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
Re: Protecting Religious Conscience from Private Suits -- How far do we go under the Const and under RFRAs?
With respect to my former teacher I don't think the background right distinction is quite as untenable as that. Many of the rights enforced in tort are rights against the world that the court vindicates, my right to exclude you from my property is self-enforceable by private means, such as by erecting a barrier. The right is a sword borne in me against the world with prophylactic intercession by the state to avoid the costs of self-enforcement such as screaming, shoving, Hatfields and McCoys, cats and dogs living together. This is a dangerous place to go of course, since contract is a private agreement that only has meaning when backstopped by the state. Even disregarding the possibility of certain private rights originating from outside the state, rights held against the government can still be sensibly read into RFRA like protections. How different is a private cause of action in an anti-discrimination suit from the private prosecution that used to be in vogue? The states intend those causes of action to pursue state policies. Just as my rights as a criminal defendant against the state would be vindicated against a private prosecutor, RFRA could be interpreted in such a way as to shield me against private actions furthering state policy. The courts are at least as competent in reading the intent of the legislature as they are judging the sincerity, credibility and substance of religious beliefs. That all having been said, it doesn't make sense to read RFRA as a carve-out read into various laws of otherwise general applicability. It is a shield held by religious believers against the state. On Thu, Feb 27, 2014 at 9:17 AM, Ira Lupu icl...@law.gwu.edu wrote: For purposes of a state RFRA or a state constitution, I do not understand why defenses to a private right of action for discrimination (e.g., a merchant refused to serve me because of my race, religion, etc.; merchant defends on religious freedom grounds) are any different from defenses to a private right of action for trespass (my neighbor entered my yard to pray under a tree on my property, and refused to leave; neighbor defends on religious freedom grounds). I have never seen a constitutional provision of RFRA that even hints at any such distinction. In both cases, the religious person/defendant asserts that the cause of action substantially burdens her religious freedom, and the plaintiff must argue that application of the state law to this defendant is the least restrictive means to a compelling interest. Why would you make this distinction, Mark? Smuggling in some libertarian assumptions about where rights come from (property rights are natural, and non-discrimination rights are something different)? RFRA's never say any such thing; they apply across the board to all law in the jurisdiction, unless they say otherwise. When you start smuggling in these kinds of moves, you taint the entire RFRA enterprise, don't you? (I.e., RFRA does not apply to the rights and laws that I value more). On Thu, Feb 27, 2014 at 3:02 AM, Scarberry, Mark mark.scarbe...@pepperdine.edu wrote: Some of you on the list have made me think a bit more about application of religious freedom provisions (federal or state RFRAs, for our purposes) as defenses to suits brought by private parties. This is a key question raised by the Arizona bill that Gov. Brewer vetoed. At the risk of reinventing the wheel, and of missing lots of obvious points: We know that government-created private rights of action sometimes are limited for the same reasons we limit direct government action. The government can't fine me for criticizing a govt official or other public figure, nor (analogously) may such a person maintain a private suit against me for defamation or for causing emotional distress unless a high bar is met, such as proof of NY Times malice. The govt can't require me to fly a US flag or (assuming it allows any flags to be flown) prohibit me from flying another nation's flag on my own property. Similarly, the law can't provide my neighbor a private right of action that would allow the neighbor to get an injunction requiring me to fly a US flag or (if the law allows any flags to be flown) not to fly another nation's flag; a damage award would similarly be off the table. A land use regulation that would prohibit religious use of a home (e.g., for a weekly bible study) but permit similar nonreligious uses (a weekly bridge club meeting) with a similar number of people and similar noise level would violate the Constitution. The state can't get around that result by creating a private right of action under which a neighbor can sue me for holding the bible study but not for holding a bridge club meeting. A state statute that would allow a fair employment commission to fine a church for hiring only men as ministers would violate the Constitution. The state obviously can't create a private right of action under which a woman
Re: bigotry and sincere religious belief
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 illiberal communities of conviction, and illiberal factions often grow stronger, not weaker as a result. When that community is, say, an Amish community living mostly separate from wider society, the costs fall only within that insular community. When that community is a living, breathing part of our polity, the costs to us, as a whole are great. Separating religion from culture is a difficult, if not foolish errand, and likewise we should not read genuine and free of conflating factors into sincere. Sincerity of belief is as simple as not lying, substantive burden is measured by the willingness of believers to pay the price of their beliefs. Pursuing comity in service of a just and stable society suggests we not ask believers to make the price of their conscience participation in our economy. On the whole the current trends in protecting religious liberty are a cure worse than the disease however, because no good defense of religious liberty turns free of constraint into free of cost. The sin of Ollie (and that of David Green) is not following his conscience, but seeking full coverage under aegis of state laws without any compromise. -Kevin Chen On Thu, Feb 27, 2014 at 9:45 AM, Ira Lupu icl...@law.gwu.edu wrote: I think that the politics of the moment, and the conversations we have been having (including the reference to Jim Oleske's provocative article about religious objections to inter-racial marriage compared to religious objections to same sex marriage, *Interracial and Same-Sex Marriages: Similar Religious Objections, Very Different Responses* http://ssrn.com/abstract=2400100, call for a burrowing into the question of what constitutes anti-gay bigotry and how it can be distinguished from sincere religious objections to same sex intimacy. The history of racial prejudice in the U.S. suggests, and Jim's article shows, a deep structure of religious support and justification for segregation (and for slavery before that). Of course, many racial bigots did NOT rely on religious justifications (I grew up in upstate NY, surrounded by bigots who never mentioned religion in their racial attitudes). But some did so rely, and we now look back on them and say -- what? Their religion was insincere? Their religion was culturally determined by geography and Jim Crow culture? (Contrary to what has been written here, Jim Crow laws required segregation in government facilities, like public schools, but Jim Crow culture, NOT laws, kept lunch counters, hotels, restaurants, department stores, etc., segregated. The public accommodations title of the Civil Rights Act of 1964 may have pre-empted applications of trespass law, but it did not pre-empt state law requiring segregation in these private facilities.) All religions, in the social practices they prescribe, are culturally determined to some extent. So I think the lesson of the 1960's is that the commitment to Civil Rights meant we became legally indifferent to whether racism was based on sincere religious objections or not. Ollie from Ollie's BBQ had to serve people of color or get out of the restaurant business, whether or not his desire to exclude had sincere religious components. So what is now different about the LGBT rights movement? Some merchants who want to refuse to serve have sincere religious objections; some just have hostility or discomfort (homophobia, if they are really afraid of the interaction; but surely, many racists had or have Negrophobia.) Should we try, with our very limited tools, to protect the sincere religious objectors but not protect the phobes? What will we do with sincere religious objectors who are also phobes? (I strongly suspect that a mixture of religion and phobia are operating within many objectors; their phobia is buried inside a religious justification, but maybe that's true for only some, not all.) Or do we give up this (to me, futile) attempt to use law as a instrument to sort the sincere objectors from the bigots and phobes, and say, rather simply -- we can't possibly make those distinctions, and in the end we don't care about them. Your refusal to serve some classes of people hurts
Re: bigotry and sincere religious belief
What kind of principled basis are you looking for? It can be readily observed that good and reasonable men and women find a principled reason from a place of deep conviction, so respecting that seems to be principled in turn. But even if we assume that as a matter of general principles that it is 1.) wrong to invidiously discriminate and 2.) race and sexuality are interchangeable at that level it does not follow that both should be illegal and enforced by otherwise identical law. Law is a tool by which policy is pursued, and policy should be shaped by facts on the ground. As many here have argued and demonstrated, the policy goal behind anti-discrimination laws is not merely to defend the class discriminated against, it is to punish the discriminators and hopefully extinguish them from the political community. There is a strong argument for a take-no-prisoners attitude with race. For literally the entire history of the American nation, race has been a defining characteristic, including the largest forced migration in known history, a sustained system of not only slavery, but increasing brutality, a civil war, Jim Crow and *three *constitutional amendments as major issues of note, as well as the occasional race riot. For anti-miscegenation in particular, one might also contemplate the long, long history of various cultures struggling with exogamy and endogamy. Social cognizance and attitude on same-sex marriage, on the other hand, has changed so fast, I know people who have honestly forgotten they ever been against it. State power is a blunt instrument, and I'm not convinced every anti-gay bigot needs to be bludgeoned in our pursuit of a better society. I'm also not convinced it'd work. The short, principled answer to slowing down a rush to include sexual orientation in anti-discrimination and/or keeping is this: it has a good chance of making things worse at an unjustified cost. This is not a peculiar sort of argument, it is the driving force behind many objections to anti-abortion laws. -Kevin Chen On Thu, Feb 27, 2014 at 8:54 PM, Greg Lipper lip...@au.org wrote: I would also add that Greg Sisk's syllogism only works if (1) you are also willing to allow photographers, florists, caterers, bakers, etc. to refuse to work at mixed-race weddings, or (2) you conclude that refusal to participate in same-sex wedding ceremonies is somehow more worthy of protection than refusal to participate in mixed-race weddings. As to the former, we as a society (or so I had thought) have concluded that we are unwilling to tolerate that type of discrimination, whatever its motivation. As to the latter, I still haven't seen a principled basis for saying that sexual-orientation-based discrimination is somehow more benign than race-based discrimination (be it in the context of marriage, marriage ceremonies, or otherwise). Perhaps this debate is hopelessly circular: lots of people - including lots of smart people - still oppose same-sex marriage, and smart people who oppose same-sex marriage will naturally come up with ways to treat their opposition to same-sex marriage as less problematic than other types of discrimination that have been more widely discredited. But that doesn't change what otherwise appears to be purely invidious discrimination. On Feb 27, 2014, at 8:40 PM, Ira Lupu icl...@law.gwu.edu wrote: Greg Sisk's post re: how to think about the wedding photographer is just the compelled speech argument one more time. In the case of a photographer, a First A claim of compelled speech is plausible, though not entirely persuasive. In the case of a baker, florist, wine vendor, or caterer, the argument that their providing service to a same sex wedding involves compelling them to speak about the moral/religious bona fides of the ceremony is not even plausible. But there is a deeper issue lurking in Greg's post. If the photographer has a good compelled speech claim, it is entirely independent of religion. She can have any reason, or no reason at all, to refuse to speak. She can have religious objections, homophobic reactions, or aesthetic concerns about taking pictures of two brides or two grooms. Her reasons are totally irrelevant. This is the precise lesson of Minersville v. Gobitis (no free exercise exemptions from compulsory Flag Salute at school) and West Va Bd of Ed v. Barnette (no one can be compelled to salute the American flag). And if reasons are irrelevant, because this is a compelled speech problem, then it extends to all weddings -- inter-racial, inter-religious, Italian, Polish, Jewish, etc. The photographer cannot be conscripted by civil rights laws into taking and displaying photos against her will. Maybe this is a good result; I have my doubts. But it is NOT a religious exemption, and it does NOT require any parsing of phobic/bigoted/sincerely religious reasons to abstain. So, under Greg's approach, the problem raised by RFRA's, re:
Re: Kansas/Arizona statutes
(Not on list) Prof. Brownstein I've been following this thread with considerable interest. Something you might consider is the first post-*Smith *political generation is coming into their own, as well as a generation of young people whose only experiences with religion has been as hide bound reactionaries, instead of say, the Christianity v. Christianity fight in the civil rights movement. (Not endorsing these viewpoints, just observing them) -Kevin Chen, Esq. On Feb 26, 2014 1:03 PM, Alan Brownstein aebrownst...@ucdavis.edu wrote: I have been struck by the intensity of the blowback against both bills, but particularly the reaction to the Arizona bill. I think there are several possible rationales for the power of the reaction. The breadth of the bill is one factor. Another factor is that the business community is increasingly viewing these kinds of laws as having a significant downside and no upside. Economic forces may do more to advance marriage equality in red states than anything else. I think a final factor is that legislation providing some accommodations for religious objectors to same-sex marriage can be justified by its supporters as a live and let live solution to conflicting views when these accommodations are proposed at the same time the legislature is considering recognizing same-sex marriages. The Kansas and Arizona bills are more like live and let die laws. These states have made it clear that they do not respect the liberty and equality interests of same-sex couples. In this context, the laws cannot be justified under a broader principle of attempting to reconcile conflicting interests. The laws seem to suggest that only certain people count in these states and deserve respect for their autonomy rights. For many people, that is a problematic message. Alan *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Conkle, Daniel O. *Sent:* Wednesday, February 26, 2014 9:35 AM *To:* Law Religion issues for Law Academics *Subject:* RE: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses Whether or not the bills are similar in political motivation or in potential impact, the media coverage of the Arizona bill - at least what I've seen - has been woeful. Until reading the actual Kansas bill, I certainly thought that it was a specific accommodation for religious objectors to sexual-orientation discrimination claims and that its protection was absolute, not subject to balancing. 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 ___ 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: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses
Since I've already accidentally intruded on this conversation (Hello everyone), why are you looking at a count of employees rather than whether the business entity is closely held, which would also go to the Walmart objection. In my experience, small business owners operate as if their legal entities are an extension of their personalities, regardless of the number of employees. -Kevin Chen, Esq. On Wed, Feb 26, 2014 at 2:54 PM, Douglas Laycock dlayc...@virginia.eduwrote: It would protect only very small businesses that are personal extensions of the owner, and where the owner must necessarily be involved in providing the services. We have suggested five or fewer employees as a workable rule that is in the right range. And it would have a hardship exception for local monopolies; ir you're the only wedding planner in the area, you have to do same-sex weddings too. So it would guarantee that same-sex couples get the goods and services they need. It would not enable that couple to demand those services from the merchant who thinks that what they're doing is seriously evil. They don't want personal services from that guy anyway. They want that guy to change his religious views or to go out of business. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *hamilto...@aol.com *Sent:* Wednesday, February 26, 2014 2:32 PM *To:* religionlaw@lists.ucla.edu *Subject:* Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses Doug--What does such an exemption look like if it is available to anyone other than clergy or a house of worship? Or is that limitation what makes it reasonable? I take it that the Arizona law does not fit your well-drafted notion? well drafted, narrowly targeted bill when or after same-sex marriage becomes the law in those states. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.com [image: http://sol-reform.com/fb.png]https://www.facebook.com/professormarciahamilton?fref=ts [image: http://www.sol-reform.com/tw.png]https://twitter.com/marci_hamilton -Original Message- From: Douglas Laycock dlayc...@virginia.edu To: 'Law Religion issues for Law Academics' religionlaw@lists.ucla.edu Sent: Wed, Feb 26, 2014 2:24 pm Subject: RE: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses Many state laws on sexual-orientation discrimination, and most laws on same-sex marriage, have exemptions for religious organizations. Some are broad; some are narrow. Some are well drafted; some are a mess. But they are mostly there. Apart from marriage, there is no reason to have religious exemptions for businesses from laws on sexual-orientation discrimination. No one in the groups I have been part of has ever suggested such exemptions. Not even the Kansas bill provides such exemptions. Chip is correct that no state has explicitly exempted small businesses in the wedding industry, or in marriage counseling, from its same-sex marriage legislation. All those laws so far have been in blue states. The absurd overreach in the Kansas bill, and the resulting political reaction to the radically different Arizona bill, and some bills caught in the fire elsewhere with less publicity, may indicate that such exemptions will be hard to enact even in red states. Or maybe not, if someone offers a well drafted, narrowly targeted bill when or after same-sex marriage becomes the law in those states. I agree with Alan Brownstein that part of the problem in red states is that they want to protect religious conservatives without protecting gays and lesbians. Not only does Arizona not have same-sex marriage; it doesn't have a law on sexual-orientation discrimination. The blue states are mostly the mirror image. More and more they want to protect gays and lesbians but not religious conservatives. Hardly any political actors appear to be interested in protecting the liberty of both sides. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 *From:* religionlaw-boun...@lists.ucla.edu [ mailto:religionlaw-boun...@lists.ucla.edureligionlaw-boun...@lists.ucla.edu?] *On Behalf Of *Ira Lupu *Sent:* Wednesday, February 26, 2014 11:34 AM *To:* Law Religion issues for Law Academics *Subject:* Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses That is my understanding, Hillel. If Doug, Rick, Tom, or others know of counterexamples, I'm sure they will bring them forward to the list. On Wed, Feb 26, 2014
Re: Statistics on believers and same-sex marriage
Racial segregation in America wasn't a simple matter of state governments enabling racists through carve outs or even a broad grant of rights. Racial segregation under Jim Crow involved the state forcing racist ideology. There is a colorable difference between allowing a minister or justice of the peace to opt out of marrying a couple and making it illegal to do so. If there is any danger (and I'm not convinced) in returning to segregation, it does not lie in the religious exemption, but granting that exemption to employers, which allows them to enforce that belief onto their employees, who will be left with the same out that Prof. Laycock finds so disturbing for small business owners: leave and find another. -Kevin Chen On Wed, Feb 26, 2014 at 4:17 PM, Sisk, Gregory C. gcs...@stthomas.eduwrote: No such logic exists. Your inference omits my express reference to the requirement of a substantial burden and the omission of a compelling public interest. A return to racial segregation and inability to receive services on the basis of race would easily qualify as a compelling public interest. The narrow question presented in these cases is whether a religious minority may decline to participate in a ceremonial message with which they disagree, especially when alternative venues and services are readily available and thus no actual burden is imposed on anyone. Gregory Sisk Laghi Distinguished Chair in Law University of St. Thomas School of Law (Minnesota) MSL 400, 1000 LaSalle Avenue Minneapolis, MN 55403-2005 651-962-4923 gcs...@stthomas.edu http://personal.stthomas.edu/GCSISK/sisk.htmlhttp://personal2.stthomas.edu/GCSISK/sisk.html Publications: http://ssrn.com/author=44545 *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Greg Lipper *Sent:* Wednesday, February 26, 2014 2:55 PM *To:* Law Religion issues for Law Academics *Subject:* Re: Statistics on believers and same-sex marriage I appreciate your consistency - and your acknowledgement that the logic underlying the Arizona legislation would enable a return to racial discrimination and segregation (at least when motivated by religious beliefs). On Feb 26, 2014, at 3:40 PM, Sisk, Gregory C. gcs...@stthomas.edu wrote: Yes, I do support religious liberty claims for religious minorities, when a substantial burden on exercise of faith is shown and a compelling government interest is missing. I do not limit my support for religious liberty to those exercises of religion that correspond to my own views, for that is not freedom at all. I've consistently defended claims by multiple religious minorities, from Muslims to American Indian groups and on to Orthodox Jews, as well as evangelical Christians and Catholics. Nor is my plea to accommodate the small business owner limited to a particular type of objection. An events photographer should be free, as a matter of both free exercise of religion and freedom of speech, to decline to photograph events that communicate a message with which she disagrees, whether that be a military deployment send-off event (because she is a pacifist) or a same-sex marriage ceremony (because she adheres to traditional religious perspectives on sexual morality) or, for that matter, a Catholic First Communion (because she regards the Catholic Church as oppressive). Gregory Sisk Laghi Distinguished Chair in Law University of St. Thomas School of Law (Minnesota) MSL 400, 1000 LaSalle Avenue Minneapolis, MN 55403-2005 651-962-4923 gcs...@stthomas.edu http://personal.stthomas.edu/GCSISK/sisk.htmlhttp://personal2.stthomas.edu/GCSISK/sisk.html Publications: http://ssrn.com/author=44545 ___ 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: Statistics on believers and same-sex marriage
True, the racist regime was pretty well entwined with religious institutions and believers, as were their chief opponents. Cooperation undersells the relationship between racists and the Jim Crow states. It was an outright takeover of the state apparatus by a faction to the direct detriment of everyone else and the polity as a whole. (And, as I'm sure Dr. King would have rushed to point out, to the detriment of the racists themselves). The issue isn't whether discrimination because of same sex marriage (or orientation, or transgender identity) is better or worse than any other kind of discrimination but the sheer scale of Jim Crow compared to RFRA on steroids. Maybe they're both the sorts of bigotry at which good men and women recoil - but as an issue of policy, they are rather different. On Wed, Feb 26, 2014 at 6:39 PM, hamilto...@aol.com wrote: Racism was supported and encouraged by believers. Religion and clergy played a critical role in making the Jim Crow south what it was. It wasn't just the state. It was the cooperation of racist believers and the government. Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.com https://www.facebook.com/professormarciahamilton?fref=ts https://twitter.com/marci_hamilton -Original Message- From: tznkai tzn...@gmail.com To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Wed, Feb 26, 2014 6:37 pm Subject: Re: Statistics on believers and same-sex marriage Racial segregation in America wasn't a simple matter of state governments enabling racists through carve outs or even a broad grant of rights. Racial segregation under Jim Crow involved the state forcing racist ideology. There is a colorable difference between allowing a minister or justice of the peace to opt out of marrying a couple and making it illegal to do so. If there is any danger (and I'm not convinced) in returning to segregation, it does not lie in the religious exemption, but granting that exemption to employers, which allows them to enforce that belief onto their employees, who will be left with the same out that Prof. Laycock finds so disturbing for small business owners: leave and find another. -Kevin Chen On Wed, Feb 26, 2014 at 4:17 PM, Sisk, Gregory C. gcs...@stthomas.eduwrote: No such logic exists. Your inference omits my express reference to the requirement of a substantial burden and the omission of a compelling public interest. A return to racial segregation and inability to receive services on the basis of race would easily qualify as a compelling public interest. The narrow question presented in these cases is whether a religious minority may decline to participate in a ceremonial message with which they disagree, especially when alternative venues and services are readily available and thus no actual burden is imposed on anyone. Gregory Sisk Laghi Distinguished Chair in Law University of St. Thomas School of Law (Minnesota) MSL 400, 1000 LaSalle Avenue Minneapolis, MN 55403-2005 651-962-4923 gcs...@stthomas.edu http://personal.stthomas.edu/GCSISK/sisk.htmlhttp://personal2.stthomas.edu/GCSISK/sisk.html Publications: http://ssrn.com/author=44545 *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Greg Lipper *Sent:* Wednesday, February 26, 2014 2:55 PM *To:* Law Religion issues for Law Academics *Subject:* Re: Statistics on believers and same-sex marriage I appreciate your consistency - and your acknowledgement that the logic underlying the Arizona legislation would enable a return to racial discrimination and segregation (at least when motivated by religious beliefs). On Feb 26, 2014, at 3:40 PM, Sisk, Gregory C. gcs...@stthomas.edu wrote: Yes, I do support religious liberty claims for religious minorities, when a substantial burden on exercise of faith is shown and a compelling government interest is missing. I do not limit my support for religious liberty to those exercises of religion that correspond to my own views, for that is not freedom at all. I've consistently defended claims by multiple religious minorities, from Muslims to American Indian groups and on to Orthodox Jews, as well as evangelical Christians and Catholics. Nor is my plea to accommodate the small business owner limited to a particular type of objection. An events photographer should be free, as a matter of both free exercise of religion and freedom of speech, to decline to photograph events that communicate a message with which she disagrees, whether that be a military deployment send-off event (because she is a pacifist) or a same-sex marriage ceremony (because she adheres to traditional religious perspectives on sexual morality) or, for that matter, a Catholic First Communion (because she
