Re: Defamation of Religion
The issue of 'defamation of religion' and/or 'hate speech' is a disturbing and confusing legal development in the United Kingdom/ Europe. It may be something that Americans are not over concerned about due to the strong protections granted by US Courts under the First Amendment. However, I believe this is a subject that US academics and attorneys need to address. I make no political point, but if there is a Democratic White House and Congress this November, surely 'sexual orientation' will be added as a category of 'hate crime'. This development will be solely 'home grown' and it will no doubt be developed by US Courts upon European Human Rights decisions: Lawrence/Roper etc. Restrictions on speech arose first in Germany in holocaust denial laws (premised that the truth must be protected/preserved) in circumstances of a pressing social need; to the current situation where truth is not a defence if the subjective 'feelings' of the adherent are distressed. One of the disturbing aspects of 'hate crime' law in the United Kingdom is not the Court decisions (which are poor enough), but the abuse of the executive to determine free speech permissiveness. This is done by a combination of police intimidation (arrests, but subsequent release of individuals- Police has wide 'qualified immunity' in UK) and use of State agencies (BBC, awards, grants) to attack certain groups and protect others. Very often the Courts simply do not enter the free speech debate, but the citizen knows what can be said and what can't be said. Readers of the List will rest assured that these laws are never enforced in relation to criticism of the US/ Israel which are can be in openly racist terminology. The best that can be said is that it is an attempt by the State to micro manage debate and to civilise discourse, but in the light of the above, this is not convincing. One of the absurd aspects of the concept of 'defamation of religion' is the failure to recognise the inherently competitive nature of religions- surely the greatest freedom of all is the freedom to go to Hell and be told about it Paul Diamond, barrister. - Original Message - From: Esenberg, Richard [EMAIL PROTECTED] To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Cc: [EMAIL PROTECTED] Sent: Saturday, August 02, 2008 4:38 AM Subject: RE: LOFTON / Re: Defamation of Religion I agree with Robert Lipkin that there is a thing called religion as difficult as it may be to define. Certainly, there are things that we can confidently say is not it. What I have a problem with is the notion that government can be neutral among religions or between religion or irreligion. In particular, I am skeptical that a useful test for whether it has done so - or has managed to come as close as it ought to be expected to come - is captured by whether it has managed to avoid explicitly religious language. The state lost the Sklar and Montgomery cases because it started to talk theology (theology toward which I have a certain amount of sympathy) but I can't see why the insult to those who read their faith differently would be any less exclusionary or stigmatizing for the avoidance of such language. If I am a conservative evangelical who regards biblical injunctions against homosexuality as authoritive, I don't know why I would regard myself as not being made a disfavored member of the political community or not believing that the state has acted to disapprove my religious beliefs because it has avoided theological language. To the con! trary, if the state engages my sacred text (even, by my lights, erroneously), it has treated me with more respect than if it dismisses my views as bigotry. This is why, I think, the whole defamation against religion concept is an idea at war with itself. Those who promote the idea seem to want to say that, for example, the relatively mild criticisms of Islam by Mark Steyn (if you want a different villain than CAIR, try Bill Donahue) should bear legal sanction, But, if they are right, we need to know why secular messages that are far more inconsistent with or dismissive of integral religious presuppositions, e.g.,, assertions by the San Francisco Board of Examiners about Catholic teachings on homosexuality and the moral authority of the Church. Rick Esenberg Marquette University Law School From: [EMAIL PROTECTED] [EMAIL PROTECTED] On Behalf Of [EMAIL PROTECTED] [EMAIL PROTECTED] Sent: Friday, August 01, 2008 9:45 AM To: religionlaw@lists.ucla.edu Cc: [EMAIL PROTECTED] Subject: Re: LOFTON / Re: Defamation of Religion Insisting there is no religion--it doesn't exist--but religion can nevertheless be used intelligibly (as a bracket term). suggests that one has an elaborate argument that no matter how much it might vary from ordinary intelligent discourse, he or she wants to impose on
Special pleading
I hope I can be forgiven an on-topic, but somewhat unusual post. I have an acquaintance named Marc DeGirolami, who will be on the job market this fall. He's and SJD from Columbia, where he worked closely with Kent Greenawalt, and will be a visitor at Catholic this year. He's a specialist in law and religion, criminal law, and jurisprudence, and has already published a number of terrific law and religion pieces; I urge you to look for his SSRN page and see for yourself. Marc hasn't asked me to post this, but I love to see a really talented junior scholar come up from the ranks and would like to do everything I can to support getting him firmly ensconsed in the academy so he can continue to do the great work he promises to do. Airing his name on religionlaw may be a bit of a coals-to-Newcastle proposition, but if by chance you're looking for an entry-level person in any of these areas, he deserves serious consideration. If you know of any schools that might be looking in these areas, or if you want to reach him directly or have questions, do feel free to email me any time. Thanks and back to your regularly scheduled programming. Yours, Paul Horwitz University of Alabama School of Law (205) 348-6110 ___ 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.
Defamation of Religion - and Gay Rights
Mr. Diamond is quite right to see gay rights as the likely source of this kind of litigation in the US. Marc Stern at the American Jewish Congress (and a participant on this list) has a great chapter forthcoming on litigation to date over conflicts between gay rights and religious liberty and free speech. The Canadian speech cases are terrifying; the US cases in the context of schools and employment are quite unprotective of speech. This chapter is forthcoming in a book (now comes the shamless plug) that I edited with Robin Fretwell Wilson at Washington Lee and Anthony Picarello, formerly at the Becket Fund and now the General Counsel to the Conference of Catholic Bishops. The book is Same-Sex Marriage and Religious Liberty: Emerging Conflicts, due out from Rowman Littlefield in September. Other contributors are Jonathan Turley at GW, Chai Feldbum at Georgetown, Doug Kmiec at Pepperdine, Charles Reid at St. Thomas (Minnesota), Wilson, and me. I won't vouch for my chapter, but I'll vouch for all the others. Quoting Paul Diamond [EMAIL PROTECTED]: The issue of 'defamation of religion' and/or 'hate speech' is a disturbing and confusing legal development in the United Kingdom/ Europe. It may be something that Americans are not over concerned about due to the strong protections granted by US Courts under the First Amendment. However, I believe this is a subject that US academics and attorneys need to address. I make no political point, but if there is a Democratic White House and Congress this November, surely 'sexual orientation' will be added as a category of 'hate crime'. This development will be solely 'home grown' and it will no doubt be developed by US Courts upon European Human Rights decisions: Lawrence/Roper etc. Restrictions on speech arose first in Germany in holocaust denial laws (premised that the truth must be protected/preserved) in circumstances of a pressing social need; to the current situation where truth is not a defence if the subjective 'feelings' of the adherent are distressed. One of the disturbing aspects of 'hate crime' law in the United Kingdom is not the Court decisions (which are poor enough), but the abuse of the executive to determine free speech permissiveness. This is done by a combination of police intimidation (arrests, but subsequent release of individuals- Police has wide 'qualified immunity' in UK) and use of State agencies (BBC, awards, grants) to attack certain groups and protect others. Very often the Courts simply do not enter the free speech debate, but the citizen knows what can be said and what can't be said. Readers of the List will rest assured that these laws are never enforced in relation to criticism of the US/ Israel which are can be in openly racist terminology. The best that can be said is that it is an attempt by the State to micro manage debate and to civilise discourse, but in the light of the above, this is not convincing. One of the absurd aspects of the concept of 'defamation of religion' is the failure to recognise the inherently competitive nature of religions- surely the greatest freedom of all is the freedom to go to Hell and be told about it Paul Diamond, barrister. - Original Message - From: Esenberg, Richard [EMAIL PROTECTED] To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Cc: [EMAIL PROTECTED] Sent: Saturday, August 02, 2008 4:38 AM Subject: RE: LOFTON / Re: Defamation of Religion I agree with Robert Lipkin that there is a thing called religion as difficult as it may be to define. Certainly, there are things that we can confidently say is not it. What I have a problem with is the notion that government can be neutral among religions or between religion or irreligion. In particular, I am skeptical that a useful test for whether it has done so - or has managed to come as close as it ought to be expected to come - is captured by whether it has managed to avoid explicitly religious language. The state lost the Sklar and Montgomery cases because it started to talk theology (theology toward which I have a certain amount of sympathy) but I can't see why the insult to those who read their faith differently would be any less exclusionary or stigmatizing for the avoidance of such language. If I am a conservative evangelical who regards biblical injunctions against homosexuality as authoritive, I don't know why I would regard myself as not being made a disfavored member of the political community or not believing that the state has acted to disapprove my religious beliefs because it has avoided theological language. To the con! trary, if the state engages my sacred text (even, by my lights, erroneously), it has treated me with more respect than if it dismisses my views as bigotry. This is why, I think, the whole defamation against religion concept is an idea at war with itself. Those who promote the idea seem to want
RE: Defamation of Religion - and Gay Rights
If we are talking about conflicts between gay rights and religious liberty, surely this is a coin that has two sides to it. Many gay people see religion as a sword that is being used to burden their liberty and equality rights. What we have are two groups claiming basic autonomy rights with each seeing the other side as a threat to be feared, rather than as people with basic liberty interests that need to be accommodated. When we have one side of the debate arguing that to avoid potential conflicts with religious liberty, gay people should be denied the right to marry or to be protected against discrimination in housing or employment, it is hardly surprising that the other side of the debate is going to offer little sympathy to requests for religious accommodation. I continue to believe that while there will be some real conflicts between religious liberty and gay rights in some circumstances, at a deeper level these two assertions of autonomy rights can and should be positively reinforcing each other. Sometimes this happens inadvertantly. The Equal Access Act has helped gay and lesbian clubs be recognized at schools. But this was done over the opposition of people who insisted that freedom of association and speech for religious students should not be extended to gay students. To have the mutual reinforcement of autonomy rights (that I think is possible) happen at a broader, practical level, however, there would have to be some commitment to compromise from both sides. Minor shameless plug, Doug. Take a look at the Findlaw column (published last Friday) that Vik Amar and I recently wrote. Alan Brownstein UC Davis School of Law From: [EMAIL PROTECTED] [EMAIL PROTECTED] On Behalf Of Douglas Laycock [EMAIL PROTECTED] Sent: Monday, August 04, 2008 7:13 AM To: religionlaw@lists.ucla.edu Subject: Defamation of Religion - and Gay Rights Mr. Diamond is quite right to see gay rights as the likely source of this kind of litigation in the US. Marc Stern at the American Jewish Congress (and a participant on this list) has a great chapter forthcoming on litigation to date over conflicts between gay rights and religious liberty and free speech. The Canadian speech cases are terrifying; the US cases in the context of schools and employment are quite unprotective of speech. This chapter is forthcoming in a book (now comes the shamless plug) that I edited with Robin Fretwell Wilson at Washington Lee and Anthony Picarello, formerly at the Becket Fund and now the General Counsel to the Conference of Catholic Bishops. The book is Same-Sex Marriage and Religious Liberty: Emerging Conflicts, due out from Rowman Littlefield in September. Other contributors are Jonathan Turley at GW, Chai Feldbum at Georgetown, Doug Kmiec at Pepperdine, Charles Reid at St. Thomas (Minnesota), Wilson, and me. I won't vouch for my chapter, but I'll vouch for all the others. Quoting Paul Diamond [EMAIL PROTECTED]: The issue of 'defamation of religion' and/or 'hate speech' is a disturbing and confusing legal development in the United Kingdom/ Europe. It may be something that Americans are not over concerned about due to the strong protections granted by US Courts under the First Amendment. However, I believe this is a subject that US academics and attorneys need to address. I make no political point, but if there is a Democratic White House and Congress this November, surely 'sexual orientation' will be added as a category of 'hate crime'. This development will be solely 'home grown' and it will no doubt be developed by US Courts upon European Human Rights decisions: Lawrence/Roper etc. Restrictions on speech arose first in Germany in holocaust denial laws (premised that the truth must be protected/preserved) in circumstances of a pressing social need; to the current situation where truth is not a defence if the subjective 'feelings' of the adherent are distressed. One of the disturbing aspects of 'hate crime' law in the United Kingdom is not the Court decisions (which are poor enough), but the abuse of the executive to determine free speech permissiveness. This is done by a combination of police intimidation (arrests, but subsequent release of individuals- Police has wide 'qualified immunity' in UK) and use of State agencies (BBC, awards, grants) to attack certain groups and protect others. Very often the Courts simply do not enter the free speech debate, but the citizen knows what can be said and what can't be said. Readers of the List will rest assured that these laws are never enforced in relation to criticism of the US/ Israel which are can be in openly racist terminology. The best that can be said is that it is an attempt by the State to micro manage debate and to civilise discourse, but in the light of the above, this is not convincing. One of the absurd aspects of the concept of 'defamation of religion' is the failure
RE: Defamation of Religion - and Gay Rights
I agree with everything Alan says, and say much the same thing in my chapter. /Same-Sex Marriage and Religious Liberty/ is not opposed to gay rights or to same-sex marriage. About half the contributors are, and about half are not, but that disagreement among them is not the point of the book. The book assumes that same-sex marriage is or will be the law, and asks what issues that raises for religious liberty. Quoting Brownstein, Alan [EMAIL PROTECTED]: If we are talking about conflicts between gay rights and religious liberty, surely this is a coin that has two sides to it. Many gay people see religion as a sword that is being used to burden their liberty and equality rights. What we have are two groups claiming basic autonomy rights with each seeing the other side as a threat to be feared, rather than as people with basic liberty interests that need to be accommodated. When we have one side of the debate arguing that to avoid potential conflicts with religious liberty, gay people should be denied the right to marry or to be protected against discrimination in housing or employment, it is hardly surprising that the other side of the debate is going to offer little sympathy to requests for religious accommodation. I continue to believe that while there will be some real conflicts between religious liberty and gay rights in some circumstances, at a deeper level these two assertions of autonomy rights can and should be positively reinforcing each other. Sometimes this happens inadvertantly. The Equal Access Act has helped gay and lesbian clubs be recognized at schools. But this was done over the opposition of people who insisted that freedom of association and speech for religious students should not be extended to gay students. To have the mutual reinforcement of autonomy rights (that I think is possible) happen at a broader, practical level, however, there would have to be some commitment to compromise from both sides. Minor shameless plug, Doug. Take a look at the Findlaw column (published last Friday) that Vik Amar and I recently wrote. Alan Brownstein UC Davis School of Law From: [EMAIL PROTECTED] [EMAIL PROTECTED] On Behalf Of Douglas Laycock [EMAIL PROTECTED] Sent: Monday, August 04, 2008 7:13 AM To: religionlaw@lists.ucla.edu Subject: Defamation of Religion - and Gay Rights Mr. Diamond is quite right to see gay rights as the likely source of this kind of litigation in the US. Marc Stern at the American Jewish Congress (and a participant on this list) has a great chapter forthcoming on litigation to date over conflicts between gay rights and religious liberty and free speech. The Canadian speech cases are terrifying; the US cases in the context of schools and employment are quite unprotective of speech. This chapter is forthcoming in a book (now comes the shamless plug) that I edited with Robin Fretwell Wilson at Washington Lee and Anthony Picarello, formerly at the Becket Fund and now the General Counsel to the Conference of Catholic Bishops. The book is Same-Sex Marriage and Religious Liberty: Emerging Conflicts, due out from Rowman Littlefield in September. Other contributors are Jonathan Turley at GW, Chai Feldbum at Georgetown, Doug Kmiec at Pepperdine, Charles Reid at St. Thomas (Minnesota), Wilson, and me. I won't vouch for my chapter, but I'll vouch for all the others. Quoting Paul Diamond [EMAIL PROTECTED]: The issue of 'defamation of religion' and/or 'hate speech' is a disturbing and confusing legal development in the United Kingdom/ Europe. It may be something that Americans are not over concerned about due to the strong protections granted by US Courts under the First Amendment. However, I believe this is a subject that US academics and attorneys need to address. I make no political point, but if there is a Democratic White House and Congress this November, surely 'sexual orientation' will be added as a category of 'hate crime'. This development will be solely 'home grown' and it will no doubt be developed by US Courts upon European Human Rights decisions: Lawrence/Roper etc. Restrictions on speech arose first in Germany in holocaust denial laws (premised that the truth must be protected/preserved) in circumstances of a pressing social need; to the current situation where truth is not a defence if the subjective 'feelings' of the adherent are distressed. One of the disturbing aspects of 'hate crime' law in the United Kingdom is not the Court decisions (which are poor enough), but the abuse of the executive to determine free speech permissiveness. This is done by a combination of police intimidation (arrests, but subsequent release of individuals- Police has wide 'qualified immunity' in UK) and use of State agencies (BBC, awards, grants) to attack certain groups and protect others. Very often the Courts simply
Conflicts between religious exefcise and gay rights
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? -- Original message -- From: Brownstein, Alan [EMAIL PROTECTED] If we are talking about conflicts between gay rights and religious liberty, surely this is a coin that has two sides to it. Many gay people see religion as a sword that is being used to burden their liberty and equality rights. What we have are two groups claiming basic autonomy rights with each seeing the other side as a threat to be feared, rather than as people with basic liberty interests that need to be accommodated. When we have one side of the debate arguing that to avoid potential conflicts with religious liberty, gay people should be denied the right to marry or to be protected against discrimination in housing or employment, it is hardly surprising that the other side of the debate is going to offer little sympathy to requests for religious accommodation. I continue to believe that while there will be some real conflicts between religious liberty and gay rights in some circumstances, at a deeper level these two assertions of autonomy rights can and should be positively reinforcing each other. Sometimes this happens inadvertantly. The Equal Access Act has helped gay and lesbian clubs be recognized at schools. But this was done over the opposition of people who insisted that freedom of association and speech for religious students should not be extended to gay students. To have the mutual reinforcement of autonomy rights (that I think is possible) happen at a broader, practical level, however, there would have to be some commitment to compromise from both sides. Minor shameless plug, Doug. Take a look at the Findlaw column (published last Friday) that Vik Amar and I recently wrote. Alan Brownstein UC Davis School of Law From: [EMAIL PROTECTED] [EMAIL PROTECTED] On Behalf Of Douglas Laycock [EMAIL PROTECTED] Sent: Monday, August 04, 2008 7:13 AM To: religionlaw@lists.ucla.edu Subject: Defamation of Religion - and Gay Rights Mr. Diamond is quite right to see gay rights as the likely source of this kind of litigation in the US. Marc Stern at the American Jewish Congress (and a participant on this list) has a great chapter forthcoming on litigation to date over conflicts between gay rights and religious liberty and free speech. The Canadian speech cases are terrifying; the US cases in the context of schools and employment are quite unprotective of speech. This chapter is forthcoming in a book (now comes the shamless plug) that I edited with Robin Fretwell Wilson at Washington Lee and Anthony Picarello, formerly at the Becket Fund and now the General Counsel to the Conference of Catholic Bishops. The book is Same-Sex Marriage and Religious Liberty: Emerging Conflicts, due out from Rowman Littlefield in September. Other contributors are Jonathan Turley at GW, Chai Feldbum at Georgetown, Doug Kmiec at Pepperdine, Charles Reid at St. Thomas (Minnesota), Wilson, and me. I won't vouch for my chapter, but I'll vouch for all the 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
Conflicts between religious exefcise and gay rights and cudgels
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
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
RE: Conflicts between religious exefcise and gay rights
In connection with this discussion, it might be worth noting that prior to the Civil War there was, in the South, quite a vigorous discussion of why slavery was sancitoned by the Bible, and -- toward the end of the pre-war period -- why it was mandated by Ciristianity properly understood. Mark Tushnet William Nelson Cromwell Professor of Law Harvard Law School Areeda 223 Cambridge, MA 02138 ph: 617-496-4451 (office); 202-374-9571 (mobile) -Original Message- From: [EMAIL PROTECTED] on behalf of [EMAIL PROTECTED] Sent: Mon 8/4/2008 12:10 PM To: Law Religion issues for Law Academics; Law Religion issues for Law Academics Subject: Conflicts between religious exefcise and gay rights 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? -- Original message -- From: Brownstein, Alan [EMAIL PROTECTED] If we are talking about conflicts between gay rights and religious liberty, surely this is a coin that has two sides to it. Many gay people see religion as a sword that is being used to burden their liberty and equality rights. What we have are two groups claiming basic autonomy rights with each seeing the other side as a threat to be feared, rather than as people with basic liberty interests that need to be accommodated. When we have one side of the debate arguing that to avoid potential conflicts with religious liberty, gay people should be denied the right to marry or to be protected against discrimination in housing or employment, it is hardly surprising that the other side of the debate is going to offer little sympathy to requests for religious accommodation. I continue to believe that while there will be some real conflicts between religious liberty and gay rights in some circumstances, at a deeper level these two assertions of autonomy rights can and should be positively reinforcing each other. Sometimes this happens inadvertantly. The Equal Access Act has helped gay and lesbian clubs be recognized at schools. But this was done over the opposition of people who insisted that freedom of association and speech for religious students should not be extended to gay students. To have the mutual reinforcement of autonomy rights (that I think is possible) happen at a broader, practical level, however, there would have to be some commitment to compromise from both sides. Minor shameless plug, Doug. Take a look at the Findlaw column (published last Friday) that Vik Amar and I recently wrote. Alan Brownstein UC Davis School of Law From: [EMAIL PROTECTED] [EMAIL PROTECTED] On Behalf Of Douglas Laycock [EMAIL PROTECTED] Sent: Monday, August 04, 2008 7:13 AM To: religionlaw@lists.ucla.edu Subject: Defamation of Religion - and Gay Rights Mr. Diamond is quite right to see gay rights as the likely source of this kind of litigation in the US. Marc Stern at the American Jewish Congress (and a participant on this list) has a great chapter forthcoming on litigation to date over conflicts between gay rights and religious liberty and free speech. The Canadian speech cases are terrifying; the US cases in the context of schools and employment are quite unprotective of speech. This chapter is forthcoming in a book (now comes the shamless plug) that I edited with Robin Fretwell Wilson at Washington Lee and Anthony
Colorado Christian
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
Re: Conflicts between religious exefcise and gay rights
Mark is of course right about this. But I wonder if we might distinguish the two issues, as we might distinguish questions of racial discrimination generally from questions of gay rights -- including the question of whether there is Scriptural support for slavery, racial discrimination, racial integration, sex discrimination, and sexual orientation discrimination. And to Marty's point, I think Eugene has begun to point out the way in which this issue is something quite more than whether one is uncomfortable with gay marriage. It might be more akin to whether a health care provider (or, say, Catholic Charities) might be be coerced into violating a prohibition against contraception or abortion.Richard Dougherty -Original Message- From: Mark Tushnet [EMAIL PROTECTED] Sent 8/4/2008 1:27:41 PM To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu, Law Religion issues for Law Academics religionlaw@lists.ucla.edu, Law Religion issues for Law Academics religionlaw@lists.ucla.edu Subject: RE: Conflicts between religious exefcise and gay rightsIn connection with this discussion, it might be worth noting that prior to the Civil War there was, in the South, quite a vigorous discussion of why slavery was sancitoned by the Bible, and -- toward the end of the pre-war period -- why it was mandated by Ciristianity properly understood. Mark Tushnet William Nelson Cromwell Professor of Law Harvard Law School Areeda 223 Cambridge, MA 02138 ph: 617-496-4451 (office); 202-374-9571 (mobile) -Original Message- From: [EMAIL PROTECTED] on behalf of [EMAIL PROTECTED] Sent: Mon 8/4/2008 12:10 PM To: Law Religion issues for Law Academics; Law Religion issues for Law Academics Subject: Conflicts between religious exefcise and gay rights 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? -- Original message -- From: Brownstein, Alan [EMAIL PROTECTED] If we are talking about conflicts between gay rights and religious liberty, surely this is a coin that has two sides to it. Many gay people see religion as a sword that is being used to burden their liberty and equality rights. What we have are two groups claiming basic autonomy rights with each seeing the other side as a threat to be feared, rather than as people with basic liberty interests that need to be accommodated. When we have one side of the debate arguing that to avoid potential conflicts with religious liberty, gay people should be denied the right to marry or to be protected against discrimination in housing or employment, it is hardly surprising that the other side of the debate is going to offer little sympathy to requests for religious accommodation. I continue to believe that while there will be some real conflicts between religious liberty and gay rights in some circumstances, at a deeper level these two assertions of autonomy rights can and should be positively reinforcing each other. Sometimes this happens inadvertantly. The Equal Access Act has helped gay and lesbian clubs be recognized at schools. But this was done over the opposition of people who insisted that freedom of association and speech for religious students should not be extended to gay students. To have the mutual reinforcement of autonomy rights (that I think is possible) happen at a broader, practical level, however, there would have to be some commitment to compromise
Re: Conflicts between religious exefcise and gay rights and cudgels
Marty Lederman writes: I would respectfully dissent from [the] suggestion that ... 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. ... With all respect, I think this sort of standard libertarian skepticism about the need for antidiscrimination laws significantly trivializes very serious harms. - I don't doubt that some people suffer very serious harms from being denied goods and services based on their race, religion, sexual orientation, etc., even if they could easily obtain the same goods and services elsewhere. - Nor, however, do I doubt that some people suffer very serious harms from being forced to serve certain other people in certain ways, when providing such service contravenes their sincerely-held religious or moral beliefs. - And it seems to me that the harms in these two cases are essentially identical: some combination of emotional distress and moral outrage. - So is there any reason (other than where our personal sympathies happen to lie) to assume that the harm in case #1 is categorically greater than the harm in case #2, or that the harm in case #2 is categorically greater than the harm in case #1? - Given that equal protection and religious freedom are both constitutional values, is there any reason why the legal system should categorically favor the person suffering harm in case #1 over the person suffering harm in case #2, or the person suffering harm in case #2 over the person suffering harm in case #1? Art Spitzer ** Looking for a car that's sporty, fun and fits in your budget? Read reviews on AOL Autos. (http://autos.aol.com/cars-BMW-128-2008/expert-review?ncid=aolaut000517 ) ___ 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.
RE: Conflicts between religious exefcise and gay rights and cudgels
As someone who, in times long past, has had the decidedly miserable experience of looking unsuccessfully for jobs and housing for significant periods of time, I do not think for a moment that people can always find alternative jobs or quality places to live from other providers if they are subject to discrimination. Both jobs and housing can often be hard to find - even when you are not the victim of discrimination. But when alternative services are clearly available, I think Art is correct that what is at issue here is a clash of protected liberty and equality rights that cause somewhat analogous harms. As Vik Amar and I wrote recently, Just as it makes no sense to tell a gay person who has been living with his partner for 20 years to end his relationship, or to stop being gay and enter into a heterosexual relationship, it makes no sense to tell a devout religious individual to set his or her convictions about homosexual conduct aside and adopt a new religion. Neither the gay person nor the religious adherent can reasonably be asked to change who they are. Our laws should reflect that reality in both circumstances. Alan Brownstein From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of [EMAIL PROTECTED] Sent: Monday, August 04, 2008 4:35 PM To: religionlaw@lists.ucla.edu Subject: Re: Conflicts between religious exefcise and gay rights and cudgels Marty Lederman writes: I would respectfully dissent from [the] suggestion that ... 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. ... With all respect, I think this sort of standard libertarian skepticism about the need for antidiscrimination laws significantly trivializes very serious harms. - I don't doubt that some people suffer very serious harms from being denied goods and services based on their race, religion, sexual orientation, etc., even if they could easily obtain the same goods and services elsewhere. - Nor, however, do I doubt that some people suffer very serious harms from being forced to serve certain other people in certain ways, when providing such service contravenes their sincerely-held religious or moral beliefs. - And it seems to me that the harms in these two cases are essentially identical: some combination of emotional distress and moral outrage. - So is there any reason (other than where our personal sympathies happen to lie) to assume that the harm in case #1 is categorically greater than the harm in case #2, or that the harm in case #2 is categorically greater than the harm in case #1? - Given that equal protection and religious freedom are both constitutional values, is there any reason why the legal system should categorically favor the person suffering harm in case #1 over the person suffering harm in case #2, or the person suffering harm in case #2 over the person suffering harm in case #1? Art Spitzer ** ___ 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.
RE: Conflicts between religious exefcise and gay rights and cudgels
Vik Amar and Alan Brownstein offer an attractive point of middle, if not common, ground on these questions. If we are to live together in this diverse society, we need to find a means of resolving cultural differences other than by scorched earth tactics. Adopting a gay civil rights regime in which few or no exceptions are allowed for persons of religious conscience, as indeed has been proposed in some jurisdictions, is just as intolerant toward difference as was the former regime in which the only legal response to homosexuality was criminalization. To treat persons of traditional religious values as second-class citizens who may not participate in the economy without surrendering the values that form their identity is just as much of an injustice as was treating homosexuals as second-class citizens who should be excluded from public life. Seeking to find a place of balance and extending tolerance toward all is no mean task, but it is a worthy goal. If those who achieve political power in a particular jurisdiction, local or state, seek to balance the genuine needs of people individuals for access to the economy in terms of jobs, housing, and accommodations with the protection of individual religious consicence and respect for religious identity, then we all may better weather the present cultural transition, whether it may lead to a monumental changes of attitudes across the spectrum of mainstream America or instead to a place of more permanent difference. As we search for that balance, the traditional exemptions in civil rights laws based upon size/numbers and types of activities may serve us well. Moreover, as a practical matter, overly-expansive and rigid applications heighten cultural tensions. Thus, excepting smaller employers and family home rentals, for example, where the impingement of government-coerced directives upon intimate associations is most profound, serves to protect conscience at its most poignant while not having a meaningful effect on the economic availability of jobs and housing. By contrast, the larger scale employer and the multiple-unit apartment owner generally have a lesser claim on intrusion into private affairs and consicence and the exclusion of those from a civil rights law, even on religious conscience grounds, might undermine the protection of the laws. (Of course, all of this assumes that the proponents for new civil rights protections have made a concrete empirical record of the need for any expansion of protected categories to serve demonstrated economic needs, because the use of civil rights laws primarily to make a political or moral point is a dubious and arguably tyrannical exercise of governmental power). Similarly, the nature of the activity should be considered. The easiest case for exemptions covers religiously-affiliated institutions, as imposing a government standard on to a religious entity intrudes directly on religious liberty. Characterizing professional services as a public accommodation subject to civil rights rules also trespasses more closely on conscience, as requiring an individual to offer such personal services is much more burdensome than simply being required to open a restaurant or hotel to all consumers. The problem is a vexing one, on which people of good faith will differ in working out the details of solutions. But simply allowing whoever secures political power to impose their preferences through the use of governmental power, with disregard for the difficulties experienced by those who may become political minorities, is unworthy of our American tradition. Gregory Sisk Orestes A. Brownson Professor of Law University of St. Thomas School of Law (Minnesota) MSL 400, 1000 LaSalle Avenue Minneapolis, MN 55403-2005 651-962-4923 [EMAIL PROTECTED] http://personal2.stthomas.edu/GCSISK/sisk.html Publications: http://ssrn.com/author=44545 From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Brownstein, Alan Sent: Monday, August 04, 2008 7:06 PM To: Law Religion issues for Law Academics Subject: RE: Conflicts between religious exefcise and gay rights and cudgels As someone who, in times long past, has had the decidedly miserable experience of looking unsuccessfully for jobs and housing for significant periods of time, I do not think for a moment that people can always find alternative jobs or quality places to live from other providers if they are subject to discrimination. Both jobs and housing can often be hard to find - even when you are not the victim of discrimination. But when alternative services are clearly available, I think Art is correct that what is at issue here is a clash of protected liberty and equality rights that cause somewhat analogous harms. As Vik Amar and I wrote recently, Just as it makes no sense to tell a gay person who has been living with his partner for 20 years to end his relationship, or to stop being gay and enter into
