RE: Catholic Charities Issue

Newsom Michael Tue, 21 Mar 2006 10:51:20 -0800

Take a look at David M. Smolin, Regulating Religious and Cultural Conflict in a Postmodern America: A Response to Professor Perry, 76 Iowa L. Rev. 1067 (1991). Smolin, a member of the Religious Right, essentially says, among other things, that he wants to imprison gays because of their sexual conduct. I am not aware of any movement on the part of gays and lesbians to imprison Professor Smolin.

From: Douglas Laycock [mailto:[EMAIL PROTECTED]
Sent: Tuesday, March 21, 2006 1:31 PM
To: Law & Religion issues for Law Academics
Subject: RE: Catholic Charities Issue

I do not mean to include any right to harass and intimidate. I do mean to include the right to live their own lives in their faith, and to run their own institutions, which necessarily includes the right to exclude from those institutions persons who do not accept their faith or the obligations that faith imposes.

Douglas Laycock

University of Texas Law School

727 E. Dean Keeton St.

Austin, TX 78705

512-232-1341 (phone)

512-471-6988 (fax)

From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Newsom Michael
Sent: Tuesday, March 21, 2006 12:23 PM
To: Law & Religion issues for Law Academics
Subject: RE: Catholic Charities Issue

If by “religious liberty interests” you mean the right to exclude, and perhaps even to harass and intimidate, then I suppose that you have responded fairly to my query. If one were to define “religious liberty interests” differently, then your example does not respond to my query.

From: Douglas Laycock [mailto:[EMAIL PROTECTED] On Behalf Of Douglas Laycock
Sent: Monday, March 20, 2006 8:25 PM
To: Law & Religion issues for Law Academics
Subject: RE: Catholic Charities Issue

From: [EMAIL PROTECTED] on behalf of Newsom Michael
Sent: Mon 3/20/2006 3:36 PM
To: Law & Religion issues for Law Academics
Subject: RE: Catholic Charities Issue

Could you give some examples of gay rights proponents who ignore religious liberty interests?

Doug Laycock's Answer: The gay rights groups organized and led the charge that killed the Religious Liberty Protection Act. They did it by insisting on a categorical exception for all civil rights cases, refusing to rely on the case law that most civil rights claims present compelling interests or their own view that all civil rights claims present compelling interests.

"All civil rights claims" would include challenges to the male-only priesthood. It would include claims of religious discrimination in awarding membership or leadership positions in churches and other religions organizations. In Colorado and several other states, civil rights laws prohibit employers from penalizing "any lawful off-the-job activity." So civil rights claims include any immoral, disreputable, but not illegal act you can think of: using pornography, appearing in pornography, moonlighting at a strip club, gambling heavily in lawful casinos, and similar things that religious organizations might tell their employees not to do. The gay rights groups and the coalition of civil rights organizations they put together refused to listen to any such argument. They wanted a global and absolute civil rights exception; take it or leave it. They produced party-line gridlock over that demand.

At the state and local level, gay rights groups insist on no religious exemption to gay rights laws or, if they can't prevail on that, the narrowest possible definition of religious organizations entitled to exemption.

I assume it was these recurring political conflicts, in which gay rights groups simply refuse to recognize any competing interest on the other side of the table, that Alan Brownstein was referring to, and not the occasional acts of disruptive protest.

Of course many of the conservative religious groups are equally intractable with respect to gay rights organizations. In the particular case of RLPA, most of them were at all time willing to concede the compelling-interest exception, fully understanding that courts were likely to find a compelling interest in most civil rights claims.