Thanks - I much appreciate the kind words! From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Alan Brownstein Sent: Thursday, June 14, 2012 8:07 PM To: Law & Religion issues for Law Academics Subject: RE: Religious exemptions in ND
Very well stated, Eugene. My compliments. Alan ________________________________ From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [religionlaw-boun...@lists.ucla.edu] on behalf of Volokh, Eugene [vol...@law.ucla.edu] Sent: Thursday, June 14, 2012 7:24 PM To: Law & Religion issues for Law Academics Subject: RE: Religious exemptions in ND 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
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