Re: Anti-discrimination, legislative compromise, and strict scrutiny
My question is a bit different than the one Hillel posed. Suppose the religious exemption permitting discrimination on the basis of sexual orientation in places of public accommodation/employment is broader than exemptions provided to religious objectors who believe they are required to discriminate on the basis of race, gender, or religion. Does that exemption discriminate on the basis of faith or denomination in that it provides greater protection to religious objectors whose beliefs prohibit them from serving or hiring gays and lesbians than it provides to religious objectors whose beliefs prohibit them from serving or hiring women, or African-Americans, or Jews? What standard of review should be applied to this challenge? There are lots of cases in which members of religions that require the use of marijuana argued that the government discriminated on the basis of religion when it granted an exemption for the ritual use of peyote but refused to grant an exemption for the ritual use of marijuana. They almost always lost. The courts adjudicating these cases weren't always clear what standard of review they were applying or even whether they were applying a standard of review at all. But they seemed to think it was necessary to explain why an exemption for marijuana use was different and less justified than an exemption for peyote use. And these discussions typically involved an argument that an exemption for marijuana use was more dangerous and created more problems for law enforcement than an exemption for peyote use. Should a similar analysis apply here? And if so, what arguments should a court accept to justify providing greater protection to religious objectors to civil rights laws protecting gays and lesbians than are provided to religious objectors to civil rights laws protecting women , racial minorities, or religious minorities? There is, of course, an argument that civil rights laws protecting African-Americans have a unique value and purpose in light of American history. But what about laws prohibiting gender and religious discrimination? Alan From: religionlaw-boun...@lists.ucla.edu on behalf of Doug Laycock Sent: Wednesday, February 25, 2015 7:01 AM To: 'Law & Religion issues for Law Academics' Subject: RE: Anti-discrimination, legislative compromise, and strict scrutiny Strict scrutiny would not be triggered under Smith/Lukumi, principally because the legislated exemptions are for religious objectors, do not discriminate on the basis of faith or denomination, and are a reasonable legislative effort to exempt the cases where the claim to religious exemption is strongest. Therefore, they do not imply a value judgment that secular reasons for exemption are more important than religious reasons for exemption. They imply only a judgment that religious reasons for exemption are stronger in very small businesses that generally are personally run by the owner than in larger and generally more impersonal businesses. Of course that generalization is not perfect, and the precise line drawn between large and small is inevitably arbitrary. But there is no discrimination between religious and secular. 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 Hillel Y. Levin Sent: Wednesday, February 25, 2015 5:53 AM To: Law & Religion issues for Law Academics Subject: Anti-discrimination, legislative compromise, and strict scrutiny Friends: As you are likely aware, the LDS church recently announced support for legislation prohibiting discrimination on the basis of sexual orientation in Utah, so long as such legislation included religious accommodations. LDS leaders were not explicit about the precise contours of the accommodations they seek, but I have the distinct sense that they would insist on broader accommodations than have been written into law elsewhere. Suppose that supporters of anti-discrimination legislation were able to accept a compromise with LDS leaders that included accommodations for some for-profit service providers/employers/landlords so long as gays and lesbians could find alternative providers without much difficulty. (Similar to pharmacist conscience clauses with respect to dispensation of contraception in some states.) Alternatively, suppose that categorical exceptions were carved out for small businesses and small-time landlords. Hypothetically, what if businesses with fewer than 20 employees were excluded from coverage, as were landlords with fewer than 5 properties. Now suppose that a religious objector who did not meet the criteria for the religious accommodation or categorical exception sued under the FEC. Given the exceptions built into the compromise le
Re: Anti-discrimination, legislative compromise, and strict scrutiny
I'm not sure I agree that it is a rule with no exceptions. But let's assume you are right about that. Let's also assume that a state RFRA, and thus strict scrutiny, applies. The asserted compelling interest is having a police force that appears professional and approachable, and does not appear disheveled, and recognizing that an arbitrary line must be drawn. How does this fare under strict scrutiny? Could any rule limiting beard length pass strict scrutiny? And what about my initial question. Assume there is a RFRA in place in the state. Can an arbitrary limit on the size of the business comport with strict scrutiny? On Wed, Feb 25, 2015 at 10:47 AM, Doug Laycock wrote: > That’s not even a rule with exceptions. As you describe it, it’s a > generally applicable rule that no beard can be longer than one inch. If > it’s enforced even handedly against religious and secular beards, i.e., > enforced as written, it is insulated from attack under the Free Exercise > Clause, even if the rule is entirely pointless and unnecessary, or serves > only the most modest of aesthetic interests. That of course is the problem > with *Smith*. > > > > 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 *Hillel Y. Levin > *Sent:* Wednesday, February 25, 2015 10:33 AM > *To:* Law & Religion issues for Law Academics > *Subject:* Re: Anti-discrimination, legislative compromise, and strict > scrutiny > > > > Thanks Doug. > > > > Would the same logic apply to beard length regulations on city police > forces? Suppose there was a legislative (or reasoned department) judgment > that well-kept beards are an acceptable exception to the general "clean > shaven" policy, and that in order to effectuate that judgment, they provide > that beards must be no longer than one inch. This will be true for people > with skin conditions, people with religious reasons for facial hair growth, > and people who enjoy the warmth or look of the beard. There is thus no > value judgment whatsoever, and an admittedly arbitrary line is drawn in > order to prevent members of the force from looking disheveled. > > > > Along comes a religious objector who claims that his beard must be 1.25 > inches long, or one who claims that his religion prohibits him from ever > shaving. (Assume sincerity, and indeed, there are such religious practices.) > > > > Does strict scrutiny apply? Does it pass strict scrutiny? > > > > On Wed, Feb 25, 2015 at 10:01 AM, Doug Laycock > wrote: > > Strict scrutiny would not be triggered under *Smith/Lukumi*, principally > because the legislated exemptions are for religious objectors, do not > discriminate on the basis of faith or denomination, and are a reasonable > legislative effort to exempt the cases where the claim to religious > exemption is strongest. Therefore, they do not imply a value judgment that > secular reasons for exemption are more important than religious reasons for > exemption. They imply only a judgment that religious reasons for exemption > are stronger in very small businesses that generally are personally run by > the owner than in larger and generally more impersonal businesses. Of > course that generalization is not perfect, and the precise line drawn > between large and small is inevitably arbitrary. But there is no > discrimination between religious and secular. > > > > 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 *Hillel Y. Levin > *Sent:* Wednesday, February 25, 2015 5:53 AM > *To:* Law & Religion issues for Law Academics > *Subject:* Anti-discrimination, legislative compromise, and strict > scrutiny > > > > Friends: > > > > As you are likely aware, the LDS church recently announced support for > legislation prohibiting discrimination on the basis of sexual orientation > in Utah, so long as such legislation included religious accommodations. LDS > leaders were not explicit about the precise contours of the accommodations > they seek, but I have the distinct sense that they would insist on broader > accommodations than have been written into law elsewhere. > > > > Suppose that supporters of anti-discrimination legislation were able to > accept a compromise with
RE: Anti-discrimination, legislative compromise, and strict scrutiny
Every religious exemption will have a boundary. And it will have somebody just outside that boundary who is not all that much different from the last person just inside that boundary. The body creating the exemption may try to draw the boundary narrowly, as in the original HHS proposals about the contraception mandate, exempting pretty much only the church itself. Or they may try to draw it broadly and inclusively, as in the Title VII exemption for any religious organization. It's a boundary either way, and with the Title VII boundary, we get cases like the King Kamehameha schools, which hired only Protestant teachers under the terms of its endowment, but which the Ninth Circuit said wasn't really religious enough to qualify any more. So judgments about the importance of religious practices are inevitable, however much the Court would like to avoid them. The Court is certainly right that judges should not make threshold judgments about centrality, defining some folks as exempt and others as having no claim because of a yes-no judgment about centrality. Centrality is a continuum, not a dichotomous variable. Specific legislative exemptions are stuck drawing yes-no lines for lack of any good alternative. And if it's line reasonably distinguishes more and less intensely religious contexts, without discriminating between faiths, it does not imply a value judgment about religion and should not trigger strict scrutiny. In applying the compelling interest test in any sensible fashion, the courts inevitably balance the government interest against the religious interest, and the importance of the religious practice inevitably matters. To borrow and reverse Scalia's example in Smith, courts would not protect the practice of throwing rice at weddings to the same extent that they would protect the practice of getting married in church. Sometimes the Court describes the compelling interest test in terms of balancing, and Congress described it that way in the debates on RFRA. The comments about not judging centrality should not be read to negate all this. And if they are so read, they are simply mistaken. Signing off for a big block of teaching. 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 David Cruz Sent: Wednesday, February 25, 2015 10:51 AM To: Law & Religion issues for Law Academics Subject: Re: Anti-discrimination, legislative compromise, and strict scrutiny Is it permissible under current law for government actors to assess whether "religious reasons for exemption are stronger in very small businesses that generally are personally run by the owner than in larger and generally more impersonal businesses" (emphases added)? I thought plenty of cases including Thomas forbid government to judge the "importance" or "centrality" sincere religious claims. Doug, are you talking about some notion of secular "strength" of religious reasons? David B. Cruz Professor of Law University of Southern California Gould School of Law Los Angeles, CA 90089-0071 U.S.A. From: Doug Laycock mailto:dlayc...@virginia.edu> > Reply-To: Law & Religion issues for Law Academics mailto:religionlaw@lists.ucla.edu> > Date: Wednesday, February 25, 2015 at 7:01 AM To: 'Law & Religion issues for Law Academics' mailto:religionlaw@lists.ucla.edu> > Subject: RE: Anti-discrimination, legislative compromise, and strict scrutiny Strict scrutiny would not be triggered under Smith/Lukumi, principally because the legislated exemptions are for religious objectors, do not discriminate on the basis of faith or denomination, and are a reasonable legislative effort to exempt the cases where the claim to religious exemption is strongest. Therefore, they do not imply a value judgment that secular reasons for exemption are more important than religious reasons for exemption. They imply only a judgment that religious reasons for exemption are stronger in very small businesses that generally are personally run by the owner than in larger and generally more impersonal businesses. Of course that generalization is not perfect, and the precise line drawn between large and small is inevitably arbitrary. But there is no discrimination between religious and secular. 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
Re: Anti-discrimination, legislative compromise, and strict scrutiny
Is it permissible under current law for government actors to assess whether “religious reasons for exemption are stronger in very small businesses that generally are personally run by the owner than in larger and generally more impersonal businesses” (emphases added)? I thought plenty of cases including Thomas forbid government to judge the "importance" or "centrality" sincere religious claims. Doug, are you talking about some notion of secular “strength” of religious reasons? David B. Cruz Professor of Law University of Southern California Gould School of Law Los Angeles, CA 90089-0071 U.S.A. From: Doug Laycock mailto:dlayc...@virginia.edu>> Reply-To: Law & Religion issues for Law Academics mailto:religionlaw@lists.ucla.edu>> Date: Wednesday, February 25, 2015 at 7:01 AM To: 'Law & Religion issues for Law Academics' mailto:religionlaw@lists.ucla.edu>> Subject: RE: Anti-discrimination, legislative compromise, and strict scrutiny Strict scrutiny would not be triggered under Smith/Lukumi, principally because the legislated exemptions are for religious objectors, do not discriminate on the basis of faith or denomination, and are a reasonable legislative effort to exempt the cases where the claim to religious exemption is strongest. Therefore, they do not imply a value judgment that secular reasons for exemption are more important than religious reasons for exemption. They imply only a judgment that religious reasons for exemption are stronger in very small businesses that generally are personally run by the owner than in larger and generally more impersonal businesses. Of course that generalization is not perfect, and the precise line drawn between large and small is inevitably arbitrary. But there is no discrimination between religious and secular. 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: Anti-discrimination, legislative compromise, and strict scrutiny
That’s not even a rule with exceptions. As you describe it, it’s a generally applicable rule that no beard can be longer than one inch. If it’s enforced even handedly against religious and secular beards, i.e., enforced as written, it is insulated from attack under the Free Exercise Clause, even if the rule is entirely pointless and unnecessary, or serves only the most modest of aesthetic interests. That of course is the problem with Smith. 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 Hillel Y. Levin Sent: Wednesday, February 25, 2015 10:33 AM To: Law & Religion issues for Law Academics Subject: Re: Anti-discrimination, legislative compromise, and strict scrutiny Thanks Doug. Would the same logic apply to beard length regulations on city police forces? Suppose there was a legislative (or reasoned department) judgment that well-kept beards are an acceptable exception to the general "clean shaven" policy, and that in order to effectuate that judgment, they provide that beards must be no longer than one inch. This will be true for people with skin conditions, people with religious reasons for facial hair growth, and people who enjoy the warmth or look of the beard. There is thus no value judgment whatsoever, and an admittedly arbitrary line is drawn in order to prevent members of the force from looking disheveled. Along comes a religious objector who claims that his beard must be 1.25 inches long, or one who claims that his religion prohibits him from ever shaving. (Assume sincerity, and indeed, there are such religious practices.) Does strict scrutiny apply? Does it pass strict scrutiny? On Wed, Feb 25, 2015 at 10:01 AM, Doug Laycock mailto:dlayc...@virginia.edu> > wrote: Strict scrutiny would not be triggered under Smith/Lukumi, principally because the legislated exemptions are for religious objectors, do not discriminate on the basis of faith or denomination, and are a reasonable legislative effort to exempt the cases where the claim to religious exemption is strongest. Therefore, they do not imply a value judgment that secular reasons for exemption are more important than religious reasons for exemption. They imply only a judgment that religious reasons for exemption are stronger in very small businesses that generally are personally run by the owner than in larger and generally more impersonal businesses. Of course that generalization is not perfect, and the precise line drawn between large and small is inevitably arbitrary. But there is no discrimination between religious and secular. 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> [mailto:religionlaw-boun...@lists.ucla.edu <mailto:religionlaw-boun...@lists.ucla.edu> ] On Behalf Of Hillel Y. Levin Sent: Wednesday, February 25, 2015 5:53 AM To: Law & Religion issues for Law Academics Subject: Anti-discrimination, legislative compromise, and strict scrutiny Friends: As you are likely aware, the LDS church recently announced support for legislation prohibiting discrimination on the basis of sexual orientation in Utah, so long as such legislation included religious accommodations. LDS leaders were not explicit about the precise contours of the accommodations they seek, but I have the distinct sense that they would insist on broader accommodations than have been written into law elsewhere. Suppose that supporters of anti-discrimination legislation were able to accept a compromise with LDS leaders that included accommodations for some for-profit service providers/employers/landlords so long as gays and lesbians could find alternative providers without much difficulty. (Similar to pharmacist conscience clauses with respect to dispensation of contraception in some states.) Alternatively, suppose that categorical exceptions were carved out for small businesses and small-time landlords. Hypothetically, what if businesses with fewer than 20 employees were excluded from coverage, as were landlords with fewer than 5 properties. Now suppose that a religious objector who did not meet the criteria for the religious accommodation or categorical exception sued under the FEC. Given the exceptions built into the compromise legislation, would strict scrutiny automatically apply, under the theory that with the compromise legislation, the law is not generally applicable? And if so, how would the case come out, given that the compromise legislation necessarily drew somewhat arbitrary lines? I am aware that the question
Re: Anti-discrimination, legislative compromise, and strict scrutiny
Thanks Doug. Would the same logic apply to beard length regulations on city police forces? Suppose there was a legislative (or reasoned department) judgment that well-kept beards are an acceptable exception to the general "clean shaven" policy, and that in order to effectuate that judgment, they provide that beards must be no longer than one inch. This will be true for people with skin conditions, people with religious reasons for facial hair growth, and people who enjoy the warmth or look of the beard. There is thus no value judgment whatsoever, and an admittedly arbitrary line is drawn in order to prevent members of the force from looking disheveled. Along comes a religious objector who claims that his beard must be 1.25 inches long, or one who claims that his religion prohibits him from ever shaving. (Assume sincerity, and indeed, there are such religious practices.) Does strict scrutiny apply? Does it pass strict scrutiny? On Wed, Feb 25, 2015 at 10:01 AM, Doug Laycock wrote: > Strict scrutiny would not be triggered under *Smith/Lukumi*, principally > because the legislated exemptions are for religious objectors, do not > discriminate on the basis of faith or denomination, and are a reasonable > legislative effort to exempt the cases where the claim to religious > exemption is strongest. Therefore, they do not imply a value judgment that > secular reasons for exemption are more important than religious reasons for > exemption. They imply only a judgment that religious reasons for exemption > are stronger in very small businesses that generally are personally run by > the owner than in larger and generally more impersonal businesses. Of > course that generalization is not perfect, and the precise line drawn > between large and small is inevitably arbitrary. But there is no > discrimination between religious and secular. > > > > 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 *Hillel Y. Levin > *Sent:* Wednesday, February 25, 2015 5:53 AM > *To:* Law & Religion issues for Law Academics > *Subject:* Anti-discrimination, legislative compromise, and strict > scrutiny > > > > Friends: > > > > As you are likely aware, the LDS church recently announced support for > legislation prohibiting discrimination on the basis of sexual orientation > in Utah, so long as such legislation included religious accommodations. LDS > leaders were not explicit about the precise contours of the accommodations > they seek, but I have the distinct sense that they would insist on broader > accommodations than have been written into law elsewhere. > > > > Suppose that supporters of anti-discrimination legislation were able to > accept a compromise with LDS leaders that included accommodations for some > for-profit service providers/employers/landlords so long as gays and > lesbians could find alternative providers without much difficulty. (Similar > to pharmacist conscience clauses with respect to dispensation of > contraception in some states.) Alternatively, suppose that categorical > exceptions were carved out for small businesses and small-time landlords. > Hypothetically, what if businesses with fewer than 20 employees were > excluded from coverage, as were landlords with fewer than 5 properties. > > > > Now suppose that a religious objector who did not meet the criteria for > the religious accommodation or categorical exception sued under the FEC. > Given the exceptions built into the compromise legislation, would strict > scrutiny automatically apply, under the theory that with the compromise > legislation, the law is not generally applicable? And if so, how would the > case come out, given that the compromise legislation necessarily drew > somewhat arbitrary lines? > > > > I am aware that the question of what triggers strict scrutiny is subject > to considerable debate in the literature, and that those who require a > showing of animus to trigger Lukumi's strict scrutiny would not find any > here. But for those who do not believe that animus is required, how would > this come out? > > > > My sense is that this difficulty might stand in the way of any legislative > compromise. > > > > -- > Hillel Y. Levin > Associate Professor > > University of Georgia > School of Law > 120 Herty Dr. > Athens, GA 30602 > (678) 641-7452 > hle...@uga.edu > hillelle...@gmail.com > SSRN Author Page: > http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=466645 > > > > ___
RE: Anti-discrimination, legislative compromise, and strict scrutiny
Strict scrutiny would not be triggered under Smith/Lukumi, principally because the legislated exemptions are for religious objectors, do not discriminate on the basis of faith or denomination, and are a reasonable legislative effort to exempt the cases where the claim to religious exemption is strongest. Therefore, they do not imply a value judgment that secular reasons for exemption are more important than religious reasons for exemption. They imply only a judgment that religious reasons for exemption are stronger in very small businesses that generally are personally run by the owner than in larger and generally more impersonal businesses. Of course that generalization is not perfect, and the precise line drawn between large and small is inevitably arbitrary. But there is no discrimination between religious and secular. 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 Hillel Y. Levin Sent: Wednesday, February 25, 2015 5:53 AM To: Law & Religion issues for Law Academics Subject: Anti-discrimination, legislative compromise, and strict scrutiny Friends: As you are likely aware, the LDS church recently announced support for legislation prohibiting discrimination on the basis of sexual orientation in Utah, so long as such legislation included religious accommodations. LDS leaders were not explicit about the precise contours of the accommodations they seek, but I have the distinct sense that they would insist on broader accommodations than have been written into law elsewhere. Suppose that supporters of anti-discrimination legislation were able to accept a compromise with LDS leaders that included accommodations for some for-profit service providers/employers/landlords so long as gays and lesbians could find alternative providers without much difficulty. (Similar to pharmacist conscience clauses with respect to dispensation of contraception in some states.) Alternatively, suppose that categorical exceptions were carved out for small businesses and small-time landlords. Hypothetically, what if businesses with fewer than 20 employees were excluded from coverage, as were landlords with fewer than 5 properties. Now suppose that a religious objector who did not meet the criteria for the religious accommodation or categorical exception sued under the FEC. Given the exceptions built into the compromise legislation, would strict scrutiny automatically apply, under the theory that with the compromise legislation, the law is not generally applicable? And if so, how would the case come out, given that the compromise legislation necessarily drew somewhat arbitrary lines? I am aware that the question of what triggers strict scrutiny is subject to considerable debate in the literature, and that those who require a showing of animus to trigger Lukumi's strict scrutiny would not find any here. But for those who do not believe that animus is required, how would this come out? My sense is that this difficulty might stand in the way of any legislative compromise. -- Hillel Y. Levin Associate Professor University of Georgia School of Law 120 Herty Dr. Athens, GA 30602 (678) 641-7452 hle...@uga.edu <mailto:hle...@uga.edu> hillelle...@gmail.com <mailto:hillelle...@gmail.com> SSRN Author Page: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=466645 ___ 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.
Anti-discrimination, legislative compromise, and strict scrutiny
Friends: As you are likely aware, the LDS church recently announced support for legislation prohibiting discrimination on the basis of sexual orientation in Utah, so long as such legislation included religious accommodations. LDS leaders were not explicit about the precise contours of the accommodations they seek, but I have the distinct sense that they would insist on broader accommodations than have been written into law elsewhere. Suppose that supporters of anti-discrimination legislation were able to accept a compromise with LDS leaders that included accommodations for some for-profit service providers/employers/landlords so long as gays and lesbians could find alternative providers without much difficulty. (Similar to pharmacist conscience clauses with respect to dispensation of contraception in some states.) Alternatively, suppose that categorical exceptions were carved out for small businesses and small-time landlords. Hypothetically, what if businesses with fewer than 20 employees were excluded from coverage, as were landlords with fewer than 5 properties. Now suppose that a religious objector who did not meet the criteria for the religious accommodation or categorical exception sued under the FEC. Given the exceptions built into the compromise legislation, would strict scrutiny automatically apply, under the theory that with the compromise legislation, the law is not generally applicable? And if so, how would the case come out, given that the compromise legislation necessarily drew somewhat arbitrary lines? I am aware that the question of what triggers strict scrutiny is subject to considerable debate in the literature, and that those who require a showing of animus to trigger Lukumi's strict scrutiny would not find any here. But for those who do not believe that animus is required, how would this come out? My sense is that this difficulty might stand in the way of any legislative compromise. -- Hillel Y. Levin Associate Professor University of Georgia School of Law 120 Herty Dr. Athens, GA 30602 (678) 641-7452 hle...@uga.edu hillelle...@gmail.com SSRN Author Page: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=466645 ___ 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.
