I also do not have any answers - especially on the underlying issue. But let me make two points about the bigotry vs. sincere religious belief question.
1) Does it change the argument any if one operates from the assumption that racism, despite our best efforts, continues to be tolerated (witness the most recent voting rights case)? This might suggest a prioritization argument (lets deal with racism first) or an interconnectedness argument (fighting the underlying racism in the country requires fighting sexism, homophobia etc.). Personally, I would lean toward the latter. 2) As a Jew, there is something about the "sincere religious believer" vs. phobic-hater distinction that doesn't make sense. Does it matter whether someone excludes me because I am subhuman or because my ancestors killed their savior. Both sound pretty bad. To me the motivation matters less than what I, as a Jew, are excluded from. As noted, I leave these questions for others. What worries me a bit is the idea that America is somehow a post-racial country. Sincerely, Rob Kahn Associate Professor University of St. Thomas School of Law Minneapolis, MN 55403 phone: (651) 962-4807 email: rak...@stthomas.edu<mailto:rak...@stthomas.edu> From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Conkle, Daniel O. Sent: Thursday, February 27, 2014 1:05 PM To: Law & Religion issues for Law Academics Subject: RE: bigotry and sincere religious belief I don't pretend to have definitive answers to the questions that Chip Lupu and Kevin Chen are discussing. But I think the proper resolution of this debate calls for sensitive judgments depending as much on history and prudence as on logic and prior precedent. In my view, the history of the United States - including the institution of slavery, the Civil War, the post-Civil War Amendments, Jim Crow, etc. - suggests that racial discrimination is indeed a matter of special and distinctive concern. Moreover, putting aside other forms of discrimination, opposition to same-sex marriage, including (as already noted) that of President Obama until very recently, cannot readily be equated with bigotry. President Obama explained his 2012 change of heart as reflecting a new understanding of his Christian faith, suggesting that his prior position likewise was informed by his religion. Religious perspectives change over time, and there is little doubt that they are changing quite rapidly - and will continue to change - in this context. So, during a period of breathtakingly rapid shifts in societal opinion, is now the time to declare that this is like racial discrimination and simply should not be tolerated? Or should religious objectors - at least for now, at least in the context of same-sex marriage - be given serious respect, as dissenting members of the community, including a presumption that their opposition is grounded in something other than bigotry? I tend toward the latter view. Dan Conkle ************************************************ Daniel O. Conkle Robert H. McKinney Professor of Law Indiana University Maurer School of Law Bloomington, Indiana 47405 (812) 855-4331 fax (812) 855-0555 e-mail con...@indiana.edu<mailto:con...@indiana.edu> ************************************************ From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu Sent: Thursday, February 27, 2014 12:15 PM To: Law & Religion issues for Law Academics Subject: Re: bigotry and sincere religious belief I'm very pleased that my former (and highly able) student Kevin Chen is now participating in the list discussion. He wasn't shy about disagreeing with me in class, and his intellectual temperament has remained the same. For now, I intend to wait for other answers (if any appear) to the bigotry vs. sincere religious belief problem before writing any more. This is a delicate question, but it seems to me that it lies at the heart of discussions we have been having. On Thu, Feb 27, 2014 at 10:39 AM, tznkai <tzn...@gmail.com<mailto:tzn...@gmail.com>> wrote: I'm not sure how easily it could be done, but we ought to try on some level to protect the sincere religious beliefs Because attempts to enforce by legal sanctions, acts obnoxious to go great a proportion of Citizens, tend to enervate the laws in general, and to slacken the bands of Society. If it be difficult to execute any law which is not generally deemed necessary or salutary, what must be the case, where it is deemed invalid and dangerous? And what may be the effect of so striking an example of impotency in the Government, on its general authority? Of course, the government may very well succeed in closing businesses and closeting anti-gay bigotry, but that may also be problematic. The sword of the state creates quite a mess when attempting to spread small-l liberal goals into illiberal communities of conviction, and illiberal factions often grow stronger, not weaker as a result. When that community is, say, an Amish community living mostly separate from wider society, the costs fall only within that insular community. When that community is a living, breathing part of our polity, the costs to us, as a whole are great. Separating religion from culture is a difficult, if not foolish errand, and likewise we should not read "genuine and free of conflating factors" into "sincere". Sincerity of belief is as simple as not lying, substantive burden is measured by the willingness of believers to pay the price of their beliefs. Pursuing comity in service of a just and stable society suggests we not ask believers to make the price of their conscience participation in our economy. On the whole the current trends in protecting religious liberty are a cure worse than the disease however, because no good defense of religious liberty turns free of constraint into free of cost. The sin of Ollie (and that of David Green) is not following his conscience, but seeking full coverage under aegis of state laws without any compromise. -Kevin Chen On Thu, Feb 27, 2014 at 9:45 AM, Ira Lupu <icl...@law.gwu.edu<mailto:icl...@law.gwu.edu>> wrote: 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<tel:%28202%29994-7053> 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 _______________________________________________ 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<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. -- 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
_______________________________________________ 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.
