Paul, As usual, you’ve managed to misunderstand me. If I get a chance, I’ll respond later today. Meanwhile I’ll just say that your interpretation of what I said is not reasonable, as you should have known.
Mark Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Paul Finkelman Sent: Wednesday, July 09, 2014 11:47 AM To: Law & Religion issues for Law Academics Subject: Re: What's at stake in the debate over the forthcoming LGBT nondiscrimination E.O.? What's at stake is the basic civil rights for millions of American who are fired, or never hired, for what they do in private and what they do outside the workplace. These are not much different than the arguments in the 1950s and 1960s that integration violated God's laws. Bob Jones University is best known only because it ended up in the Supreme Court, but these arguments were made quite frequently. The comment about the movies I suppose would be this: Hollywood makes stupid movies about stupid things all the time. Hollywood makes movies about unimportant things all the time. So isn't the issue this: if you only criticize movies that deal with gay issues, and you do it as a kind of harassment -- as opposed to a serious discussion of movies -- and you do it in front of colleagues you know are gay only to annoy them or harass them -- then perhaps it is harassment. If you discuss movies at work all the time, then it might not be. It strikes me as religious discrimination to assume that people who are religiously hostile to people because they are gay would necessarily discriminate against them. But, it would also be discrimination if someone is fired because the boss believes being gay is sinful. Since Christians believe that we are sinners, if the devout person fires someone for being gay or transgender (they are very different things) isn't that discrimination because they haven't fired all the other sinners, including themselves. Mark, you seem to be arguing that people can use religion to discriminate against anyone who they think is immoral. How far are you going to take that? Paul Finkelman ________________________________ From: "Scarberry, Mark" <mark.scarbe...@pepperdine.edu<mailto:mark.scarbe...@pepperdine.edu>> To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>> Sent: Wednesday, July 9, 2014 1:20 PM Subject: RE: What's at stake in the debate over the forthcoming LGBT nondiscrimination E.O.? Perhaps an initial question is the scope of the proposed regulations. The government has pushed “harassment” and “hostile work environment” definitions pretty hard. If a manager of a religiously-affiliated charity that had a federal contract to provide social services, let’s say food for the homeless, openly expressed the view that same-sex sexual conduct is immoral, could that be the basis for suit, or perhaps, in this context, for denial of a government contract? (One online anti-harassment training program – that employees of a religiously-affiliated institution in California were required to take – included a suggestion that an employee should be reported to the equal opportunity officer if he or she made a mildly disparaging comment about the movie Brokeback Mountain – “The studios should make movies about more important issues.”) A more important question is the extent of the requested exemptions. It appears that the requested exemptions would be limited to faith-based organizations. See the excerpt from the NY Times story set out below my signature line. The NY Times story’s reference to Hobby Lobby seems out of place and perhaps misleading. Here is a link to the letter: http://apps.washingtonpost.com/g/documents/local/letter-to-obama-from-faith-leaders/1072/. According to the letter, the requested exemptions are “comparable” to the exemptions included in the version of ENDA that passed the Senate. Even with regard to for-profit companies: If a gay employee was discharged, would the religious views of the employer or of a supervisor be admissible as evidence tending to show bias as a motivation for the discharge? I’m not sure what the law is in other anti-discrimination contexts; would membership in a religious group that thought women should not work outside the home be admissible in a suit for sex discrimination in employment? Is there a practicable and fair way to exclude evidence of such religious views or religious expression? But again, it appears that the requested exemption only would cover faith-based organizations. We all know that employers tend to be very risk averse. Would employment applications, and promotion reviews, include consideration of religious views with regard to same-sex sexual conduct? There are reports that JP Morgan Chase may ask employees to fill out non-anonymous surveys that include a question about whether the employee is “[a]n ally of the LGBT community,” whatever that may mean. See http://mirrorofjustice.blogs.com/mirrorofjustice/2014/06/brendan-eich-was-only-the-beginning-.html; http://www.washingtontimes.com/news/2014/jul/3/chase-bank-surveys-workers-see-if-theyre-ally-lgbt/. There is another issue, not dealing with exemptions or with the substance of the issue, but dealing with separation of powers and the assertion of executive authority. Congress rejected ENDA. May the President impose it on a not-insubstantial segment of the economy? Perhaps the answer is a clear yes, under federal contracting law, but some of us think the President already is asserting executive power in very troubling ways. Mark Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law Excerpt from NY Times story, http://www.nytimes.com/2014/07/09/us/faith-groups-seek-exclusion-from-bias-rule.html?hp&action=click&pgtype=Homepage&version=HpSum&module=first-column-region®ion=top-news&WT.nav=top-news&_r=2: “In a July 1 letter to Mr. Obama sent the day after the Hobby Lobby case was decided, leaders of religious groups wrote that ‘we are asking that an extension of protection for one group not come at the expense of faith communities whose religious identity and beliefs motivate them to serve those in need.’ “The effort behind the letter was organized by Michael Wear, who worked in the White House faith-based initiative during Mr. Obama’s first term and directed the president’s faith outreach in the 2012 campaign. The letter, which called for a ‘robust religious exemption’ in the planned executive order, was also signed by the Rev. Larry Snyder, the chief executive of Catholic Charities U.S.A.; Rick Warren, the pastor of Saddleback Church, who delivered the invocation at Mr. Obama’s first inauguration; and Stephan Bauman, president of World Relief, an aid group affiliated with the National Association of Evangelicals. “Mr. Wear, who calls himself an ‘ardent supporter’ of the president and a backer of gay rights, said in an interview on Tuesday that the rationale of the organizations was to maintain the rights they have. ‘We’re not trying to support crazy claims of religious privilege,’ he said.” [end of excerpt] From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Wednesday, July 09, 2014 8:46 AM To: Law & Religion issues for Law Academics Subject: What's at stake in the debate over the forthcoming LGBT nondiscrimination E.O.? The Times reports that the administration is getting heavy pressure from both sides on whether to craft a new religious exemption to the forthcoming E.O., which would prohibit all federal contractors from discriminating on the basis of sexual orientation: http://www.nytimes.com/2014/07/09/us/faith-groups-seek-exclusion-from-bias-rule.html?hp&action=click&pgtype=Homepage&version=HpSum&module=first-column-region®ion=top-news&WT.nav=top-news&_r=1 I wonder: What's at stake here, as a practical matter? Presumably there are few, if any, federal contractors that openly discriminate against LGBT employees. Except that . . . I can imagine there are some contractors that do not wish to offer benefits to same-sex spouses and civil union partners. Is that what the fuss is all about? If so, a subsidiary question: Such contractors presumably operate in at least some states and localities that already have LGBT employment nondiscrimination laws -- mini-ENDAs, in other words. Is there any resource that describes whether these state ENDAs contain religious exemptions and, if so, the scope of such exemptions? Have such exemptions been used principally to deny benefits to same-sex spouses/partners? And if most federal contractors are already prohibited from discriminating on the basis of sexual orientation under several state laws, what is their need for an exemption to the federal E.O.? _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu<mailto: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.
