RE: bigotry and sincere religious belief
Thanks to Alan for his thoughtful and nuanced post. I can at least imagine judges developing legal doctrines to effectuate this sort of approach. But in the political domain, at least, I'm not optimistic that these issues will be resolved by informed and nuanced decision making. The passions are too high, and hot-button politics doesn't lend itself to nuance. A couple of days ago, for example, when the Arizona legislation was pending, my local newspaper republished a political cartoon from the Sacramento Bee; it showed a map of the United States, but Arizona's space on the map was labeled Uganda. Not much nuance there. That said, I think Alan's arguments suggest an appropriate move in the direction of reasonable accommodation. Dan 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 Alan Brownstein Sent: Friday, February 28, 2014 1:38 AM To: Law Religion issues for Law Academics Subject: RE: bigotry and sincere religious belief Let me try to respond to Chip's post. He asks two basic questions. (1) Why should we be any more willing to accommodate religious objectors to same-sex marriage than we are willing to accommodate religious objectors to inter-racial marriages. (Or more broadly why accommodate discrimination against gays and lesbians any more than we would accommodate discrimination against African-Americans.) (2) Why should we try to distinguish between sincere religious objectors to same-sex marriage and bigots since it is probably impossible to do that accurately, mistakes will be made, and, in any case, the discrimination causes real harm to the victims of discrimination in both cases? These are good questions, and they are hard questions that are not easy to answer. I do not dispute that there are strong arguments opposing my position on these issues. But I think my take on this issues is a serious position as well. First, let me make clear that I think Chip and I agree on some important points. Discrimination against gays and lesbians and racial discrimination is seriously hurtful. As Chip says, the refusal to serve some classes of people hurts them (stigma, insult, indignity, and sometimes material harm). I also think he recognizes that there are some sincere religious individuals who oppose same-sex marriage and are not bigots or phobes. Finally, my guess is that he and I would probably agree on 90% or more of the situations in which a conflict might arise as to whether or not to accommodate religious objectors to same-sex marriage -- and we would agree that an accommodation is not warranted. On to Chip's questions. As to his first question, I do think race discrimination is a unique evil for American society and for our legal system. I think slavery was a horror that cannot be analogized easily to other wrongs -- terrible as the other wrongs may be. I think the system of violent subjugation of African-Americans for the following 100 years was staggering in its evil. And racism is not something that our society seems capable of putting behind us. It seems to have infected the marrow of our culture and society. I have been delighted with the speed with which American culture seems to be changing with regard to gay and lesbian rights and legal recognition of same sex marriages. I feel no such optimism with regard to the role played by racism in our society. Also, I do not think that race discrimination is the only model or analogy for thinking about civil rights laws and anti-discrimination principles. We prohibit discrimination against women, against religious minorities, against the disabled and the aged. Much of that discrimination has been and is invidious. It is hurtful in all the ways that discrimination against gays and lesbians is hurtful. Quite a bit of it has been justified by religious beliefs and some of it still is. When a religious nonprofit refuses to hire a Jew or a Moslem, they may be doing so based on sincere beliefs about the need for, and obligations requiring, religious homogeneity in the work environment. Or they may be prejudiced. Either way, being denied a job you need that you are qualified to perform because of your religion is a hurtful experience. Despite the harm caused by such discrimination, I think both as a constitutional matter and a statutory matter, we are willing to allow more exceptions, more accommodations of one kind or another, with regard to these other forms of discrimination than we are with race. So yes I think race is different. I also do not think I am suggesting that discrimination against gays and lesbians does not involve serious harm when I suggest
Re: bigotry and sincere religious belief
I am glad that I put the original question to the list, and I am grateful to everyone who in good faith offered a reply. My only additional comment is on the theme offered by Derek Gaubatz, in his citation to briefs and works on why same sex marriage should not be recognized as marriage, and why it is not bigotry to believe that. This seems to me an argument aimed at the state (acting through various branches of government). And it is an argument that I fully respect re: clergy and houses of worship; they have an absolute right to decide who receives the blessings and sacraments of marriage within their own faith tradition. But the marriage validity argument cannot help wedding vendors and other for-profit firms. They are not being asked to recognize a same sex wedding or relationship as legally valid. Indeed, in New Mexico and Oregon, home to the very few poster child cases arising from this subject, the state itself did not so recognize. Vendors and merchants are asked to provide goods and services for a ceremony or a reception/party. No one is asking them to validate or approve any social or legal significance to that ceremony or party. So, unless, they think they are facilitating sin (and what would that be? Not the ceremony or the party -- only the physical intimacy that is associated with the relationship), their religious liberty does not seem implicated to me. If this is about sexual sin, there is no reason to stop at wedding vendors -- the landlords, the mattress sellers, the employers asked to provide spousal benefits to same sex spouses of employees, all have the same objection. And then, Todo, we are indeed back in Kansas. On Fri, Feb 28, 2014 at 10:46 AM, Conkle, Daniel O. con...@indiana.eduwrote: Thanks to Alan for his thoughtful and nuanced post. I can at least imagine judges developing legal doctrines to effectuate this sort of approach. But in the political domain, at least, I'm not optimistic that these issues will be resolved by informed and nuanced decision making. The passions are too high, and hot-button politics doesn't lend itself to nuance. A couple of days ago, for example, when the Arizona legislation was pending, my local newspaper republished a political cartoon from the Sacramento Bee; it showed a map of the United States, but Arizona's space on the map was labeled Uganda. Not much nuance there. That said, I think Alan's arguments suggest an appropriate move in the direction of reasonable accommodation. Dan 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 *Alan Brownstein *Sent:* Friday, February 28, 2014 1:38 AM *To:* Law Religion issues for Law Academics *Subject:* RE: bigotry and sincere religious belief Let me try to respond to Chip's post. He asks two basic questions. (1) Why should we be any more willing to accommodate religious objectors to same-sex marriage than we are willing to accommodate religious objectors to inter-racial marriages. (Or more broadly why accommodate discrimination against gays and lesbians any more than we would accommodate discrimination against African-Americans.) (2) Why should we try to distinguish between sincere religious objectors to same-sex marriage and bigots since it is probably impossible to do that accurately, mistakes will be made, and, in any case, the discrimination causes real harm to the victims of discrimination in both cases? These are good questions, and they are hard questions that are not easy to answer. I do not dispute that there are strong arguments opposing my position on these issues. But I think my take on this issues is a serious position as well. First, let me make clear that I think Chip and I agree on some important points. Discrimination against gays and lesbians and racial discrimination is seriously hurtful. As Chip says, the refusal to serve some classes of people hurts them (stigma, insult, indignity, and sometimes material harm). I also think he recognizes that there are some sincere religious individuals who oppose same-sex marriage and are not bigots or phobes. Finally, my guess is that he and I would probably agree on 90% or more of the situations in which a conflict might arise as to whether or not to accommodate religious objectors to same-sex marriage -- and we would agree that an accommodation is not warranted. On to Chip's questions. As to his first question, I do think race discrimination is a unique evil for American society and for our legal system. I think slavery was a horror that cannot be analogized easily to other wrongs -- terrible as the other wrongs may be. I think
RE: bigotry and sincere religious belief
A quick and belated response to Chip's message. Quite right. My post did not resolve the problems raised by RFRA and was deliberately framed not to. Indeed, I was not trying to place things into a constitutional category either, whether of free speech or free exercise. Instead, I was asking whether - setting to one side other aspects of this problem - we at least could reach some consensus for an exemption from anti-discrimination laws for those declining to provide a direct service for a ceremony or campaign or message to which they object. If we could draft appropriately narrow language to allow the wedding photographer or the event host or the songwriter or the advertising agency to exercise freedom to choose the matters to which they apply their communicative arts, might we then be able to carve out one small space for protecting freedom without undermining the general aims of anti-discrimination laws? Probably not, but worth the try, I do think. 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 Ira Lupu Sent: Thursday, February 27, 2014 7:40 PM To: Law Religion issues for Law Academics Subject: Re: bigotry and sincere religious belief Greg Sisk's post re: how to think about the wedding photographer is just the compelled speech argument one more time. In the case of a photographer, a First A claim of compelled speech is plausible, though not entirely persuasive. In the case of a baker, florist, wine vendor, or caterer, the argument that their providing service to a same sex wedding involves compelling them to speak about the moral/religious bona fides of the ceremony is not even plausible. But there is a deeper issue lurking in Greg's post. If the photographer has a good compelled speech claim, it is entirely independent of religion. She can have any reason, or no reason at all, to refuse to speak. She can have religious objections, homophobic reactions, or aesthetic concerns about taking pictures of two brides or two grooms. Her reasons are totally irrelevant. This is the precise lesson of Minersville v. Gobitis (no free exercise exemptions from compulsory Flag Salute at school) and West Va Bd of Ed v. Barnette (no one can be compelled to salute the American flag). And if reasons are irrelevant, because this is a compelled speech problem, then it extends to all weddings -- inter-racial, inter-religious, Italian, Polish, Jewish, etc. The photographer cannot be conscripted by civil rights laws into taking and displaying photos against her will. Maybe this is a good result; I have my doubts. But it is NOT a religious exemption, and it does NOT require any parsing of phobic/bigoted/sincerely religious reasons to abstain. So, under Greg's approach, the problem raised by RFRA's, re: separating religious sincerity from phobic bigotry, remains entirely unresolved. ___ 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.
bigotry and sincere religious belief
I think that the politics of the moment, and the conversations we have been having (including the reference to Jim Oleske's provocative article about religious objections to inter-racial marriage compared to religious objections to same sex marriage, *Interracial and Same-Sex Marriages: Similar Religious Objections, Very Different Responses* http://ssrn.com/abstract=2400100, call for a burrowing into the question of what constitutes anti-gay bigotry and how it can be distinguished from sincere religious objections to same sex intimacy. The history of racial prejudice in the U.S. suggests, and Jim's article shows, a deep structure of religious support and justification for segregation (and for slavery before that). Of course, many racial bigots did NOT rely on religious justifications (I grew up in upstate NY, surrounded by bigots who never mentioned religion in their racial attitudes). But some did so rely, and we now look back on them and say -- what? Their religion was insincere? Their religion was culturally determined by geography and Jim Crow culture? (Contrary to what has been written here, Jim Crow laws required segregation in government facilities, like public schools, but Jim Crow culture, NOT laws, kept lunch counters, hotels, restaurants, department stores, etc., segregated. The public accommodations title of the Civil Rights Act of 1964 may have pre-empted applications of trespass law, but it did not pre-empt state law requiring segregation in these private facilities.) All religions, in the social practices they prescribe, are culturally determined to some extent. So I think the lesson of the 1960's is that the commitment to Civil Rights meant we became legally indifferent to whether racism was based on sincere religious objections or not. Ollie from Ollie's BBQ had to serve people of color or get out of the restaurant business, whether or not his desire to exclude had sincere religious components. So what is now different about the LGBT rights movement? Some merchants who want to refuse to serve have sincere religious objections; some just have hostility or discomfort (homophobia, if they are really afraid of the interaction; but surely, many racists had or have Negrophobia.) Should we try, with our very limited tools, to protect the sincere religious objectors but not protect the phobes? What will we do with sincere religious objectors who are also phobes? (I strongly suspect that a mixture of religion and phobia are operating within many objectors; their phobia is buried inside a religious justification, but maybe that's true for only some, not all.) Or do we give up this (to me, futile) attempt to use law as a instrument to sort the sincere objectors from the bigots and phobes, and say, rather simply -- we can't possibly make those distinctions, and in the end we don't care about them. Your refusal to serve some classes of people hurts them (stigma, insult, indignity, and sometimes material harm). Legitimating that refusal to serve in the wedding industry legitimates it elsewhere; equality is indivisible. So we are going to treat you like we treated Ollie -- we can't know if your refusal to serve is sincerely religious, homophobic, or some inseparable mixture. Whatever it is, get over it or get out of the business. The attempts to treat the current situation as different from the racial question -- geographic concerns about the Old South; slavery makes race sui generis -- seem to me deeply unpersuasive. But I would be eager to hear answers to the questions I pose above about separating religion from phobia/bigotry, whether it is do-able, and why it is worth the doing, in light of the mistakes and harms that such a process will invite. -- Ira C. Lupu F. Elwood Eleanor Davis Professor of Law, Emeritus George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 Co-author (with Professor Robert Tuttle) of Secular Government, Religious People (forthcoming, summer 2014, Wm. B. Eerdmans Pub. Co.) My SSRN papers are here: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg ___ 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: bigotry and sincere religious belief
I'm not sure how easily it could be done, but we ought to try on some level to protect the sincere religious beliefs Because attempts to enforce by legal sanctions, acts obnoxious to go great a proportion of Citizens, tend to enervate the laws in general, and to slacken the bands of Society. If it be difficult to execute any law which is not generally deemed necessary or salutary, what must be the case, where it is deemed invalid and dangerous? And what may be the effect of so striking an example of impotency in the Government, on its general authority? Of course, the government may very well succeed in closing businesses and closeting anti-gay bigotry, but that may also be problematic. The sword of the state creates quite a mess when attempting to spread small-l liberal goals into illiberal communities of conviction, and illiberal factions often grow stronger, not weaker as a result. When that community is, say, an Amish community living mostly separate from wider society, the costs fall only within that insular community. When that community is a living, breathing part of our polity, the costs to us, as a whole are great. Separating religion from culture is a difficult, if not foolish errand, and likewise we should not read genuine and free of conflating factors into sincere. Sincerity of belief is as simple as not lying, substantive burden is measured by the willingness of believers to pay the price of their beliefs. Pursuing comity in service of a just and stable society suggests we not ask believers to make the price of their conscience participation in our economy. On the whole the current trends in protecting religious liberty are a cure worse than the disease however, because no good defense of religious liberty turns free of constraint into free of cost. The sin of Ollie (and that of David Green) is not following his conscience, but seeking full coverage under aegis of state laws without any compromise. -Kevin Chen On Thu, Feb 27, 2014 at 9:45 AM, Ira Lupu icl...@law.gwu.edu wrote: I think that the politics of the moment, and the conversations we have been having (including the reference to Jim Oleske's provocative article about religious objections to inter-racial marriage compared to religious objections to same sex marriage, *Interracial and Same-Sex Marriages: Similar Religious Objections, Very Different Responses* http://ssrn.com/abstract=2400100, call for a burrowing into the question of what constitutes anti-gay bigotry and how it can be distinguished from sincere religious objections to same sex intimacy. The history of racial prejudice in the U.S. suggests, and Jim's article shows, a deep structure of religious support and justification for segregation (and for slavery before that). Of course, many racial bigots did NOT rely on religious justifications (I grew up in upstate NY, surrounded by bigots who never mentioned religion in their racial attitudes). But some did so rely, and we now look back on them and say -- what? Their religion was insincere? Their religion was culturally determined by geography and Jim Crow culture? (Contrary to what has been written here, Jim Crow laws required segregation in government facilities, like public schools, but Jim Crow culture, NOT laws, kept lunch counters, hotels, restaurants, department stores, etc., segregated. The public accommodations title of the Civil Rights Act of 1964 may have pre-empted applications of trespass law, but it did not pre-empt state law requiring segregation in these private facilities.) All religions, in the social practices they prescribe, are culturally determined to some extent. So I think the lesson of the 1960's is that the commitment to Civil Rights meant we became legally indifferent to whether racism was based on sincere religious objections or not. Ollie from Ollie's BBQ had to serve people of color or get out of the restaurant business, whether or not his desire to exclude had sincere religious components. So what is now different about the LGBT rights movement? Some merchants who want to refuse to serve have sincere religious objections; some just have hostility or discomfort (homophobia, if they are really afraid of the interaction; but surely, many racists had or have Negrophobia.) Should we try, with our very limited tools, to protect the sincere religious objectors but not protect the phobes? What will we do with sincere religious objectors who are also phobes? (I strongly suspect that a mixture of religion and phobia are operating within many objectors; their phobia is buried inside a religious justification, but maybe that's true for only some, not all.) Or do we give up this (to me, futile) attempt to use law as a instrument to sort the sincere objectors from the bigots and phobes, and say, rather simply -- we can't possibly make those distinctions, and in the end we don't care about them. Your refusal to serve some classes of people hurts
Re: bigotry and sincere religious belief
I'm very pleased that my former (and highly able) student Kevin Chen is now participating in the list discussion. He wasn't shy about disagreeing with me in class, and his intellectual temperament has remained the same. For now, I intend to wait for other answers (if any appear) to the bigotry vs. sincere religious belief problem before writing any more. This is a delicate question, but it seems to me that it lies at the heart of discussions we have been having. On Thu, Feb 27, 2014 at 10:39 AM, tznkai tzn...@gmail.com wrote: I'm not sure how easily it could be done, but we ought to try on some level to protect the sincere religious beliefs Because attempts to enforce by legal sanctions, acts obnoxious to go great a proportion of Citizens, tend to enervate the laws in general, and to slacken the bands of Society. If it be difficult to execute any law which is not generally deemed necessary or salutary, what must be the case, where it is deemed invalid and dangerous? And what may be the effect of so striking an example of impotency in the Government, on its general authority? Of course, the government may very well succeed in closing businesses and closeting anti-gay bigotry, but that may also be problematic. The sword of the state creates quite a mess when attempting to spread small-l liberal goals into illiberal communities of conviction, and illiberal factions often grow stronger, not weaker as a result. When that community is, say, an Amish community living mostly separate from wider society, the costs fall only within that insular community. When that community is a living, breathing part of our polity, the costs to us, as a whole are great. Separating religion from culture is a difficult, if not foolish errand, and likewise we should not read genuine and free of conflating factors into sincere. Sincerity of belief is as simple as not lying, substantive burden is measured by the willingness of believers to pay the price of their beliefs. Pursuing comity in service of a just and stable society suggests we not ask believers to make the price of their conscience participation in our economy. On the whole the current trends in protecting religious liberty are a cure worse than the disease however, because no good defense of religious liberty turns free of constraint into free of cost. The sin of Ollie (and that of David Green) is not following his conscience, but seeking full coverage under aegis of state laws without any compromise. -Kevin Chen On Thu, Feb 27, 2014 at 9:45 AM, Ira Lupu icl...@law.gwu.edu wrote: I think that the politics of the moment, and the conversations we have been having (including the reference to Jim Oleske's provocative article about religious objections to inter-racial marriage compared to religious objections to same sex marriage, *Interracial and Same-Sex Marriages: Similar Religious Objections, Very Different Responses* http://ssrn.com/abstract=2400100, call for a burrowing into the question of what constitutes anti-gay bigotry and how it can be distinguished from sincere religious objections to same sex intimacy. The history of racial prejudice in the U.S. suggests, and Jim's article shows, a deep structure of religious support and justification for segregation (and for slavery before that). Of course, many racial bigots did NOT rely on religious justifications (I grew up in upstate NY, surrounded by bigots who never mentioned religion in their racial attitudes). But some did so rely, and we now look back on them and say -- what? Their religion was insincere? Their religion was culturally determined by geography and Jim Crow culture? (Contrary to what has been written here, Jim Crow laws required segregation in government facilities, like public schools, but Jim Crow culture, NOT laws, kept lunch counters, hotels, restaurants, department stores, etc., segregated. The public accommodations title of the Civil Rights Act of 1964 may have pre-empted applications of trespass law, but it did not pre-empt state law requiring segregation in these private facilities.) All religions, in the social practices they prescribe, are culturally determined to some extent. So I think the lesson of the 1960's is that the commitment to Civil Rights meant we became legally indifferent to whether racism was based on sincere religious objections or not. Ollie from Ollie's BBQ had to serve people of color or get out of the restaurant business, whether or not his desire to exclude had sincere religious components. So what is now different about the LGBT rights movement? Some merchants who want to refuse to serve have sincere religious objections; some just have hostility or discomfort (homophobia, if they are really afraid of the interaction; but surely, many racists had or have Negrophobia.) Should we try, with our very limited tools, to protect the sincere religious objectors but not protect the phobes
RE: bigotry and sincere religious belief
Chip, I think your post about bigotry v. sincere religious beliefs does raise core issues in a thoughtful way and I intend to respond. But other commitments may delay my doing so for a while. I don't want you to think that your post doesn't merit a response - it does - or that other list members have nothing to contribute to the issues you raise - I do. Alan From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu Sent: Thursday, February 27, 2014 9:15 AM To: Law Religion issues for Law Academics Subject: Re: bigotry and sincere religious belief I'm very pleased that my former (and highly able) student Kevin Chen is now participating in the list discussion. He wasn't shy about disagreeing with me in class, and his intellectual temperament has remained the same. For now, I intend to wait for other answers (if any appear) to the bigotry vs. sincere religious belief problem before writing any more. This is a delicate question, but it seems to me that it lies at the heart of discussions we have been having. On Thu, Feb 27, 2014 at 10:39 AM, tznkai tzn...@gmail.commailto:tzn...@gmail.com wrote: I'm not sure how easily it could be done, but we ought to try on some level to protect the sincere religious beliefs Because attempts to enforce by legal sanctions, acts obnoxious to go great a proportion of Citizens, tend to enervate the laws in general, and to slacken the bands of Society. If it be difficult to execute any law which is not generally deemed necessary or salutary, what must be the case, where it is deemed invalid and dangerous? And what may be the effect of so striking an example of impotency in the Government, on its general authority? Of course, the government may very well succeed in closing businesses and closeting anti-gay bigotry, but that may also be problematic. The sword of the state creates quite a mess when attempting to spread small-l liberal goals into illiberal communities of conviction, and illiberal factions often grow stronger, not weaker as a result. When that community is, say, an Amish community living mostly separate from wider society, the costs fall only within that insular community. When that community is a living, breathing part of our polity, the costs to us, as a whole are great. Separating religion from culture is a difficult, if not foolish errand, and likewise we should not read genuine and free of conflating factors into sincere. Sincerity of belief is as simple as not lying, substantive burden is measured by the willingness of believers to pay the price of their beliefs. Pursuing comity in service of a just and stable society suggests we not ask believers to make the price of their conscience participation in our economy. On the whole the current trends in protecting religious liberty are a cure worse than the disease however, because no good defense of religious liberty turns free of constraint into free of cost. The sin of Ollie (and that of David Green) is not following his conscience, but seeking full coverage under aegis of state laws without any compromise. -Kevin Chen On Thu, Feb 27, 2014 at 9:45 AM, Ira Lupu icl...@law.gwu.edumailto:icl...@law.gwu.edu wrote: I think that the politics of the moment, and the conversations we have been having (including the reference to Jim Oleske's provocative article about religious objections to inter-racial marriage compared to religious objections to same sex marriage, Interracial and Same-Sex Marriages: Similar Religious Objections, Very Different Responses http://ssrn.com/abstract=2400100, call for a burrowing into the question of what constitutes anti-gay bigotry and how it can be distinguished from sincere religious objections to same sex intimacy. The history of racial prejudice in the U.S. suggests, and Jim's article shows, a deep structure of religious support and justification for segregation (and for slavery before that). Of course, many racial bigots did NOT rely on religious justifications (I grew up in upstate NY, surrounded by bigots who never mentioned religion in their racial attitudes). But some did so rely, and we now look back on them and say -- what? Their religion was insincere? Their religion was culturally determined by geography and Jim Crow culture? (Contrary to what has been written here, Jim Crow laws required segregation in government facilities, like public schools, but Jim Crow culture, NOT laws, kept lunch counters, hotels, restaurants, department stores, etc., segregated. The public accommodations title of the Civil Rights Act of 1964 may have pre-empted applications of trespass law, but it did not pre-empt state law requiring segregation in these private facilities.) All religions, in the social practices they prescribe, are culturally determined to some extent. So I think the lesson of the 1960's is that the commitment to Civil Rights meant we became legally
RE: bigotry and sincere religious belief
I don't pretend to have definitive answers to the questions that Chip Lupu and Kevin Chen are discussing. But I think the proper resolution of this debate calls for sensitive judgments depending as much on history and prudence as on logic and prior precedent. In my view, the history of the United States - including the institution of slavery, the Civil War, the post-Civil War Amendments, Jim Crow, etc. - suggests that racial discrimination is indeed a matter of special and distinctive concern. Moreover, putting aside other forms of discrimination, opposition to same-sex marriage, including (as already noted) that of President Obama until very recently, cannot readily be equated with bigotry. President Obama explained his 2012 change of heart as reflecting a new understanding of his Christian faith, suggesting that his prior position likewise was informed by his religion. Religious perspectives change over time, and there is little doubt that they are changing quite rapidly - and will continue to change - in this context. So, during a period of breathtakingly rapid shifts in societal opinion, is now the time to declare that this is like racial discrimination and simply should not be tolerated? Or should religious objectors - at least for now, at least in the context of same-sex marriage - be given serious respect, as dissenting members of the community, including a presumption that their opposition is grounded in something other than bigotry? I tend toward the latter view. Dan Conkle Daniel O. Conkle Robert H. McKinney Professor of Law Indiana University Maurer School of Law Bloomington, Indiana 47405 (812) 855-4331 fax (812) 855-0555 e-mail con...@indiana.edu From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu Sent: Thursday, February 27, 2014 12:15 PM To: Law Religion issues for Law Academics Subject: Re: bigotry and sincere religious belief I'm very pleased that my former (and highly able) student Kevin Chen is now participating in the list discussion. He wasn't shy about disagreeing with me in class, and his intellectual temperament has remained the same. For now, I intend to wait for other answers (if any appear) to the bigotry vs. sincere religious belief problem before writing any more. This is a delicate question, but it seems to me that it lies at the heart of discussions we have been having. On Thu, Feb 27, 2014 at 10:39 AM, tznkai tzn...@gmail.commailto:tzn...@gmail.com wrote: I'm not sure how easily it could be done, but we ought to try on some level to protect the sincere religious beliefs Because attempts to enforce by legal sanctions, acts obnoxious to go great a proportion of Citizens, tend to enervate the laws in general, and to slacken the bands of Society. If it be difficult to execute any law which is not generally deemed necessary or salutary, what must be the case, where it is deemed invalid and dangerous? And what may be the effect of so striking an example of impotency in the Government, on its general authority? Of course, the government may very well succeed in closing businesses and closeting anti-gay bigotry, but that may also be problematic. The sword of the state creates quite a mess when attempting to spread small-l liberal goals into illiberal communities of conviction, and illiberal factions often grow stronger, not weaker as a result. When that community is, say, an Amish community living mostly separate from wider society, the costs fall only within that insular community. When that community is a living, breathing part of our polity, the costs to us, as a whole are great. Separating religion from culture is a difficult, if not foolish errand, and likewise we should not read genuine and free of conflating factors into sincere. Sincerity of belief is as simple as not lying, substantive burden is measured by the willingness of believers to pay the price of their beliefs. Pursuing comity in service of a just and stable society suggests we not ask believers to make the price of their conscience participation in our economy. On the whole the current trends in protecting religious liberty are a cure worse than the disease however, because no good defense of religious liberty turns free of constraint into free of cost. The sin of Ollie (and that of David Green) is not following his conscience, but seeking full coverage under aegis of state laws without any compromise. -Kevin Chen On Thu, Feb 27, 2014 at 9:45 AM, Ira Lupu icl...@law.gwu.edumailto:icl...@law.gwu.edu wrote: I think that the politics of the moment, and the conversations we have been having (including the reference to Jim Oleske's provocative article about religious objections to inter-racial marriage compared to religious objections to same sex marriage, Interracial and Same-Sex Marriages
RE: bigotry and sincere religious belief
I also do not have any answers - especially on the underlying issue. But let me make two points about the bigotry vs. sincere religious belief question. 1) Does it change the argument any if one operates from the assumption that racism, despite our best efforts, continues to be tolerated (witness the most recent voting rights case)? This might suggest a prioritization argument (lets deal with racism first) or an interconnectedness argument (fighting the underlying racism in the country requires fighting sexism, homophobia etc.). Personally, I would lean toward the latter. 2) As a Jew, there is something about the sincere religious believer vs. phobic-hater distinction that doesn't make sense. Does it matter whether someone excludes me because I am subhuman or because my ancestors killed their savior. Both sound pretty bad. To me the motivation matters less than what I, as a Jew, are excluded from. As noted, I leave these questions for others. What worries me a bit is the idea that America is somehow a post-racial country. Sincerely, Rob Kahn Associate Professor University of St. Thomas School of Law Minneapolis, MN 55403 phone: (651) 962-4807 email: rak...@stthomas.edumailto:rak...@stthomas.edu From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Conkle, Daniel O. Sent: Thursday, February 27, 2014 1:05 PM To: Law Religion issues for Law Academics Subject: RE: bigotry and sincere religious belief I don't pretend to have definitive answers to the questions that Chip Lupu and Kevin Chen are discussing. But I think the proper resolution of this debate calls for sensitive judgments depending as much on history and prudence as on logic and prior precedent. In my view, the history of the United States - including the institution of slavery, the Civil War, the post-Civil War Amendments, Jim Crow, etc. - suggests that racial discrimination is indeed a matter of special and distinctive concern. Moreover, putting aside other forms of discrimination, opposition to same-sex marriage, including (as already noted) that of President Obama until very recently, cannot readily be equated with bigotry. President Obama explained his 2012 change of heart as reflecting a new understanding of his Christian faith, suggesting that his prior position likewise was informed by his religion. Religious perspectives change over time, and there is little doubt that they are changing quite rapidly - and will continue to change - in this context. So, during a period of breathtakingly rapid shifts in societal opinion, is now the time to declare that this is like racial discrimination and simply should not be tolerated? Or should religious objectors - at least for now, at least in the context of same-sex marriage - be given serious respect, as dissenting members of the community, including a presumption that their opposition is grounded in something other than bigotry? I tend toward the latter view. Dan Conkle Daniel O. Conkle Robert H. McKinney Professor of Law Indiana University Maurer School of Law Bloomington, Indiana 47405 (812) 855-4331 fax (812) 855-0555 e-mail con...@indiana.edumailto:con...@indiana.edu From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu Sent: Thursday, February 27, 2014 12:15 PM To: Law Religion issues for Law Academics Subject: Re: bigotry and sincere religious belief I'm very pleased that my former (and highly able) student Kevin Chen is now participating in the list discussion. He wasn't shy about disagreeing with me in class, and his intellectual temperament has remained the same. For now, I intend to wait for other answers (if any appear) to the bigotry vs. sincere religious belief problem before writing any more. This is a delicate question, but it seems to me that it lies at the heart of discussions we have been having. On Thu, Feb 27, 2014 at 10:39 AM, tznkai tzn...@gmail.commailto:tzn...@gmail.com wrote: I'm not sure how easily it could be done, but we ought to try on some level to protect the sincere religious beliefs Because attempts to enforce by legal sanctions, acts obnoxious to go great a proportion of Citizens, tend to enervate the laws in general, and to slacken the bands of Society. If it be difficult to execute any law which is not generally deemed necessary or salutary, what must be the case, where it is deemed invalid and dangerous? And what may be the effect of so striking an example of impotency in the Government, on its general authority? Of course, the government may very well succeed in closing businesses and closeting anti-gay bigotry, but that may also be problematic. The sword of the state creates quite a mess when attempting to spread small-l liberal goals
Re: bigotry and sincere religious belief
Professor Chen's response seems a bit over the top. The government is not, after all, interested in closing businesses. It is interested in making sure that businesses which are licensed by the government and are open to the public serve the entire public and that business owners do not act on their personal bigotries (or beliefs) when offering their goods and services to the public. Put another way, the government cannot force people to change their views about others; it can only (and properly) compel them to treat others with dignity, respect, and equality. I am surprised anyone on this list would object to this. Of course anti-gay bigotry may be closeted. That is far better than having it out in the open to harm people on a day-to-day basis. Idaho is considering a law that would allow doctors and dentists (among others) to refuse to treat gay patients. This is not about opposition to marriage but hostility to gay people per se. That the hostility is religiously motivated is hardly relevant. The KKK lynched Jews and Catholics (not as often as blacks) because they KKK members were religiously motivated to do so. If I were a gay man in Idaho with a broken arm, I would probably not care if the doctor was a closeted bigot who hated gays; or had anti-gay religious beliefs (clearly not along the line of doing unto others or loving thy neighbor). All I would want is that the professional with the MD set my arm properly and give me a cast and send me on my way to healing. After my arm was set (or after I bought flowers for my wedding) I would not be too concerned about the doctor or florist crawling back into his or her closet to be bigoted. Indeed, I would argue that civil rights laws are designed precisely to force the bigots into the closet (or the privacy of their home, private club, or even their church) where they can exercise their right to despise people for religious reasons or any other reasons. But, when the go outside engage in businesses and professions, they cannot let those prejudices (or deeply held religious convictions) prevent them from accepting all comers in their businesses. Professor Paul Finkelman Justice Pike Hall, Jr. Visiting Professor Paul M. Hebert Law Center Louisiana State University 1 East Campus Drive Baton Rouge, LA 70803-0106 225-578-0894225-578-0894 (of) 518-605-0296518-605-0296 (m) From: tznkai tzn...@gmail.com To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Thursday, February 27, 2014 9:39 AM Subject: Re: bigotry and sincere religious belief I'm not sure how easily it could be done, but we ought to try on some level to protect the sincere religious beliefs Because attempts to enforce by legal sanctions, acts obnoxious to go great a proportion of Citizens, tend to enervate the laws in general, and to slacken the bands of Society. If it be difficult to execute any law which is not generally deemed necessary or salutary, what must be the case, where it is deemed invalid and dangerous? And what may be the effect of so striking an example of impotency in the Government, on its general authority? Of course, the government may very well succeed in closing businesses and closeting anti-gay bigotry, but that may also be problematic. The sword of the state creates quite a mess when attempting to spread small-l liberal goals into illiberal communities of conviction, and illiberal factions often grow stronger, not weaker as a result. When that community is, say, an Amish community living mostly separate from wider society, the costs fall only within that insular community. When that community is a living, breathing part of our polity, the costs to us, as a whole are great. Separating religion from culture is a difficult, if not foolish errand, and likewise we should not read genuine and free of conflating factors into sincere. Sincerity of belief is as simple as not lying, substantive burden is measured by the willingness of believers to pay the price of their beliefs. Pursuing comity in service of a just and stable society suggests we not ask believers to make the price of their conscience participation in our economy. On the whole the current trends in protecting religious liberty are a cure worse than the disease however, because no good defense of religious liberty turns free of constraint into free of cost. The sin of Ollie (and that of David Green) is not following his conscience, but seeking full coverage under aegis of state laws without any compromise. -Kevin Chen On Thu, Feb 27, 2014 at 9:45 AM, Ira Lupu icl...@law.gwu.edu wrote: I think that the politics of the moment, and the conversations we have been having (including the reference to Jim Oleske's provocative article about religious objections to inter-racial marriage compared to religious objections to same sex marriage, Interracial and Same-Sex Marriages: Similar
Re: bigotry and sincere religious belief
Sent from my BlackBerry 10 smartphone on the Verizon Wireless 4G LTE network. From: Paul FinkelmanSent: Thursday, February 27, 2014 4:35 PMTo: Law Religion issues for Law AcademicsReply To: Paul FinkelmanSubject: Re: bigotry and sincere religious beliefProfessor Chen's response seems a bit over the top. The government is not, after all, interested in closing businesses. It is interested in making sure that businesses which are licensed by the government and are open to the public serve the entire public and that business owners do not act on their personal bigotries (or beliefs) when offering their goods and services to the public.Put another way, the government cannot force people to change their views about others; it can only (and properly) compel them to treat others with dignity, respect, and equality. I am surprised anyone on this list would object to this.Of course anti-gay bigotry may be closeted. That is far better than having it out in the open to harm people on a day-to-day basis. Idaho is considering a law that would allow doctors and dentists (among others) to refuse to treat gay patients. This is not about opposition to marriage but hostility to gay people per se. That the hostility is religiously motivated is hardly relevant. The KKK lynched Jews and Catholics (not as often as blacks) because they KKK members were religiously motivated to do so.If I were a gay man in Idaho with a broken arm, I would probably not care if the doctor was a closeted bigot who hated gays; or had anti-gay religious beliefs (clearly not along the line of doing unto others or loving thy neighbor). All I would want is that the professional with the MD set my arm properly and give me a cast and send me on my way to healing. After my arm was set (or after I bought flowers for my wedding) I would not be too concerned about the doctor or florist crawling back into his or her closet to be bigoted.Indeed, I would argue that civil rights laws are designed precisely to force the bigots into the closet (or the privacy of their home, private club, or even their church) where they can exercise their right to despise people for religious reasons or any other reasons. But, when the go outside engage in businesses and professions, they cannot let those prejudices (or deeply held religious convictions) prevent them from accepting all comers in their businesses. Professor Paul Finkelman Justice Pike Hall, Jr. Visiting Professor Paul M. Hebert Law Center Louisiana State University 1 East Campus Drive Baton Rouge, LA 70803-0106225-578-0894225-578-0894 (of)518-605-0296518-605-0296 (m)From: tznkai tzn...@gmail.com To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Thursday, February 27, 2014 9:39 AM Subject: Re: bigotry and sincere religious belief I'm not sure how easily it could be done, but we ought to try on some level to protect the sincere religious beliefsBecause attempts to enforce by legal sanctions, acts obnoxious to go great a proportion of Citizens, tend to enervate the laws in general, and to slacken the bands of Society. If it be difficult to execute any law which is not generally deemed necessary or salutary, what must be the case, where it is deemed invalid and dangerous? And what may be the effect of so striking an example of impotency in the Government, on its general authority? Of course, the government may very well succeed in closing businesses and closeting anti-gay bigotry, but that may also be problematic. The sword of the state creates quite a mess when attempting to spread small-l liberal goals into illiberal communities of conviction, and illiberal factions often grow stronger, not weaker as a result. When that community is, say, an Amish community living mostly separate from wider society, the costs fall only within that insular community. When that community is a living, breathing part of our polity, the costs to us, as a whole are great. Separating religion from culture is a difficult, if not foolish errand, and likewise we should not read "genuine and free of conflating factors" into "sincere". Sincerity of belief is as simple as not lying, substantive burden is measured by the willingness of believers to pay the price of their beliefs. Pursuing comity in service of a just and stable society suggests we not ask believers to make the price of their conscience participation in our economy. On the whole the current trends in protecting religiou
Re: bigotry and sincere religious belief
I get that religious people do not want to be discriminated against. Indeed, they have lots of protections in the laws already protecting them from discrimination in employment, public accomodations, and so on. And they have lots of special treatment in the form of exemptions from laws that constrain everyone else. And they have RFRAs — state and federal — no other group has that sort of protection. But these highly-protected, coddled people want even more — they want to deny these rights to homosexuals. They want to discriminate against people on the basis of sexual orientation. They want to be free to ignore general societal laws that would require them to ignore the sexual orientation of students, employees, customers, etc. And then they turn around, after all the exceptions, exemptions, accommodations, special treatment, protections from discrimination that they enjoy, and claim that anyone who does not agree to give them even more, or perhaps more accurately described as ever more” special treatment. And not because they are part of a religious order or organization, and not because anyone is forcing them to engage in business or to do anything except not discriminate — but because of a distaste for someone else’s sexual orientation and a religious theory of complicity with evil — thus making all homosexuals being evil and tools of the devil. And not only that, they claim that those of us who think that religious adherents should not get a unit veto on all general welfare and social justice and human rights legislation and norms are in fact the true bigots for not giving them everything. Really! You’d think that religious people were being persecuted and hounded and locked up to hear the hew and cry being raised, when in fact, all that is being done is to say — secular and sacred are separate in our constitutional system — and that those who wish to live their values must then find ways to do so that do not conflict with established secular social justice norms. I get that they don’t like being equated with racial bigots of decades past and present. But, by their fruits shall you know them,” — can a religious motivation ever expunge the taste of the bitter fruit being pushed? Status-based discrimination is a bitter fruit indeed and it is what is being pushed by some religious adherents. No one is requiring them to like homosexuality, to become homosexual, to befriend a homosexual (though I suspect Jesus would have something to say about each of these that some Christians would not like to hear), or to do anything at all except to treat them as people entitled to equal rights and dignity. This is indeed about animus toward homosexuals —even if it is sourced in or clothed in religious garb and even if that source is genuine and sincerely believed based on something other than culturally received bigotry. We as a society can make judgments about the proper bounds of treatment of everyone and do not need to exempt people from respecting the worth and dignity of each person just because of a religious belief or the even more tenuous complicity theory. I kinda like this wikipedia definition of bigotry: Bigotry is the state of mind of a bigot: someone who, as a result of their prejudices, treats or views other people with fear, distrust, hatred, contempt, or intolerance on the basis of a person's opinion, ethnicity, race, religion, national origin, gender,gender identity, sexual orientation, disability, socioeconomic status, or other characteristics. “as a result of their prejudices” — does the source of the prejudice, even if it is sincerely held religious beliefs make it any less of a prejudice? Steve -- Prof. Steven D. Jamar vox: 202-806-8017 Director of International Programs, Institute for Intellectual Property and Social Justice http://iipsj.org Howard University School of Law fax: 202-806-8567 http://iipsj.com/SDJ/ The aim of education must be the training of independently acting and thinking individuals who, however, see in the service to the community their highest life achievement. Albert Einstein ___ 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: bigotry and sincere religious belief
in application from the kind of invidious and immediately harmful discrimination that traditionally was addressed by civil rights laws. If someone invites me to a boxing match, and I decline because I find the spectacle distasteful, I have in a generic sense discriminated, both against the boxing enthusiast who invites me and the culture of boxing. Let me take it step further. If you run an advertising agency and are asked to prepare an advertisement for a political candidate whose message you find repugnant and you decline, you again are discriminating, now on the basis of political views. While that has not yet become basis for anti-discrimination laws, it is being proposed in some municipalities. But I still have not come to a traditional civil rights law classification. So let me take it still another step. If I invite you to join me for a prayer services, and you decline because you do not share my religious views, you have discriminated against me and done so on the basis of religion. But surely we are not going to legislate on such a subject and justify it as fighting discrimination. So if we were to formulate a narrow exemption that makes clear that no person is required to participate in or directly provide services to a ceremony or campaign whose message that person does not wish to advance, could we find a point of common agreement at last? For the wedding photographer or the event planner or the bed-and-breakfast, their resistance is really no different in nature than the person who declines to accompany another to a prayer service. Of course, we'd need to be careful in tailoring such an exception, so that it was not misused to, say, allow the taxi driver to refuse to deliver a person to a location, such as a church or military recruitment center. But I think we could come to a description that tied into more intimate involvement in a ceremony or message. Again, I'm not saying this clears the decks altogether, but it would be a starting point toward balance. 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 Steven Jamar Sent: Thursday, February 27, 2014 5:11 PM To: Law Religion Law List Subject: Re: bigotry and sincere religious belief Importance: Low I get that religious people do not want to be discriminated against. Indeed, they have lots of protections in the laws already protecting them from discrimination in employment, public accomodations, and so on. And they have lots of special treatment in the form of exemptions from laws that constrain everyone else. And they have RFRAs - state and federal - no other group has that sort of protection. But these highly-protected, coddled people want even more - they want to deny these rights to homosexuals. They want to discriminate against people on the basis of sexual orientation. They want to be free to ignore general societal laws that would require them to ignore the sexual orientation of students, employees, customers, etc. And then they turn around, after all the exceptions, exemptions, accommodations, special treatment, protections from discrimination that they enjoy, and claim that anyone who does not agree to give them even more, or perhaps more accurately described as ever more special treatment. And not because they are part of a religious order or organization, and not because anyone is forcing them to engage in business or to do anything except not discriminate - but because of a distaste for someone else's sexual orientation and a religious theory of complicity with evil - thus making all homosexuals being evil and tools of the devil. And not only that, they claim that those of us who think that religious adherents should not get a unit veto on all general welfare and social justice and human rights legislation and norms are in fact the true bigots for not giving them everything. Really! You'd think that religious people were being persecuted and hounded and locked up to hear the hew and cry being raised, when in fact, all that is being done is to say - secular and sacred are separate in our constitutional system - and that those who wish to live their values must then find ways to do so that do not conflict with established secular social justice norms. I get that they don't like being equated with racial bigots of decades past and present. But, by their fruits shall you know them, - can a religious motivation ever expunge the taste of the bitter fruit being pushed? Status-based discrimination is a bitter fruit indeed and it is what is being pushed by some religious adherents. No one
RE: bigotry and sincere religious belief
With regard to exclusions and sincere religious belief, dare I point out that Orthodox Judaism is full of such exclusions, especially based on gender and marital status. The ultra-Orthodox in Israel are basically insisting on segregated buses lest males be corrupted by a female presence (part of the basis for the separation of the sexes in Orthodox services). And a wine merchant's decision to carry only Kosher wine, because of customer insistence, means that all wine would have to be produced by Jews, since that is basically the test for wine's being Kosher. I have no idea what these factoids add up to (other than that I am opposed to Israel accommodating the Haredi by adopting segregationist practices in public transportation), but they underscore the complexity of trying to figure out what to do with people with strange and, probably to most of us, objectionable, albeit entirely sincere, religious tenets. sandy From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Kahn, Robert A. Sent: Thursday, February 27, 2014 1:30 PM To: Law Religion issues for Law Academics Subject: RE: bigotry and sincere religious belief I also do not have any answers - especially on the underlying issue. But let me make two points about the bigotry vs. sincere religious belief question. 1) Does it change the argument any if one operates from the assumption that racism, despite our best efforts, continues to be tolerated (witness the most recent voting rights case)? This might suggest a prioritization argument (lets deal with racism first) or an interconnectedness argument (fighting the underlying racism in the country requires fighting sexism, homophobia etc.). Personally, I would lean toward the latter. 2) As a Jew, there is something about the sincere religious believer vs. phobic-hater distinction that doesn't make sense. Does it matter whether someone excludes me because I am subhuman or because my ancestors killed their savior. Both sound pretty bad. To me the motivation matters less than what I, as a Jew, are excluded from. As noted, I leave these questions for others. What worries me a bit is the idea that America is somehow a post-racial country. Sincerely, Rob Kahn Associate Professor University of St. Thomas School of Law Minneapolis, MN 55403 phone: (651) 962-4807 email: rak...@stthomas.edumailto:rak...@stthomas.edu From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Conkle, Daniel O. Sent: Thursday, February 27, 2014 1:05 PM To: Law Religion issues for Law Academics Subject: RE: bigotry and sincere religious belief I don't pretend to have definitive answers to the questions that Chip Lupu and Kevin Chen are discussing. But I think the proper resolution of this debate calls for sensitive judgments depending as much on history and prudence as on logic and prior precedent. In my view, the history of the United States - including the institution of slavery, the Civil War, the post-Civil War Amendments, Jim Crow, etc. - suggests that racial discrimination is indeed a matter of special and distinctive concern. Moreover, putting aside other forms of discrimination, opposition to same-sex marriage, including (as already noted) that of President Obama until very recently, cannot readily be equated with bigotry. President Obama explained his 2012 change of heart as reflecting a new understanding of his Christian faith, suggesting that his prior position likewise was informed by his religion. Religious perspectives change over time, and there is little doubt that they are changing quite rapidly - and will continue to change - in this context. So, during a period of breathtakingly rapid shifts in societal opinion, is now the time to declare that this is like racial discrimination and simply should not be tolerated? Or should religious objectors - at least for now, at least in the context of same-sex marriage - be given serious respect, as dissenting members of the community, including a presumption that their opposition is grounded in something other than bigotry? I tend toward the latter view. Dan Conkle Daniel O. Conkle Robert H. McKinney Professor of Law Indiana University Maurer School of Law Bloomington, Indiana 47405 (812) 855-4331 fax (812) 855-0555 e-mail con...@indiana.edumailto:con...@indiana.edu From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu Sent: Thursday, February 27, 2014 12:15 PM To: Law Religion issues for Law Academics Subject: Re: bigotry and sincere religious belief I'm very pleased that my former (and highly able) student Kevin Chen is now participating in the list discussion. He wasn't shy
Re: bigotry and sincere religious belief
a room in the house to a compatible person of shared religious values. As long as an exemption for this would be restricted to small, intimate settings - that is, truly small mom-and-pop style businesses, along the lines that Doug Laycock suggests, and perhaps subject to limitations where a hardship or denial of service would apply. But let's set this situation to one side for the moment. What is more problematic for those of us who advocate for a more robust religious liberty regime are those cases, such as the Elane photography case, where an individual in either personal or business life is effectively coerced by the law to participate in a ceremony or to become a tool to advance an ideological message. In other words, we are not talking at all about being required to ignore sexual orientation but rather the opposite. To focus on the most visible case on the matter, the wedding photographer is not being asked to simply ignore the sexual orientation of those in a same-sex marriage, but to be part of a ceremony in which a same-sex union is affirmed. Importantly, this is not a concern that turns on a single situation or type of message. And denial of the right to refuse to participate carries dangerous for freedom of religion, thought, association, etc. far beyond the current debate about same-sex marriage. A photographer who objects to being used to promote a military program or a political rally or a religious ceremony should likewise have the freedom to decline to be used for a message that she chooses not to advance. Now we could, of course, call this refusal to participate discrimination. But at some point that term proves too much and becomes diluted by over-use and quite distant in application from the kind of invidious and immediately harmful discrimination that traditionally was addressed by civil rights laws. If someone invites me to a boxing match, and I decline because I find the spectacle distasteful, I have in a generic sense discriminated, both against the boxing enthusiast who invites me and the culture of boxing. Let me take it step further. If you run an advertising agency and are asked to prepare an advertisement for a political candidate whose message you find repugnant and you decline, you again are discriminating, now on the basis of political views. While that has not yet become basis for anti-discrimination laws, it is being proposed in some municipalities. But I still have not come to a traditional civil rights law classification. So let me take it still another step. If I invite you to join me for a prayer services, and you decline because you do not share my religious views, you have discriminated against me and done so on the basis of religion. But surely we are not going to legislate on such a subject and justify it as fighting discrimination. So if we were to formulate a narrow exemption that makes clear that no person is required to participate in or directly provide services to a ceremony or campaign whose message that person does not wish to advance, could we find a point of common agreement at last? For the wedding photographer or the event planner or the bed-and-breakfast, their resistance is really no different in nature than the person who declines to accompany another to a prayer service. Of course, we'd need to be careful in tailoring such an exception, so that it was not misused to, say, allow the taxi driver to refuse to deliver a person to a location, such as a church or military recruitment center. But I think we could come to a description that tied into more intimate involvement in a ceremony or message. Again, I'm not saying this clears the decks altogether, but it would be a starting point toward balance. 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 *Steven Jamar *Sent:* Thursday, February 27, 2014 5:11 PM *To:* Law Religion Law List *Subject:* Re: bigotry and sincere religious belief *Importance:* Low I get that religious people do not want to be discriminated against. Indeed, they have lots of protections in the laws already protecting them from discrimination in employment, public accomodations, and so on. And they have lots of special treatment in the form of exemptions from laws that constrain everyone else. And they have RFRAs -- state and federal -- no other group has that sort of protection. But these highly-protected, coddled people want even more -- they want to deny these rights to homosexuals. They want to discriminate against people
Re: bigotry and sincere religious belief
in a ceremony or message. Again, I’m not saying this clears the decks altogether, but it would be a starting point toward balance. 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.edumailto: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.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar Sent: Thursday, February 27, 2014 5:11 PM To: Law Religion Law List Subject: Re: bigotry and sincere religious belief Importance: Low I get that religious people do not want to be discriminated against. Indeed, they have lots of protections in the laws already protecting them from discrimination in employment, public accomodations, and so on. And they have lots of special treatment in the form of exemptions from laws that constrain everyone else. And they have RFRAs — state and federal — no other group has that sort of protection. But these highly-protected, coddled people want even more — they want to deny these rights to homosexuals. They want to discriminate against people on the basis of sexual orientation. They want to be free to ignore general societal laws that would require them to ignore the sexual orientation of students, employees, customers, etc. And then they turn around, after all the exceptions, exemptions, accommodations, special treatment, protections from discrimination that they enjoy, and claim that anyone who does not agree to give them even more, or perhaps more accurately described as ever more” special treatment. And not because they are part of a religious order or organization, and not because anyone is forcing them to engage in business or to do anything except not discriminate — but because of a distaste for someone else’s sexual orientation and a religious theory of complicity with evil — thus making all homosexuals being evil and tools of the devil. And not only that, they claim that those of us who think that religious adherents should not get a unit veto on all general welfare and social justice and human rights legislation and norms are in fact the true bigots for not giving them everything. Really! You’d think that religious people were being persecuted and hounded and locked up to hear the hew and cry being raised, when in fact, all that is being done is to say — secular and sacred are separate in our constitutional system — and that those who wish to live their values must then find ways to do so that do not conflict with established secular social justice norms. I get that they don’t like being equated with racial bigots of decades past and present. But, by their fruits shall you know them,” — can a religious motivation ever expunge the taste of the bitter fruit being pushed? Status-based discrimination is a bitter fruit indeed and it is what is being pushed by some religious adherents. No one is requiring them to like homosexuality, to become homosexual, to befriend a homosexual (though I suspect Jesus would have something to say about each of these that some Christians would not like to hear), or to do anything at all except to treat them as people entitled to equal rights and dignity. This is indeed about animus toward homosexuals —even if it is sourced in or clothed in religious garb and even if that source is genuine and sincerely believed based on something other than culturally received bigotry. We as a society can make judgments about the proper bounds of treatment of everyone and do not need to exempt people from respecting the worth and dignity of each person just because of a religious belief or the even more tenuous complicity theory. I kinda like this wikipedia definition of bigotry: Bigotry is the state of mind of a bigot: someone who, as a result of their prejudiceshttp://en.wikipedia.org/wiki/Prejudice, treats or views other people with fear, distrust, hatred, contempt, or intolerance on the basis of a person's opinionhttp://en.wikipedia.org/wiki/Opinion, ethnicityhttp://en.wikipedia.org/wiki/Ethnicity, racehttp://en.wikipedia.org/wiki/Race, religionhttp://en.wikipedia.org/wiki/Religion, national originhttp://en.wikipedia.org/wiki/National_origin, genderhttp://en.wikipedia.org/wiki/Gender,gender identityhttp://en.wikipedia.org/wiki/Gender_identity, sexual orientationhttp://en.wikipedia.org/wiki/Sexual_orientation, disabilityhttp://en.wikipedia.org/wiki/Disability, socioeconomic statushttp://en.wikipedia.org/wiki/Socioeconomic_status, or other characteristics. “as a result of their prejudices” — does the source of the prejudice, even if it is sincerely held religious beliefs make it any less of a prejudice? Steve
Re: bigotry and sincere religious belief
As Chip notes, there are profound difficulties in trying to use law as a instrument to sort the sincere objectors from the bigots and phobes. And until recently, our consistent approach to antidiscrimination laws and religious accommodations implicitly recognized what Chip ultimately concludes below -- we can't possibly make those distinctions. Instead, our traditional approach was to allow or refuse religious accommodations from antidiscrimination laws based on the sphere in which that discrimination occurred, not the relative merits of particular instances of discrimination within a particular sphere. The two paradigm spheres were (1) the internal operations of religious institutions, where we shielded from legal consequences all discrimination against otherwise protected classes, and (2) the for-profit commercial sphere, where we shielded from legal consequences no discrimination against protected classes except pursuant to across-the-board size exemptions. In neither sphere did we charge the legal system with the seemingly impossible task of trying to distinguish between invidious and non-invidious instances of the same discrimination. Today, the first half of the paradigm is alive and well (see Hosanna Tabor), but the second half is being vigorously challenged. In addition to the practical challenges of abandoning the second half of the paradigm, it strikes some of us as particularly troubling that proposals for legislative carve-outs in the commercial context only gained widespread currency when the focus turned to the rights of same-sex couples. As I write toward the end of my article: [A]lthough the Bible quotes Jesus Christ explicitly condemning divorce and remarriage as adultery, and although such remarriages violate the current teachings of the largest Christian denomination in America, state laws prohibiting discrimination based on marital status do not contain exemptions allowing commercial businesses to refuse to facilitate the remarriages of divorced people. Only after same-sex couples were allowed to marry was there an effort to allow business owners to discriminate for religious reasons The fact [is] that no state has ever exempted commercial business owners from the obligation to provide equal services for interracial marriages, interfaith marriages, or marriages involving divorced individuals--even though major religious traditions in America have opposed each type of marriage As for religious opposition to interracial marriage in particular, it was not confined to the South in the 1960s, and it is not so confined today. The Restored Church of God -- whose leader has harshly criticized other Churches of God for abandoning the teaching that interracial marriage is a sin -- is based in Ohio. And it is not a tiny obscure church -- the U.S. Congressman representing the church's district attended the 2012 ribbon-cutting ceremony for its 40,000-foot facility. If members of the Restored Church of God operate inns, run bakeries, and rent non-owner-occupied apartments in Ohio, should they be allowed to refuse to host interracial weddings, provide cakes for such weddings, extend family health benefits to employees in interracial marriages, and refuse to rent apartments to married interracial couples? Should members of the Catholic Church who adhere to the church's teachings on divorce be allowed to do likewise with respect to weddings and marriages involving divorced people? How about members of churches that oppose interfaith marriages? Should the line be drawn between those who religiously oppose interracial marriage and those who religiously oppose the other three types of marriage? Between the first two categories and the second two categories? Between same-sex marriage and the other three? Are we comfortable with the law attempting to draw any of these lines between different religious beliefs? If not, our traditional approach of focusing instead on covered and non-covered spheres for the operation of antidiscrimination laws would seem to have a great deal to recommend it. - Jim On Thu, Feb 27, 2014 at 6:45 AM, Ira Lupu icl...@law.gwu.edu wrote: I think that the politics of the moment, and the conversations we have been having (including the reference to Jim Oleske's provocative article about religious objections to inter-racial marriage compared to religious objections to same sex marriage, *Interracial and Same-Sex Marriages: Similar Religious Objections, Very Different Responses* http://ssrn.com/abstract=2400100, call for a burrowing into the question of what constitutes anti-gay bigotry and how it can be distinguished from sincere religious objections to same sex intimacy. The history of racial prejudice in the U.S. suggests, and Jim's article shows, a deep structure of religious support and justification for segregation (and for slavery before that). Of course, many racial bigots did NOT rely on religious justifications (I grew up in upstate NY,
Re: bigotry and sincere religious belief
could, of course, call this refusal to participate discrimination. But at some point that term proves too much and becomes diluted by over-use and quite distant in application from the kind of invidious and immediately harmful discrimination that traditionally was addressed by civil rights laws. If someone invites me to a boxing match, and I decline because I find the spectacle distasteful, I have in a generic sense discriminated, both against the boxing enthusiast who invites me and the culture of boxing. Let me take it step further. If you run an advertising agency and are asked to prepare an advertisement for a political candidate whose message you find repugnant and you decline, you again are discriminating, now on the basis of political views. While that has not yet become basis for anti-discrimination laws, it is being proposed in some municipalities. But I still have not come to a traditional civil rights law classification. So let me take it still another step. If I invite you to join me for a prayer services, and you decline because you do not share my religious views, you have discriminated against me and done so on the basis of religion. But surely we are not going to legislate on such a subject and justify it as fighting discrimination. So if we were to formulate a narrow exemption that makes clear that no person is required to participate in or directly provide services to a ceremony or campaign whose message that person does not wish to advance, could we find a point of common agreement at last? For the wedding photographer or the event planner or the bed-and-breakfast, their resistance is really no different in nature than the person who declines to accompany another to a prayer service. Of course, we'd need to be careful in tailoring such an exception, so that it was not misused to, say, allow the taxi driver to refuse to deliver a person to a location, such as a church or military recruitment center. But I think we could come to a description that tied into more intimate involvement in a ceremony or message. Again, I'm not saying this clears the decks altogether, but it would be a starting point toward balance. 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 *Steven Jamar *Sent:* Thursday, February 27, 2014 5:11 PM *To:* Law Religion Law List *Subject:* Re: bigotry and sincere religious belief *Importance:* Low I get that religious people do not want to be discriminated against. Indeed, they have lots of protections in the laws already protecting them from discrimination in employment, public accomodations, and so on. And they have lots of special treatment in the form of exemptions from laws that constrain everyone else. And they have RFRAs -- state and federal -- no other group has that sort of protection. But these highly-protected, coddled people want even more -- they want to deny these rights to homosexuals. They want to discriminate against people on the basis of sexual orientation. They want to be free to ignore general societal laws that would require them to ignore the sexual orientation of students, employees, customers, etc. And then they turn around, after all the exceptions, exemptions, accommodations, special treatment, protections from discrimination that they enjoy, and claim that anyone who does not agree to give them even more, or perhaps more accurately described as ever more special treatment. And not because they are part of a religious order or organization, and not because anyone is forcing them to engage in business or to do anything except not discriminate -- but because of a distaste for someone else's sexual orientation and a religious theory of complicity with evil -- thus making all homosexuals being evil and tools of the devil. And not only that, they claim that those of us who think that religious adherents should not get a unit veto on all general welfare and social justice and human rights legislation and norms are in fact the true bigots for not giving them everything. Really! You'd think that religious people were being persecuted and hounded and locked up to hear the hew and cry being raised, when in fact, all that is being done is to say -- secular and sacred are separate in our constitutional system -- and that those who wish to live their values must then find ways to do so that do not conflict with established secular social justice norms. I get that they don't like being equated with racial bigots of decades past and present
RE: bigotry and sincere religious belief
down the conversation. I understand that achieving recognition of same-sex marriages will depend in part on the exercise of political power. But won't it also depend on the power of persuasion. Maybe a willingness to discuss limited accommodations now may make it easier to reach the time when accommodations will be rarely requested in the future. Alan From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Ira Lupu [icl...@law.gwu.edu] Sent: Thursday, February 27, 2014 6:45 AM To: Law Religion issues for Law Academics Subject: bigotry and sincere religious belief I think that the politics of the moment, and the conversations we have been having (including the reference to Jim Oleske's provocative article about religious objections to inter-racial marriage compared to religious objections to same sex marriage, Interracial and Same-Sex Marriages: Similar Religious Objections, Very Different Responses http://ssrn.com/abstract=2400100, call for a burrowing into the question of what constitutes anti-gay bigotry and how it can be distinguished from sincere religious objections to same sex intimacy. The history of racial prejudice in the U.S. suggests, and Jim's article shows, a deep structure of religious support and justification for segregation (and for slavery before that). Of course, many racial bigots did NOT rely on religious justifications (I grew up in upstate NY, surrounded by bigots who never mentioned religion in their racial attitudes). But some did so rely, and we now look back on them and say -- what? Their religion was insincere? Their religion was culturally determined by geography and Jim Crow culture? (Contrary to what has been written here, Jim Crow laws required segregation in government facilities, like public schools, but Jim Crow culture, NOT laws, kept lunch counters, hotels, restaurants, department stores, etc., segregated. The public accommodations title of the Civil Rights Act of 1964 may have pre-empted applications of trespass law, but it did not pre-empt state law requiring segregation in these private facilities.) All religions, in the social practices they prescribe, are culturally determined to some extent. So I think the lesson of the 1960's is that the commitment to Civil Rights meant we became legally indifferent to whether racism was based on sincere religious objections or not. Ollie from Ollie's BBQ had to serve people of color or get out of the restaurant business, whether or not his desire to exclude had sincere religious components. So what is now different about the LGBT rights movement? Some merchants who want to refuse to serve have sincere religious objections; some just have hostility or discomfort (homophobia, if they are really afraid of the interaction; but surely, many racists had or have Negrophobia.) Should we try, with our very limited tools, to protect the sincere religious objectors but not protect the phobes? What will we do with sincere religious objectors who are also phobes? (I strongly suspect that a mixture of religion and phobia are operating within many objectors; their phobia is buried inside a religious justification, but maybe that's true for only some, not all.) Or do we give up this (to me, futile) attempt to use law as a instrument to sort the sincere objectors from the bigots and phobes, and say, rather simply -- we can't possibly make those distinctions, and in the end we don't care about them. Your refusal to serve some classes of people hurts them (stigma, insult, indignity, and sometimes material harm). Legitimating that refusal to serve in the wedding industry legitimates it elsewhere; equality is indivisible. So we are going to treat you like we treated Ollie -- we can't know if your refusal to serve is sincerely religious, homophobic, or some inseparable mixture. Whatever it is, get over it or get out of the business. The attempts to treat the current situation as different from the racial question -- geographic concerns about the Old South; slavery makes race sui generis -- seem to me deeply unpersuasive. But I would be eager to hear answers to the questions I pose above about separating religion from phobia/bigotry, whether it is do-able, and why it is worth the doing, in light of the mistakes and harms that such a process will invite. -- Ira C. Lupu F. Elwood Eleanor Davis Professor of Law, Emeritus George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 Co-author (with Professor Robert Tuttle) of Secular Government, Religious People (forthcoming, summer 2014, Wm. B. Eerdmans Pub. Co.) My SSRN papers are here: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http
