subject:"Subject\: Re\: Kansas\/Arizona statutes protecting for\-profit businesses"

Marci's view of the rights of a Walmart under tha AZ bill, and likely even the 
Kansas bill, is simply wrong.

The application in the AZ bill to private enforcement by way of lawsuit simply 
prevents the state from doing indirectly what it can't do directly, cf. NY 
Times v. Sullivan, and makes clear something that already should be the case 
under RFRAs, properly interpreted.

It also is the case that the AZ bill is much more moderate/sweeping than the 
Kansas bill.

Mark S. Scarberry
Pepperdine University School of Law

Sent from my Verizon Wireless 4G LTE Smartphone


 Original message 
From: Marci Hamilton
Date:02/26/2014 5:09 AM (GMT-08:00)
To: Law  Religion issues for Law Academics
Cc: Law  Religion issues for Law Academics
Subject: Re: Subject: Re: Kansas/Arizona statutes protecting for-profit 
businesses

They are similar in that both involve believers demanding a right to 
discriminate due to their religion. If Hobby Lobby wins, Walmart will have an 
argument to get around prohibitions based on race, gender, religion, alienage, 
and disability.
All they need is one owner or board member and they are good to go.

But here is the critical difference: The state amendment proposals are not 
moderate or almost identical.  Rfra applies only against the govt.  These bills 
bring private vs private disputes under its misguided, concocted standard.   
It's ugly.

Marci



Sent from my iPhone

On Feb 25, 2014, at 11:58 PM, Michael Worley 
mwor...@byulaw.netmailto:mwor...@byulaw.net wrote:

I have.  My point is your condemnation is not compelling to me when we disagree 
on a either more moderate or almost identical bill (depending on how Hobby 
Lobby comes out).


On Tue, Feb 25, 2014 at 8:55 PM, 
hamilto...@aol.commailto:hamilto...@aol.com wrote:
Have you read anything I've written for the last 20 years?


Marci A. Hamilton
Paul R. Verkuil Chair in Public Law
Benjamin N. Cardozo School of Law
Yeshiva University
55 Fifth Avenue
New York, NY 10003
(212) 790-0215
http://sol-reform.comhttp://sol-reform.com/
[http://sol-reform.com/fb.png]https://www.facebook.com/professormarciahamilton?fref=ts
   [http://www.sol-reform.com/tw.png] https://twitter.com/marci_hamilton


-Original Message-
From: Michael Worley mwor...@byulaw.netmailto:mwor...@byulaw.net
To: Law  Religion issues for Law Academics 
religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu
Sent: Tue, Feb 25, 2014 8:47 pm
Subject: Re: Subject: Re: Kansas/Arizona statutes protecting for-profit 
businesses

Would you say the Federal RFRA is  egregious, Marci?


On Tue, Feb 25, 2014 at 6:38 PM, Marci Hamilton 
hamilto...@aol.commailto:hamilto...@aol.com wrote:
I have read them and both are egregious.

Sent from my iPhone

On Feb 25, 2014, at 6:15 PM, Scarberry, Mark 
mark.scarbe...@pepperdine.edumailto:mark.scarbe...@pepperdine.edu wrote:

The Arizona bill and the Kansas bill are very different. I don’t have time 
right now to discuss this further, but all you have to do is to read the bills. 
If you do, you will see that the arguments equating the two are simply and 
egregiously wrong. I hope no one will comment in any strong way without 
actually reading them.

Mark

Mark S. Scarberry
Professor of Law
Pepperdine Univ. School of Law



From: 
religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Greg Hamilton
Sent: Tuesday, February 25, 2014 1:55 PM
To: mich...@californialaw.orgmailto:mich...@californialaw.org; Law  Religion 
issues for Law Academics
Subject: RE: Subject: Re: Kansas/Arizona statutes protecting for-profit 
businesses

…and Alan has been championing this bill on the spot at the Arizona capitol. 
Sigh. I have fought him over it when he tried to push me into supporting the 
Idaho bill which was just as egregious as the Arizona bill, but perhaps more 
targeted.

Gregory W. Hamilton, President
Northwest Religious Liberty Association
5709 N. 20th Street
Ridgefield, WA 98642
Office: (360) 857-7040
Website: www.nrla.comhttp://www.nrla.com/

image001.jpghttp://www.nrla.com/

Championing Religious Freedom and Human Rights for All People of Faith

From: 
religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Michael Peabody
Sent: Tuesday, February 25, 2014 1:38 PM
To: religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu
Subject: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses

After reading the legislation, it's amazing how broadly it is drafted. It would 
seem to not only include permitting discrimination on the basis of sexual 
orientation or marital status, but also on the basis of religion.  It would 
make it very easy for any business with a religious inkling to refuse to 
accommodate the religious exercise of employees, or even terminate them on the 
basis of religious differences.

The Hobby Lobby case may go a long way in showing

RE: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses

That should have been much more moderate/less sweeping.

Mark

Mark S. Scarberry
Pepperdine University School of y


Sent from my Verizon Wireless 4G LTE Smartphone


 Original message 
From: Scarberry, Mark
Date:02/26/2014 6:47 AM (GMT-08:00)
To: Law  Religion issues for Law Academics
Subject: RE: Subject: Re: Kansas/Arizona statutes protecting for-profit 
businesses

Marci's view of the rights of a Walmart under tha AZ bill, and likely even the 
Kansas bill, is simply wrong.

The application in the AZ bill to private enforcement by way of lawsuit simply 
prevents the state from doing indirectly what it can't do directly, cf. NY 
Times v. Sullivan, and makes clear something that already should be the case 
under RFRAs, properly interpreted.

It also is the case that the AZ bill is much more moderate/sweeping than the 
Kansas bill.

Mark S. Scarberry
Pepperdine University School of Law

Sent from my Verizon Wireless 4G LTE Smartphone


 Original message 
From: Marci Hamilton
Date:02/26/2014 5:09 AM (GMT-08:00)
To: Law  Religion issues for Law Academics
Cc: Law  Religion issues for Law Academics
Subject: Re: Subject: Re: Kansas/Arizona statutes protecting for-profit 
businesses

They are similar in that both involve believers demanding a right to 
discriminate due to their religion. If Hobby Lobby wins, Walmart will have an 
argument to get around prohibitions based on race, gender, religion, alienage, 
and disability.
All they need is one owner or board member and they are good to go.

But here is the critical difference: The state amendment proposals are not 
moderate or almost identical.  Rfra applies only against the govt.  These bills 
bring private vs private disputes under its misguided, concocted standard.   
It's ugly.

Marci



Sent from my iPhone

On Feb 25, 2014, at 11:58 PM, Michael Worley 
mwor...@byulaw.netmailto:mwor...@byulaw.net wrote:

I have.  My point is your condemnation is not compelling to me when we disagree 
on a either more moderate or almost identical bill (depending on how Hobby 
Lobby comes out).


On Tue, Feb 25, 2014 at 8:55 PM, 
hamilto...@aol.commailto:hamilto...@aol.com wrote:
Have you read anything I've written for the last 20 years?


Marci A. Hamilton
Paul R. Verkuil Chair in Public Law
Benjamin N. Cardozo School of Law
Yeshiva University
55 Fifth Avenue
New York, NY 10003
(212) 790-0215
http://sol-reform.comhttp://sol-reform.com/
[http://sol-reform.com/fb.png]https://www.facebook.com/professormarciahamilton?fref=ts
   [http://www.sol-reform.com/tw.png] https://twitter.com/marci_hamilton


-Original Message-
From: Michael Worley mwor...@byulaw.netmailto:mwor...@byulaw.net
To: Law  Religion issues for Law Academics 
religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu
Sent: Tue, Feb 25, 2014 8:47 pm
Subject: Re: Subject: Re: Kansas/Arizona statutes protecting for-profit 
businesses

Would you say the Federal RFRA is  egregious, Marci?


On Tue, Feb 25, 2014 at 6:38 PM, Marci Hamilton 
hamilto...@aol.commailto:hamilto...@aol.com wrote:
I have read them and both are egregious.

Sent from my iPhone

On Feb 25, 2014, at 6:15 PM, Scarberry, Mark 
mark.scarbe...@pepperdine.edumailto:mark.scarbe...@pepperdine.edu wrote:

The Arizona bill and the Kansas bill are very different. I don’t have time 
right now to discuss this further, but all you have to do is to read the bills. 
If you do, you will see that the arguments equating the two are simply and 
egregiously wrong. I hope no one will comment in any strong way without 
actually reading them.

Mark

Mark S. Scarberry
Professor of Law
Pepperdine Univ. School of Law



From: 
religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Greg Hamilton
Sent: Tuesday, February 25, 2014 1:55 PM
To: mich...@californialaw.orgmailto:mich...@californialaw.org; Law  Religion 
issues for Law Academics
Subject: RE: Subject: Re: Kansas/Arizona statutes protecting for-profit 
businesses

…and Alan has been championing this bill on the spot at the Arizona capitol. 
Sigh. I have fought him over it when he tried to push me into supporting the 
Idaho bill which was just as egregious as the Arizona bill, but perhaps more 
targeted.

Gregory W. Hamilton, President
Northwest Religious Liberty Association
5709 N. 20th Street
Ridgefield, WA 98642
Office: (360) 857-7040
Website: www.nrla.comhttp://www.nrla.com/

image001.jpghttp://www.nrla.com/

Championing Religious Freedom and Human Rights for All People of Faith

From: 
religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Michael Peabody
Sent: Tuesday, February 25, 2014 1:38 PM
To: religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu
Subject: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses

After reading the legislation, it's amazing how broadly it is drafted. It would

Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses

2014-02-26 Thread Marci Hamilton

Mark-- does the AZ bill permit discrimination on gender and race by private 
businesses?

The RFRAs say explicitly they are good against the govt.  expanding to private 
parties is a huge leap.  Remember RFRAs are supposedly the return to 
constitutional protections.  The Constitution requires state action but the 
RFRAs are explicit in the need for a govt defendant.   It's not NYT v Sullivan

Marci

Sent from my iPhone

On Feb 26, 2014, at 9:45 AM, Scarberry, Mark mark.scarbe...@pepperdine.edu 
wrote:

 Marci's view of the rights of a Walmart under tha AZ bill, and likely even 
 the Kansas bill, is simply wrong.
 
 The application in the AZ bill to private enforcement by way of lawsuit 
 simply prevents the state from doing indirectly what it can't do directly, 
 cf. NY Times v. Sullivan, and makes clear something that already should be 
 the case under RFRAs, properly interpreted. 
 
 It also is the case that the AZ bill is much more moderate/sweeping than the 
 Kansas bill.
 
 Mark S. Scarberry
 Pepperdine University School of Law
 
 Sent from my Verizon Wireless 4G LTE Smartphone
 
 
  Original message 
 From: Marci Hamilton 
 Date:02/26/2014 5:09 AM (GMT-08:00) 
 To: Law  Religion issues for Law Academics 
 Cc: Law  Religion issues for Law Academics 
 Subject: Re: Subject: Re: Kansas/Arizona statutes protecting for-profit 
 businesses 
 
 They are similar in that both involve believers demanding a right to 
 discriminate due to their religion. If Hobby Lobby wins, Walmart will have an 
 argument to get around prohibitions based on race, gender, religion, 
 alienage, and disability.  
 All they need is one owner or board member and they are good to go.  
 
 But here is the critical difference: The state amendment proposals are not 
 moderate or almost identical.  Rfra applies only against the govt.  These 
 bills bring private vs private disputes under its misguided, concocted 
 standard.   It's ugly.
 
 Marci
 
 
 
 Sent from my iPhone
 
 On Feb 25, 2014, at 11:58 PM, Michael Worley mwor...@byulaw.net wrote:
 
 I have.  My point is your condemnation is not compelling to me when we 
 disagree on a either more moderate or almost identical bill (depending on 
 how Hobby Lobby comes out).
 
 
 On Tue, Feb 25, 2014 at 8:55 PM, hamilto...@aol.com wrote:
 Have you read anything I've written for the last 20 years?
 
 
 Marci A. Hamilton
 Paul R. Verkuil Chair in Public Law
 Benjamin N. Cardozo School of Law
 Yeshiva University
 55 Fifth Avenue
 New York, NY 10003 
 (212) 790-0215 
 http://sol-reform.com
 
 
 
 -Original Message-
 From: Michael Worley mwor...@byulaw.net
 To: Law  Religion issues for Law Academics religionlaw@lists.ucla.edu
 Sent: Tue, Feb 25, 2014 8:47 pm
 Subject: Re: Subject: Re: Kansas/Arizona statutes protecting for-profit 
 businesses
 
 Would you say the Federal RFRA is  egregious, Marci?
 
 
 On Tue, Feb 25, 2014 at 6:38 PM, Marci Hamilton hamilto...@aol.com wrote:
 I have read them and both are egregious.
 
 Sent from my iPhone
 
 On Feb 25, 2014, at 6:15 PM, Scarberry, Mark 
 mark.scarbe...@pepperdine.edu wrote:
 
 The Arizona bill and the Kansas bill are very different. I don’t have 
 time right now to discuss this further, but all you have to do is to read 
 the bills. If you do, you will see that the arguments equating the two 
 are simply and egregiously wrong. I hope no one will comment in any 
 strong way without actually reading them.
  
 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 Greg Hamilton
 Sent: Tuesday, February 25, 2014 1:55 PM
 To: mich...@californialaw.org; Law  Religion issues for Law Academics
 Subject: RE: Subject: Re: Kansas/Arizona statutes protecting for-profit 
 businesses
  
 …and Alan has been championing this bill on the spot at the Arizona 
 capitol. Sigh. I have fought him over it when he tried to push me into 
 supporting the Idaho bill which was just as egregious as the Arizona 
 bill, but perhaps more targeted.
  
 Gregory W. Hamilton, President
 Northwest Religious Liberty Association
 5709 N. 20th Street
 Ridgefield, WA 98642
 Office: (360) 857-7040
 Website: www.nrla.com
  
 image001.jpg
  
 Championing Religious Freedom and Human Rights for All People of Faith
  
 From: religionlaw-boun...@lists.ucla.edu 
 [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Michael Peabody
 Sent: Tuesday, February 25, 2014 1:38 PM
 To: religionlaw@lists.ucla.edu
 Subject: Subject: Re: Kansas/Arizona statutes protecting for-profit 
 businesses
  
 After reading the legislation, it's amazing how broadly it is drafted. It 
 would seem to not only include permitting discrimination on the basis of 
 sexual orientation or marital status, but also on the basis of religion.  
 It would make it very easy for any business with a religious inkling to 
 refuse to accommodate the religious exercise

Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses

2014-02-26 Thread Marci Hamilton

Mark-- please elaborate.   Can a Biblical white supremacist make an argument to 
refuse to serve a black person under the AZ bill?   How about the KS bill?
 And while we're at it, how about the GA bill?

I understand that the defenders of these bills have a long standing policy of 
not wanting to explain the details pf how the bill will work in operation, but 
that gambit is unethical in my view.   The burden is on the defenders of these 
new bills to explain how they improve our society by increasing opportunities 
to discriminate by religious actors.   

As I have said before the supporters of extreme religious liberty are morally 
responsible for the consequences of these laws/bills.   

Marci 

Sent from my iPhone

On Feb 26, 2014, at 10:03 AM, Scarberry, Mark mark.scarbe...@pepperdine.edu 
wrote:

 That should have been much more moderate/less sweeping.
 
 Mark
 
 Mark S. Scarberry
 Pepperdine University School of y
 
 
 Sent from my Verizon Wireless 4G LTE Smartphone
 
 
  Original message 
 From: Scarberry, Mark 
 Date:02/26/2014 6:47 AM (GMT-08:00) 
 To: Law  Religion issues for Law Academics 
 Subject: RE: Subject: Re: Kansas/Arizona statutes protecting for-profit   
 businesses 
 
 Marci's view of the rights of a Walmart under tha AZ bill, and likely even 
 the Kansas bill, is simply wrong.
 
 The application in the AZ bill to private enforcement by way of lawsuit 
 simply prevents the state from doing indirectly what it can't do directly, 
 cf. NY Times v. Sullivan, and makes clear something that already should be 
 the case under RFRAs, properly interpreted. 
 
 It also is the case that the AZ bill is much more moderate/sweeping than the 
 Kansas bill.
 
 Mark S. Scarberry
 Pepperdine University School of Law
 
 Sent from my Verizon Wireless 4G LTE Smartphone
 
 
  Original message 
 From: Marci Hamilton 
 Date:02/26/2014 5:09 AM (GMT-08:00) 
 To: Law  Religion issues for Law Academics 
 Cc: Law  Religion issues for Law Academics 
 Subject: Re: Subject: Re: Kansas/Arizona statutes protecting for-profit 
 businesses 
 
 They are similar in that both involve believers demanding a right to 
 discriminate due to their religion. If Hobby Lobby wins, Walmart will have an 
 argument to get around prohibitions based on race, gender, religion, 
 alienage, and disability.  
 All they need is one owner or board member and they are good to go.  
 
 But here is the critical difference: The state amendment proposals are not 
 moderate or almost identical.  Rfra applies only against the govt.  These 
 bills bring private vs private disputes under its misguided, concocted 
 standard.   It's ugly.
 
 Marci
 
 
 
 Sent from my iPhone
 
 On Feb 25, 2014, at 11:58 PM, Michael Worley mwor...@byulaw.net wrote:
 
 I have.  My point is your condemnation is not compelling to me when we 
 disagree on a either more moderate or almost identical bill (depending on 
 how Hobby Lobby comes out).
 
 
 On Tue, Feb 25, 2014 at 8:55 PM, hamilto...@aol.com wrote:
 Have you read anything I've written for the last 20 years?
 
 
 Marci A. Hamilton
 Paul R. Verkuil Chair in Public Law
 Benjamin N. Cardozo School of Law
 Yeshiva University
 55 Fifth Avenue
 New York, NY 10003 
 (212) 790-0215 
 http://sol-reform.com
 
 
 
 -Original Message-
 From: Michael Worley mwor...@byulaw.net
 To: Law  Religion issues for Law Academics religionlaw@lists.ucla.edu
 Sent: Tue, Feb 25, 2014 8:47 pm
 Subject: Re: Subject: Re: Kansas/Arizona statutes protecting for-profit 
 businesses
 
 Would you say the Federal RFRA is  egregious, Marci?
 
 
 On Tue, Feb 25, 2014 at 6:38 PM, Marci Hamilton hamilto...@aol.com wrote:
 I have read them and both are egregious.
 
 Sent from my iPhone
 
 On Feb 25, 2014, at 6:15 PM, Scarberry, Mark 
 mark.scarbe...@pepperdine.edu wrote:
 
 The Arizona bill and the Kansas bill are very different. I don’t have 
 time right now to discuss this further, but all you have to do is to read 
 the bills. If you do, you will see that the arguments equating the two 
 are simply and egregiously wrong. I hope no one will comment in any 
 strong way without actually reading them.
  
 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 Greg Hamilton
 Sent: Tuesday, February 25, 2014 1:55 PM
 To: mich...@californialaw.org; Law  Religion issues for Law Academics
 Subject: RE: Subject: Re: Kansas/Arizona statutes protecting for-profit 
 businesses
  
 …and Alan has been championing this bill on the spot at the Arizona 
 capitol. Sigh. I have fought him over it when he tried to push me into 
 supporting the Idaho bill which was just as egregious as the Arizona 
 bill, but perhaps more targeted.
  
 Gregory W. Hamilton, President
 Northwest Religious Liberty Association
 5709 N. 20th Street
 Ridgefield, WA 98642
 Office: (360) 857-7040
 Website

Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses

2014-02-26 Thread Ira Lupu

The Kansas bill is very sex/gender specific, and it is not limited to
weddings in any way.  The rights it creates appear absolute -- no interest
balancing.  It would authorize all sincere religious objectors (persons and
entities, including businesses) to treat same sex marriages/domestic
partnerships, etc. as invalid, even if the 14th A required states to
license and respect such weddings.  It would authorize those objectors to
refuse to provide goods and services to anyone celebrating such a wedding
or commitment, and to deny employee spousal benefits to same sex spouses.

The Arizona bill protects religious freedom generally, and the amendment
extends the coverage explicitly to corporations.The same religious
objections to same sex weddings, marriages, etc. could be made under the
Arizona bill.  The AZ bill permits a compelling interest defense (therefore
more moderate?), but it also is far more sweeping because it might be
invoked to justify religious discrimination against customers for all sorts
of reasons of status and identity, not limited to sexual orientation.

Unlike federal RFRA, which was a generic response to Smith and brought
together a coalition of many faith groups and civil liberties groups, the
amendments to Arizona RFRA are driven by exactly the same political forces
as are driving the Kansas bill and others -- opposition to same sex
marriage and same sex intimacy, and an assertion of rights of some business
people to refuse to serve that population.  So the good lawyers on this
list can parse the differences in the bills, and we can debate which bill
would do more harm or more good, if you think there is any good here to be
done.  But no one can credibly deny that all of these current legislative
efforts are driven by the same political forces.

Doug Laycock, Tom Berg, Rick Garnett, Robin Wilson and others have for the
past 5 years been pushing narrower versions of these bills in states that
have legislated same sex marriage (NY, Illinois, NH, Hawaii, etc.)  Those
efforts have failed over and over again.  Now that same sex marriage seems
headed for the red states, we are just seeing broader, uglier, less nuanced
versions of the same agenda.  I hope and expect that Gov. Brewer will veto
the AZ bill, and it's nice to see the fierce national pushback against
these attempts to legitimate anti-gay bigotry, whatever its religious
underpinnings in some cases.


On Wed, Feb 26, 2014 at 10:03 AM, Scarberry, Mark 
mark.scarbe...@pepperdine.edu wrote:

 That should have been much more moderate/less sweeping.

 Mark

 Mark S. Scarberry
 Pepperdine University School of y


 Sent from my Verizon Wireless 4G LTE Smartphone


  Original message 
 From: Scarberry, Mark
 Date:02/26/2014 6:47 AM (GMT-08:00)
 To: Law  Religion issues for Law Academics
 Subject: RE: Subject: Re: Kansas/Arizona statutes protecting for-profit
 businesses

 Marci's view of the rights of a Walmart under tha AZ bill, and likely even
 the Kansas bill, is simply wrong.

  The application in the AZ bill to private enforcement by way of lawsuit
 simply prevents the state from doing indirectly what it can't do directly,
 cf. NY Times v. Sullivan, and makes clear something that already should be
 the case under RFRAs, properly interpreted.

  It also is the case that the AZ bill is much more moderate/sweeping than
 the Kansas bill.

  Mark S. Scarberry
 Pepperdine University School of Law

  Sent from my Verizon Wireless 4G LTE Smartphone


  Original message 
 From: Marci Hamilton
 Date:02/26/2014 5:09 AM (GMT-08:00)
 To: Law  Religion issues for Law Academics
 Cc: Law  Religion issues for Law Academics
 Subject: Re: Subject: Re: Kansas/Arizona statutes protecting for-profit
 businesses

  They are similar in that both involve believers demanding a right to
 discriminate due to their religion. If Hobby Lobby wins, Walmart will have
 an argument to get around prohibitions based on race, gender, religion,
 alienage, and disability.
 All they need is one owner or board member and they are good to go.

  But here is the critical difference: The state amendment proposals are
 not moderate or almost identical.  Rfra applies only against the govt.
  These bills bring private vs private disputes under its misguided,
 concocted standard.   It's ugly.

  Marci



 Sent from my iPhone

 On Feb 25, 2014, at 11:58 PM, Michael Worley mwor...@byulaw.net wrote:

   I have.  My point is your condemnation is not compelling to me when we
 disagree on a either more moderate or almost identical bill (depending on
 how Hobby Lobby comes out).


 On Tue, Feb 25, 2014 at 8:55 PM, hamilto...@aol.com wrote:

 Have you read anything I've written for the last 20 years?


  Marci A. Hamilton
 Paul R. Verkuil Chair in Public Law
 Benjamin N. Cardozo School of Law
 Yeshiva University
 55 Fifth Avenue
 New York, NY 10003
 (212) 790-0215
 http://sol-reform.com
  https://www.facebook.com/professormarciahamilton?fref=ts   
 https

Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses

Ira:

You say that these bills have failed over and over again. If I'm not
mistaken, several states that recognize same-sex marriage and/or have
non-discrimination laws protecting gays and lesbians *do* have religious
exceptions (as does the ENDA that passed the senate not long ago, only to
die in the House). Am I mistaken? Do you (or anyone else here!) know of any
literature that canvasses the laws in this context?

Many thanks.


On Wed, Feb 26, 2014 at 11:07 AM, Ira Lupu icl...@law.gwu.edu wrote:

 The Kansas bill is very sex/gender specific, and it is not limited to
 weddings in any way.  The rights it creates appear absolute -- no interest
 balancing.  It would authorize all sincere religious objectors (persons and
 entities, including businesses) to treat same sex marriages/domestic
 partnerships, etc. as invalid, even if the 14th A required states to
 license and respect such weddings.  It would authorize those objectors to
 refuse to provide goods and services to anyone celebrating such a wedding
 or commitment, and to deny employee spousal benefits to same sex spouses.

 The Arizona bill protects religious freedom generally, and the amendment
 extends the coverage explicitly to corporations.The same religious
 objections to same sex weddings, marriages, etc. could be made under the
 Arizona bill.  The AZ bill permits a compelling interest defense (therefore
 more moderate?), but it also is far more sweeping because it might be
 invoked to justify religious discrimination against customers for all sorts
 of reasons of status and identity, not limited to sexual orientation.

 Unlike federal RFRA, which was a generic response to Smith and brought
 together a coalition of many faith groups and civil liberties groups, the
 amendments to Arizona RFRA are driven by exactly the same political forces
 as are driving the Kansas bill and others -- opposition to same sex
 marriage and same sex intimacy, and an assertion of rights of some business
 people to refuse to serve that population.  So the good lawyers on this
 list can parse the differences in the bills, and we can debate which bill
 would do more harm or more good, if you think there is any good here to be
 done.  But no one can credibly deny that all of these current legislative
 efforts are driven by the same political forces.

 Doug Laycock, Tom Berg, Rick Garnett, Robin Wilson and others have for the
 past 5 years been pushing narrower versions of these bills in states that
 have legislated same sex marriage (NY, Illinois, NH, Hawaii, etc.)  Those
 efforts have failed over and over again.  Now that same sex marriage seems
 headed for the red states, we are just seeing broader, uglier, less nuanced
 versions of the same agenda.  I hope and expect that Gov. Brewer will veto
 the AZ bill, and it's nice to see the fierce national pushback against
 these attempts to legitimate anti-gay bigotry, whatever its religious
 underpinnings in some cases.


 On Wed, Feb 26, 2014 at 10:03 AM, Scarberry, Mark 
 mark.scarbe...@pepperdine.edu wrote:

 That should have been much more moderate/less sweeping.

 Mark

 Mark S. Scarberry
 Pepperdine University School of y


 Sent from my Verizon Wireless 4G LTE Smartphone


  Original message 
 From: Scarberry, Mark
 Date:02/26/2014 6:47 AM (GMT-08:00)
 To: Law  Religion issues for Law Academics
 Subject: RE: Subject: Re: Kansas/Arizona statutes protecting for-profit
 businesses

 Marci's view of the rights of a Walmart under tha AZ bill, and likely
 even the Kansas bill, is simply wrong.

  The application in the AZ bill to private enforcement by way of lawsuit
 simply prevents the state from doing indirectly what it can't do directly,
 cf. NY Times v. Sullivan, and makes clear something that already should be
 the case under RFRAs, properly interpreted.

  It also is the case that the AZ bill is much more moderate/sweeping
 than the Kansas bill.

  Mark S. Scarberry
 Pepperdine University School of Law

  Sent from my Verizon Wireless 4G LTE Smartphone


  Original message 
 From: Marci Hamilton
 Date:02/26/2014 5:09 AM (GMT-08:00)
 To: Law  Religion issues for Law Academics
 Cc: Law  Religion issues for Law Academics
 Subject: Re: Subject: Re: Kansas/Arizona statutes protecting for-profit
 businesses

  They are similar in that both involve believers demanding a right to
 discriminate due to their religion. If Hobby Lobby wins, Walmart will have
 an argument to get around prohibitions based on race, gender, religion,
 alienage, and disability.
 All they need is one owner or board member and they are good to go.

  But here is the critical difference: The state amendment proposals are
 not moderate or almost identical.  Rfra applies only against the govt.
  These bills bring private vs private disputes under its misguided,
 concocted standard.   It's ugly.

  Marci



 Sent from my iPhone

 On Feb 25, 2014, at 11:58 PM, Michael Worley mwor...@byulaw.net wrote:

   I have.  My

Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses

2014-02-26 Thread Ira Lupu

Hillel:

The same sex marriage laws to which you refer do have exceptions, for
clergy, houses of worship, and (sometimes) for religious charities and
social services. Bob Tuttle and I analyze and collect some of that here:
http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1055context=njlsp.
There is plenty of other literature on the subject.

What has happened in other states since we wrote that piece is quite
consistent with the pattern we described. These laws do NOT contain
exceptions for wedding vendors (bakers, caterers, etc.) or public employees
like marriage license clerks. Those are the efforts that have failed, over
and over.

Chip (not Ira, please)

On Wed, Feb 26, 2014 at 11:13 AM, Hillel Y. Levin hillelle...@gmail.comwrote:

Ira:

You say that these bills have failed over and over again. If I'm not
mistaken, several states that recognize same-sex marriage and/or have
non-discrimination laws protecting gays and lesbians *do* have religious
exceptions (as does the ENDA that passed the senate not long ago, only to
die in the House). Am I mistaken? Do you (or anyone else here!) know of any
literature that canvasses the laws in this context?

Many thanks.

On Wed, Feb 26, 2014 at 11:07 AM, Ira Lupu icl...@law.gwu.edu wrote:

The Kansas bill is very sex/gender specific, and it is not limited to
weddings in any way. The rights it creates appear absolute -- no interest
balancing. It would authorize all sincere religious objectors (persons and
entities, including businesses) to treat same sex marriages/domestic
partnerships, etc. as invalid, even if the 14th A required states to
license and respect such weddings. It would authorize those objectors to
refuse to provide goods and services to anyone celebrating such a wedding
or commitment, and to deny employee spousal benefits to same sex spouses.

The Arizona bill protects religious freedom generally, and the amendment
extends the coverage explicitly to corporations.The same religious
objections to same sex weddings, marriages, etc. could be made under the
Arizona bill. The AZ bill permits a compelling interest defense (therefore
more moderate?), but it also is far more sweeping because it might be
invoked to justify religious discrimination against customers for all sorts
of reasons of status and identity, not limited to sexual orientation.

Unlike federal RFRA, which was a generic response to Smith and brought
together a coalition of many faith groups and civil liberties groups, the
amendments to Arizona RFRA are driven by exactly the same political forces
as are driving the Kansas bill and others -- opposition to same sex
marriage and same sex intimacy, and an assertion of rights of some business
people to refuse to serve that population. So the good lawyers on this
list can parse the differences in the bills, and we can debate which bill
would do more harm or more good, if you think there is any good here to be
done. But no one can credibly deny that all of these current legislative
efforts are driven by the same political forces.

Doug Laycock, Tom Berg, Rick Garnett, Robin Wilson and others have for
the past 5 years been pushing narrower versions of these bills in states
that have legislated same sex marriage (NY, Illinois, NH, Hawaii, etc.)
Those efforts have failed over and over again. Now that same sex marriage
seems headed for the red states, we are just seeing broader, uglier, less
nuanced versions of the same agenda. I hope and expect that Gov. Brewer
will veto the AZ bill, and it's nice to see the fierce national pushback
against these attempts to legitimate anti-gay bigotry, whatever its
religious underpinnings in some cases.

On Wed, Feb 26, 2014 at 10:03 AM, Scarberry, Mark
mark.scarbe...@pepperdine.edu wrote:

That should have been much more moderate/less sweeping.

Mark

Mark S. Scarberry
Pepperdine University School of y

Sent from my Verizon Wireless 4G LTE Smartphone

Original message
From: Scarberry, Mark
Date:02/26/2014 6:47 AM (GMT-08:00)
To: Law Religion issues for Law Academics
Subject: RE: Subject: Re: Kansas/Arizona statutes protecting for-profit
businesses

Marci's view of the rights of a Walmart under tha AZ bill, and likely
even the Kansas bill, is simply wrong.

The application in the AZ bill to private enforcement by way of
lawsuit simply prevents the state from doing indirectly what it can't do
directly, cf. NY Times v. Sullivan, and makes clear something that already
should be the case under RFRAs, properly interpreted.

It also is the case that the AZ bill is much more moderate/sweeping
than the Kansas bill.

Mark S. Scarberry
Pepperdine University School of Law

Sent from my Verizon Wireless 4G LTE Smartphone

Original message
From: Marci Hamilton
Date:02/26/2014 5:09 AM (GMT-08:00)
To: Law Religion issues for Law Academics
Cc: Law Religion issues for Law

Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses

Chip:

Thanks for the cite! I will take a look.

And just so I understand: are you asserting that *none* have adopted the
broader exceptions (wedding vendors, etc)?

On Wed, Feb 26, 2014 at 11:23 AM, Ira Lupu icl...@law.gwu.edu wrote:

Hillel:

Chip (not Ira, please)

On Wed, Feb 26, 2014 at 11:13 AM, Hillel Y. Levin
hillelle...@gmail.comwrote:

Ira:

Many thanks.

On Wed, Feb 26, 2014 at 11:07 AM, Ira Lupu icl...@law.gwu.edu wrote:

On Wed, Feb 26, 2014 at 10:03 AM, Scarberry, Mark
mark.scarbe...@pepperdine.edu wrote:

That should have been much more moderate/less sweeping.

Mark

Mark S. Scarberry
Pepperdine University School of y

Sent from my Verizon Wireless 4G LTE Smartphone

Original message
From: Scarberry, Mark
Date:02/26/2014 6:47 AM (GMT-08:00)
To: Law Religion issues for Law Academics
Subject: RE: Subject: Re: Kansas/Arizona statutes protecting for-profit
businesses

Marci's view of the rights of a Walmart under tha AZ bill, and likely
even the Kansas bill, is simply wrong.

It also is the case that the AZ bill is much more moderate/sweeping
than the Kansas bill.

Mark S. Scarberry
Pepperdine

Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses

2014-02-26 Thread Ira Lupu

That is my understanding, Hillel. If Doug, Rick, Tom, or others know of
counterexamples, I'm sure they will bring them forward to the list.

On Wed, Feb 26, 2014 at 11:28 AM, Hillel Y. Levin hillelle...@gmail.comwrote:

Chip:

Thanks for the cite! I will take a look.

And just so I understand: are you asserting that *none* have adopted the
broader exceptions (wedding vendors, etc)?

On Wed, Feb 26, 2014 at 11:23 AM, Ira Lupu icl...@law.gwu.edu wrote:

Hillel:

Chip (not Ira, please)

On Wed, Feb 26, 2014 at 11:13 AM, Hillel Y. Levin
hillelle...@gmail.comwrote:

Ira:

You say that these bills have failed over and over again. If I'm not
mistaken, several states that recognize same-sex marriage and/or have
non-discrimination laws protecting gays and lesbians *do* have
religious exceptions (as does the ENDA that passed the senate not long ago,
only to die in the House). Am I mistaken? Do you (or anyone else here!)
know of any literature that canvasses the laws in this context?

Many thanks.

On Wed, Feb 26, 2014 at 11:07 AM, Ira Lupu icl...@law.gwu.edu wrote:

The Arizona bill protects religious freedom generally, and the
amendment extends the coverage explicitly to corporations.The same
religious objections to same sex weddings, marriages, etc. could be made
under the Arizona bill. The AZ bill permits a compelling interest defense
(therefore more moderate?), but it also is far more sweeping because it
might be invoked to justify religious discrimination against customers for
all sorts of reasons of status and identity, not limited to sexual
orientation.

On Wed, Feb 26, 2014 at 10:03 AM, Scarberry, Mark
mark.scarbe...@pepperdine.edu wrote:

That should have been much more moderate/less sweeping.

Mark

Mark S. Scarberry
Pepperdine University School of y

Sent from my Verizon Wireless 4G LTE Smartphone

Original message
From: Scarberry, Mark
Date:02/26/2014 6:47 AM (GMT-08:00)
To: Law Religion issues for Law Academics
Subject: RE: Subject: Re: Kansas/Arizona statutes protecting
for-profit businesses

Marci's view of the rights of a Walmart under tha AZ bill, and likely
even the Kansas bill, is simply wrong.

The application in the AZ bill to private enforcement by way of
lawsuit simply prevents the state from doing indirectly what it can't do
directly, cf. NY Times v

RE: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses

2014-02-26 Thread Conkle, Daniel O.

Whether or not the bills are similar in political motivation or in potential 
impact, the media coverage of the Arizona bill – at least what I’ve seen – has 
been woeful.  Until reading the actual Kansas bill, I certainly thought that it 
was a specific accommodation for religious objectors to sexual-orientation 
discrimination claims and that its protection was absolute, not subject to 
balancing.

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



From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton
Sent: Wednesday, February 26, 2014 8:07 AM
To: Law  Religion issues for Law Academics
Cc: Law  Religion issues for Law Academics
Subject: Re: Subject: Re: Kansas/Arizona statutes protecting for-profit 
businesses

They are similar in that both involve believers demanding a right to 
discriminate due to their religion. If Hobby Lobby wins, Walmart will have an 
argument to get around prohibitions based on race, gender, religion, alienage, 
and disability.
All they need is one owner or board member and they are good to go.

But here is the critical difference: The state amendment proposals are not 
moderate or almost identical.  Rfra applies only against the govt.  These bills 
bring private vs private disputes under its misguided, concocted standard.   
It's ugly.

Marci



Sent from my iPhone

On Feb 25, 2014, at 11:58 PM, Michael Worley 
mwor...@byulaw.netmailto:mwor...@byulaw.net wrote:
I have.  My point is your condemnation is not compelling to me when we disagree 
on a either more moderate or almost identical bill (depending on how Hobby 
Lobby comes out).

On Tue, Feb 25, 2014 at 8:55 PM, 
hamilto...@aol.commailto:hamilto...@aol.com wrote:
Have you read anything I've written for the last 20 years?

Marci A. Hamilton
Paul R. Verkuil Chair in Public Law
Benjamin N. Cardozo School of Law
Yeshiva University
55 Fifth Avenue
New York, NY 10003
(212) 790-0215
http://sol-reform.comhttp://sol-reform.com/
[http://sol-reform.com/fb.png]https://www.facebook.com/professormarciahamilton?fref=ts
   [http://www.sol-reform.com/tw.png] https://twitter.com/marci_hamilton

-Original Message-
From: Michael Worley mwor...@byulaw.netmailto:mwor...@byulaw.net
To: Law  Religion issues for Law Academics 
religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu
Sent: Tue, Feb 25, 2014 8:47 pm
Subject: Re: Subject: Re: Kansas/Arizona statutes protecting for-profit 
businesses
Would you say the Federal RFRA is  egregious, Marci?

On Tue, Feb 25, 2014 at 6:38 PM, Marci Hamilton 
hamilto...@aol.commailto:hamilto...@aol.com wrote:
I have read them and both are egregious.

Sent from my iPhone

On Feb 25, 2014, at 6:15 PM, Scarberry, Mark 
mark.scarbe...@pepperdine.edumailto:mark.scarbe...@pepperdine.edu wrote:
The Arizona bill and the Kansas bill are very different. I don’t have time 
right now to discuss this further, but all you have to do is to read the bills. 
If you do, you will see that the arguments equating the two are simply and 
egregiously wrong. I hope no one will comment in any strong way without 
actually reading them.

Mark

Mark S. Scarberry
Professor of Law
Pepperdine Univ. School of Law



From: 
religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Greg Hamilton
Sent: Tuesday, February 25, 2014 1:55 PM
To: mich...@californialaw.orgmailto:mich...@californialaw.org; Law  Religion 
issues for Law Academics
Subject: RE: Subject: Re: Kansas/Arizona statutes protecting for-profit 
businesses

…and Alan has been championing this bill on the spot at the Arizona capitol. 
Sigh. I have fought him over it when he tried to push me into supporting the 
Idaho bill which was just as egregious as the Arizona bill, but perhaps more 
targeted.

Gregory W. Hamilton, President
Northwest Religious Liberty Association
5709 N. 20th Street
Ridgefield, WA 98642
Office: (360) 857-7040
Website: www.nrla.comhttp://www.nrla.com/

image001.jpghttp://www.nrla.com/

Championing Religious Freedom and Human Rights for All People of Faith

From: 
religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Michael Peabody
Sent: Tuesday, February 25, 2014 1:38 PM
To: religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu
Subject: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses

After reading the legislation, it's amazing how broadly it is drafted. It would 
seem to not only include permitting discrimination on the basis of sexual 
orientation or marital status, but also on the basis of religion.  It would 
make it very easy for any business with a religious inkling

Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses


I am tracking the state RFRAs and proposals and commentary on my site 
www.RFRAperils.com

I welcome any and all commentary to add to the site.

Marci


Marci A. Hamilton
Paul R. Verkuil Chair in Public Law
Benjamin N. Cardozo School of Law
Yeshiva University
55 Fifth Avenue
New York, NY 10003 
(212) 790-0215 
http://sol-reform.com





-Original Message-
From: Hillel Y. Levin hillelle...@gmail.com
To: Law  Religion issues for Law Academics religionlaw@lists.ucla.edu
Sent: Wed, Feb 26, 2014 11:14 am
Subject: Re: Subject: Re: Kansas/Arizona statutes protecting for-profit 
businesses


Ira: 


You say that these bills have failed over and over again. If I'm not mistaken, 
several states that recognize same-sex marriage and/or have non-discrimination 
laws protecting gays and lesbians do have religious exceptions (as does the 
ENDA that passed the senate not long ago, only to die in the House). Am I 
mistaken? Do you (or anyone else here!) know of any literature that canvasses 
the laws in this context?


Many thanks.




On Wed, Feb 26, 2014 at 11:07 AM, Ira Lupu icl...@law.gwu.edu wrote:

The Kansas bill is very sex/gender specific, and it is not limited to weddings 
in any way.  The rights it creates appear absolute -- no interest balancing.  
It would authorize all sincere religious objectors (persons and entities, 
including businesses) to treat same sex marriages/domestic partnerships, etc. 
as invalid, even if the 14th A required states to license and respect such 
weddings.  It would authorize those objectors to refuse to provide goods and 
services to anyone celebrating such a wedding or commitment, and to deny 
employee spousal benefits to same sex spouses.


The Arizona bill protects religious freedom generally, and the amendment 
extends the coverage explicitly to corporations.The same religious 
objections to same sex weddings, marriages, etc. could be made under the 
Arizona bill.  The AZ bill permits a compelling interest defense (therefore 
more moderate?), but it also is far more sweeping because it might be invoked 
to justify religious discrimination against customers for all sorts of reasons 
of status and identity, not limited to sexual orientation.


Unlike federal RFRA, which was a generic response to Smith and brought together 
a coalition of many faith groups and civil liberties groups, the amendments to 
Arizona RFRA are driven by exactly the same political forces as are driving the 
Kansas bill and others -- opposition to same sex marriage and same sex 
intimacy, and an assertion of rights of some business people to refuse to serve 
that population.  So the good lawyers on this list can parse the differences in 
the bills, and we can debate which bill would do more harm or more good, if you 
think there is any good here to be done.  But no one can credibly deny that all 
of these current legislative efforts are driven by the same political forces.  


Doug Laycock, Tom Berg, Rick Garnett, Robin Wilson and others have for the past 
5 years been pushing narrower versions of these bills in states that have 
legislated same sex marriage (NY, Illinois, NH, Hawaii, etc.)  Those efforts 
have failed over and over again.  Now that same sex marriage seems headed for 
the red states, we are just seeing broader, uglier, less nuanced versions of 
the same agenda.  I hope and expect that Gov. Brewer will veto the AZ bill, and 
it's nice to see the fierce national pushback against these attempts to 
legitimate anti-gay bigotry, whatever its religious underpinnings in some cases.





On Wed, Feb 26, 2014 at 10:03 AM, Scarberry, Mark 
mark.scarbe...@pepperdine.edu wrote:


That should have been much more moderate/less sweeping.


Mark


Mark S. Scarberry
Pepperdine University School of y






Sent from my Verizon Wireless 4G LTE Smartphone


 Original message 

From: Scarberry, Mark  
Date:02/26/2014  6:47 AM  (GMT-08:00) 
To: Law  Religion issues for Law Academics  


Subject: RE: Subject: Re: Kansas/Arizona statutes protecting for-profit 
businesses 


Marci's view of the rights of a Walmart under tha AZ bill, and likely even the 
Kansas bill, is simply wrong.


The application in the AZ bill to private enforcement by way of lawsuit simply 
prevents the state from doing indirectly what it can't do directly, cf. NY 
Times v. Sullivan, and makes clear something that already should be the case 
under RFRAs, properly interpreted. 


It also is the case that the AZ bill is much more moderate/sweeping than the 
Kansas bill.


Mark S. Scarberry
Pepperdine University School of Law



Sent from my Verizon Wireless 4G LTE Smartphone


 Original message 
From: Marci Hamilton 
Date:02/26/2014 5:09 AM (GMT-08:00) 
To: Law  Religion issues for Law Academics 
Cc: Law  Religion issues for Law Academics 
Subject: Re: Subject: Re: Kansas/Arizona statutes protecting for-profit 
businesses


They are similar in that both involve believers demanding a right

RE: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses

2014-02-26 Thread Alan Brownstein

I have been struck by the intensity of the blowback against both bills, but 
particularly the reaction to the Arizona bill. I think there are several 
possible rationales for the power of the reaction.

The breadth of the bill is one factor.

Another factor is that the business community is increasingly viewing these 
kinds of laws as having a significant downside and no upside. Economic forces 
may do more to advance marriage equality in red states than anything else.

I think a final factor is that legislation providing some accommodations for 
religious objectors to same-sex marriage can be justified by its supporters as 
a “live and let live” solution to conflicting views when these accommodations 
are proposed at the same time the legislature is considering recognizing 
same-sex marriages. The Kansas and Arizona bills are more like “live and let 
die” laws. These states have made it clear that they do not respect the liberty 
and equality interests of same-sex couples. In this context, the laws cannot be 
justified under a broader principle of attempting to reconcile conflicting 
interests. The laws seem to suggest that only certain people count in these 
states and deserve respect for their autonomy rights. For many people, that is 
a problematic message.

Alan

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Conkle, Daniel O.
Sent: Wednesday, February 26, 2014 9:35 AM
To: Law  Religion issues for Law Academics
Subject: RE: Subject: Re: Kansas/Arizona statutes protecting for-profit 
businesses

Whether or not the bills are similar in political motivation or in potential 
impact, the media coverage of the Arizona bill – at least what I’ve seen – has 
been woeful.  Until reading the actual Kansas bill, I certainly thought that it 
was a specific accommodation for religious objectors to sexual-orientation 
discrimination claims and that its protection was absolute, not subject to 
balancing.

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.edumailto:con...@indiana.edu


___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
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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 
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messages to others.

RE: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses

Many state laws on sexual-orientation discrimination, and most laws on
same-sex marriage, have exemptions for religious organizations. Some are
broad; some are narrow. Some are well drafted; some are a mess. But they are
mostly there.

 

Apart from marriage, there is no reason to have religious exemptions for
businesses from laws on sexual-orientation discrimination. No one in the
groups I have been part of has ever suggested such exemptions. Not even the
Kansas bill provides such exemptions.

 

Chip is correct that no state has explicitly exempted small businesses in
the wedding industry, or in marriage counseling, from its same-sex marriage
legislation. All those laws so far have been in blue states. The absurd
overreach in the Kansas bill, and the resulting political reaction to the
radically different Arizona bill, and some bills caught in the fire
elsewhere with less publicity, may indicate that such exemptions will be
hard to enact even in red states. Or maybe not, if someone offers a well
drafted, narrowly targeted bill when or after same-sex marriage becomes the
law in those states.

 

I agree with Alan Brownstein that part of the problem in red states is that
they want to protect religious conservatives without protecting gays and
lesbians. Not only does Arizona not have same-sex marriage; it doesn't have
a law on sexual-orientation discrimination. The blue states are mostly the
mirror image. More and more they want to protect gays and lesbians but not
religious conservatives. Hardly any political actors appear to be interested
in protecting the liberty of both sides.

 

 

Douglas Laycock

Robert E. Scott Distinguished Professor of Law

University of Virginia Law School

580 Massie Road

Charlottesville, VA  22903

 434-243-8546

 

From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Wednesday, February 26, 2014 11:34 AM
To: Law  Religion issues for Law Academics
Subject: Re: Subject: Re: Kansas/Arizona statutes protecting for-profit
businesses

 

That is my understanding, Hillel.  If Doug, Rick, Tom, or others know of
counterexamples, I'm sure they will bring them forward to the list.

 

On Wed, Feb 26, 2014 at 11:28 AM, Hillel Y. Levin hillelle...@gmail.com
mailto:hillelle...@gmail.com  wrote:

Chip:

 

Thanks for the cite! I will take a look.

 

And just so I understand: are you asserting that none have adopted the
broader exceptions (wedding vendors, etc)?

 

On Wed, Feb 26, 2014 at 11:23 AM, Ira Lupu icl...@law.gwu.edu
mailto:icl...@law.gwu.edu  wrote:

Hillel:

 

The same sex marriage laws to which you refer do have exceptions, for
clergy, houses of worship, and (sometimes) for religious charities and
social services.  Bob Tuttle and I analyze and collect some of that here:
http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=105
5
http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=10
55context=njlsp context=njlsp.  There is plenty of other literature on
the subject.

 

What has happened in other states since we wrote that piece is quite
consistent with the pattern we described.  These laws do NOT contain
exceptions for wedding vendors (bakers, caterers, etc.) or public employees
like marriage license clerks.  Those are the efforts that have failed, over
and over.

 

Chip (not Ira, please)

 

On Wed, Feb 26, 2014 at 11:13 AM, Hillel Y. Levin hillelle...@gmail.com
mailto:hillelle...@gmail.com  wrote:

Ira: 

 

You say that these bills have failed over and over again. If I'm not
mistaken, several states that recognize same-sex marriage and/or have
non-discrimination laws protecting gays and lesbians do have religious
exceptions (as does the ENDA that passed the senate not long ago, only to
die in the House). Am I mistaken? Do you (or anyone else here!) know of any
literature that canvasses the laws in this context?

 

Many thanks.

___
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: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses


Doug--What does such an exemption look like if it is available to anyone other 
than clergy or a house of worship?  Or is that limitation what makes it 
reasonable?
I take it that the Arizona law does not fit your well-drafted notion?

well drafted, narrowly targeted bill when or after same-sex marriage becomes 
the law in those states.


Marci


Marci A. Hamilton
Paul R. Verkuil Chair in Public Law
Benjamin N. Cardozo School of Law
Yeshiva University
55 Fifth Avenue
New York, NY 10003 
(212) 790-0215 
http://sol-reform.com





-Original Message-
From: Douglas Laycock dlayc...@virginia.edu
To: 'Law  Religion issues for Law Academics' religionlaw@lists.ucla.edu
Sent: Wed, Feb 26, 2014 2:24 pm
Subject: RE: Subject: Re: Kansas/Arizona statutes protecting for-profit 
businesses



Many state laws on sexual-orientation discrimination, and most laws on same-sex 
marriage, have exemptions for religious organizations. Some are broad; some are 
narrow. Some are well drafted; some are a mess. But they are mostly there.
 
Apart from marriage, there is no reason to have religious exemptions for 
businesses from laws on sexual-orientation discrimination. No one in the groups 
I have been part of has ever suggested such exemptions. Not even the Kansas 
bill provides such exemptions.
 
Chip is correct that no state has explicitly exempted small businesses in the 
wedding industry, or in marriage counseling, from its same-sex marriage 
legislation. All those laws so far have been in blue states. The absurd 
overreach in the Kansas bill, and the resulting political reaction to the 
radically different Arizona bill, and some bills caught in the fire elsewhere 
with less publicity, may indicate that such exemptions will be hard to enact 
even in red states. Or maybe not, if someone offers a well drafted, narrowly 
targeted bill when or after same-sex marriage becomes the law in those states.
 
I agree with Alan Brownstein that part of the problem in red states is that 
they want to protect religious conservatives without protecting gays and 
lesbians. Not only does Arizona not have same-sex marriage; it doesn’t have a 
law on sexual-orientation discrimination. The blue states are mostly the mirror 
image. More and more they want to protect gays and lesbians but not religious 
conservatives. Hardly any political actors appear to be interested in 
protecting the liberty of both sides.
 
 
Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA  22903
 434-243-8546
 
From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Wednesday, February 26, 2014 11:34 AM
To: Law  Religion issues for Law Academics
Subject: Re: Subject: Re: Kansas/Arizona statutes protecting for-profit 
businesses
 

That is my understanding, Hillel.  If Doug, Rick, Tom, or others know of 
counterexamples, I'm sure they will bring them forward to the list.

 

On Wed, Feb 26, 2014 at 11:28 AM, Hillel Y. Levin hillelle...@gmail.com wrote:

Chip:

 

Thanks for the cite! I will take a look.

 

And just so I understand: are you asserting that none have adopted the broader 
exceptions (wedding vendors, etc)?



 

On Wed, Feb 26, 2014 at 11:23 AM, Ira Lupu icl...@law.gwu.edu wrote:

Hillel:

 

The same sex marriage laws to which you refer do have exceptions, for clergy, 
houses of worship, and (sometimes) for religious charities and social services. 
 Bob Tuttle and I analyze and collect some of that here: 
http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1055context=njlsp.
  There is plenty of other literature on the subject.

 

What has happened in other states since we wrote that piece is quite consistent 
with the pattern we described.  These laws do NOT contain exceptions for 
wedding vendors (bakers, caterers, etc.) or public employees like marriage 
license clerks.  Those are the efforts that have failed, over and over.

 

Chip (not Ira, please)



 

On Wed, Feb 26, 2014 at 11:13 AM, Hillel Y. Levin hillelle...@gmail.com wrote:

Ira: 

 

You say that these bills have failed over and over again. If I'm not mistaken, 
several states that recognize same-sex marriage and/or have non-discrimination 
laws protecting gays and lesbians do have religious exceptions (as does the 
ENDA that passed the senate not long ago, only to die in the House). Am I 
mistaken? Do you (or anyone else here!) know of any literature that canvasses 
the laws in this context?

 

Many thanks.










___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
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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

Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses

Doug:

What do you mean by the following: Apart from marriage, there is no reason
to have religious exemptions for businesses from laws on sexual-orientation
discrimination.

There certainly are some religious people (I don't agree with them, but I
could give you their names and numbers) who would find it religiously
problematic to provide certain services to same-sex couples, including, for
example, renting them an apartment. Why is there no reason to accommodate
such people if you *would* accommodate the wedding photographer? Am I
misunderstanding you?

On Wed, Feb 26, 2014 at 2:22 PM, Douglas Laycock dlayc...@virginia.eduwrote:

Many state laws on sexual-orientation discrimination, and most laws on
same-sex marriage, have exemptions for religious organizations. Some are
broad; some are narrow. Some are well drafted; some are a mess. But they
are mostly there.

Apart from marriage, there is no reason to have religious exemptions for
businesses from laws on sexual-orientation discrimination. No one in the
groups I have been part of has ever suggested such exemptions. Not even the
Kansas bill provides such exemptions.

Chip is correct that no state has explicitly exempted small businesses in
the wedding industry, or in marriage counseling, from its same-sex marriage
legislation. All those laws so far have been in blue states. The absurd
overreach in the Kansas bill, and the resulting political reaction to the
radically different Arizona bill, and some bills caught in the fire
elsewhere with less publicity, may indicate that such exemptions will be
hard to enact even in red states. Or maybe not, if someone offers a well
drafted, narrowly targeted bill when or after same-sex marriage becomes the
law in those states.

I agree with Alan Brownstein that part of the problem in red states is
that they want to protect religious conservatives without protecting gays
and lesbians. Not only does Arizona not have same-sex marriage; it doesn't
have a law on sexual-orientation discrimination. The blue states are mostly
the mirror image. More and more they want to protect gays and lesbians but
not religious conservatives. Hardly any political actors appear to be
interested in protecting the liberty of both sides.

Douglas Laycock

Robert E. Scott Distinguished Professor of Law

University of Virginia Law School

580 Massie Road

Charlottesville, VA 22903

434-243-8546

*From:* religionlaw-boun...@lists.ucla.edu [mailto:
religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Ira Lupu
*Sent:* Wednesday, February 26, 2014 11:34 AM

*To:* Law Religion issues for Law Academics
*Subject:* Re: Subject: Re: Kansas/Arizona statutes protecting for-profit
businesses

That is my understanding, Hillel. If Doug, Rick, Tom, or others know of
counterexamples, I'm sure they will bring them forward to the list.

On Wed, Feb 26, 2014 at 11:28 AM, Hillel Y. Levin hillelle...@gmail.com
wrote:

Chip:

Thanks for the cite! I will take a look.

And just so I understand: are you asserting that *none* have adopted the
broader exceptions (wedding vendors, etc)?

On Wed, Feb 26, 2014 at 11:23 AM, Ira Lupu icl...@law.gwu.edu wrote:

Hillel:

Chip (not Ira, please)

On Wed, Feb 26, 2014 at 11:13 AM, Hillel Y. Levin hillelle...@gmail.com
wrote:

Ira:

Many thanks.

___
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.

--
Hillel Y. Levin
Associate Professor

RE: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses

It would protect only very small businesses that are personal extensions of the 
owner, and where the owner must necessarily be involved in providing the 
services.  We have suggested five or fewer employees as a workable rule that is 
in the right range. And it would have a hardship exception for local 
monopolies; ir you’re the only wedding planner in the area, you have to do 
same-sex weddings too. So it would guarantee that same-sex couples get the 
goods and services they need. It would not enable that couple to demand those 
services from the merchant who thinks that what they’re doing is seriously 
evil. 

 

They don’t want personal services from that guy anyway. They want that guy to 
change his religious views or to go out of business.

 

Douglas Laycock

Robert E. Scott Distinguished Professor of Law

University of Virginia Law School

580 Massie Road

Charlottesville, VA  22903

 434-243-8546

 

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com
Sent: Wednesday, February 26, 2014 2:32 PM
To: religionlaw@lists.ucla.edu
Subject: Re: Subject: Re: Kansas/Arizona statutes protecting for-profit 
businesses

 

Doug--What does such an exemption look like if it is available to anyone other 
than clergy or a house of worship?  Or is that limitation what makes it 
reasonable?

I take it that the Arizona law does not fit your well-drafted notion?

well drafted, narrowly targeted bill when or after same-sex marriage becomes 
the law in those states.

 

Marci

Marci A. Hamilton
Paul R. Verkuil Chair in Public Law
Benjamin N. Cardozo School of Law
Yeshiva University
55 Fifth Avenue
New York, NY 10003 
(212) 790-0215 
 http://sol-reform.com/ http://sol-reform.com

 https://www.facebook.com/professormarciahamilton?fref=ts 
https://twitter.com/marci_hamilton  

-Original Message-
From: Douglas Laycock  mailto:dlayc...@virginia.edu dlayc...@virginia.edu
To: 'Law  Religion issues for Law Academics'  
mailto:religionlaw@lists.ucla.edu religionlaw@lists.ucla.edu
Sent: Wed, Feb 26, 2014 2:24 pm
Subject: RE: Subject: Re: Kansas/Arizona statutes protecting for-profit 
businesses

Many state laws on sexual-orientation discrimination, and most laws on same-sex 
marriage, have exemptions for religious organizations. Some are broad; some are 
narrow. Some are well drafted; some are a mess. But they are mostly there.

 

Apart from marriage, there is no reason to have religious exemptions for 
businesses from laws on sexual-orientation discrimination. No one in the groups 
I have been part of has ever suggested such exemptions. Not even the Kansas 
bill provides such exemptions.

 

Chip is correct that no state has explicitly exempted small businesses in the 
wedding industry, or in marriage counseling, from its same-sex marriage 
legislation. All those laws so far have been in blue states. The absurd 
overreach in the Kansas bill, and the resulting political reaction to the 
radically different Arizona bill, and some bills caught in the fire elsewhere 
with less publicity, may indicate that such exemptions will be hard to enact 
even in red states. Or maybe not, if someone offers a well drafted, narrowly 
targeted bill when or after same-sex marriage becomes the law in those states.

 

I agree with Alan Brownstein that part of the problem in red states is that 
they want to protect religious conservatives without protecting gays and 
lesbians. Not only does Arizona not have same-sex marriage; it doesn’t have a 
law on sexual-orientation discrimination. The blue states are mostly the mirror 
image. More and more they want to protect gays and lesbians but not religious 
conservatives. Hardly any political actors appear to be interested in 
protecting the liberty of both sides.

 

 

Douglas Laycock

Robert E. Scott Distinguished Professor of Law

University of Virginia Law School

580 Massie Road

Charlottesville, VA  22903

 434-243-8546

 

From:  mailto:religionlaw-boun...@lists.ucla.edu 
religionlaw-boun...@lists.ucla.edu [ 
mailto:religionlaw-boun...@lists.ucla.edu? 
mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Wednesday, February 26, 2014 11:34 AM
To: Law  Religion issues for Law Academics
Subject: Re: Subject: Re: Kansas/Arizona statutes protecting for-profit 
businesses

 

That is my understanding, Hillel.  If Doug, Rick, Tom, or others know of 
counterexamples, I'm sure they will bring them forward to the list.

 

On Wed, Feb 26, 2014 at 11:28 AM, Hillel Y. Levin  
mailto:hillelle...@gmail.com hillelle...@gmail.com wrote:

Chip:

 

Thanks for the cite! I will take a look.

 

And just so I understand: are you asserting that none have adopted the broader 
exceptions (wedding vendors, etc)?

 

On Wed, Feb 26, 2014 at 11:23 AM, Ira Lupu  mailto:icl...@law.gwu.edu 
icl...@law.gwu.edu wrote:

Hillel:

 

The same sex marriage laws to which you refer do have exceptions, for clergy, 
houses

RE: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses

There certainly is reason to give particular protection to people with regard 
to First Amendment expression, such as the creation of celebratory art by 
wedding photographers. That is not an accommodation given as a matter of 
legislative grace, at least not under any sensible approach to the First 
Amendment.

It is a separate question whether others' religious conscience should be 
protected by accommodations under the regime created by Employment Division 
v. Smith.

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 Hillel Y. Levin
Sent: Wednesday, February 26, 2014 11:49 AM
To: Law  Religion issues for Law Academics
Subject: Re: Subject: Re: Kansas/Arizona statutes protecting for-profit 
businesses

Doug:

What do you mean by the following: Apart from marriage, there is no reason to 
have religious exemptions for businesses from laws on sexual-orientation 
discrimination.

There certainly are some religious people (I don't agree with them, but I could 
give you their names and numbers) who would find it religiously problematic to 
provide certain services to same-sex couples, including, for example, renting 
them an apartment. Why is there no reason to accommodate such people if you 
would accommodate the wedding photographer? Am I misunderstanding you?

On Wed, Feb 26, 2014 at 2:22 PM, Douglas Laycock 
dlayc...@virginia.edumailto:dlayc...@virginia.edu wrote:
Many state laws on sexual-orientation discrimination, and most laws on same-sex 
marriage, have exemptions for religious organizations. Some are broad; some are 
narrow. Some are well drafted; some are a mess. But they are mostly there.

Apart from marriage, there is no reason to have religious exemptions for 
businesses from laws on sexual-orientation discrimination. No one in the groups 
I have been part of has ever suggested such exemptions. Not even the Kansas 
bill provides such exemptions.

Chip is correct that no state has explicitly exempted small businesses in the 
wedding industry, or in marriage counseling, from its same-sex marriage 
legislation. All those laws so far have been in blue states. The absurd 
overreach in the Kansas bill, and the resulting political reaction to the 
radically different Arizona bill, and some bills caught in the fire elsewhere 
with less publicity, may indicate that such exemptions will be hard to enact 
even in red states. Or maybe not, if someone offers a well drafted, narrowly 
targeted bill when or after same-sex marriage becomes the law in those states.

I agree with Alan Brownstein that part of the problem in red states is that 
they want to protect religious conservatives without protecting gays and 
lesbians. Not only does Arizona not have same-sex marriage; it doesn't have a 
law on sexual-orientation discrimination. The blue states are mostly the mirror 
image. More and more they want to protect gays and lesbians but not religious 
conservatives. Hardly any political actors appear to be interested in 
protecting the liberty of both sides.


Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA  22903
 434-243-8546tel:434-243-8546

From: 
religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu]
 On Behalf Of Ira Lupu
Sent: Wednesday, February 26, 2014 11:34 AM

To: Law  Religion issues for Law Academics
Subject: Re: Subject: Re: Kansas/Arizona statutes protecting for-profit 
businesses

That is my understanding, Hillel.  If Doug, Rick, Tom, or others know of 
counterexamples, I'm sure they will bring them forward to the list.

On Wed, Feb 26, 2014 at 11:28 AM, Hillel Y. Levin 
hillelle...@gmail.commailto:hillelle...@gmail.com wrote:
Chip:

Thanks for the cite! I will take a look.

And just so I understand: are you asserting that none have adopted the broader 
exceptions (wedding vendors, etc)?

On Wed, Feb 26, 2014 at 11:23 AM, Ira Lupu 
icl...@law.gwu.edumailto:icl...@law.gwu.edu wrote:
Hillel:

The same sex marriage laws to which you refer do have exceptions, for clergy, 
houses of worship, and (sometimes) for religious charities and social services. 
 Bob Tuttle and I analyze and collect some of that here: 
http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1055context=njlsp.
  There is plenty of other literature on the subject.

What has happened in other states since we wrote that piece is quite consistent 
with the pattern we described.  These laws do NOT contain exceptions for 
wedding vendors (bakers, caterers, etc.) or public employees like marriage 
license clerks.  Those are the efforts that have failed, over and over.

Chip (not Ira, please)

On Wed, Feb 26, 2014 at 11:13 AM, Hillel Y. Levin 
hillelle...@gmail.commailto:hillelle...@gmail.com wrote:
Ira

Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses

2014-02-26 Thread tznkai

Since I've already accidentally intruded on this conversation (Hello
everyone), why are you looking at a count of employees rather than whether
the business entity is closely held, which would also go to the Walmart
objection. In my experience, small business owners operate as if their
legal entities are an extension of their personalities, regardless of the
number of employees.

-Kevin Chen, Esq.


On Wed, Feb 26, 2014 at 2:54 PM, Douglas Laycock dlayc...@virginia.eduwrote:

 It would protect only very small businesses that are personal extensions
 of the owner, and where the owner must necessarily be involved in providing
 the services.  We have suggested five or fewer employees as a workable rule
 that is in the right range. And it would have a hardship exception for
 local monopolies; ir you're the only wedding planner in the area, you have
 to do same-sex weddings too. So it would guarantee that same-sex couples
 get the goods and services they need. It would not enable that couple to
 demand those services from the merchant who thinks that what they're doing
 is seriously evil.



 They don't want personal services from that guy anyway. They want that guy
 to change his religious views or to go out of business.



 Douglas Laycock

 Robert E. Scott Distinguished Professor of Law

 University of Virginia Law School

 580 Massie Road

 Charlottesville, VA  22903

  434-243-8546



 *From:* religionlaw-boun...@lists.ucla.edu [mailto:
 religionlaw-boun...@lists.ucla.edu] *On Behalf Of *hamilto...@aol.com
 *Sent:* Wednesday, February 26, 2014 2:32 PM
 *To:* religionlaw@lists.ucla.edu

 *Subject:* Re: Subject: Re: Kansas/Arizona statutes protecting for-profit
 businesses



 Doug--What does such an exemption look like if it is available to anyone
 other than clergy or a house of worship?  Or is that limitation what makes
 it reasonable?

 I take it that the Arizona law does not fit your well-drafted notion?

 well drafted, narrowly targeted bill when or after same-sex marriage
 becomes the law in those states.



 Marci

 Marci A. Hamilton
 Paul R. Verkuil Chair in Public Law
 Benjamin N. Cardozo School of Law
 Yeshiva University
 55 Fifth Avenue
 New York, NY 10003
 (212) 790-0215
 http://sol-reform.com

 [image: 
 http://sol-reform.com/fb.png]https://www.facebook.com/professormarciahamilton?fref=ts
  [image: http://www.sol-reform.com/tw.png]https://twitter.com/marci_hamilton


 -Original Message-
 From: Douglas Laycock dlayc...@virginia.edu
 To: 'Law  Religion issues for Law Academics' religionlaw@lists.ucla.edu
 Sent: Wed, Feb 26, 2014 2:24 pm
 Subject: RE: Subject: Re: Kansas/Arizona statutes protecting for-profit
 businesses

 Many state laws on sexual-orientation discrimination, and most laws on
 same-sex marriage, have exemptions for religious organizations. Some are
 broad; some are narrow. Some are well drafted; some are a mess. But they
 are mostly there.



 Apart from marriage, there is no reason to have religious exemptions for
 businesses from laws on sexual-orientation discrimination. No one in the
 groups I have been part of has ever suggested such exemptions. Not even the
 Kansas bill provides such exemptions.



 Chip is correct that no state has explicitly exempted small businesses in
 the wedding industry, or in marriage counseling, from its same-sex marriage
 legislation. All those laws so far have been in blue states. The absurd
 overreach in the Kansas bill, and the resulting political reaction to the
 radically different Arizona bill, and some bills caught in the fire
 elsewhere with less publicity, may indicate that such exemptions will be
 hard to enact even in red states. Or maybe not, if someone offers a well
 drafted, narrowly targeted bill when or after same-sex marriage becomes the
 law in those states.



 I agree with Alan Brownstein that part of the problem in red states is
 that they want to protect religious conservatives without protecting gays
 and lesbians. Not only does Arizona not have same-sex marriage; it doesn't
 have a law on sexual-orientation discrimination. The blue states are mostly
 the mirror image. More and more they want to protect gays and lesbians but
 not religious conservatives. Hardly any political actors appear to be
 interested in protecting the liberty of both sides.





 Douglas Laycock

 Robert E. Scott Distinguished Professor of Law

 University of Virginia Law School

 580 Massie Road

 Charlottesville, VA  22903

  434-243-8546



 *From:* religionlaw-boun...@lists.ucla.edu [
 mailto:religionlaw-boun...@lists.ucla.edureligionlaw-boun...@lists.ucla.edu?]
 *On Behalf Of *Ira Lupu
 *Sent:* Wednesday, February 26, 2014 11:34 AM
 *To:* Law  Religion issues for Law Academics
 *Subject:* Re: Subject: Re: Kansas/Arizona statutes protecting for-profit
 businesses



 That is my understanding, Hillel.  If Doug, Rick, Tom, or others know of
 counterexamples, I'm sure they will bring them forward to the list.



 On Wed, Feb 26, 2014

Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses

Mark:

I don't accept your account of wedding cake designers. As you surely know,
to qualify as expressive conduct, conduct must be both intended to convey a
particular message and to be interpreted by the community in such a manner.
I don't know why anyone would assume that baking a nice cake for money
amounts to a message of support for a gay marriage. It isn't quite as
articulate as burning a flag.

Further, this is commercial speech that we are talking about, which also
gets lesser protection.

And if it is expressive conduct, I don't see why the same theory shouldn't
extend to renting an apartment to a same-sex couple (or single mother). I
assume that renting an apartment expresses the same thing as baking and
decorating a cake. To me, neither one of them expresses anything, but if
either one does, then they both do.


On Wed, Feb 26, 2014 at 2:59 PM, Scarberry, Mark 
mark.scarbe...@pepperdine.edu wrote:

 There certainly is reason to give particular protection to people with
 regard to First Amendment expression, such as the creation of celebratory
 art by wedding photographers. That is not an accommodation given as a
 matter of legislative grace, at least not under any sensible approach to
 the First Amendment.



 It is a separate question whether others' religious conscience should be
 protected by accommodations under the regime created by Employment
 Division v. Smith.



 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 *Hillel Y. Levin
 *Sent:* Wednesday, February 26, 2014 11:49 AM

 *To:* Law  Religion issues for Law Academics
 *Subject:* Re: Subject: Re: Kansas/Arizona statutes protecting for-profit
 businesses



 Doug:



 What do you mean by the following: Apart from marriage, there is no
 reason to have religious exemptions for businesses from laws on
 sexual-orientation discrimination.



 There certainly are some religious people (I don't agree with them, but I
 could give you their names and numbers) who would find it religiously
 problematic to provide certain services to same-sex couples, including, for
 example, renting them an apartment. Why is there no reason to accommodate
 such people if you *would* accommodate the wedding photographer? Am I
 misunderstanding you?



 On Wed, Feb 26, 2014 at 2:22 PM, Douglas Laycock dlayc...@virginia.edu
 wrote:

 Many state laws on sexual-orientation discrimination, and most laws on
 same-sex marriage, have exemptions for religious organizations. Some are
 broad; some are narrow. Some are well drafted; some are a mess. But they
 are mostly there.



 Apart from marriage, there is no reason to have religious exemptions for
 businesses from laws on sexual-orientation discrimination. No one in the
 groups I have been part of has ever suggested such exemptions. Not even the
 Kansas bill provides such exemptions.



 Chip is correct that no state has explicitly exempted small businesses in
 the wedding industry, or in marriage counseling, from its same-sex marriage
 legislation. All those laws so far have been in blue states. The absurd
 overreach in the Kansas bill, and the resulting political reaction to the
 radically different Arizona bill, and some bills caught in the fire
 elsewhere with less publicity, may indicate that such exemptions will be
 hard to enact even in red states. Or maybe not, if someone offers a well
 drafted, narrowly targeted bill when or after same-sex marriage becomes the
 law in those states.



 I agree with Alan Brownstein that part of the problem in red states is
 that they want to protect religious conservatives without protecting gays
 and lesbians. Not only does Arizona not have same-sex marriage; it doesn't
 have a law on sexual-orientation discrimination. The blue states are mostly
 the mirror image. More and more they want to protect gays and lesbians but
 not religious conservatives. Hardly any political actors appear to be
 interested in protecting the liberty of both sides.





 Douglas Laycock

 Robert E. Scott Distinguished Professor of Law

 University of Virginia Law School

 580 Massie Road

 Charlottesville, VA  22903

  434-243-8546



 *From:* religionlaw-boun...@lists.ucla.edu [mailto:
 religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Ira Lupu
 *Sent:* Wednesday, February 26, 2014 11:34 AM


 *To:* Law  Religion issues for Law Academics

 *Subject:* Re: Subject: Re: Kansas/Arizona statutes protecting for-profit
 businesses



 That is my understanding, Hillel.  If Doug, Rick, Tom, or others know of
 counterexamples, I'm sure they will bring them forward to the list.



 On Wed, Feb 26, 2014 at 11:28 AM, Hillel Y. Levin hillelle...@gmail.com
 wrote:

 Chip:



 Thanks for the cite! I will take a look.



 And just so I understand: are you asserting that *none* have adopted the
 broader exceptions (wedding vendors, etc)?



 On Wed, Feb 26, 2014 at 11:23

Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses


Would you suggest this if it were based on race rather than homosexuality?

If the wedding photographer thinks what the couple is doing, as in getting 
married under the state's duly enacted laws, is seriously evil, he needs to 
change jobs.
Become a school photographer, though I suppose then he would object to taking 
pictures of children from same-sex
families.  

I get the clergy and house of worship exemption.  I don't get the business 
exemption.  As Chip has said, these compromise exemptions have gone nowhere,
and in this environment, I would wager that they won't.

Marci


Marci A. Hamilton
Paul R. Verkuil Chair in Public Law
Benjamin N. Cardozo School of Law
Yeshiva University
55 Fifth Avenue
New York, NY 10003 
(212) 790-0215 
http://sol-reform.com





-Original Message-
From: Douglas Laycock dlayc...@virginia.edu
To: 'Law  Religion issues for Law Academics' religionlaw@lists.ucla.edu
Sent: Wed, Feb 26, 2014 2:56 pm
Subject: RE: Subject: Re: Kansas/Arizona statutes protectingfor-profit  
businesses



It would protect only very small businesses that are personal extensions of the 
owner, and where the owner must necessarily be involved in providing the 
services.  We have suggested five or fewer employees as a workable rule that is 
in the right range. And it would have a hardship exception for local 
monopolies; ir you’re the only wedding planner in the area, you have to do 
same-sex weddings too. So it would guarantee that same-sex couples get the 
goods and services they need. It would not enable that couple to demand those 
services from the merchant who thinks that what they’re doing is seriously 
evil. 
 
They don’t want personal services from that guy anyway. They want that guy to 
change his religious views or to go out of business.
 
Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA  22903
 434-243-8546
 
From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com
Sent: Wednesday, February 26, 2014 2:32 PM
To: religionlaw@lists.ucla.edu
Subject: Re: Subject: Re: Kansas/Arizona statutes protecting for-profit 
businesses
 

Doug--What does such an exemption look like if it is available to anyone other 
than clergy or a house of worship?  Or is that limitation what makes it 
reasonable?

I take it that the Arizona law does not fit your well-drafted notion?


well drafted, narrowly targeted bill when or after same-sex marriage becomes 
the law in those states.


 

Marci


Marci A. Hamilton
Paul R. Verkuil Chair in Public Law
Benjamin N. Cardozo School of Law
Yeshiva University
55 Fifth Avenue
New York, NY 10003 
(212) 790-0215 
http://sol-reform.com




-Original Message-
From: Douglas Laycock dlayc...@virginia.edu
To: 'Law  Religion issues for Law Academics' religionlaw@lists.ucla.edu
Sent: Wed, Feb 26, 2014 2:24 pm
Subject: RE: Subject: Re: Kansas/Arizona statutes protecting for-profit 
businesses


Many state laws on sexual-orientation discrimination, and most laws on same-sex 
marriage, have exemptions for religious organizations. Some are broad; some are 
narrow. Some are well drafted; some are a mess. But they are mostly there.

 

Apart from marriage, there is no reason to have religious exemptions for 
businesses from laws on sexual-orientation discrimination. No one in the groups 
I have been part of has ever suggested such exemptions. Not even the Kansas 
bill provides such exemptions.

 

Chip is correct that no state has explicitly exempted small businesses in the 
wedding industry, or in marriage counseling, from its same-sex marriage 
legislation. All those laws so far have been in blue states. The absurd 
overreach in the Kansas bill, and the resulting political reaction to the 
radically different Arizona bill, and some bills caught in the fire elsewhere 
with less publicity, may indicate that such exemptions will be hard to enact 
even in red states. Or maybe not, if someone offers a well drafted, narrowly 
targeted bill when or after same-sex marriage becomes the law in those states.

 

I agree with Alan Brownstein that part of the problem in red states is that 
they want to protect religious conservatives without protecting gays and 
lesbians. Not only does Arizona not have same-sex marriage; it doesn’t have a 
law on sexual-orientation discrimination. The blue states are mostly the mirror 
image. More and more they want to protect gays and lesbians but not religious 
conservatives. Hardly any political actors appear to be interested in 
protecting the liberty of both sides.

 

 

Douglas Laycock

Robert E. Scott Distinguished Professor of Law

University of Virginia Law School

580 Massie Road

Charlottesville, VA  22903

 434-243-8546

 

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Wednesday, February 26, 2014 11:34

RE: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses

There are very few people who object on religious grounds to selling
ordinary goods and services to gays. The sincerity of any such claim is
obviously suspect; some of them may be sincere but many of them probably are
not. It does not support anyone's gay sexual relationships to sell them
groceries or hardware, or to mow their lawn or repair their plumbing. 

 

And as the breadth of any claimed exemption expands, the government's claim
of compelling interest expands with it. 

 

Some landlords view renting the apartment as directly supporting the
marriage-like sexual relationship. As one casebook points, out, the landlord
supplies the bedroom. Many of these people are clearly sincere. I would
protect the very small landlords.

 

And by the way, the law does hold landlords responsible for how tenants use
their premises. If your tenant creates a nuisance, or violates the zoning
laws, or runs a drug den or a house of prostitution, the property is at risk
and the landlord is on the hook in many states. It is not so odd for these
small landlords to feel morally responsible for what they allow on their
property.

 

Douglas Laycock

Robert E. Scott Distinguished Professor of Law

University of Virginia Law School

580 Massie Road

Charlottesville, VA  22903

 434-243-8546

 

From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Hillel Y. Levin
Sent: Wednesday, February 26, 2014 2:49 PM
To: Law  Religion issues for Law Academics
Subject: Re: Subject: Re: Kansas/Arizona statutes protecting for-profit
businesses

 

Doug:

 

What do you mean by the following: Apart from marriage, there is no reason
to have religious exemptions for businesses from laws on sexual-orientation
discrimination.

 

There certainly are some religious people (I don't agree with them, but I
could give you their names and numbers) who would find it religiously
problematic to provide certain services to same-sex couples, including, for
example, renting them an apartment. Why is there no reason to accommodate
such people if you would accommodate the wedding photographer? Am I
misunderstanding you?

 

On Wed, Feb 26, 2014 at 2:22 PM, Douglas Laycock dlayc...@virginia.edu
mailto:dlayc...@virginia.edu  wrote:

Many state laws on sexual-orientation discrimination, and most laws on
same-sex marriage, have exemptions for religious organizations. Some are
broad; some are narrow. Some are well drafted; some are a mess. But they are
mostly there.

 

Apart from marriage, there is no reason to have religious exemptions for
businesses from laws on sexual-orientation discrimination. No one in the
groups I have been part of has ever suggested such exemptions. Not even the
Kansas bill provides such exemptions.

 

Chip is correct that no state has explicitly exempted small businesses in
the wedding industry, or in marriage counseling, from its same-sex marriage
legislation. All those laws so far have been in blue states. The absurd
overreach in the Kansas bill, and the resulting political reaction to the
radically different Arizona bill, and some bills caught in the fire
elsewhere with less publicity, may indicate that such exemptions will be
hard to enact even in red states. Or maybe not, if someone offers a well
drafted, narrowly targeted bill when or after same-sex marriage becomes the
law in those states.

 

I agree with Alan Brownstein that part of the problem in red states is that
they want to protect religious conservatives without protecting gays and
lesbians. Not only does Arizona not have same-sex marriage; it doesn't have
a law on sexual-orientation discrimination. The blue states are mostly the
mirror image. More and more they want to protect gays and lesbians but not
religious conservatives. Hardly any political actors appear to be interested
in protecting the liberty of both sides.

 

 

Douglas Laycock

Robert E. Scott Distinguished Professor of Law

University of Virginia Law School

580 Massie Road

Charlottesville, VA  22903

  tel:434-243-8546 434-243-8546

 

From:  mailto:religionlaw-boun...@lists.ucla.edu
religionlaw-boun...@lists.ucla.edu [mailto:
mailto:religionlaw-boun...@lists.ucla.edu
religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Wednesday, February 26, 2014 11:34 AM


To: Law  Religion issues for Law Academics

Subject: Re: Subject: Re: Kansas/Arizona statutes protecting for-profit
businesses

 

That is my understanding, Hillel.  If Doug, Rick, Tom, or others know of
counterexamples, I'm sure they will bring them forward to the list.

 

On Wed, Feb 26, 2014 at 11:28 AM, Hillel Y. Levin hillelle...@gmail.com
mailto:hillelle...@gmail.com  wrote:

Chip:

 

Thanks for the cite! I will take a look.

 

And just so I understand: are you asserting that none have adopted the
broader exceptions (wedding vendors, etc)?

 

On Wed, Feb 26, 2014 at 11:23 AM, Ira Lupu icl...@law.gwu.edu
mailto:icl...@law.gwu.edu  wrote:

Hillel:

 

The same sex marriage laws

RE: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses

I believe my post dealt with creation of celebratory art by wedding 
photographers, not bakers. More later but this isn't commercial speech. Getting 
paid for expression (novelists? newspaper publishers?) doesn't make speech 
commercial. Speech proposing a commercial transaction is commercial speech.

Mark Scarberry


Sent from my Verizon Wireless 4G LTE Smartphone


 Original message 
From: Hillel Y. Levin
Date:02/26/2014 12:18 PM (GMT-08:00)
To: Law  Religion issues for Law Academics
Subject: Re: Subject: Re: Kansas/Arizona statutes protecting for-profit 
businesses

Mark:

I don't accept your account of wedding cake designers. As you surely know, to 
qualify as expressive conduct, conduct must be both intended to convey a 
particular message and to be interpreted by the community in such a manner. I 
don't know why anyone would assume that baking a nice cake for money amounts to 
a message of support for a gay marriage. It isn't quite as articulate as 
burning a flag.

Further, this is commercial speech that we are talking about, which also gets 
lesser protection.

And if it is expressive conduct, I don't see why the same theory shouldn't 
extend to renting an apartment to a same-sex couple (or single mother). I 
assume that renting an apartment expresses the same thing as baking and 
decorating a cake. To me, neither one of them expresses anything, but if either 
one does, then they both do.


On Wed, Feb 26, 2014 at 2:59 PM, Scarberry, Mark 
mark.scarbe...@pepperdine.edumailto:mark.scarbe...@pepperdine.edu wrote:
There certainly is reason to give particular protection to people with regard 
to First Amendment expression, such as the creation of celebratory art by 
wedding photographers. That is not an “accommodation” given as a matter of 
legislative grace, at least not under any sensible approach to the First 
Amendment.

It is a separate question whether others’ religious conscience should be 
protected by “accommodations” under the regime created by Employment Division 
v. Smith.

Mark

Mark S. Scarberry
Professor of Law
Pepperdine Univ. School of Law



From: 
religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu]
 On Behalf Of Hillel Y. Levin
Sent: Wednesday, February 26, 2014 11:49 AM

To: Law  Religion issues for Law Academics
Subject: Re: Subject: Re: Kansas/Arizona statutes protecting for-profit 
businesses

Doug:

What do you mean by the following: Apart from marriage, there is no reason to 
have religious exemptions for businesses from laws on sexual-orientation 
discrimination.

There certainly are some religious people (I don't agree with them, but I could 
give you their names and numbers) who would find it religiously problematic to 
provide certain services to same-sex couples, including, for example, renting 
them an apartment. Why is there no reason to accommodate such people if you 
would accommodate the wedding photographer? Am I misunderstanding you?

On Wed, Feb 26, 2014 at 2:22 PM, Douglas Laycock 
dlayc...@virginia.edumailto:dlayc...@virginia.edu wrote:
Many state laws on sexual-orientation discrimination, and most laws on same-sex 
marriage, have exemptions for religious organizations. Some are broad; some are 
narrow. Some are well drafted; some are a mess. But they are mostly there.

Apart from marriage, there is no reason to have religious exemptions for 
businesses from laws on sexual-orientation discrimination. No one in the groups 
I have been part of has ever suggested such exemptions. Not even the Kansas 
bill provides such exemptions.

Chip is correct that no state has explicitly exempted small businesses in the 
wedding industry, or in marriage counseling, from its same-sex marriage 
legislation. All those laws so far have been in blue states. The absurd 
overreach in the Kansas bill, and the resulting political reaction to the 
radically different Arizona bill, and some bills caught in the fire elsewhere 
with less publicity, may indicate that such exemptions will be hard to enact 
even in red states. Or maybe not, if someone offers a well drafted, narrowly 
targeted bill when or after same-sex marriage becomes the law in those states.

I agree with Alan Brownstein that part of the problem in red states is that 
they want to protect religious conservatives without protecting gays and 
lesbians. Not only does Arizona not have same-sex marriage; it doesn’t have a 
law on sexual-orientation discrimination. The blue states are mostly the mirror 
image. More and more they want to protect gays and lesbians but not religious 
conservatives. Hardly any political actors appear to be interested in 
protecting the liberty of both sides.


Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA  22903
 434-243-8546tel:434-243-8546

From: 
religionlaw-boun

RE: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses

“He needs to change jobs.” As I said, what you really want is for these people 
to go out of business. Barring religious minorities from professions is a very 
traditional form of religious persecution. Reviving it here is not the solution 
to these disagreements over conscience.

 

I think that race is constitutionally unique. And it is clear that in the 
comparable period with race discrimination laws, resistance was so 
geographically concentrated, and so widespread within those locations, that 
exemptions would have defeated the purpose of the law. The government would 
have had a compelling interest in refusing religious exemptions. 

 

I see no reason to think that we are in anything like that situation with 
respect to gay rights today. If it turns out that we are, then there will be a 
compelling interest. And under the legislative proposals we have offered, if 
all the wedding planners in a community refuse to do gay weddings, then all of 
them lose their exemption.

 

 

 

 

Douglas Laycock

Robert E. Scott Distinguished Professor of Law

University of Virginia Law School

580 Massie Road

Charlottesville, VA  22903

 434-243-8546

 

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com
Sent: Wednesday, February 26, 2014 3:19 PM
To: religionlaw@lists.ucla.edu
Subject: Re: Subject: Re: Kansas/Arizona statutes protecting for-profit 
businesses

 

Would you suggest this if it were based on race rather than homosexuality?

 

If the wedding photographer thinks what the couple is doing, as in getting 
married under the state's duly enacted laws, is seriously evil, he needs to 
change jobs.

Become a school photographer, though I suppose then he would object to taking 
pictures of children from same-sex

families.  

 

I get the clergy and house of worship exemption.  I don't get the business 
exemption.  As Chip has said, these compromise exemptions have gone nowhere,

and in this environment, I would wager that they won't.

 

Marci

Marci A. Hamilton
Paul R. Verkuil Chair in Public Law
Benjamin N. Cardozo School of Law
Yeshiva University
55 Fifth Avenue
New York, NY 10003 
(212) 790-0215 
http://sol-reform.com http://sol-reform.com/ 

 https://www.facebook.com/professormarciahamilton?fref=ts 
https://twitter.com/marci_hamilton  

-Original Message-
From: Douglas Laycock dlayc...@virginia.edu mailto:dlayc...@virginia.edu 
To: 'Law  Religion issues for Law Academics' religionlaw@lists.ucla.edu 
mailto:religionlaw@lists.ucla.edu 
Sent: Wed, Feb 26, 2014 2:56 pm
Subject: RE: Subject: Re: Kansas/Arizona statutes protecting for-profit 
businesses

It would protect only very small businesses that are personal extensions of the 
owner, and where the owner must necessarily be involved in providing the 
services.  We have suggested five or fewer employees as a workable rule that is 
in the right range. And it would have a hardship exception for local 
monopolies; ir you’re the only wedding planner in the area, you have to do 
same-sex weddings too. So it would guarantee that same-sex couples get the 
goods and services they need. It would not enable that couple to demand those 
services from the merchant who thinks that what they’re doing is seriously 
evil. 

 

They don’t want personal services from that guy anyway. They want that guy to 
change his religious views or to go out of business.

 

Douglas Laycock

Robert E. Scott Distinguished Professor of Law

University of Virginia Law School

580 Massie Road

Charlottesville, VA  22903

 434-243-8546

 

From: religionlaw-boun...@lists.ucla.edu 
mailto:religionlaw-boun...@lists.ucla.edu  
[mailto:religionlaw-boun...@lists.ucla.edu 
mailto:religionlaw-boun...@lists.ucla.edu? ] On Behalf Of hamilto...@aol.com 
mailto:hamilto...@aol.com 
Sent: Wednesday, February 26, 2014 2:32 PM
To: religionlaw@lists.ucla.edu mailto:religionlaw@lists.ucla.edu 
Subject: Re: Subject: Re: Kansas/Arizona statutes protecting for-profit 
businesses

 

Doug--What does such an exemption look like if it is available to anyone other 
than clergy or a house of worship?  Or is that limitation what makes it 
reasonable?

I take it that the Arizona law does not fit your well-drafted notion?

well drafted, narrowly targeted bill when or after same-sex marriage becomes 
the law in those states.

 

Marci

Marci A. Hamilton
Paul R. Verkuil Chair in Public Law
Benjamin N. Cardozo School of Law
Yeshiva University
55 Fifth Avenue
New York, NY 10003 
(212) 790-0215 
http://sol-reform.com http://sol-reform.com/ 

 https://www.facebook.com/professormarciahamilton?fref=ts 
https://twitter.com/marci_hamilton  

-Original Message-
From: Douglas Laycock dlayc...@virginia.edu mailto:dlayc...@virginia.edu 
To: 'Law  Religion issues for Law Academics' religionlaw@lists.ucla.edu 
mailto:religionlaw@lists.ucla.edu 
Sent: Wed, Feb 26, 2014 2:24 pm
Subject: RE: Subject: Re: Kansas/Arizona statutes

Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses


I don't have any desire for them to go out of business, but if they are going 
to be in business, they need to operate in the marketplace without
discrimination.   If the business they have chosen does not fit their belief, 
they need to adjust, or move on.   No one is barring religious minorities from 
professions.
What is being suggested is that believers cannot shape the business world and 
customers to fit their prejudices.  The insidious notion that believers have a 
right
not to adjust to the law is the most damaging element of the RFRA movement, not 
just to those harmed by it, but by the believers who are permitted to avoid 
dealing
with the changes that increase human rights, and demand their consideration and 
accommodation.   Believers have enthusiastically supported the subjugation of 
blacks, women, children,
and homosexuals.Not requiring them to adjust when what they are doing is a 
violation of human rights is a disservice to all.   It is an understanding of 
religion removed from history, which
is false.

The ship has sailed on distinguishing homophobic discrimination and race 
discrimination.

Even if the compelling interest test can be overcome (assuming we are dealing 
with balancing and not an absolute right), the least restrictive means test 
remains, and that
is the element that drives cases in favor of the religious actor and against 
those they burden and harm.




Marci A. Hamilton
Paul R. Verkuil Chair in Public Law
Benjamin N. Cardozo School of Law
Yeshiva University
55 Fifth Avenue
New York, NY 10003 
(212) 790-0215 
http://sol-reform.com





-Original Message-
From: Douglas Laycock dlayc...@virginia.edu
To: 'Law  Religion issues for Law Academics' religionlaw@lists.ucla.edu
Sent: Wed, Feb 26, 2014 3:31 pm
Subject: RE: Subject: Re: Kansas/Arizona statutes   protecting  
for-profit  businesses



“He needs to change jobs.” As I said, what you really want is for these people 
to go out of business. Barring religious minorities from professions is a very 
traditional form of religious persecution. Reviving it here is not the solution 
to these disagreements over conscience.
 
I think that race is constitutionally unique. And it is clear that in the 
comparable period with race discrimination laws, resistance was so 
geographically concentrated, and so widespread within those locations, that 
exemptions would have defeated the purpose of the law. The government would 
have had a compelling interest in refusing religious exemptions. 
 
I see no reason to think that we are in anything like that situation with 
respect to gay rights today. If it turns out that we are, then there will be a 
compelling interest. And under the legislative proposals we have offered, if 
all the wedding planners in a community refuse to do gay weddings, then all of 
them lose their exemption.
 
 
 
 
Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA  22903
 434-243-8546
 
From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com
Sent: Wednesday, February 26, 2014 3:19 PM
To: religionlaw@lists.ucla.edu
Subject: Re: Subject: Re: Kansas/Arizona statutes protecting for-profit 
businesses
 

Would you suggest this if it were based on race rather than homosexuality?

 

If the wedding photographer thinks what the couple is doing, as in getting 
married under the state's duly enacted laws, is seriously evil, he needs to 
change jobs.

Become a school photographer, though I suppose then he would object to taking 
pictures of children from same-sex

families.  

 

I get the clergy and house of worship exemption.  I don't get the business 
exemption.  As Chip has said, these compromise exemptions have gone nowhere,

and in this environment, I would wager that they won't.

 

Marci


Marci A. Hamilton
Paul R. Verkuil Chair in Public Law
Benjamin N. Cardozo School of Law
Yeshiva University
55 Fifth Avenue
New York, NY 10003 
(212) 790-0215 
http://sol-reform.com




-Original Message-
From: Douglas Laycock dlayc...@virginia.edu
To: 'Law  Religion issues for Law Academics' religionlaw@lists.ucla.edu
Sent: Wed, Feb 26, 2014 2:56 pm
Subject: RE: Subject: Re: Kansas/Arizona statutes protecting for-profit 
businesses


It would protect only very small businesses that are personal extensions of the 
owner, and where the owner must necessarily be involved in providing the 
services.  We have suggested five or fewer employees as a workable rule that is 
in the right range. And it would have a hardship exception for local 
monopolies; ir you’re the only wedding planner in the area, you have to do 
same-sex weddings too. So it would guarantee that same-sex couples get the 
goods and services they need. It would not enable that couple to demand those 
services from the merchant who thinks that what they’re doing is seriously 
evil

FW from Paul Salamanca: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses

2014-02-26 Thread Volokh, Eugene

From: Salamanca, Paul E
Sent: Wednesday, February 26, 2014 3:28 PM
To: 'Law  Religion issues for Law Academics'
Subject: RE: Subject: Re: Kansas/Arizona statutes protecting for-profit 
businesses

Dear friends,

The Supreme Court has interpreted the First Amendment to do much more than 
protect articulable messages.  I wonder if Professor Levin's argument, which 
appears to reflect Spence, takes into account such decisions as Hurley and 
Brown (the video-game case).  Surely the First Amendment protects art, which 
doesn't necessarily have a clear message.  What's the clear message of 
Beethoven's Fifth Symphony?  Rothko?

I think a fair argument can be made that the First Amendment protects such 
artistic endeavors as making a fancy cake and taking clever photographs, and I 
can see a plausible distinction between these forms of art and renting an 
apartment.

Paul Salamanca
University of Kentucky
___
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RE: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses

2014-02-26 Thread Sisk, Gregory C.

Every sorry episode in the long American history of suppression of religious 
minorities has been justified by the undoubtedly sincere beliefs of the 
majority at the time that they are on the right side of history and that taking 
additional steps to force the minority to fall into line is merely to advance 
progress.  More than a half century ago, the public demand for fealty to 
America in the face of external and internal threats of totalitarian ideologies 
imposed itself on religious communities who refused to engage in certain public 
displays of loyalty.  Not too long ago, the War on Drugs was extended to 
prohibit ceremonial use of sacred substances.  Quite recently, fears about 
terrorism have been used to adopt measures that target, profile, and denigrate 
persons of Muslim faith.  And now an expansion of anti-discrimination laws to 
cover new categories of protected persons, to include new sectors of society, 
and to apply to new entities, has imposed itself with a heavy hand on certain 
traditionalist religious groups.  In the past, we learned from mistakes in 
overreaching through policy and accepted accommodations to religious minorities 
that expanded freedom without substantially undermining key public policies.  
We need to search for that balance again.  Vigilance in defense of religious 
liberty, especially when the majority is convinced of its righteousness (which 
is almost always), must be renewed in every generation.

In sum, it is dangerous for anyone exercising political power to come too 
readily to the certain conclusion that they are not only absolutely correct 
about the right answer to every issue but absolutely entitled to use whatever 
means are possible to advance that right answer without any concern for the 
impact on those who sincerely disagree, with the presumption of every powerful 
elite that those who think otherwise should learn “to adjust.”  To quote 
Learned Hand, as I did several days ago, “The Spirit of Liberty is the spirit 
that is not too sure that it is right.”


Gregory Sisk
Laghi Distinguished Chair in Law
University of St. Thomas School of Law (Minnesota)
MSL 400, 1000 LaSalle Avenue
Minneapolis, MN  55403-2005
651-962-4923
gcs...@stthomas.edu
http://personal.stthomas.edu/GCSISK/sisk.htmlhttp://personal2.stthomas.edu/GCSISK/sisk.html
Publications:  http://ssrn.com/author=44545

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com
Sent: Wednesday, February 26, 2014 2:43 PM
To: religionlaw@lists.ucla.edu
Subject: Re: Subject: Re: Kansas/Arizona statutes protecting for-profit 
businesses

I don't have any desire for them to go out of business, but if they are going 
to be in business, they need to operate in the marketplace without
discrimination.   If the business they have chosen does not fit their belief, 
they need to adjust, or move on.   No one is barring religious minorities from 
professions.
What is being suggested is that believers cannot shape the business world and 
customers to fit their prejudices.  The insidious notion that believers have a 
right
not to adjust to the law is the most damaging element of the RFRA movement, not 
just to those harmed by it, but by the believers who are permitted to avoid 
dealing
with the changes that increase human rights, and demand their consideration and 
accommodation.   Believers have enthusiastically supported the subjugation of 
blacks, women, children,
and homosexuals.Not requiring them to adjust when what they are doing is a 
violation of human rights is a disservice to all.   It is an understanding of 
religion removed from history, which
is false.

The ship has sailed on distinguishing homophobic discrimination and race 
discrimination.

Even if the compelling interest test can be overcome (assuming we are dealing 
with balancing and not an absolute right), the least restrictive means test 
remains, and that
is the element that drives cases in favor of the religious actor and against 
those they burden and harm.


Marci A. Hamilton
Paul R. Verkuil Chair in Public Law
Benjamin N. Cardozo School of Law
Yeshiva University
55 Fifth Avenue
New York, NY 10003
(212) 790-0215
http://sol-reform.comhttp://sol-reform.com/
[Image removed by 
sender.]https://www.facebook.com/professormarciahamilton?fref=ts   [Image 
removed by sender.] https://twitter.com/marci_hamilton
-Original Message-
From: Douglas Laycock dlayc...@virginia.edu
To: 'Law  Religion issues for Law Academics' religionlaw@lists.ucla.edu
Sent: Wed, Feb 26, 2014 3:31 pm
Subject: RE: Subject: Re: Kansas/Arizona statutes protecting for-profit 
businesses
“He needs to change jobs.” As I said, what you really want is for these people 
to go out of business. Barring religious minorities from professions is a very 
traditional form of religious persecution. Reviving it here is not the solution 
to these disagreements over conscience.

I think that race is constitutionally unique

Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses

2014-02-26 Thread William B. Kelley

Prof. Laycock makes interesting points, as usual, but as to the
mirror-image one: Arizona actually does have laws on sexual-orientation
discrimination in employment. They're local laws, but they cover some
35% of Arizonans (i.e., around 2.3 million) in the cities of Phoenix,
Tucson, Flagstaff, and Scottsdale. The pending Arizona bill would have
an impact on such ordinances.

In truth, of course, most if not all states are speckled rather than
just red or blue.

Bill Kelley, Chicago

William B. Kelley
Attorney at Law
2012 West Estes Avenue
Chicago, Illinois 60645-2404
(773) 907-9266
w...@wbkelley.com

On 2/26/2014 1:22 PM, Douglas Laycock wrote:

Many state laws on sexual-orientation discrimination, and most laws on
same-sex marriage, have exemptions for religious organizations. Some
are broad; some are narrow. Some are well drafted; some are a mess.
But they are mostly there.

Apart from marriage, there is no reason to have religious exemptions
for businesses from laws on sexual-orientation discrimination. No one
in the groups I have been part of has ever suggested such exemptions.
Not even the Kansas bill provides such exemptions.

Chip is correct that no state has explicitly exempted small businesses
in the wedding industry, or in marriage counseling, from its same-sex
marriage legislation. All those laws so far have been in blue states.
The absurd overreach in the Kansas bill, and the resulting political
reaction to the radically different Arizona bill, and some bills
caught in the fire elsewhere with less publicity, may indicate that
such exemptions will be hard to enact even in red states. Or maybe
not, if someone offers a well drafted, narrowly targeted bill when or
after same-sex marriage becomes the law in those states.

I agree with Alan Brownstein that part of the problem in red states is
that they want to protect religious conservatives without protecting
gays and lesbians. Not only does Arizona not have same-sex marriage;
it doesn't have a law on sexual-orientation discrimination. The blue
states are mostly the mirror image. More and more they want to protect
gays and lesbians but not religious conservatives. Hardly any
political actors appear to be interested in protecting the liberty of
both sides.

Douglas Laycock

Robert E. Scott Distinguished Professor of Law

University of Virginia Law School

580 Massie Road

Charlottesville, VA 22903

434-243-8546

*From:*religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Ira Lupu

*Sent:* Wednesday, February 26, 2014 11:34 AM
*To:* Law Religion issues for Law Academics
*Subject:* Re: Subject: Re: Kansas/Arizona statutes protecting
for-profit businesses

That is my understanding, Hillel. If Doug, Rick, Tom, or others know
of counterexamples, I'm sure they will bring them forward to the list.

On Wed, Feb 26, 2014 at 11:28 AM, Hillel Y. Levin
hillelle...@gmail.com mailto:hillelle...@gmail.com wrote:

Chip:

Thanks for the cite! I will take a look.

And just so I understand: are you asserting that /none/ have
adopted the broader exceptions (wedding vendors, etc)?

On Wed, Feb 26, 2014 at 11:23 AM, Ira Lupu icl...@law.gwu.edu
mailto:icl...@law.gwu.edu wrote:

Hillel:

http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1055context=njlsp.
There is plenty of other literature on the subject.

What has happened in other states since we wrote that piece is
quite consistent with the pattern we described. These laws do
NOT contain exceptions for wedding vendors (bakers, caterers,
etc.) or public employees like marriage license clerks. Those
are the efforts that have failed, over and over.

Chip (not Ira, please)

On Wed, Feb 26, 2014 at 11:13 AM, Hillel Y. Levin
hillelle...@gmail.com mailto:hillelle...@gmail.com wrote:

Ira:

You say that these bills have failed over and over again.
If I'm not mistaken, several states that recognize
same-sex marriage and/or have non-discrimination laws
protecting gays and lesbians /do/ have religious
exceptions (as does the ENDA that passed the senate not
long ago, only to die in the House). Am I mistaken? Do you
(or anyone else here!) know of any literature that
canvasses the laws in this context?

Many thanks.

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RE: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses