Folks: Again, perhaps it might be good to avoid the rhetoric and focus on the serious issues involved. American law has long valued both equality and accommodation of religious beliefs. For many decades, it has valued equality in treatment by many nongovernmental actors (and incidentally in requiring certain nongovernmental actors to accommodate religious beliefs, but that isn’t involved here). The ACLU has likewise long valued both equality and accommodation of religious beliefs.
The difficulty is that the two often conflict. Sometimes the legal system deals with this conflict by categorically prioritizing liberty (from government intrusion) over equality of treatment by nongovernmental actors. For instance, the government may not tell people not to discriminate in marriage, or, I take it, in choice of friends, and no state laws purport to do that. The government may not bar parade organizers from discriminating against gay-themed floats, and (more controversially) may not bar the Boy Scouts from discriminating against gay scoutmasters. The Ninth Circuit recently interpreted California fair housing law as leaving people free to discriminate in choice of roommates, in part because of constitutional concerns. Likewise, statutes often don’t regulate even behavior that they constitutionally may regulate. The Civil Rights Act of 1964, for instance, left the vast majority of businesses and professionals free to choose whom to deal with as customers; it defined regulated places of public accommodation quite narrowly. Many state laws, though, have provided far broader coverage for the equality mandate, thus diminishing the business owners’ liberty (and, in the process, religious liberty). Other times the legal system deals with this conflict by categorically prioritizing equality of treatment over liberty; for instance, to my knowledge courts have consistently rejected religious exemption claims from employment discrimination laws, outside the context of (1) ministerial positions and (2) statutory exemptions (for instance, exemptions for religious institutions from bans on discrimination based on religion, and in some states based on sexual orientation). Still other times, though rarely, courts have carved out religious exemptions under RFRAs and similar state constitutional exemption regimes; to my knowledge, this has only happened with regard to housing discrimination based on marital status. How to resolve this is not, I think, easily answered either with assertions that “equality is a core American value” or that “religious freedom is a basic American value,” or claims that the ACLU doesn’t “value[] religious liberty” “for conservative faiths.” My sense is that we need to talk more specifically and concretely about the arguments for and against respecting equality and liberty in each instance. (For instance, the argument for letting taxi cab drivers discriminate based on passengers’ consumption of alcohol – a right that most other businesses enjoy, since it doesn’t involve discrimination based on the passenger’s religion, race, etc. – is different from the argument for letting landlords refuse to rent to atheists or from the argument for letting photographers choose which kinds of expressive works to create.) My sense is that it might also be helpful to talk about the level of law at which a religious exemption regime is enacted. A state statutory RFRA leaves the state legislature free to decide that some laws (including antidiscrimination laws) should be exempted from the RFRA, and to effectively overturn the results of court decisions that grant exemptions. A state constitutional RFRA doesn’t do that. A federal statutory RFRA that binds state governments, and a federal Sherbert/Yoder regime, make it even harder for legislatures who feel strongly about the need for an exemption-less equality rule to implement those views into law. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marc Stern Sent: Thursday, June 14, 2012 7:01 PM To: 'b...@jmcenter.org'; 'religionlaw@lists.ucla.edu' Subject: Re: Religious exemptions in ND In short,any accommodation of religion is a violation of the equal protection clause. This would certainly be a rather sharp departure from the "best" of the American tradition. And I guess I have been misinformed all these years in thinking religious freedom was a basic american value. Bob's message does illustrate the sharp divide between an egalitarian understanding of the constitution and a liberty based one-a divide highlighted today when the aclu sent the senate a letter calling for a very narrow religious exemption from ENDA. There was a time the aclu valued religious liberty. Apparently no longer for conservative faiths. Marc From: b...@jmcenter.org<mailto:b...@jmcenter.org> [mailto:b...@jmcenter.org] Sent: Thursday, June 14, 2012 09:12 PM To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>> Subject: Re: Religious exemptions in ND Eugene, Just to follow up on your point that some discrimination in the name of religion would possibly be tolerated under Measure 3 such as . . . 1. A pharmacist refusing to dispense Plan B. 2. A taxi cab driver refusing to transport a person with the smell of alcohol on his breath. 3. A professional photographer refusing to photograph an LGBT civil ceremony. 4. A landlord refusing to rent to an atheist. Seems to me this is precisely why Measure 3 was defeated and RFRAs should be repealed -- because equality is a core American value. Bob Ritter On June 14, 2012 at 7:29 PM "Volokh, Eugene" <vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>> wrote: Thanks for the pointer. Out of this list at the ndagainst3.com site, the only item that seems at all plausible is that “people could break” certain “laws on non-discrimination,” though almost certainly not employment discrimination laws. The other claims would either be almost certainly rejected under strict scrutiny, or (in some circumstances) would prevail even without a RFRA, for instance if a church employer is firing an unmarried pregnant minister or teacher of religion. A man could be allowed to marry girls, as young as 12, in the name of religion.1 An employer could fire an unmarried pregnant woman simply because of the employer’s religious beliefs.2 A man could claim domestic violence laws don’t apply to him because his religion teaches that a husband has the right to discipline his family, including his wife and children as he sees fit.3 A parent who believes in faith healing could to deny critical medical treatment to a seriously ill child.4 Simply put, people could break our laws in the name of religious freedom, including laws on non-discrimination, domestic violence and child abuse.5 Eugene > -----Original Message----- > From: > religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> > [mailto:religionlaw- > boun...@lists.ucla.edu<mailto:boun...@lists.ucla.edu>] On Behalf Of Eric > Rassbach > Sent: Thursday, June 14, 2012 1:42 PM > To: Law & Religion issues for Law Academics > Subject: RE: Religious exemptions in ND > > > These appear to be some of the main arguments against passing the RFRA: > > http://ndagainst3.com/get-the-facts/ > > As an example, this TV ad said that the RFRA would allow men to marry girls > aged 12 and to beat their spouses: > > http://www.youtube.com/watch?v=14ngnqGR6e8 > > There was also quite a bit of blog chatter about sharia law being enforced in > North Dakota as a result of passing the RFRA. > > I did not see anything about Native Americans.
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