Re: Conflicts between religious exercise and gay rights
Well, yes, but this operates on the presumption that there is agreement on, among other things, what constitutes discrimination and what constitutes public accomodation. But it seems that those are precisely the issues at stake here. We can't simply say the law defines these terms, though, because the law defined them under Jim Crow, too, and we rightly abandoned that system.Richard Dougherty -Original Message- From: "Engelken, Sheri" <[EMAIL PROTECTED]> Sent 8/5/2008 11:02:50 AM To: "Law & Religion issues for Law Academics" Subject: Conflicts between religious exercise and gay rightsReligious beliefs can serve as justifications for many types of conduct that we condemn, e.g., slavery, wife-beating, concubinage, genocide. Discrimination, be it based on race, ethnicity, gender, sexual preference, or other irrelevant personal status, is to be condemned. No one forces service providers to run and operate places of public accommodation. Choosing to do so, when it flies in the face of one's religious beliefs, is self-selected conflict. The individual discriminated again is not in a similar "choice" position. And telling victims of discrimination that they should look for alternatives -- non-discriminatory service providers -- is not a proper solution. That's reminiscent of black Americans facing Jim Crow practices being told "we don't serve blacks here" and having to look for and ultimately find alternative services where such practices weren't in use. Service providers with discriminatory religious beliefs don't face any restriction on their beliefs from public accommodations laws. They're just barred from engaging in unlawful conduct, i.e., refusing to provide a non-religious service they willingly provide to others not in the class at issue. This isn't about whether you have to ordain women or allow people in the class to participate in religious activities in ways that impinge on religious beliefs. This is about whether providers of non-religious services (public accommodations) should be permitted to engage in the unlawful conduct of discrimination. SJE Sheri J Engelken Gonzaga University School of Law PO Box 3528; 721 N Cincinnati Spokane, WA 99220 509 313 5891 [EMAIL PROTECTED] From: [EMAIL PROTECTED] on behalf of Brownstein, Alan Sent: Mon 8/4/2008 5:06 PM To: Law & Religion issues for Law Academics Subject: RE: Conflicts between religious exefcise and gay rights and "cudgels" As someone who, in times long past, has had the decidedly miserable experience of looking unsuccessfully for jobs and housing for significant periods of time, I do not think for a moment that people can always find alternative jobs or quality places to live from other providers if they are subject to discrimination. Both jobs and housing can often be hard to find - even when you are not the victim of discrimination. But when alternative services are clearly available, I think Art is correct that what is at issue here is a clash of protected liberty and equality rights that cause somewhat analogous harms. As Vik Amar and I wrote recently, "Just as it makes no sense to tell a gay person who has been living with his partner for 20 years to end his relationship, or to stop being gay and enter into a heterosexual relationship, it makes no sense to tell a devout religious individual to set his or her convictions about homosexual conduct aside and adopt a new religion. Neither the gay person nor the religious adherent can reasonably be asked to change who they are. Our laws should reflect that reality in both circumstances. " Alan Brownstein From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of [EMAIL PROTECTED] Sent: Monday, August 04, 2008 4:35 PM To: religionlaw@lists.ucla.edu Subject: Re: Conflicts between religious exefcise and gay rights and "cudgels" Marty Lederman writes: I would respectfully dissent from [the] suggestion that ... gays and lesbians really suffer much harm by being denied services or jobs or housing on the basis of their sexual orientation because they "could get such services -- often at a higher quality -- just fine from lots of other providers." ... With all respect, I think this sort of standard libertarian skepticism about the need for antidiscrimination laws significantly trivializes very serious harms. - I don't doubt that some people suffer very serious harms from being denied goods and services based on their race, religion, sexual orientation, etc., even if they could easily obtain the same goods and services elsewhere. - Nor, however, do I doubt that some people suffer very serious harms from being forced to serve certain other people in certain ways, when providing such service contravenes their sincerely-held religious or moral beliefs. - And it seems to me that the harms in these two cases are essentially identical: some combination of emotional distress and moral outrage. - So is there any reason (other than where our personal sympat
Re: Conflicts between religious exercise and gay rights
On Aug 5, 2008, at Tue, Aug 5, 9:02 AM, Engelken, Sheri wrote: > Religious beliefs can serve as justifications for many types of > conduct that we condemn, e.g., slavery, wife-beating, concubinage, > genocide. Discrimination, be it based on race, ethnicity, gender, > sexual preference, or other irrelevant personal status, is to be > condemned. No one forces service providers to run and operate > places of public accommodation. Choosing to do so, when it flies > in the face of one's religious beliefs, is self-selected conflict. > The individual discriminated again is not in a similar "choice" > position. And telling victims of discrimination that they should > look for alternatives -- non-discriminatory service providers -- is > not a proper solution. That's reminiscent of black Americans > facing Jim Crow practices being told "we don't serve blacks here" > and having to look for and ultimately find alternative services > where such practices weren't in use. > > Service providers with discriminatory religious beliefs don't face > any restriction on their beliefs from public accommodations laws. > They're just barred from engaging in unlawful conduct, i.e., > refusing to provide a non-religious service they willingly provide > to others not in the class at issue. This isn't about whether you > have to ordain women or allow people in the class to participate in > religious activities in ways that impinge on religious beliefs. > This is about whether providers of non-religious services (public > accommodations) should be permitted to engage in the unlawful > conduct of discrimination. > > SJE > > Sheri J Engelken > Gonzaga University School of Law > PO Box 3528; 721 N Cincinnati > Spokane, WA 99220 > 509 313 5891 > [EMAIL PROTECTED] Devil's advocate: It could be counter-argued that people seeking public services aren't forced to do so, either. Why shouldn't customers be told to seek alternate services? Non-devil's advocate: I can see a few exceptions; The woman who is prescribed oral contraceptives to treat a medical condition, and the only pharmacist in the county refuses to dispense because of his religious beliefs. ___ 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.
Conflicts between religious exercise and gay rights
Religious beliefs can serve as justifications for many types of conduct that we condemn, e.g., slavery, wife-beating, concubinage, genocide. Discrimination, be it based on race, ethnicity, gender, sexual preference, or other irrelevant personal status, is to be condemned. No one forces service providers to run and operate places of public accommodation. Choosing to do so, when it flies in the face of one's religious beliefs, is self-selected conflict. The individual discriminated again is not in a similar "choice" position. And telling victims of discrimination that they should look for alternatives -- non-discriminatory service providers -- is not a proper solution. That's reminiscent of black Americans facing Jim Crow practices being told "we don't serve blacks here" and having to look for and ultimately find alternative services where such practices weren't in use. Service providers with discriminatory religious beliefs don't face any restriction on their beliefs from public accommodations laws. They're just barred from engaging in unlawful conduct, i.e., refusing to provide a non-religious service they willingly provide to others not in the class at issue. This isn't about whether you have to ordain women or allow people in the class to participate in religious activities in ways that impinge on religious beliefs. This is about whether providers of non-religious services (public accommodations) should be permitted to engage in the unlawful conduct of discrimination. SJE Sheri J Engelken Gonzaga University School of Law PO Box 3528; 721 N Cincinnati Spokane, WA 99220 509 313 5891 [EMAIL PROTECTED] From: [EMAIL PROTECTED] on behalf of Brownstein, Alan Sent: Mon 8/4/2008 5:06 PM To: Law & Religion issues for Law Academics Subject: RE: Conflicts between religious exefcise and gay rights and "cudgels" As someone who, in times long past, has had the decidedly miserable experience of looking unsuccessfully for jobs and housing for significant periods of time, I do not think for a moment that people can always find alternative jobs or quality places to live from other providers if they are subject to discrimination. Both jobs and housing can often be hard to find - even when you are not the victim of discrimination. But when alternative services are clearly available, I think Art is correct that what is at issue here is a clash of protected liberty and equality rights that cause somewhat analogous harms. As Vik Amar and I wrote recently, "Just as it makes no sense to tell a gay person who has been living with his partner for 20 years to end his relationship, or to stop being gay and enter into a heterosexual relationship, it makes no sense to tell a devout religious individual to set his or her convictions about homosexual conduct aside and adopt a new religion. Neither the gay person nor the religious adherent can reasonably be asked to change who they are. Our laws should reflect that reality in both circumstances. " Alan Brownstein From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of [EMAIL PROTECTED] Sent: Monday, August 04, 2008 4:35 PM To: religionlaw@lists.ucla.edu Subject: Re: Conflicts between religious exefcise and gay rights and "cudgels" Marty Lederman writes: I would respectfully dissent from [the] suggestion that ... gays and lesbians really suffer much harm by being denied services or jobs or housing on the basis of their sexual orientation because they "could get such services -- often at a higher quality -- just fine from lots of other providers." ... With all respect, I think this sort of standard libertarian skepticism about the need for antidiscrimination laws significantly trivializes very serious harms. - I don't doubt that some people suffer very serious harms from being denied goods and services based on their race, religion, sexual orientation, etc., even if they could easily obtain the same goods and services elsewhere. - Nor, however, do I doubt that some people suffer very serious harms from being forced to serve certain other people in certain ways, when providing such service contravenes their sincerely-held religious or moral beliefs. - And it seems to me that the harms in these two cases are essentially identical: some combination of emotional distress and moral outrage. - So is there any reason (other than where our personal sympathies happen to lie) to assume that the harm in case #1 is categorically greater than the harm in case #2, or that the harm in case #2 is categorically greater than the harm in case #1? - Given that equal protection and religious freedom are both constitutional values, is there any reason why the legal system should categorically favor the person suffering harm in case #1 over the person suffering harm in case #2, or the person suffering harm in case #2 over the person suffering harm in case #1? Art Spitze
