RE: bigotry and sincere religious belief

[Kahn, Robert A.]

I also do not have any answers - especially on the underlying issue. But let me 
make two points about the bigotry vs. sincere religious belief question.


1)  Does it change the argument any if one operates from the assumption 
that racism, despite our best efforts, continues to be tolerated (witness the 
most recent voting rights case)? This might suggest a prioritization argument 
(lets deal with racism first) or an interconnectedness argument (fighting the 
underlying racism in the country requires fighting sexism, homophobia etc.). 
Personally, I would lean toward the latter.



2)  As a Jew, there is something about the "sincere religious believer" vs. 
phobic-hater distinction that doesn't make sense. Does it matter whether 
someone excludes me because I am subhuman or because my ancestors killed their 
savior. Both sound pretty bad. To me the motivation matters less than what I, 
as a Jew, are excluded from.


As noted, I leave these questions for others. What worries me a bit is the idea 
that America is somehow a post-racial country.

Sincerely,
Rob Kahn
Associate Professor
University of St. Thomas School of Law
Minneapolis, MN 55403

phone: (651) 962-4807
email: rak...@stthomas.edu



From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Conkle, Daniel O.
Sent: Thursday, February 27, 2014 1:05 PM
To: Law & Religion issues for Law Academics
Subject: RE: bigotry and sincere religious belief

I don't pretend to have definitive answers to the questions that Chip Lupu and 
Kevin Chen are discussing.  But I think the proper resolution of this debate 
calls for sensitive judgments depending as much on history and prudence as on 
logic and prior precedent.  In my view, the history of the United States - 
including the institution of slavery, the Civil War, the post-Civil War 
Amendments, Jim Crow, etc. - suggests that racial discrimination is indeed a 
matter of special and distinctive concern.  Moreover, putting aside other forms 
of discrimination, opposition to same-sex marriage, including (as already 
noted) that of President Obama until very recently, cannot readily be equated 
with bigotry.  President Obama explained his 2012 change of heart as reflecting 
a new understanding of his Christian faith, suggesting that his prior position 
likewise was informed by his religion.  Religious perspectives change over 
time, and there is little doubt that they are changing quite rapidly - and will 
continue to change - in this context.

So, during a period of breathtakingly rapid shifts in societal opinion, is now 
the time to declare that this is like racial discrimination and simply should 
not be tolerated?  Or should religious objectors - at least for now, at least 
in the context of same-sex marriage - be given serious respect, as dissenting 
members of the community, including a presumption that their opposition is 
grounded in something other than bigotry?  I tend toward the latter view.

Dan Conkle

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


From: 
religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Thursday, February 27, 2014 12:15 PM
To: Law & Religion issues for Law Academics
Subject: Re: bigotry and sincere religious belief

I'm very pleased that my former (and highly able) student Kevin Chen is now 
participating in the list discussion.  He wasn't shy about disagreeing with me 
in class, and his intellectual temperament has remained the same.  For now, I 
intend to wait for other answers (if any appear) to the bigotry vs. sincere 
religious belief problem before writing any more.  This is a delicate question, 
but it seems to me that it lies at the heart of discussions we have been having.

On Thu, Feb 27, 2014 at 10:39 AM, tznkai 
mailto:tzn...@gmail.com>> wrote:
I'm not sure how easily it could be done, but we ought to try on some level to 
protect the sincere religious beliefs

Because attempts to enforce by legal sanctions, acts obnoxious to go great a 
proportion of Citizens, tend to enervate the laws in general, and to slacken 
the bands of Society. If it be difficult to execute any law which is not 
generally deemed necessary or salutary, what must be the case, where it is 
deemed invalid and dangerous? And what may be the effect of so striking an 
example of impotency in the Government, on its general authority?
Of course, the government may very well succeed in closing businesses and 
closeting anti-gay bigotry, but that may also be problematic. The sword of the 
state creates quite a mess when attempting to spread small-l liberal goals into 
illibera

RE: Harmony and the freedom of religion (RE: New Twist On Challenge to ACA Contraceptive Mandate)

[Kahn, Robert A.]

Hi Mitchell,

I thought you might find this interesting.

Take care,
Rob

-Original Message-
From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton
Sent: Sunday, August 18, 2013 8:50 PM
To: Law & Religion issues for Law Academics
Cc: Law & Religion issues for Law Academics
Subject: Re: Harmony and the freedom of religion (RE: New Twist On Challenge to 
ACA Contraceptive Mandate)

As I have said repeatedly, I strongly disagree with the notion that Smith 
created a new regime.  It was an accurate statement of the existing case law.  
RFRA is a new regime parading as a "restoration."Applying Sherbert or the 
other unemployment compensation case to any other scenario is inconsistent w 
the prior case law.  So we have the Sherbert/Yoder standard being bandied about 
for facts that never would have received it.  That is why we have these strands 
of discussion that are incoherent at times.

Historical limits on free exercise provide a robust limitation to the current 
push for religious "liberty", which is unprecedented in history.   My view is 
heavily influenced by Levy, who brilliantly showed how the Religion Clauses 
evolved over time to a stronger and stronger separation principle.  Therefore, 
wherever we started, it is not that the doctrine has naturally evolved to 
religious narcissism, but rather to concept of separation.   So original 
intent, read in light of the working out of the Religion Clauses, works against 
the RFRA/religious-believers-should win-all-(or most)-arguments approach.   
That is why RFRA could only happen legislatively ---  and not through the 
courts.   And why, in my view, it is unconstitutional and illegitimate.

I assume, though, that Mark's point was directed at the notion that substantive 
due process is a "new right."   Speaking as a woman and a supporter of the 
Federalists' perspective at the framing, I don't think these rights are "new" 
but rather rights over our bodies that appropriately are recognized today.   
The Federalists were correct that the problem w a Bill of Rights is that it 
would be assumed that all rights were therefore enumerated, but it was humanly 
impossible to do so.   Their most important insight was that the Framers were 
fallible humans who could not possibly enumerate all rights. Or fully 
comprehend how this governing system would work out over time and how rights 
would need to be defined over time. Their bedrock belief that they could see 
only through a glass darkly is critical to understanding how the status and 
role of women could work itself out over time.   The bedrock principles were 
there even if the rights holders (slaves and women) were not apparent!
  at the time.

  This is at base a Hegelian approach toward the working out of rights, but one 
that in my view takes the best account of the many factors at play.

I apologize for going off topic, but thought I might as well explain myself.  

Marci


Marci A. Hamilton
Verkuil Chair in Public Law
Benjamin N. Cardozo Law School
Yeshiva University
@Marci_Hamilton 



On Aug 18, 2013, at 6:54 PM, "Scarberry, Mark"  
wrote:

> In response to Marci, who has expressed strong support on this list for 
> abortion rights: 
> 
> It is very difficult to square her commitment to "historical limits" on 
> individual rights with any robust version of abortion rights, as against 
> state laws. 
> 
> Historical limits provide much less of a barrier to (or more likely a boost 
> to) robust protection of religious freedom (such as the protection given by 
> federal and state RFRAs, and to some degree by the Constitution, even under 
> the highly-restrictive post-Smith regime).
> 
> Mark
> 
> Mark S. Scarberry
> Professor of Law
> Pepperdine Univ. School of Law
> 
> -Original Message-
> From: religionlaw-boun...@lists.ucla.edu 
> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci 
> Hamilton
> Sent: Sunday, August 18, 2013 3:03 PM
> To: Law & Religion issues for Law Academics
> Cc: Law & Religion issues for Law Academics
> Subject: Re: Harmony and the freedom of religion (RE: New Twist On 
> Challenge to ACA Contraceptive Mandate)
> 
> Thanks, Ellis, for your valuable post.  Let's also add that the framing 
> generation understood and articulated a distinction between liberty and 
> licentiousness, as I have written before.   And set a boundary on religious 
> liberty of safety and the public good.  Indeed, pastors preached abiding by 
> the law
> from the pulpit.
> 
> The principle was "ordered liberty" from the beginning, not what I have come 
> to think of as narcissistic liberty, which is that liberty that is supposed 
> to be judged only from the inside of the believer's head and world view and 
> fails to take truly seriously the culture's, third-party, and historical 
> limits.
> 
> Marci
> 
> Marci A. Hamilton
> Verkuil Chair in Public Law
> Benjamin N. Cardozo Law School
> Yeshiva University
> @Marci_Hamil