Let me try to respond to Chip's post. He asks two basic questions. (1) Why should we be any more willing to accommodate religious objectors to same-sex marriage than we are willing to accommodate religious objectors to inter-racial marriages. (Or more broadly why accommodate discrimination against gays and lesbians any more than we would accommodate discrimination against African-Americans.) (2) Why should we try to distinguish between sincere religious objectors to same-sex marriage and bigots since it is probably impossible to do that accurately, mistakes will be made, and, in any case, the discrimination causes real harm to the victims of discrimination in both cases?
These are good questions, and they are hard questions that are not easy to answer. I do not dispute that there are strong arguments opposing my position on these issues. But I think my take on this issues is a serious position as well. First, let me make clear that I think Chip and I agree on some important points. Discrimination against gays and lesbians and racial discrimination is seriously hurtful. As Chip says, the "refusal to serve some classes of people hurts them (stigma, insult, indignity, and sometimes material harm)." I also think he recognizes that there are some sincere religious individuals who oppose same-sex marriage and are not bigots or "phobes." Finally, my guess is that he and I would probably agree on 90% or more of the situations in which a conflict might arise as to whether or not to accommodate religious objectors to same-sex marriage -- and we would agree that an accommodation is not warranted. On to Chip's questions. As to his first question, I do think race discrimination is a unique evil for American society and for our legal system. I think slavery was a horror that cannot be analogized easily to other wrongs -- terrible as the other wrongs may be. I think the system of violent subjugation of African-Americans for the following 100 years was staggering in its evil. And racism is not something that our society seems capable of putting behind us. It seems to have infected the marrow of our culture and society. I have been delighted with the speed with which American culture seems to be changing with regard to gay and lesbian rights and legal recognition of same sex marriages. I feel no such optimism with regard to the role played by racism in our society. Also, I do not think that race discrimination is the only model or analogy for thinking about civil rights laws and anti-discrimination principles. We prohibit discrimination against women, against religious minorities, against the disabled and the aged. Much of that discrimination has been and is invidious. It is hurtful in all the ways that discrimination against gays and lesbians is hurtful. Quite a bit of it has been justified by religious beliefs and some of it still is. When a religious nonprofit refuses to hire a Jew or a Moslem, they may be doing so based on sincere beliefs about the need for, and obligations requiring, religious homogeneity in the work environment. Or they may be prejudiced. Either way, being denied a job you need that you are qualified to perform because of your religion is a hurtful experience. Despite the harm caused by such discrimination, I think both as a constitutional matter and a statutory matter, we are willing to allow more exceptions, more accommodations of one kind or another, with regard to these other forms of discrimination than we are with race. So yes I think race is different. I also do not think I am suggesting that discrimination against gays and lesbians does not involve serious harm when I suggest that we should treat it as seriously as we treat discrimination against Jews and Moslems. Yet we accommodate discrimination on the basis of religion by religious nonprofits even for jobs that do not appear to have any serious religious dimension to them. And I do not believe that this discrimination is cost free. With regard to discrimination on grounds other than race, and in particular with regard to discrimination on the basis of religion, I think we accommodate discriminatory behavior on the part of religious individuals in some limited circumstances defined categorically. We don't do the kind of case by case sorting that Chip rejects as futile. Jim Oleske in a recent post wrote about how we accomplished that kind of sorting by separating the world into different spheres. Nonprofit religious organizations could discriminate but commercial enterprises were forbidden to do so. I think what we are trying to do is identify categories of circumstances where accommodations may be appropriate because the likelihood of sincere religious beliefs as opposed to bigotry is higher and the harm caused to the victims of discrimination is lower. I'm not sure that the nonprofit/for profit distinction is adequate to do this job. Nonprofit organizations can dominate areas of life. They often receive government support even if they are religiously affiliated. There are some religious nonprofit organizations that I think should not be permitted to discriminate against people of other faiths or gays and lesbians with regard to hiring, the provision of goods and services or anything else. Most of the time the religious nonprofit category works, but sometimes it doesn't and we can and should identify those circumstances and treat them differently. Similarly, most of the time, discrimination by for-profit businesses on the basis of religion or sexual orientation should be prohibited. But there are circumstances in which a business or professional caters to a limited religious market. Assume an orthodox Jewish caterer follows all the dietary and other regulations in providing her services. Her advertisements are through media directed at the Orthodox Jewish community. Her clients are overwhelmingly Orthodox Jews. And she believes her faith forbids her to cater an interfaith wedding or a same-sex wedding. Should we accommodate her religious beliefs? There is no reason to doubt her sincerity. She isn't singling out same-sex couples for discriminatory treatment. She refuses to facilitate or support a range of practices that violate her religious beliefs. I also believe that the harm caused by accommodating this Jewish caterer is lower than the harm caused by accommodating other businesses engaged in discrimination. Part of the reason is that this caterer operates in a very limited market. But there is another reason. A colleague of mine recently suggested to me that one of the reasons he was willing to accept discrimination against same-sex couples by nonprofit religious organizations, but not by for-profit businesses is that it was one thing to know that you can't enter a church's door and expect your relationship to be treated with respect. You know what the church stands for. It is another thing entirely when you enter a hotel or bakery that is ostensibly open to the public -- except that you and your spouse (and only you and your spouse) will be turned away when you ask for services. I think accommodating businesses that cater to a limited religious market is more like accommodating the religious organization. Indeed, I think these accommodations cause less harm than accommodating large religious organizations. Consider another example. A marriage counselor describes his professional services as Christian Marriage Counseling. His advertisements assure prospective clients that he will provide counseling that is consistent with the traditional Christian beliefs to which they adhere. He refuses to counsel same-sex couples or some couples of other faiths. He believes he is obligated by his faith to make people aware of their need to come closer to G-d to deal with their difficulties and he cannot do that for non-Christian couples or same-sex couples. Should we accommodate this counselor who may be very effective for his identified clientele, but will not serve couples of other faiths or same-sex couples? These aren't the only circumstances in which I think accommodations may be appropriate both for religious discrimination and discrimination against same-sex couples. But it is a place to begin the conversation. There are two other reasons why I think the attempt to sort out appropriate accommodations for objectors to same-sex marriage are worth the effort. First, as everyone knows, I think protecting religious liberty is important -- particularly for religious minorities. Arguments for refusing to protect religious liberty often make a sorting out kind of argument. How can we distinguish between the sincere conscientious objector and the coward? How do know whether a worker wants Saturday off to observe the Sabbath or to go to football games? If we allow Native Americans to use Peyote in their religious rituals, we will have to sort out requests to use other drugs in other allegedly religious ceremonies. And these other cases may involve multiple motives just as Chip describes. Conscientious objectors may be frightened of going off to war. The worker taking the Sabbath off may also be thinking of the extra time he gets to spend with his family. Maybe some people enjoy using peyote for religious purposes. Protecting religious liberty and freedom of conscience requires some willingness to make mistakes. Second, as I mentioned earlier, attitudes are changing in our society with regard to same-sex marriage. And one of the places where they are changing is in religious congregations. Religious people who support same-sex marriage are talking to other religious people who are struggling with this issue. I think that dialogue is important and it is supported and advanced when proponents of same-sex marriage express respect for sincerely held religious beliefs. I think calling people bigots shuts down the conversation. I understand that achieving recognition of same-sex marriages will depend in part on the exercise of political power. But won't it also depend on the power of persuasion. Maybe a willingness to discuss limited accommodations now may make it easier to reach the time when accommodations will be rarely requested in the future. Alan ________________________________ From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Ira Lupu [icl...@law.gwu.edu] Sent: Thursday, February 27, 2014 6:45 AM To: Law & Religion issues for Law Academics Subject: bigotry and sincere religious belief I think that the politics of the moment, and the conversations we have been having (including the reference to Jim Oleske's provocative article about religious objections to inter-racial marriage compared to religious objections to same sex marriage, Interracial and Same-Sex Marriages: Similar Religious Objections, Very Different Responses http://ssrn.com/abstract=2400100, call for a burrowing into the question of what constitutes anti-gay bigotry and how it can be distinguished from "sincere religious objections" to same sex intimacy. The history of racial prejudice in the U.S. suggests, and Jim's article shows, a deep structure of religious support and justification for segregation (and for slavery before that). Of course, many racial bigots did NOT rely on religious justifications (I grew up in upstate NY, surrounded by bigots who never mentioned religion in their racial attitudes). But some did so rely, and we now look back on them and say -- what? Their religion was insincere? Their religion was culturally determined by geography and Jim Crow culture? (Contrary to what has been written here, Jim Crow laws required segregation in government facilities, like public schools, but Jim Crow culture, NOT laws, kept lunch counters, hotels, restaurants, department stores, etc., segregated. The public accommodations title of the Civil Rights Act of 1964 may have pre-empted applications of trespass law, but it did not pre-empt state law requiring segregation in these private facilities.) All religions, in the social practices they prescribe, are culturally determined to some extent. So I think the lesson of the 1960's is that the commitment to Civil Rights meant we became legally indifferent to whether racism was based on sincere religious objections or not. Ollie from Ollie's BBQ had to serve people of color or "get out of the restaurant business," whether or not his desire to exclude had sincere religious components. So what is now different about the LGBT rights movement? Some merchants who want to refuse to serve have sincere religious objections; some just have hostility or discomfort (homophobia, if they are really afraid of the interaction; but surely, many racists had or have Negrophobia.) Should we try, with our very limited tools, to protect the sincere religious objectors but not protect the "phobes"? What will we do with sincere religious objectors who are also "phobes"? (I strongly suspect that a mixture of religion and phobia are operating within many objectors; their phobia is buried inside a religious justification, but maybe that's true for only some, not all.) Or do we give up this (to me, futile) attempt to use law as a instrument to sort the sincere objectors from the bigots and phobes, and say, rather simply -- we can't possibly make those distinctions, and in the end we don't care about them. Your refusal to serve some classes of people hurts them (stigma, insult, indignity, and sometimes material harm). Legitimating that refusal to serve in the wedding industry legitimates it elsewhere; equality is indivisible. So we are going to treat you like we treated Ollie -- we can't know if your refusal to serve is sincerely religious, homophobic, or some inseparable mixture. Whatever it is, get over it or "get out of the business." The attempts to treat the current situation as different from the racial question -- geographic concerns about the Old South; slavery makes race sui generis -- seem to me deeply unpersuasive. But I would be eager to hear answers to the questions I pose above about separating religion from phobia/bigotry, whether it is do-able, and why it is worth the doing, in light of the mistakes and harms that such a process will invite. -- Ira C. Lupu F. Elwood & Eleanor Davis Professor of Law, Emeritus George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 Co-author (with Professor Robert Tuttle) of "Secular Government, Religious People" (forthcoming, summer 2014, Wm. B. Eerdmans Pub. Co.) My SSRN papers are here: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg
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