Re: The racist prostitute hypothetical
A similar hypothetical (but one more legally plausible in states beyond Nevada) would be a racist surrogate. Someone who offers to carry a child in exchange for money, but only if she approves of the race of the parents. A quick Google search shows that discrimination by surrogates has already been an issue: http://www.advocate.com/families/2015/01/14/texas-dads-denied-surrogacy-services-because-marriage-discrimination http://lgbtbar.org/blog/2014/09/11/new-hampshires-revised-surrogacy-law-eliminates-discrimination-lgbtq-community/ http://ilj.law.indiana.edu/articles/9-Carroll1.pdf (These are just the first three Google hits) On Sat, Feb 14, 2015 at 12:01 AM, Volokh, Eugene wrote: >I’ve been thinking about a little thought experiment, and I > thought I’d run it past this list to see whether people see it as helpful. > > > >Imagine a state in which prostitution is legalized. A > prostitute offers her services to the general public (perhaps through a web > site, which as I understand it is not uncommon). She is generally not very > selective, because it’s just business. But she doesn’t like black people. > A black would-be customer feels understandably insulted by this, so he sues > her for discrimination in public accommodations. And the state law does > cover all businesses, bricks and mortar or not, that provide goods or > services to the general public. (That, after all, is the sort of law that > covers bakers, wedding photographers, and perhaps ministers who charge for > their services.) > > > >My inclination is that the prostitute should have an > absolute right to discriminate on any basis she wants, whether it’s race, > religion, marital status, age, or whatever else. And that is true even > though she charges money, and generally provides her services to everyone. > (I say “she” and “he” in this example, but of course the same would apply > regardless of the sex or sexual orientation of the parties.) The choice of > whom to have sex with is a personal choice, even when done commercially, > and no-one should have to have sex with someone they don’t want to have sex > with – on pain of either facing a fine or having to quit one’s chosen line > of business – no matter how many for-pay partners they might have. Are > people on this list with me so far? > > > >Now the next step: I think that, while sexual conduct > should involve a right to choose for particular reasons having to do with > bodily autonomy, some other conduct should involve a similar right to > choose for other reasons. Religious autonomy, intellectual/expressive > autonomy, and personal/familial autonomy are examples of that. Forcing a > member of the clergy to perform a marriage he views as unholy, on pain of > having to surrender his livelihood (or even a major outside source of > income) strikes me as wrong in a way similar to forcing a prostitute to > engage in a sexual transaction that she views as repulsive (even if we > don’t at all share her judgment about the repulsiveness). Naturally, the > similarity is distinctly limited: but it is present in the way important > here, which is that people should remain autonomous in their religious > behavior as well as their sexual behavior. > > > >I would say the same about, for instance, a freelance > writer who is willing to serve most customers, but who refuses to write > press releases for the Church of Scientology (notwithstanding a ban on > religious discrimination in public accommodations), or a singer who refuses > to sing songs praising a same-sex married couple, or a wedding photographer > who refuses to create photographs that portray as beautiful and sacred > something she views as sinful. Again, there should be a zone of > intellectual/expressive autonomy in which people should be free to choose > what expressive works to create and what not to create (and for whom), even > if they do it for a living. And I would say the same about certain zones > of personal and family life, such as choosing whom to rent a room in one’s > apartment (see the Ninth Circuit Roommates.com case) or whom to hire as a > nanny for one’s children. > > > >Naturally, I agree that people may have different views of > where that zone of autonomy and choice should end. Some might, for > instance, say that it applies to sexual autonomy but not religious, > intellectual, or family/housemate autonomy. Or some might say that it > applies to some kinds of intellectual autonomy (e.g., the writer and maybe > the singer) but not others (e.g., the photographer), because some forms of > creation of speech are more intellectually significant than others. > > > >But if I’m right about the racist prostitute, then the one > thing that we *can’t *say is that, just because one opens up a business > in which one generally serves all members of the public who are willing to > pay, one is n
Re: Francis Collins and Acceptable Criticisms
To be clear, I did not make that characterization. I was repeating Mr. Harris's argument. (My view would be different.) Again, I don't want to get into a religious argument (I don't think it's the point of this list) but Mr. Harris's argument was different: Even if the virgin birth is outside the natural order, the question Mr. Harris pushes on is "how does Mr. Collins know that X event happened?" In other words, since Mr. Collins is claiming that the natural order was suspended on a certain date at a certain place, he is the one who should have to provide evidence for that assertion. I think that this the "failure of skepticism" Mr. Harris is referring to I refer you to his piece for his arguments instead of my clumsy paraphrasing. All that aside, I wanted to assume that "his views [are] antithetical to the values underlying science," not just characterize them that way. Assuming that they are, what result? Is it discrimination to say that someone's religious views undercut values that are needed in a job? I think the faith-healer hypothetical was more on target, but doesn't have the full flavor of the argument. A faith-healer, I suppose, never accepts conventional medicine. (Mr. Harris is arguing that) Mr. Collins is like a part-time faith healer. The doctor-who-prays response is helpful. What about a doctor who was excellent on the job, but sometimes denounced accepted fields of medicine off the job? A On Thu, Aug 6, 2009 at 5:03 PM, Douglas Laycock wrote: > It is you who are begging the question. The question is whether religious > faith and scientific commitment are inherently inconsistent. You assumed > the answer to that question when you characterized his views as antithetical > to the values underlying science. > > The virgin birth, if it happened, was outside the natural order. Has any > said or done anything unscientific in or about the course of his scientific > work, when he is talking about things within the natural order? Has he said > or done anything allegedly anithetical to science other than state and > promote his religious beliefs? > > A faith healer who refuses medical treatment could not be Surgeon General. > An excellent physician who does everything medically indicated, and also > prays for cures and believes that God sometimes answers those prayers, could > be Surgeon General. > > Quoting Anthony Decinque : > > > I think that begs the question, in a sense. You say, "If he has said > > anything about science that is antithetical to sound science, that would > be > > a fair ground of criticism." Mr. Collins states that he believes in the > > virgin birth. Is that antithetical to sound science? > > > > I don't really want to get into a religious debate or comment on the > > validity of Mr. Collins's specific beleifs. I want to know when > someone's > > advocacy of ideas that are antithetical to a profession can be used to > > disqualify that person (legally). You can change the hypothetical if you > > want. A faith-healer that is applying to be Surgeon General? > > > > A > > > > On Thu, Aug 6, 2009 at 4:41 PM, Douglas Laycock > wrote: > > > >> The alleged "ideas that are antithetical to the values underlying the > job" > >> are simply his religion. Some consider his religion antithetical; he > does > >> not. It is not antithetical unless you accept certain other assumptions > >> about the relation between religion and science -- assumptions that his > >> critics adopt but that he rejects. > >> > >> If he has said anything about science that is antithetical to sound > >> science, that would be a fair ground of criticism. But if he is sound > when > >> he talks about science, and the only evidence against him is the > inferences > >> people draw when he talks about religion, that is simply a religious > >> disqualification. > >> > >> > >> > >> > >> > >> Quoting Anthony Decinque : > >> > >> > Francis Collins has been selected to be the head of NIH, where he will > >> have > >> > substantial authority to allocate the nation?s scientific research > >> funding. > >> > There are a few criticisms of Mr. Collins being made regarding his > >> religion.. > >> > > >> > > >> > For this list, I wanted to set aside a specific criticism. > Specifically, > >> > let?s ignore criticisms based on Mr. Collins using his government > >> position > >> > to promote religion. (For example, if Mr. Collins were to
Re: Francis Collins and Acceptable Criticisms
I think that begs the question, in a sense. You say, "If he has said anything about science that is antithetical to sound science, that would be a fair ground of criticism." Mr. Collins states that he believes in the virgin birth. Is that antithetical to sound science? I don't really want to get into a religious debate or comment on the validity of Mr. Collins's specific beleifs. I want to know when someone's advocacy of ideas that are antithetical to a profession can be used to disqualify that person (legally). You can change the hypothetical if you want. A faith-healer that is applying to be Surgeon General? A On Thu, Aug 6, 2009 at 4:41 PM, Douglas Laycock wrote: > The alleged "ideas that are antithetical to the values underlying the job" > are simply his religion. Some consider his religion antithetical; he does > not. It is not antithetical unless you accept certain other assumptions > about the relation between religion and science -- assumptions that his > critics adopt but that he rejects. > > If he has said anything about science that is antithetical to sound > science, that would be a fair ground of criticism. But if he is sound when > he talks about science, and the only evidence against him is the inferences > people draw when he talks about religion, that is simply a religious > disqualification. > > > > > > Quoting Anthony Decinque : > > > Francis Collins has been selected to be the head of NIH, where he will > have > > substantial authority to allocate the nation?s scientific research > funding. > > There are a few criticisms of Mr. Collins being made regarding his > religion.. > > > > > > For this list, I wanted to set aside a specific criticism. Specifically, > > let?s ignore criticisms based on Mr. Collins using his government > position > > to promote religion. (For example, if Mr. Collins were to give a speech, > as > > head of the Human Genome Project, claiming that DNA is evidence for God.) > > > > Instead, I wanted to get the list?s opinion on a different criticism. > This > > criticism goes like this: (1) science is a product of another, deeper, > more > > important feature ? skeptical thinking; (2) Mr. Collins does not practice > > skeptical thinking; (3) in fact, Mr. Collins has made many statements > > undermining and contradicting skeptical thinking. Therefore, the > criticism > > goes, Mr. Collins should not be the head of NIH because he undermines > what > > science is all about. > > > > To get a flavor of the criticism, you can read this > > piece< > http://www.reasonproject.org/archive/item/the_strange_case_of_francis_collins2/>by<http://www.reasonproject.org/archive/item/the_strange_case_of_francis_collins2/%3Eby> > > Sam Harris. > > It is an elaboration of a NY Times editorial Mr. Harris recently > > authored. In > > response, biologist Kenneth Miller wrote in the NY Times that Mr. Harris > has > > ?deeply held prejudices against religion? and opposes Mr. Collins merely > > because ?he is a Christian.? > > > > What does the list think? Should it be acceptable for an employer to > > discriminate against a job candidate on the grounds that the candidate > > believes, practices, and advocates for ideas that are antithetical to the > > values underlying the job? (Again, assuming that the candidate would not > > otherwise abuse the post and would generally do a fine administrative > job.) > > > > > > > > Thanks, > > > > Anthony DeCinque > > > > > > Douglas Laycock > Yale Kamisar Collegiate Professor of Law > University of Michigan Law School > 625 S. State St. > Ann Arbor, MI 48109-1215 > 734-647-9713 > > ___ > 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.
Francis Collins and Acceptable Criticisms
Francis Collins has been selected to be the head of NIH, where he will have substantial authority to allocate the nation’s scientific research funding. There are a few criticisms of Mr. Collins being made regarding his religion. For this list, I wanted to set aside a specific criticism. Specifically, let’s ignore criticisms based on Mr. Collins using his government position to promote religion. (For example, if Mr. Collins were to give a speech, as head of the Human Genome Project, claiming that DNA is evidence for God.) Instead, I wanted to get the list’s opinion on a different criticism. This criticism goes like this: (1) science is a product of another, deeper, more important feature – skeptical thinking; (2) Mr. Collins does not practice skeptical thinking; (3) in fact, Mr. Collins has made many statements undermining and contradicting skeptical thinking. Therefore, the criticism goes, Mr. Collins should not be the head of NIH because he undermines what science is all about. To get a flavor of the criticism, you can read this piece<http://www.reasonproject.org/archive/item/the_strange_case_of_francis_collins2/>by Sam Harris. It is an elaboration of a NY Times editorial Mr. Harris recently authored. In response, biologist Kenneth Miller wrote in the NY Times that Mr. Harris has “deeply held prejudices against religion” and opposes Mr. Collins merely because “he is a Christian.” What does the list think? Should it be acceptable for an employer to discriminate against a job candidate on the grounds that the candidate believes, practices, and advocates for ideas that are antithetical to the values underlying the job? (Again, assuming that the candidate would not otherwise abuse the post and would generally do a fine administrative job.) Thanks, Anthony DeCinque ___ 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: Law.com - Religious Accommodation Dispute Over Mock Trial ScheduleResolved
But as someone who has participated in many mock trial tournaments, including the National (College) Tournament, the board's decision seems like the best thing. Teams travel from around the country to attend the tournament. The fund-raising that is required to attend is a massive undertaking - as captain of my team, I remember spending hours pleading with the University and with donors. We put on "exhibition" trials and tried anything else we could think of to raise money. High school and college students also miss school to attend. To go through that trouble and then find out that, because of the religious beliefs of another team, your team has to either (1) come back another weekend, or (2) change hotels/flights and stay an extra day, is unreasonable. No one can claim that they were surprised that the the tournament extends to the sabbath. That has been the schedule for decades. I feel sorry for the students that had to forfeit. I remember facing a team who told us that they would have to forfeit if they beat us because they couldn't compete on the sabbath. (We solved that problem by beating them.) But I don't think that this has much to do with *Smith* because I think the decision is correct under a pre-*Smith* regime as well. If anything, it supports *Smith* because now we know that a judge is not going to second-guess the decision of the people who have managed this tournament for decades. I'm afraid that your a-b-c formula below is just a fact of life. We should avoid the situation when we can--the board should change the date if it's feasible, for example--but the situation can't be avoided without giving every religious belief veto power. Anthony On Sat, May 9, 2009 at 12:08 AM, Brad Pardee wrote: > In reading about this dispute, it seems that this entire situation exposes > the fatal flaw in the thinking in Employment Division v. Smith. It's clear > that the rules regarding the mock trial schedule are generally applicable > and neutral on their face. However, the end result was discriminatory. The > Jewish students' choices were a) choose a different religion that wouldn't > place the same requirements on them, b) violate the tenets of their faith, > or c) forfeit the competition. The National High School Mock Trial > Championship's board could have chosen to accomodate their faith. Their > decision not to accomodate, although not intended to be discriminatory, had > nonetheless an unmistakably discriminatory effect. > > They were, however, using the same principles that undergird Smith. Did > the schedule cover all the competing teams? Yes, it was generally > applicable. Did they single out the Jewish faith (or any other faith) for > differing treatment? No, it was neutral on its face. Prior to having their > hand forced by the judge, were they a governing body who had the opportunity > to choose to accomodate and chose not to? Yes. > > Now let's take what I wrote above and recast it according to Employment > Division v. Smith. > > Smith's choices were a) choose a different religion that wouldn't place the > same requirements on him, b) violate the tenets of his faith, or c) forfeit > his unemployment benefits. The Oregon state legislature could have chosen > to accomodate his faith. Their decision not to accomodate, although not > intended to be discriminatory, had nonetheless an unmistakably > discriminatory effect. > > This is what the First Amendment, as our guarantor of religious freedom, is > suppose to prevent. The fact that the logic of Employment Division v. Smith > precludes it from offering the protection it is supposed to speaks volumes. > The situation with the mock trial competition is helpful in exposing that > weakness in the real world. > > Brad Pardee > ___ > 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: Using religion for government purposes
Re: Madison's Remonstrance Isn't that the distinction? Let's go back to the hypothetical from earlier, the one about the "anti homosexual" sign versus the "Christians welcome" sign. I thought that was a strong hypothetical that really hit to the heart of the issue. Why can the government do A but not B? The answer, I think, is the one given by Madison. Government *might* be able to decide whether homosexuality is bad or good. In reality, this question seems too tied up in religion and innate response for government to do very well, but government *could* take an empirical (Enlightenment!) approach to the issue. Turning to religion, however, government doesn't seem to have the same ability. The framers were standing at the end of centuries of religious strife that had settled *nothing*. Instead, there had just been decades and decades of bloody majority-rule. Religious questions do not lend themselves to earthly resolution. I think the framers decided that religious endorsement by government would never be anything more than thinly-veiled majoritarian oppression. That's certainly a debatable proposition, but I think it was a conclusion that was well informed by history. Based on that conclusion, religion was ruled off limits. Anthony (My first post after months of silent lurking!) On Fri, Mar 27, 2009 at 1:17 PM, Ira (Chip) Lupu wrote: > Perhaps it would be useful to quote the following from Madison's Memorial > and Remonstrance (a document that some would claim has constitutional > significance, though of course that is contested): > > "5. Because the Bill implies either that the Civil Magistrate is a > competent Judge of Religious Truth; or that he may employ Religion as an > engine of Civil policy. The first is an arrogant pretension falsified by the > contradictory opinions of Rulers in all ages, and throughout the world: the > second an unhallowed perversion of the means of salvation. > > Chip > > > Original message > >Date: Fri, 27 Mar 2009 09:51:06 -0700 > >From: "Volokh, Eugene" > >Subject: RE: Using religion for government purposes > >To: "Law & Religion issues for Law Academics" > > > > > Whether or not that > > distinction is sound as an empirical matter – and, > > given the tradition of using religious invocations > > for ceremonial purposes, for national mourning, and > > other similar reasons, it’s hard to see all or > > most political use of religious talk as “crassly > > instrumental [and] low-political” – I take it > > that this is not a distinction that constitutional > > law can easily draw, no? > > > > > > > > From: religionlaw-boun...@lists.ucla.edu > > [mailto:religionlaw-boun...@lists.ucla.edu] On > > Behalf Of Sanford Levinson > > Sent: Friday, March 27, 2009 9:37 AM > > To: religionlaw@lists.ucla.edu > > Subject: Re: Using religion for government purposes > > > > > > > > May I respectfully suggest that one difference > > between Lincoln and perhaps) all of his successors > > is that he was a profoundly serious man who was not > > using religion for crassly instrumental > > low-political purposes. > > > > Sandy > > > >___ > >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 > George Washington University Law School > 2000 H St., NW > Washington, DC 20052 > (202)994-7053 > ___ > 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.
