MONTGOMERY, Ala. -- By way of a voice vote, the House Education Policy
Committee passed a bill that would require teachers to recite Christian
prayers in public schools every day, even though the majority of members did
not vote for it.
The bill, sponsored by Rep. Steve Hurst, R-Munford, would
They are similar in that both involve believers demanding a right to
discriminate due to their religion. If Hobby Lobby wins, Walmart will have an
argument to get around prohibitions based on race, gender, religion, alienage,
and disability.
All they need is one owner or board member and they
Marci's view of the rights of a Walmart under tha AZ bill, and likely even the
Kansas bill, is simply wrong.
The application in the AZ bill to private enforcement by way of lawsuit simply
prevents the state from doing indirectly what it can't do directly, cf. NY
Times v. Sullivan, and makes
That should have been much more moderate/less sweeping.
Mark
Mark S. Scarberry
Pepperdine University School of y
Sent from my Verizon Wireless 4G LTE Smartphone
Original message
From: Scarberry, Mark
Date:02/26/2014 6:47 AM (GMT-08:00)
To: Law Religion issues for Law
Mark-- does the AZ bill permit discrimination on gender and race by private
businesses?
The RFRAs say explicitly they are good against the govt. expanding to private
parties is a huge leap. Remember RFRAs are supposedly the return to
constitutional protections. The Constitution requires
Mark-- please elaborate. Can a Biblical white supremacist make an argument to
refuse to serve a black person under the AZ bill? How about the KS bill?
And while we're at it, how about the GA bill?
I understand that the defenders of these bills have a long standing policy of
not wanting to
The Kansas bill is very sex/gender specific, and it is not limited to
weddings in any way. The rights it creates appear absolute -- no interest
balancing. It would authorize all sincere religious objectors (persons and
entities, including businesses) to treat same sex marriages/domestic
Ira:
You say that these bills have failed over and over again. If I'm not
mistaken, several states that recognize same-sex marriage and/or have
non-discrimination laws protecting gays and lesbians *do* have religious
exceptions (as does the ENDA that passed the senate not long ago, only to
die in
Hillel:
The same sex marriage laws to which you refer do have exceptions, for
clergy, houses of worship, and (sometimes) for religious charities and
social services. Bob Tuttle and I analyze and collect some of that here:
Chip:
Thanks for the cite! I will take a look.
And just so I understand: are you asserting that *none* have adopted the
broader exceptions (wedding vendors, etc)?
On Wed, Feb 26, 2014 at 11:23 AM, Ira Lupu icl...@law.gwu.edu wrote:
Hillel:
The same sex marriage laws to which you refer do
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 at 11:28 AM, Hillel Y. Levin hillelle...@gmail.comwrote:
Chip:
Thanks for the cite! I will take a look.
And just so I
In light of the recent discussions of this issue on the list, and in light
the various proposals percolating in the states, I've got a question for
the group and a shameless plug.
First, the shameless plug -- I've just posted a new piece on the issue to
SSRN (it won't be in print until next year,
No state has gone that far yet, because the civil rights groups that were
initially in favor of RFRA (plus gay rights groups) are now lobbying against
these new bills.
As are many ministers, pastors, and business people who do not want to see the
free market Balkanized or compartmentalized
Jim is too humble to say so, but his article is required reading for anyone
interested in the Hobby Lobby, Notre Dame, and related cases.
Jim, this is necessarily speculative, but I think that some religious
traditionalists/conservatives view themselves as under attack from
secularist forces.
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
The either/or posited between secularism and faith is actually false as a
sociological matter in the United States. What is happening is that
conservative Christians and Jews who oppose gay marriage
are now facing opposition from religious believers. Secularism is a small
portion of the
I am tracking the state RFRAs and proposals and commentary on my site
www.RFRAperils.com
I welcome any and all commentary to add to the site.
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
Marci:
I am not sure whether you are responding to my email, but I don't believe
that I posited such an either/or proposition.
On Wed, Feb 26, 2014 at 12:49 PM, hamilto...@aol.com wrote:
The either/or posited between secularism and faith is actually false as
a sociological matter in the
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
(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
Hillel writes: I think that some religious traditionalists/conservatives
view themselves as under attack from secularist forces.
I think that is absolutely correct, and one of the major differences
between the 1960s and today is that this perspective now has a voice in the
legal academy. I think
Thanks for your e-mail, Kevin. I do appreciate your point and I worry about it.
If freedom of conscience or religious liberty becomes associated in people's
minds exclusively with one set of beliefs, there is a risk that people who hold
other views will begin to undervalue the right.
From:
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
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
Doug:
What do you mean by the following: Apart from marriage, there is no reason
to have religious exemptions for businesses from laws on sexual-orientation
discrimination.
There certainly are some religious people (I don't agree with them, but I
could give you their names and numbers) who would
I thought list participants would find the statistics below interesting. This
is what I meant when I said that opposition to same-sex marriage among believers
is declining. It is even more stark when one asks only the younger generation.
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
There certainly is reason to give particular protection to people with regard
to First Amendment expression, such as the creation of celebratory art by
wedding photographers. That is not an accommodation given as a matter of
legislative grace, at least not under any sensible approach to the
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
Mark:
I don't accept your account of wedding cake designers. As you surely know,
to qualify as expressive conduct, conduct must be both intended to convey a
particular message and to be interpreted by the community in such a manner.
I don't know why anyone would assume that baking a nice cake for
Would you suggest this if it were based on race rather than homosexuality?
If the wedding photographer thinks what the couple is doing, as in getting
married under the state's duly enacted laws, is seriously evil, he needs to
change jobs.
Become a school photographer, though I suppose then
There are very few people who object on religious grounds to selling
ordinary goods and services to gays. The sincerity of any such claim is
obviously suspect; some of them may be sincere but many of them probably are
not. It does not support anyone's gay sexual relationships to sell them
Don't the statistics that Marci cites make the argument for robust religious
freedom protection more rather than less compelling for those now or future
religious minorities who do not wish to be forced to participate in or
contribute business services to same-sex marriage ceremonies? Haven't
I believe my post dealt with creation of celebratory art by wedding
photographers, not bakers. More later but this isn't commercial speech. Getting
paid for expression (novelists? newspaper publishers?) doesn't make speech
commercial. Speech proposing a commercial transaction is commercial
“He needs to change jobs.” As I said, what you really want is for these people
to go out of business. Barring religious minorities from professions is a very
traditional form of religious persecution. Reviving it here is not the solution
to these disagreements over conscience.
I think that
Replace “same-sex marriage” with “interracial marriage” and I can’t imagine
you’d be making the same arguments – or suggest that business-owning opponents
of interracial marriage were being “suffocated by an orthodox majority that is
impatient or disdainful of accommodation.”
On Feb 26,
Apologies in advance if someone has already made this connection:
If I'm understanding it correctly, the effect of the Arizona bill would be
to establish or confirm that the Arizona RFRA *does exactly what Hobby
Lobby and its amici are arguing the federal RFRA already does* -- namely,
extend
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
I don't have any desire for them to go out of business, but if they are going
to be in business, they need to operate in the marketplace without
discrimination. If the business they have chosen does not fit their belief,
they need to adjust, or move on. No one is barring religious
The difference is that in the Hobby Lobby cases, the Defendant is the
government. In the AZ cases, both parties would be private, with the business
being able to raise RFRA against
the private actor.
Marci A. Hamilton
Paul R. Verkuil Chair in Public Law
Benjamin N. Cardozo School of Law
From: Salamanca, Paul E
Sent: Wednesday, February 26, 2014 3:28 PM
To: 'Law Religion issues for Law Academics'
Subject: RE: Subject: Re: Kansas/Arizona statutes protecting for-profit
businesses
Dear friends,
The Supreme Court has interpreted the First Amendment to do much more than
protect
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.
Every sorry episode in the long American history of suppression of religious
minorities has been justified by the undoubtedly sincere beliefs of the
majority at the time that they are on the right side of history and that taking
additional steps to force the minority to fall into line is merely
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
Prof. Laycock makes interesting points, as usual, but as to the
mirror-image one: Arizona actually does have laws on sexual-orientation
discrimination in employment. They're local laws, but they cover some
35% of Arizonans (i.e., around 2.3 million) in the cities of Phoenix,
Tucson, Flagstaff,
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
Glad to hear it. One more inaccurate fact from the press coverage here.
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
I’m glad that you agree that avoiding racial segregation is a compelling
interest (although that concession seems inconsistent with your prior post, in
which you claim that we as a society can’t really know much of anything). But I
still haven’t seen any good explanation for why discrimination
So is it wrong that the constitutional malice standard from NY Times v.
Sullivan applies not just when the government is a party, and not even just
when there is a government official who is a party, but even where the
plaintiff is a public figure who is not a government official? Under current
The argument is the same for race and homosexual persons. For most of America
at this point, discrimination based on sexual orientation is as ugly and wrong
as discrimination
based on race. Greg is correct-- the reasoning cannot be divorced. Also--your
depiction of alternatives is in fact
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
The ship that has clearly sailed on this list is respect. That scholars
and professional educators cannot refrain from calling their colleagues
bigots for holding a position that the President of the United States
himself held publicly (until being politically forced into evolving) less
than two
Assume neither bill becomes law. A wedding photographer hangs a sign in his
shop saying SSM is immoral but state civil rights require us to photograph SSM
ceremonies. A complaint of discrimination is filed. What result?
Marc Stern
From: Richard Dougherty [mailto:dou...@udallas.edu]
Sent:
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
These are not speech cases -- they are conduct cases. RFRA explicitly says
against the govt. it was never intended in text or meaning to apply between
private parties and I do not understand why anyone would want to foment such
discord. What RLUIPA has done to residential neighborhoods on
http://online.wsj.com/news/articles/SB10001424052702304255604579407784144050074?mod=djemalertNEWS
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At least under the New Mexico Supreme Court’s analysis in Elane Photography, I
believe the discrimination claim would be rejected.
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marc Stern
Sent: Wednesday, February 26, 2014 4:20 PM
To:
Doesn't Runyon v. McRary's resolution of the freedom of association
claim, understood to be derived from the first amendment's protection
of the freedom of speech, suggest the answer? The photographer has a
first amendment right of expression that would protect the display of
the sign,
Now New York Times is not a speech case. Will wonders never cease.
On Wed, 26 Feb 2014 19:51:14 -0500
Marci Hamilton hamilto...@aol.com wrote:
These are not speech cases -- they are conduct cases. RFRA explicitly says
against the govt. it was never intended in text or meaning to apply
List members who have not had the chance to read Tom and Doug’s brief in
Windsor/Perry should do so. It is a powerful statement in support of same-sex
couples right to marry while urging some accommodation of religious objectors
who consider same-sex marriage to be unacceptable for religious
I think I got confused by Marci's pronouns and misunderstood. Please delete the
post below.
On Wed, 26 Feb 2014 21:18:59 -0500
Douglas Laycock dlayc...@virginia.edu wrote:
Now New York Times is not a speech case. Will wonders never cease.
On Wed, 26 Feb 2014 19:51:14 -0500
Marci Hamilton
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