me there is a distinct difference between closing the doors of business in order to fulfill sincerely held religious beliefs and telling a potential customer begone, foul faggot, and darken my door no more! While other customers more to the keeper's liking enjoy the wares proffered within. On a final note, in my youth I was an evangelist. Perhaps it was because I went door to door in the bucolic and somnolent town of Salinas, Ca, that I never once faced the sort of disparagement those hypothetical
Re: From the list custodian
Why so people think this is? It seems to me that if this topic is difficult, it indicates a deeper problem about the two sides not crossing in their reasoning, which means the Arizona bill goes back to fundamental questions about the role of religion, which is hard to debate. On Sat, Mar 1, 2014 at 4:10 PM, Volokh, Eugene vol...@law.ucla.edu wrote: Folks: I think we've been departing in recent days from the politeness and thoughtfulness that has generally made this discussion list especially valuable. Personal attacks are unlikely to persuade anyone -- even bystanders -- and are just likely to poison the well for future debate. Let's all take some deep breaths, and refocus ourselves on substantive discussion of the legal issues. Eugene The list custodian ___ 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. -- Michael Worley BYU Law School, Class of 2014 ___ 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.
RE: From the list custodian
Thanks, Eugene! I think your advice is well taken. I certainly intend to spend more time breathing deeply over the next few days since I don't think I can contribute anything thoughtful or useful to the list given the current tenor of the discussion. Alan From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Volokh, Eugene [vol...@law.ucla.edu] Sent: Saturday, March 01, 2014 3:10 PM To: Law Religion issues for Law Academics Subject: From the list custodian Folks: I think we’ve been departing in recent days from the politeness and thoughtfulness that has generally made this discussion list especially valuable. Personal attacks are unlikely to persuade anyone -- even bystanders -- and are just likely to poison the well for future debate. Let’s all take some deep breaths, and refocus ourselves on substantive discussion of the legal issues. Eugene The list custodian ___ 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.
RE: Discrimination and divination
Ditto - Original Message - From: Scarberry, Mark mark.scarbe...@pepperdine.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Date: Sat, 01 Mar 2014 12:37:43 -0800 Subject: RE: Discrimination and divination Further posts from Mr. Green will be deleted unread. Mark S. Scarberry Pepperdine University School of Law Sent from my Verizon Wireless 4G LTE Smartphone ___ 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.
religious disagreement and commerce
I think it is entirely possible that some religious businesses might have problems with certain possible businesses. Consider this: Same sex couple is married in a Reform Temple or a Conservative Synagogue. I am not sure where the Conservative movement stands on this, but I know many conservative rabbis who would perform such a wedding. The party is held at the Temple or Synagogue. The first prefers Kosher catering to be all-inclusive to Jews; the 2nd requires it. The Kosher caterer is Orthodox. Has regularly catered at this Temple/Synagogue. Can the caterer refuses to do to the work (after first having agreed and signed a contract) when the caterer realizes that it is a same sex couple? (To make it more interesting, as best I can tell there is no Biblical prohibition on lesbian relations. The verses in Leviticus and Deuteronomy are very gender specific and only prohibit same sex relations among men -- which makes sense given the polygamous marriage allowed in the Bible). So, the caterer might, or might not, oppose the marriage, but the kosher catering is for a *party* and not actually part of the wedding. I would hold the caterer to the contract, just as I would any other business that is open to the public. As far as I know, the businesses mentioned below do not say, we only serve members of xxx faith, and I am not sure they can legally do so. Paul Finkelman Justice Pike Hall, Jr. Visiting Professor of Law LSU Law Center 110 Union Square Bldg. 1 East Campus Drive Louisiana State University Baton Rouge, LA 70803-0106 518 605 0296 (mobile) * From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of James Oleske [jole...@lclark.edu] Sent: Saturday, March 01, 2014 8:03 PM To: Law Religion issues for Law Academics Subject: Re: bigotry and sincere religious belief A belated response to Alan's typically thoughtful and though-provoking post: I think Alan is right that an absolute non-profit/for-profit distinction will not be sufficient to solve all cases. But I don't think the close cases Alan posits would require a change to the two paradigm categories at the opposite ends of the spectrum: (1) the internal operations of non-profit religious organizations and (2) for-profit commercial businesses open to the public at large. As Alan notes, there are certainly non-profit enterprises and activities that are far enough removed from #1 that they should be subject to antidiscrimination law. Conversely, there may be for-profit enterprises that cater to a limited religious market such that they may not be best considered public accommodations (as Kevin Chen has noted) and their selectivity does not amount to singling out same-sex couples for discriminatory treatment. But I do think it's important to keep in mind that the commercial businesses actually involved in the disputes over same-sex marriage to date -- including the bakeries in Oregon and Colorado, the florist in Washington, and the photographer in New Mexico -- have not catered their businesses towards limited religious markets or limited their services based on any religious beliefs other than their opposition to same-sex marriage. And the academic proposal for commercial exemptions that has been pressed for the past five years is not limited to businesses that cater to a limited religious market. At the end of the day, I suspect the much more limited accommodation Alan suggests has not been proposed -- either in the context of same-sex marriage today, or the context of interracial marriages, interfaith marriages, or marriages between divorced people in the past -- because it has never been deemed necessary as a practical matter. Unlike the bakery or florist in the local strip mall, or the inn advertising to all comers on the internet, the orthodox Jewish caterers or Christian marriage counselors who are expressly holding themselves out as providing religiously affiliated services probably do not have people who disagree with their religious beliefs requesting their services. On Thu, Feb 27, 2014 at 10:38 PM, Alan Brownstein aebrownst...@ucdavis.edumailto:aebrownst...@ucdavis.edu wrote: 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
