The State has announced it will not be appealing the decision of the 10th Circuit invalidating its restriction on aiding students attending pervasively sectarian universities. Marc Stern
-----Original Message----- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of [EMAIL PROTECTED] Sent: Monday, August 04, 2008 1:09 PM To: Law & Religion issues for Law Academics; Law & Religion issues for Law Academics Cc: Volokh, Eugene Subject: Re: Conflicts between religious exefcise and gay rights and "cudgels" Well, I'm surely not trying to "pooh-pooh" the religious concerns -- merely to try to probe what, exactly, they are, and how much these conflicts differ from those we saw several decades ago. Eugene helpfully identifies two sorts of cases: 1. Businesses and property owners being required to treat gays and straights alike. OK, I suppose I must concede that I'm not very moved by these cases, nor do I see how those requirements impose much of a burden on religious exercise. Do they require some business owners (and employees) to do things they find distasteful -- often due to religiously inspired moral beliefs? Surely. And that's something to be regretted. But that's true of race-discrimination laws, as well -- and of basic laws prohibiting discrimination against unmarried couples, and on the basis of sexual orientation in the provision of commercial services. There are many, many shopkeepers, landlords, employers, restaurants, etc., that would rather not deal with gays and lesbians, often because of moral objections. (I doubt, in other words, that such discrimination is as "relatively infrequent" as Eugene assumes in many places in the United States.) Yet if legislatures conclude, as I do, that gays an! d lesbi ans should not be treated as second-class citizens in the commercial marketplace, then is there any really compelling reason to provide religious exemptions here that are not provided for analogous race and sex discrimination? On this one, by the way, I would respectfully dissent from Eugene's suggestion that gays and lesbians are seeking such equal treatment as a "cudgel" against religious objectors -- that we should question whether 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," suggesting that they are insisting upon equal treatment merely in order to commandeer objectors to act in ways that offend their sincere beliefs. With all respect, I think this sort of standard libertarian skepticism about the need for antidiscrimination laws significantly trivializes very serious harms. But that's obviously a much broader topic, somewhat far afield from what's germane to this list. 2. Loss of tax benefits. Is this a real concern? I assume that sexual-orientation-discrimination rules in this context will be treated more or less like sex-discrimination rules -- i.e., there will be reasonable exemptions for religious institutions, roughly in line with the ministerial exemption and the title IX exemptions. I can't see much of a prospect for a Bob-Jones-like, across-the-board, no-religious-exemptions denial of tax benefits here unless and until we see the day when discrimination against gays and lesbians is as categorically viewed as immoral as race discrimination is today. That is to say, not likely in my lifetime. In any event, I'm grateful to Eugene for making the potential conflicts a bit more concrete. -------------- Original message ---------------------- From: "Volokh, Eugene" <[EMAIL PROTECTED]> > I wonder which way the "cudgel" is being "exploited" (or maybe both). > It seems to me, for instance, that religiously motivated > discrimination in public accommodations against gays is likely also a > relatively infrequent phenomenon, partly because it's financially > costly to the discriminators, and one that is not terribly tangibly > harmful (setting aside symbolic offense, which cuts both ways) to the target. > Yet we see cases in which businesses and property owners that provide > services are being forced to provide such services to same-sex > commitment ceremonies (or being punished by the law for failure to > provide such services), even though I suspect that the same-sex > couples could get such services -- often at a higher quality -- just > fine from lots of other providers. Couldn't one equally say that > equal rights law is here being exploited as a cudgel against religious objectors? > > Moreover, the very analogy to race discrimination, it seems to me, > shows why the practical concerns of religious groups that have > religious objections to homosexuality are reasonable. Consider how > the law has treated even religious groups that engage in race > discrimination, for instance in cases such as Bob Jones. If the law > adopts the proposed analogy between sexual orientation discrimination > and race discrimination, it seems quite plausible that similar threats > (e.g., loss of tax exemptions) will manifest themselves. Likewise, > we're already seeing some denial of access to generally available > benefits to groups that discriminate in their leadership and > membership choices based on sexual orientation; if that's adopted, > denial of access to benefits in the form of generally available tax > exemptions -- a hugely important matter to all nonprofits -- could > well follow. Now I should stress that I personally don't share the > views of the religious groups that stand to lose from this, and in > some situations I condemn their views. But it's a mistake, I think, > to pooh-pooh their concerns as being about "relatively infrequent > phenomen[a]" that (the implication seems to go) shouldn't really matter to the groups. > > I should note that I agree that the concern is about sexual > orientation discrimination bans, and not same-sex marriage as such. > Still, I think one effect of the elimination of governmental > discrimination based on sexual orientation in marriage will have is an > extra push for enacting and broadening antidiscrimination laws. > Again, one could argue that this is a good effect; but it does seem > like a likely effect. Another effect may well be to lead to the > rejection of religious exemption claims under state RFRAs and similar > regimes; right now, one can argue -- in, for instance, the New Mexico > wedding photographer case -- that the state's failure to recognize > same-sex marriages undermines the state's compelling interest argument > for forcing wedding photographers to photograph same-sex marriages on > equal terms with legally recognized marriages. Once same-sex > marriages are legally recognized, that argument will no longer be present. > > Eugene > > Marty Lederman writes: > > > I tend to agree with Alan here. Of course there are occasional > > conflicts between gay rights laws and religious beliefs -- > > principally in the commercial sector, such as in employment and > > housing rentals -- but is it really that much of a problem? Or is > > it a relatively infrequent phenomenon that's being exploited as a > > cudgel against gay rights? (A sincere question -- I really am > > uncertain of the answer.) > > > > I'm confident -- given that Doug and Anthony edited it -- that the > > new volume will be very worthwhile, fair and balanced. But I have > > some trepidation that it, and similar > > endeavors, will unnecessarily add fuel to this fire. > > Same-sex *marriage* implicates religious liberty? How so? > > It's not as if religious congregations will soon be compelled to > > offer membership to gay and lesbian couples, right? Or that > > ministers will be legally required to perform same-sex ceremonies. > > > > Of course, many people are deeply uncomfortable with same-sex > > marriage, and such discomfort often derives from (or finds > > sustenance in) certain religious moral codes. But that's not the > > same as a threat to religious liberty, is it? > > > > I suppose this is one way of framing my doubts here: Is this very > > different from the religiously motivated resistance when > > race- and sex-discrimination norms began to find favor in the law? > > Twenty years from now, will today's religiously oriented opposition > > to gay rights seem as distant and odd to the ReligionLaw list of > > 2028 (still administered by Eugene, one can hope!) as the 1960's > > resistance to race-and sex-discrimination laws looks to us now? > _______________________________________________ > 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. _______________________________________________ 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.
