Protecting Religious Conscience from Private Suits -- How far do we go under the Const and under RFRAs?
Some of you on the list have made me think a bit more about application of religious freedom provisions (federal or state RFRAs, for our purposes) as defenses to suits brought by private parties. This is a key question raised by the Arizona bill that Gov. Brewer vetoed. At the risk of reinventing the wheel, and of missing lots of obvious points: We know that government-created private rights of action sometimes are limited for the same reasons we limit direct government action. The government can't fine me for criticizing a govt official or other public figure, nor (analogously) may such a person maintain a private suit against me for defamation or for causing emotional distress unless a high bar is met, such as proof of NY Times malice. The govt can't require me to fly a US flag or (assuming it allows any flags to be flown) prohibit me from flying another nation's flag on my own property. Similarly, the law can't provide my neighbor a private right of action that would allow the neighbor to get an injunction requiring me to fly a US flag or (if the law allows any flags to be flown) not to fly another nation's flag; a damage award would similarly be off the table. A land use regulation that would prohibit religious use of a home (e.g., for a weekly bible study) but permit similar nonreligious uses (a weekly bridge club meeting) with a similar number of people and similar noise level would violate the Constitution. The state can't get around that result by creating a private right of action under which a neighbor can sue me for holding the bible study but not for holding a bridge club meeting. A state statute that would allow a fair employment commission to fine a church for hiring only men as ministers would violate the Constitution. The state obviously can't create a private right of action under which a woman could sue the church for sex discrimination for refusing to hire her as a minister. The state can't do indirectly, by way of creating a private right of action, something the Constitution prohibits it from doing directly. That would also seem to be the case to some degree with statutory protection of rights, such as those provided by a state RFRA that is designed to modify all other state law (and thus is a bit like a constitution). Suppose that, under a state RFRA, a religious group cannot be denied the necessary licenses for running an adoption agency simply because the religious group might, for sincere religious reasons, refuse to place children with unmarried couples and might prefer to place children with married couples rather than single adults. (Put aside any Free Exercise claim.) A court would violate the statute if it recognized a common law cause of action under which unmarried couples and single people could sue the religious group for damages or for an injunction. Similarly, a county ordinance providing for such a private cause of action would be inconsistent with the state statute (a superior source of law), and the religious organization would have a good defense against such ! a suit. And a general state antidiscrimination statute providing a private right of action for marital status discrimination ought to be unavailable as against the religious group, because the state RFRA would create an exception to the general statute. Along the same lines, a state RFRA that would prevent a state human rights commission from fining a religiously dissenting wedding photographer, one who refuses to create celebratory art for a same sex wedding, should be read to limit a general antidiscrimination law that might otherwise provide the same sex couple a private right of action. Of course there have to be limits to this analysis under state RFRAs. I should not have to show that I have a compelling interest in keeping my neighbor off of my property, just because the neighbor sincerely believes he has a religious duty to worship an oak tree that is in my back yard (and to do so every morning at dawn while kneeling in front of the tree). That is, I should be able to sue the neighbor and seek an injunction, if necessary, or damages if there are any, without the neighbor being able to raise a RFRA defense (though it would be possible to treat the state's interest in letting me sue to protect my property rights as a compelling interest). So what is the difference? Is it a traditional private right/liberty/property baseline difference? Perhaps a state RFRA shouldn't be interpreted to apply to private suits brought to vindicate traditional background rights. (Cf. the treatment of takings in Lucas v. So. Car. Coastal Council, in which the court relied on background property/nuisance principles.) Legislators wouldn't have expected such an application. They don't think of the right to keep someone off your property as a government-granted right, whatever political philosophers and law professors might believe. But a RFRA could have been
Re: Protecting Religious Conscience from Private Suits -- How far do we go under the Const and under RFRAs?
For purposes of a state RFRA or a state constitution, I do not understand why defenses to a private right of action for discrimination (e.g., a merchant refused to serve me because of my race, religion, etc.; merchant defends on religious freedom grounds) are any different from defenses to a private right of action for trespass (my neighbor entered my yard to pray under a tree on my property, and refused to leave; neighbor defends on religious freedom grounds). I have never seen a constitutional provision of RFRA that even hints at any such distinction. In both cases, the religious person/defendant asserts that the cause of action substantially burdens her religious freedom, and the plaintiff must argue that application of the state law to this defendant is the least restrictive means to a compelling interest. Why would you make this distinction, Mark? Smuggling in some libertarian assumptions about where rights come from (property rights are natural, and non-discrimination rights are something different)? RFRA's never say any such thing; they apply across the board to all law in the jurisdiction, unless they say otherwise. When you start smuggling in these kinds of moves, you taint the entire RFRA enterprise, don't you? (I.e., RFRA does not apply to the rights and laws that I value more). On Thu, Feb 27, 2014 at 3:02 AM, Scarberry, Mark mark.scarbe...@pepperdine.edu wrote: Some of you on the list have made me think a bit more about application of religious freedom provisions (federal or state RFRAs, for our purposes) as defenses to suits brought by private parties. This is a key question raised by the Arizona bill that Gov. Brewer vetoed. At the risk of reinventing the wheel, and of missing lots of obvious points: We know that government-created private rights of action sometimes are limited for the same reasons we limit direct government action. The government can't fine me for criticizing a govt official or other public figure, nor (analogously) may such a person maintain a private suit against me for defamation or for causing emotional distress unless a high bar is met, such as proof of NY Times malice. The govt can't require me to fly a US flag or (assuming it allows any flags to be flown) prohibit me from flying another nation's flag on my own property. Similarly, the law can't provide my neighbor a private right of action that would allow the neighbor to get an injunction requiring me to fly a US flag or (if the law allows any flags to be flown) not to fly another nation's flag; a damage award would similarly be off the table. A land use regulation that would prohibit religious use of a home (e.g., for a weekly bible study) but permit similar nonreligious uses (a weekly bridge club meeting) with a similar number of people and similar noise level would violate the Constitution. The state can't get around that result by creating a private right of action under which a neighbor can sue me for holding the bible study but not for holding a bridge club meeting. A state statute that would allow a fair employment commission to fine a church for hiring only men as ministers would violate the Constitution. The state obviously can't create a private right of action under which a woman could sue the church for sex discrimination for refusing to hire her as a minister. The state can't do indirectly, by way of creating a private right of action, something the Constitution prohibits it from doing directly. That would also seem to be the case to some degree with statutory protection of rights, such as those provided by a state RFRA that is designed to modify all other state law (and thus is a bit like a constitution). Suppose that, under a state RFRA, a religious group cannot be denied the necessary licenses for running an adoption agency simply because the religious group might, for sincere religious reasons, refuse to place children with unmarried couples and might prefer to place children with married couples rather than single adults. (Put aside any Free Exercise claim.) A court would violate the statute if it recognized a common law cause of action under which unmarried couples and single people could sue the religious group for damages or for an injunction. Similarly, a county ordinance providing for such a private cause of action would be inconsistent with the state statute (a superior source of law), and the religious organization would have a good defense against such ! a suit. And a general state antidiscrimination statute providing a private right of action for marital status discrimination ought to be unavailable as against the religious group, because the state RFRA would create an exception to the general statute. Along the same lines, a state RFRA that would prevent a state human rights commission from fining a religiously dissenting wedding photographer, one who refuses to create celebratory art for a same sex wedding, should
Re: Protecting Religious Conscience from Private Suits -- How far do we go under the Const and under RFRAs?
Chip-- do you think a RFRA applies when the defendant is not the government? RFRA's language is explicit that cases are against the government Not between private parties. Language controls, and one of the reasons that the AZ variety amendments are appearing now is to fix this aspect of the state RFRAs. There are free speech cases where state action is found between private parties, e.g., the mall free speech cases (Pruneyard) and defamation, but they are few and far between. What First Amendment free exercise case (they involve conduct, not speech) involves a dispute between private parties? 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: Ira Lupu icl...@law.gwu.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Thu, Feb 27, 2014 9:20 am Subject: Re: Protecting Religious Conscience from Private Suits -- How far do we go under the Const and under RFRAs? For purposes of a state RFRA or a state constitution, I do not understand why defenses to a private right of action for discrimination (e.g., a merchant refused to serve me because of my race, religion, etc.; merchant defends on religious freedom grounds) are any different from defenses to a private right of action for trespass (my neighbor entered my yard to pray under a tree on my property, and refused to leave; neighbor defends on religious freedom grounds). I have never seen a constitutional provision of RFRA that even hints at any such distinction. In both cases, the religious person/defendant asserts that the cause of action substantially burdens her religious freedom, and the plaintiff must argue that application of the state law to this defendant is the least restrictive means to a compelling interest. Why would you make this distinction, Mark? Smuggling in some libertarian assumptions about where rights come from (property rights are natural, and non-discrimination rights are something different)? RFRA's never say any such thing; they apply across the board to all law in the jurisdiction, unless they say otherwise. When you start smuggling in these kinds of moves, you taint the entire RFRA enterprise, don't you? (I.e., RFRA does not apply to the rights and laws that I value more). On Thu, Feb 27, 2014 at 3:02 AM, Scarberry, Mark mark.scarbe...@pepperdine.edu wrote: Some of you on the list have made me think a bit more about application of religious freedom provisions (federal or state RFRAs, for our purposes) as defenses to suits brought by private parties. This is a key question raised by the Arizona bill that Gov. Brewer vetoed. At the risk of reinventing the wheel, and of missing lots of obvious points: We know that government-created private rights of action sometimes are limited for the same reasons we limit direct government action. The government can't fine me for criticizing a govt official or other public figure, nor (analogously) may such a person maintain a private suit against me for defamation or for causing emotional distress unless a high bar is met, such as proof of NY Times malice. The govt can't require me to fly a US flag or (assuming it allows any flags to be flown) prohibit me from flying another nation's flag on my own property. Similarly, the law can't provide my neighbor a private right of action that would allow the neighbor to get an injunction requiring me to fly a US flag or (if the law allows any flags to be flown) not to fly another nation's flag; a damage award would similarly be off the table. A land use regulation that would prohibit religious use of a home (e.g., for a weekly bible study) but permit similar nonreligious uses (a weekly bridge club meeting) with a similar number of people and similar noise level would violate the Constitution. The state can't get around that result by creating a private right of action under which a neighbor can sue me for holding the bible study but not for holding a bridge club meeting. A state statute that would allow a fair employment commission to fine a church for hiring only men as ministers would violate the Constitution. The state obviously can't create a private right of action under which a woman could sue the church for sex discrimination for refusing to hire her as a minister. The state can't do indirectly, by way of creating a private right of action, something the Constitution prohibits it from doing directly. That would also seem to be the case to some degree with statutory protection of rights, such as those provided by a state RFRA that is designed to modify all other state law (and thus is a bit like a constitution). Suppose that, under a state RFRA, a religious group cannot be denied the necessary licenses for running an adoption agency simply because the religious group
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: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses
I am going to go out on a limb here and say it is not right for businesses to discriminate based on race, gender, sexual orientation, alienage, religion, or disability. Religious groups won in Hosannah-Tabor the right to engage in invidious discrimination against ministers (not just clergy)even when their faith does no require the discrimination. That decision went too far in my view, but we have it. Enough. As I have said before, the ship has sailed on trying to manufacture discrimination against homosexuals and same-sex couples as distinct from discrimination based on race. I will never forget a national leader of theanti-gay marriage platform telling a large group of like-minded folks that the best way to sell their agenda was to rely heavliy on the "ick factor." Why? Because they had nothing else to sell their public policy preferences to the people. They have failed in the public policy arena, and the animus has shown itself for what it is. 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: Sisk, Gregory C. gcs...@stthomas.edu To: 'Law Religion issues for Law Academics' religionlaw@lists.ucla.edu Sent: Wed, Feb 26, 2014 4:16 pm Subject: RE: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses 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.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
Re: Protecting Religious Conscience from Private Suits -- How far do we go under the Const and under RFRAs?
Marci, is this the language of federal RFRA on which you rely? A person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government. First of all, a dismissal of a private lawsuit can be seen as relief against the government, which has coerced the private defendant into court, with her property at risk. Second, a private suit is a judicial proceeding, in which RFRA might be a defense. Third (and maybe this should be first), federal RFRA's primary provision is this: Government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b) of this section. If a private cause of action produces such a burden, then I think RFRA is triggered. Marci, you know I am no fan of RFRA. I testified against it as a matter of constitutional law and policy back in 1992. But I can separate my judgment about the unwisdom and constitutional problems of RFRA (inviting judges to decide religious questions) from the interpretive question you raise. I do think the better reading is that RFRA applies to private causes of action. So would the free exercise clause, if a private cause of action led to a state imposed remedy that unconstitutionally burdened religion -- e.g., a nuisance suit by a neighbor, complaining that a certain form of worship in her neighborhood was a nuisance that should be permanently enjoined. If that is right, and RFRA was (supposedly) designed to restore free exercise norms, then RFRA should operate in the same way as the free exercise clause in such a suit. On Thu, Feb 27, 2014 at 9:29 AM, hamilto...@aol.com wrote: Chip-- do you think a RFRA applies when the defendant is not the government? RFRA's language is explicit that cases are against the government Not between private parties. Language controls, and one of the reasons that the AZ variety amendments are appearing now is to fix this aspect of the state RFRAs. There are free speech cases where state action is found between private parties, e.g., the mall free speech cases (Pruneyard) and defamation, but they are few and far between. What First Amendment free exercise case (they involve conduct, not speech) involves a dispute between private parties? 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 https://www.facebook.com/professormarciahamilton?fref=ts https://twitter.com/marci_hamilton -Original Message- From: Ira Lupu icl...@law.gwu.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Thu, Feb 27, 2014 9:20 am Subject: Re: Protecting Religious Conscience from Private Suits -- How far do we go under the Const and under RFRAs? For purposes of a state RFRA or a state constitution, I do not understand why defenses to a private right of action for discrimination (e.g., a merchant refused to serve me because of my race, religion, etc.; merchant defends on religious freedom grounds) are any different from defenses to a private right of action for trespass (my neighbor entered my yard to pray under a tree on my property, and refused to leave; neighbor defends on religious freedom grounds). I have never seen a constitutional provision of RFRA that even hints at any such distinction. In both cases, the religious person/defendant asserts that the cause of action substantially burdens her religious freedom, and the plaintiff must argue that application of the state law to this defendant is the least restrictive means to a compelling interest. Why would you make this distinction, Mark? Smuggling in some libertarian assumptions about where rights come from (property rights are natural, and non-discrimination rights are something different)? RFRA's never say any such thing; they apply across the board to all law in the jurisdiction, unless they say otherwise. When you start smuggling in these kinds of moves, you taint the entire RFRA enterprise, don't you? (I.e., RFRA does not apply to the rights and laws that I value more). On Thu, Feb 27, 2014 at 3:02 AM, Scarberry, Mark mark.scarbe...@pepperdine.edu wrote: Some of you on the list have made me think a bit more about application of religious freedom provisions (federal or state RFRAs, for our purposes) as defenses to suits brought by private parties. This is a key question raised by the Arizona bill that Gov. Brewer vetoed. At the risk of reinventing the wheel, and of missing lots of obvious points: We know that government-created private rights of action sometimes are limited for the same reasons we limit direct government action. The government can't fine me for criticizing a govt official or other public
Re: Protecting Religious Conscience from Private Suits -- How far do we go under the Const and under RFRAs?
With respect to my former teacher I don't think the background right distinction is quite as untenable as that. Many of the rights enforced in tort are rights against the world that the court vindicates, my right to exclude you from my property is self-enforceable by private means, such as by erecting a barrier. The right is a sword borne in me against the world with prophylactic intercession by the state to avoid the costs of self-enforcement such as screaming, shoving, Hatfields and McCoys, cats and dogs living together. This is a dangerous place to go of course, since contract is a private agreement that only has meaning when backstopped by the state. Even disregarding the possibility of certain private rights originating from outside the state, rights held against the government can still be sensibly read into RFRA like protections. How different is a private cause of action in an anti-discrimination suit from the private prosecution that used to be in vogue? The states intend those causes of action to pursue state policies. Just as my rights as a criminal defendant against the state would be vindicated against a private prosecutor, RFRA could be interpreted in such a way as to shield me against private actions furthering state policy. The courts are at least as competent in reading the intent of the legislature as they are judging the sincerity, credibility and substance of religious beliefs. That all having been said, it doesn't make sense to read RFRA as a carve-out read into various laws of otherwise general applicability. It is a shield held by religious believers against the state. On Thu, Feb 27, 2014 at 9:17 AM, Ira Lupu icl...@law.gwu.edu wrote: For purposes of a state RFRA or a state constitution, I do not understand why defenses to a private right of action for discrimination (e.g., a merchant refused to serve me because of my race, religion, etc.; merchant defends on religious freedom grounds) are any different from defenses to a private right of action for trespass (my neighbor entered my yard to pray under a tree on my property, and refused to leave; neighbor defends on religious freedom grounds). I have never seen a constitutional provision of RFRA that even hints at any such distinction. In both cases, the religious person/defendant asserts that the cause of action substantially burdens her religious freedom, and the plaintiff must argue that application of the state law to this defendant is the least restrictive means to a compelling interest. Why would you make this distinction, Mark? Smuggling in some libertarian assumptions about where rights come from (property rights are natural, and non-discrimination rights are something different)? RFRA's never say any such thing; they apply across the board to all law in the jurisdiction, unless they say otherwise. When you start smuggling in these kinds of moves, you taint the entire RFRA enterprise, don't you? (I.e., RFRA does not apply to the rights and laws that I value more). On Thu, Feb 27, 2014 at 3:02 AM, Scarberry, Mark mark.scarbe...@pepperdine.edu wrote: Some of you on the list have made me think a bit more about application of religious freedom provisions (federal or state RFRAs, for our purposes) as defenses to suits brought by private parties. This is a key question raised by the Arizona bill that Gov. Brewer vetoed. At the risk of reinventing the wheel, and of missing lots of obvious points: We know that government-created private rights of action sometimes are limited for the same reasons we limit direct government action. The government can't fine me for criticizing a govt official or other public figure, nor (analogously) may such a person maintain a private suit against me for defamation or for causing emotional distress unless a high bar is met, such as proof of NY Times malice. The govt can't require me to fly a US flag or (assuming it allows any flags to be flown) prohibit me from flying another nation's flag on my own property. Similarly, the law can't provide my neighbor a private right of action that would allow the neighbor to get an injunction requiring me to fly a US flag or (if the law allows any flags to be flown) not to fly another nation's flag; a damage award would similarly be off the table. A land use regulation that would prohibit religious use of a home (e.g., for a weekly bible study) but permit similar nonreligious uses (a weekly bridge club meeting) with a similar number of people and similar noise level would violate the Constitution. The state can't get around that result by creating a private right of action under which a neighbor can sue me for holding the bible study but not for holding a bridge club meeting. A state statute that would allow a fair employment commission to fine a church for hiring only men as ministers would violate the Constitution. The state obviously can't create a private right of action under which a woman
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: Protecting Religious Conscience from Private Suits -- How far do we go under the Const and under RFRAs?
You can plead anything you want. And argue anything you want. That doesn’t mean it will be plausible under Twombley, or that it won’t draw Rule 11 sanctions. It would help if you would stay somewhere in the neighborhood of the arguments actually being made. If you sue your local synagogue, it may have a RFRA or free exercise defense, depending on what you are suing about. If a rule of law substantially burdens the synagogue’s exercise of religion, it is not just you who imposes the burden; it is the rule of law. 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: Thursday, February 27, 2014 11:00 AM To: religionlaw@lists.ucla.edu Subject: Re: Protecting Religious Conscience from Private Suits -- How far do we go under the Const and under RFRAs? Wait a minute-- so every dispute involving a believer that involves any law is a potential constitutional case? So I can add a free exercise claim to my trespass and nuisance action against my neighbor? 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: Thu, Feb 27, 2014 10:57 am Subject: RE: Protecting Religious Conscience from Private Suits -- How far do we go under the Const and under RFRAs? It is not judicial enforcement as such. In contract cases, the challenged rule comes from the contract. Shelley v. Kramer aside, enforcing the contract does not make the provisions of the contract state action. But when the challenged rule is written by the state, whether in a statute or a common law rule, the burden is imposed by the rule of law. That rule of law is the relevant state action. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 ___ 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: Protecting Religious Conscience from Private Suits -- How far do we go under the Const and under RFRAs?
Doug's common law rule point is one reason I raised the trespass issue and suggested a background law distinction. If the state creates private property rights, even by way of ancient common law or customary law, then a judicial action for an injunction or damages for trespass could be subject to a state RFRA, under some of the approaches that have been suggested here. Of course a suit is state action for constitutional due process purposes, and for some other purposes as in Kreshik and Perich. But no one thinks a property owner's right to exclude is directly subject to constitutional equal protection analysis (again, as Doug notes, setting Shelley v. Kramer aside, and setting aside symbiotic relationship, public function, and other state action analyses)n. Statutory anti-discrimination or religious liberty protections are another matter, with their scope mostly determined by textual analysis, determination of legislative intent, etc. We need to find a principled approach to interpretation of RFRAs that makes them inapplicable to trespass suits but applicable some other kinds of suits. It's possible to take situations case-by-case and ask whether legislators would have thought a RFRA would apply, but it would be better to have a guiding principle, right? Mark Mark S. Scarberry Pepperdine University School of Law Sent from my iPad On Feb 27, 2014, at 7:57 AM, Douglas Laycock dlayc...@virginia.edumailto:dlayc...@virginia.edu wrote: It is not judicial enforcement as such. In contract cases, the challenged rule comes from the contract. Shelley v. Kramer aside, enforcing the contract does not make the provisions of the contract state action. But when the challenged rule is written by the state, whether in a statute or a common law rule, the burden is imposed by the rule of law. That rule of law is the relevant state action. 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.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar Sent: Thursday, February 27, 2014 10:49 AM To: Law Religion Law List Subject: Re: Protecting Religious Conscience from Private Suits -- How far do we go under the Const and under RFRAs? I don’t think state action is as settled as Chris’s post implies. States enforce contracts, for example, and other private rights without the court action becoming state action limited by the 14th Amendment. Surely many court actions are state action for constitutional rights purposes, but perhaps not quite as categorically or broadly as Chris’s post states. 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/ There is a cult of ignorance in the United States, and there always has been. The strain of anti-intellectualism has been a constant thread winding its way through our political and cultural life, nurtured by the false notion that democracy means that my ignorance is just as good as your knowledge. Isaac Asimov in a column in Newsweek (21 January 1980) On Feb 27, 2014, at 10:28 AM, Christopher Lund l...@wayne.edumailto:l...@wayne.edu wrote: “Can you point to specific free exercise cases where the First Amendment's free exercise clause was applied by the Supreme Court to a dispute between private parties? There must be state action. Note Hosanna-Tabor was against the EEOC.” Marci’s contention is an interesting one. The strength of it can be tested pretty easily. How many people think that Hosanna-Tabor would have been decided differently if the EEOC had not intervened and the case was captioned Hosanna-Tabor v. Perich? But here’s another one: Kreshik v. Saint Nicholas Cathedral, 363 U.S. 190 (1960). Four years before NYT v. Sullivan (!), the Court says that the Religion Clauses of the First Amendment apply to disputes between private parties. See id. (“It is established doctrine that ‘[i]t is not of moment that the State has here acted solely through its judicial branch, for, whether legislative or judicial, it is still the application of state power which we are asked to scrutinize.’”) (quoting NAACP v. Alabama and Shelley v. Kraemer). This has been settled law for over fifty years. The arguments that RFRA and RLUIPA are only good against the government lie in the particularities (and, I think, unintended particularities) of their texts. The general principles of state action are well settled. Best, Chris ___ Christopher C. Lund Associate Professor of Law Wayne State University Law School 471 West Palmer St. Detroit, MI 48202 l...@wayne.edumailto:l...@wayne.edu (313) 577-4046
Re: Protecting Religious Conscience from Private Suits -- How far do we go under the Const and under RFRAs?
The new RFRAs, like the one in Missouri, includes a line that states that it applies even if the government is not a party. So I guess, at the least, we have an admission that the previous language of the RFRAs did not include every dispute? 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: Scarberry, Mark mark.scarbe...@pepperdine.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Cc: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Thu, Feb 27, 2014 11:42 am Subject: Re: Protecting Religious Conscience from Private Suits -- How far do we go under the Const and under RFRAs? Doug's common law rule point is one reason I raised the trespass issue and suggested a background law distinction. If the state creates private property rights, even by way of ancient common law or customary law, then a judicial action for an injunction or damages for trespass could be subject to a state RFRA, under some of the approaches that have been suggested here. Of course a suit is state action for constitutional due process purposes, and for some other purposes as in Kreshik and Perich. But no one thinks a property owner's right to exclude is directly subject to constitutional equal protection analysis (again, as Doug notes, setting Shelley v. Kramer aside, and setting aside symbiotic relationship, public function, and other state action analyses)n. Statutory anti-discrimination or religious liberty protections are another matter, with their scope mostly determined by textual analysis, determination of legislative intent, etc. We need to find a principled approach to interpretation of RFRAs that makes them inapplicable to trespass suits but applicable some other kinds of suits. It's possible to take situations case-by-case and ask whether legislators would have thought a RFRA would apply, but it would be better to have a guiding principle, right? Mark Mark S. Scarberry Pepperdine University School of Law Sent from my iPad On Feb 27, 2014, at 7:57 AM, Douglas Laycock dlayc...@virginia.edu wrote: It is not judicial enforcement as such. In contract cases, the challenged rule comes from the contract. Shelley v. Kramer aside, enforcing the contract does not make the provisions of the contract state action. But when the challenged rule is written by the state, whether in a statute or a common law rule, the burden is imposed by the rule of law. That rule of law is the relevant state action. 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 Steven Jamar Sent: Thursday, February 27, 2014 10:49 AM To: Law Religion Law List Subject: Re: Protecting Religious Conscience from Private Suits -- How far do we go under the Const and under RFRAs? I don’t think state action is as settled as Chris’s post implies. States enforce contracts, for example, and other private rights without the court action becoming state action limited by the 14th Amendment. Surely many court actions are state action for constitutional rights purposes, but perhaps not quite as categorically or broadly as Chris’s post states. 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/ There is a cult of ignorance in the United States, and there always has been. The strain of anti-intellectualism has been a constant thread winding its way through our political and cultural life, nurtured by the false notion that democracy means that my ignorance is just as good as your knowledge. Isaac Asimov in a column in Newsweek (21 January 1980) On Feb 27, 2014, at 10:28 AM, Christopher Lund l...@wayne.edu wrote: “Can you point to specific free exercise cases where the First Amendment's free exercise clause was applied by the Supreme Court to a dispute between private parties? There must be state action. Note Hosanna-Tabor was against the EEOC.” Marci’s contention is an interesting one. The strength of it can be tested pretty easily. How many people think that Hosanna-Tabor would have been decided differently if the EEOC had not intervened and the case was captioned Hosanna-Tabor v. Perich? But here’s another one: Kreshik v. Saint Nicholas Cathedral, 363 U.S. 190 (1960). Four years before NYT v. Sullivan (!), the Court says that the Religion Clauses of the First Amendment apply to disputes between private parties.
Re: Protecting Religious Conscience from Private Suits -- How far do we go under the Const and under RFRAs?
Of course not, Marci. New language can be used to clear up ambiguities or to make sure that hostile or indifferent bureaucrats or courts actually apply the statute as originally intended (and as it would be interpreted but for hostility or indifference to legislative purpose). That's not to say that every dispute is covered by the previously standard RFRA language, as I've tried to suggest with the trespass hypothetical. Mark Mark S. Scarberry Pepperdine University School of Law Sent from my iPad On Feb 27, 2014, at 8:48 AM, hamilto...@aol.commailto:hamilto...@aol.com hamilto...@aol.commailto:hamilto...@aol.com wrote: The new RFRAs, like the one in Missouri, includes a line that states that it applies even if the government is not a party. So I guess, at the least, we have an admission that the previous language of the RFRAs did not include every dispute? 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.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: Scarberry, Mark mark.scarbe...@pepperdine.edumailto:mark.scarbe...@pepperdine.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Cc: Law Religion issues for Law Academics religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Sent: Thu, Feb 27, 2014 11:42 am Subject: Re: Protecting Religious Conscience from Private Suits -- How far do we go under the Const and under RFRAs? Doug's common law rule point is one reason I raised the trespass issue and suggested a background law distinction. If the state creates private property rights, even by way of ancient common law or customary law, then a judicial action for an injunction or damages for trespass could be subject to a state RFRA, under some of the approaches that have been suggested here. Of course a suit is state action for constitutional due process purposes, and for some other purposes as in Kreshik and Perich. But no one thinks a property owner's right to exclude is directly subject to constitutional equal protection analysis (again, as Doug notes, setting Shelley v. Kramer aside, and setting aside symbiotic relationship, public function, and other state action analyses)n. Statutory anti-discrimination or religious liberty protections are another matter, with their scope mostly determined by textual analysis, determination of legislative intent, etc. We need to find a principled approach to interpretation of RFRAs that makes them inapplicable to trespass suits but applicable some other kinds of suits. It's possible to take situations case-by-case and ask whether legislators would have thought a RFRA would apply, but it would be better to have a guiding principle, right? Mark Mark S. Scarberry Pepperdine University School of Law Sent from my iPad On Feb 27, 2014, at 7:57 AM, Douglas Laycock dlayc...@virginia.edumailto:dlayc...@virginia.edu wrote: It is not judicial enforcement as such. In contract cases, the challenged rule comes from the contract. Shelley v. Kramer aside, enforcing the contract does not make the provisions of the contract state action. But when the challenged rule is written by the state, whether in a statute or a common law rule, the burden is imposed by the rule of law. That rule of law is the relevant state action. 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.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar Sent: Thursday, February 27, 2014 10:49 AM To: Law Religion Law List Subject: Re: Protecting Religious Conscience from Private Suits -- How far do we go under the Const and under RFRAs? I don’t think state action is as settled as Chris’s post implies. States enforce contracts, for example, and other private rights without the court action becoming state action limited by the 14th Amendment. Surely many court actions are state action for constitutional rights purposes, but perhaps not quite as categorically or broadly as Chris’s post states. 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/ There is a cult of ignorance in the United States, and there always has been. The strain of anti-intellectualism has been a constant thread winding its way through our political and cultural life, nurtured by the false notion that democracy
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: Protecting Religious Conscience from Private Suits -- How far do we go under the Const and under RFRAs?
I share Chip’s concerns about Mark’s attempt to exempt trespass suits categorically from the scope of RFRAs, but Doug’s comments below made me think that perhaps Mark’s approach might try to draw some support from Flagg Brothers v. Brooks, 436 U.S. 149 (1978). David B. Cruz Professor of Law University of Southern California Gould School of Law Los Angeles, CA 90089-0071 U.S.A. From: Douglas Laycock dlayc...@virginia.edumailto:dlayc...@virginia.edu Reply-To: Law Religion issues for Law Academics religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu To: 'Law Religion issues for Law Academics' religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Subject: RE: Protecting Religious Conscience from Private Suits -- How far do we go under the Const and under RFRAs? It is not judicial enforcement as such. In contract cases, the challenged rule comes from the contract. Shelley v. Kramer aside, enforcing the contract does not make the provisions of the contract state action. But when the challenged rule is written by the state, whether in a statute or a common law rule, the burden is imposed by the rule of law. That rule of law is the relevant state action. 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.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar Sent: Thursday, February 27, 2014 10:49 AM To: Law Religion Law List Subject: Re: Protecting Religious Conscience from Private Suits -- How far do we go under the Const and under RFRAs? I don’t think state action is as settled as Chris’s post implies. States enforce contracts, for example, and other private rights without the court action becoming state action limited by the 14th Amendment. Surely many court actions are state action for constitutional rights purposes, but perhaps not quite as categorically or broadly as Chris’s post states. Steve ___ 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: Protecting Religious Conscience from Private Suits -- How far do we go under the Const and under RFRAs?
Are RFRA (federal) and RLUIPA enacted under the 14th Amendment or under the Commerce Clause powers of Congress. I had understood them to be under the 14th Amendment, in which case Congress can ONLY reach states and they cannot apply to private conduct. And, as we know, RFRA (federal), cannot apply to states either because of the narrowing of the grant of power to Congress adopted by the Court in Boerne. As to state RFRA, it would seem that a strong case can be made that they, being modeled after and inspired by the federal law, were intended to have essentially the same reach — prohibit states from intruding too far into religious exercise, not to prohibit private individuals from intruding on free exercise of another private person. Pardon my Fox News inspired hyperbole here, but all of this strikes me as a version of the shibboleth of the war on Christmas. Are laws are rife with exceptions and other accommodations for religious groups and individuals. Just take a look at the Civil Rights Act of 1964 prohibiting discrimination by private parties on the basis of religion and allowing various exceptions that in fact allow exactly that sort of discrimination on the basis of religion to take place for certain religious organizations. But now, the claim is being pushed that those willingly engaging in commerce as regular business are to be exempt from laws entirely based on a claim of burdening not exercise, but belief; on a claim not of a substantial burden on exercise, but solely on a questionable legal theory of “complicity”; and not on the basis of actual exclusion or persecution or discrimination against the religious adherent, but rather on the basis of excluding others based purely on a basis that is irrelevant to the business (photography, cake baking, lunch counter service, taxi riders, renting a hotel room, etc.). Some Arizona legislators are expressing “buyer’s remorse” because once they realized what they had done, they wished they hadn’t. I don’t expect any negative fallout for the governor on this. These sorts of laws are like the issue in Romer — just beyond the pail of normal legislation and actions by the government - by a lot. 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 only things truly worth doing cannot be accomplished in a single lifetime. Prof. Goler Teal Butcher, after Reinhold Neibuhr On Feb 27, 2014, at 11:57 AM, Scarberry, Mark mark.scarbe...@pepperdine.edu wrote: Of course not, Marci. New language can be used to clear up ambiguities or to make sure that hostile or indifferent bureaucrats or courts actually apply the statute as originally intended (and as it would be interpreted but for hostility or indifference to legislative purpose). That's not to say that every dispute is covered by the previously standard RFRA language, as I've tried to suggest with the trespass hypothetical. Mark Mark S. Scarberry Pepperdine University School of Law Sent from my iPad On Feb 27, 2014, at 8:48 AM, hamilto...@aol.com hamilto...@aol.com wrote: The new RFRAs, like the one in Missouri, includes a line that states that it applies even if the government is not a party. So I guess, at the least, we have an admission that the previous language of the RFRAs did not include every dispute? 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: Scarberry, Mark mark.scarbe...@pepperdine.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Cc: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Thu, Feb 27, 2014 11:42 am Subject: Re: Protecting Religious Conscience from Private Suits -- How far dowe go under the Const and under RFRAs? Doug's common law rule point is one reason I raised the trespass issue and suggested a background law distinction. If the state creates private property rights, even by way of ancient common law or customary law, then a judicial action for an injunction or damages for trespass could be subject to a state RFRA, under some of the approaches that have been suggested here. Of course a suit is state action for constitutional due process purposes, and for some other purposes as in Kreshik and Perich. But no one thinks a property owner's right to exclude is directly subject to constitutional equal protection analysis (again, as Doug notes, setting Shelley v. Kramer aside, and setting aside symbiotic relationship, public function, and other state action analyses)n. Statutory anti-discrimination or religious liberty
Re: Protecting Religious Conscience from Private Suits -- How far do we go under the Const and under RFRAs?
I'm stumped by Mark's response. The courts have held that RFRA and RLUIPA are only good against the government. Due to its language and the state action doctrine generally. Are you saying that those cases don't exist, or are all uniformly wrongly decided? The state language indicates acknowledgement of those cases, no? I'm not trying to be provocative here. I'm sincerely asking. 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: Steven Jamar stevenja...@gmail.com To: Law Religion Law List religionlaw@lists.ucla.edu Sent: Thu, Feb 27, 2014 12:21 pm Subject: Re: Protecting Religious Conscience from Private Suits -- How far do we go under the Const and under RFRAs? Are RFRA (federal) and RLUIPA enacted under the 14th Amendment or under the Commerce Clause powers of Congress. I had understood them to be under the 14th Amendment, in which case Congress can ONLY reach states and they cannot apply to private conduct. And, as we know, RFRA (federal), cannot apply to states either because of the narrowing of the grant of power to Congress adopted by the Court in Boerne. As to state RFRA, it would seem that a strong case can be made that they, being modeled after and inspired by the federal law, were intended to have essentially the same reach — prohibit states from intruding too far into religious exercise, not to prohibit private individuals from intruding on free exercise of another private person. Pardon my Fox News inspired hyperbole here, but all of this strikes me as a version of the shibboleth of the war on Christmas. Are laws are rife with exceptions and other accommodations for religious groups and individuals. Just take a look at the Civil Rights Act of 1964 prohibiting discrimination by private parties on the basis of religion and allowing various exceptions that in fact allow exactly that sort of discrimination on the basis of religion to take place for certain religious organizations. But now, the claim is being pushed that those willingly engaging in commerce as regular business are to be exempt from laws entirely based on a claim of burdening not exercise, but belief; on a claim not of a substantial burden on exercise, but solely on a questionable legal theory of “complicity”; and not on the basis of actual exclusion or persecution or discrimination against the religious adherent, but rather on the basis of excluding others based purely on a basis that is irrelevant to the business (photography, cake baking, lunch counter service, taxi riders, renting a hotel room, etc.). Some Arizona legislators are expressing “buyer’s remorse” because once they realized what they had done, they wished they hadn’t. I don’t expect any negative fallout for the governor on this. These sorts of laws are like the issue in Romer — just beyond the pail of normal legislation and actions by the government - by a lot. 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 only things truly worth doing cannot be accomplished in a single lifetime. Prof. Goler Teal Butcher, after Reinhold Neibuhr On Feb 27, 2014, at 11:57 AM, Scarberry, Mark mark.scarbe...@pepperdine.edu wrote: Of course not, Marci. New language can be used to clear up ambiguities or to make sure that hostile or indifferent bureaucrats or courts actually apply the statute as originally intended (and as it would be interpreted but for hostility or indifference to legislative purpose). That's not to say that every dispute is covered by the previously standard RFRA language, as I've tried to suggest with the trespass hypothetical. Mark Mark S. Scarberry Pepperdine University School of Law Sent from my iPad On Feb 27, 2014, at 8:48 AM, hamilto...@aol.com hamilto...@aol.com wrote: The new RFRAs, like the one in Missouri, includes a line that states that it applies even if the government is not a party. So I guess, at the least, we have an admission that the previous language of the RFRAs did not include every dispute? 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: Scarberry, Mark mark.scarbe...@pepperdine.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Cc: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Thu, Feb 27, 2014 11:42 am Subject: Re: Protecting Religious Conscience from Private Suits -- How far do we go under the Const and under RFRAs? Doug's
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 into
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 religious liberty are a cure
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
Although Steve's post could be dismissed as filled with overstatements, unfair characterizations, demonization of dissenting voices, and setting up strawmen to easily knock down, let me take his points at face value and use them as a starting point for a conversation that might lower the tension and find some common ground. Much of the back-and-forth accusations that fly past each other without true engagement may be traced to (1) the over-use or the mis-use of the term discriminate and (2) at least the appearance of overreaching in requesting accommodation. The central point of dispute here really comes down to situations that involve a personal decision not to be forced to participate in a celebration or an affirmance of something with which one does not agree. Yes, other situations may arise and deserve consideration on their own merits. But let's set those to one side for now. If we were to narrow the battlefield down to the point of coerced personal participation and identification with a position or message and preserving freedom of association in a narrow category, perhaps we might find a place where the heat could be lowered, where the accusation of discrimination is strained, and accommodations less grudgingly accepted. Steve states that general societal laws . . . would require [religious believers] to ignore the sexual orientation of students, employees, customers, etc. Now that is not an accurate description of new anti-discrimination laws, which go much further in effect. But suppose that his description were correct. Indeed, perhaps it should be correct and anti-discrimination laws should be recalibrated to fit Steve's description. If we did so, we might be able to establish a common ground in which anti-discrimination laws would be harder to challenge on religious grounds and easier to defend as not imposing a governmental orthodoxy on others. If persons of traditional religious faith with a dissenting view on sexual morality were simply required to ignore the sexual orientation of those with whom study or teach, work, or engage in the marketplace, it would indeed be more difficult to defend resistance to such a requirement as (1) involving a substantial burden on religious exercise, (2) justifying an exemption from anti-discrimination laws, or (3) involving a religious principle as opposed to simple hostility. Of course, few or none of the real world religious liberty cases that arise involve such things as a grocer refusing to allow someone to purchase a bag of groceries or a physician refusing to set someone's broken leg. But that just goes to show that Steve might have pointed us to a place of consensual rest. An anti-discrimination law of such scope would find near universal approbation. To be sure, there would still be a subset of instances in which religious liberty claims would be more powerful as a matter of affirmative association more than negative exclusion, although that line is often hard to draw. I'm speaking here about something like a small family business that wants to hire only fellow religious believers so as to maintain a spiritual environment at work or a retired person who wishes to sublet 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
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
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. On Thu, Feb 27, 2014 at 7:43 PM, Sisk, Gregory C. gcs...@stthomas.eduwrote: Although Steve's post could be dismissed as filled with overstatements, unfair characterizations, demonization of dissenting voices, and setting up strawmen to easily knock down, let me take his points at face value and use them as a starting point for a conversation that might lower the tension and find some common ground. Much of the back-and-forth accusations that fly past each other without true engagement may be traced to (1) the over-use or the mis-use of the term discriminate and (2) at least the appearance of overreaching in requesting accommodation. The central point of dispute here really comes down to situations that involve a personal decision not to be forced to participate in a celebration or an affirmance of something with which one does not agree. Yes, other situations may arise and deserve consideration on their own merits. But let's set those to one side for now. If we were to narrow the battlefield down to the point of coerced personal participation and identification with a position or message and preserving freedom of association in a narrow category, perhaps we might find a place where the heat could be lowered, where the accusation of discrimination is strained, and accommodations less grudgingly accepted. Steve states that general societal laws . . . would require [religious believers] to ignore the sexual orientation of students, employees, customers, etc. Now that is not an accurate description of new anti-discrimination laws, which go much further in effect. But suppose that his description were correct. Indeed, perhaps it *should* be correct and anti-discrimination laws should be recalibrated to fit Steve's description. If we did so, we might be able to establish a common ground in which anti-discrimination laws would be harder to challenge on religious grounds and easier to defend as not imposing a governmental orthodoxy on others. If persons of traditional religious faith with a dissenting view on sexual morality were simply required to ignore the sexual orientation of those with whom study or teach, work, or engage in the marketplace, it would indeed be more difficult to defend resistance to such a requirement as (1) involving a substantial burden on religious exercise, (2) justifying an exemption from anti-discrimination laws, or (3) involving a religious principle as opposed to simple hostility. Of course, few or none of the real world religious liberty cases that arise involve such things as a grocer refusing to allow someone to purchase a bag of groceries or a physician refusing to set someone's broken leg. But that just goes to show that Steve might have pointed us to a place of consensual rest. An anti-discrimination law of such scope would find near universal approbation. To be sure, there would still be a subset of instances in which religious liberty claims would be more powerful as a matter of affirmative association more than negative exclusion, although that line is often hard to draw. I'm speaking here about something like a small family business that wants to hire only fellow religious believers so as to maintain a spiritual environment at work or a retired person who wishes to sublet
Re: bigotry and sincere religious belief
I would also add that Greg Sisk’s syllogism only works if (1) you are also willing to allow photographers, florists, caterers, bakers, etc. to refuse to work at mixed-race weddings, or (2) you conclude that refusal to participate in same-sex wedding ceremonies is somehow more worthy of protection than refusal to participate in mixed-race weddings. As to the former, we as a society (or so I had thought) have concluded that we are unwilling to tolerate that type of discrimination, whatever its motivation. As to the latter, I still haven’t seen a principled basis for saying that sexual-orientation-based discrimination is somehow more benign than race-based discrimination (be it in the context of marriage, marriage ceremonies, or otherwise). Perhaps this debate is hopelessly circular: lots of people – including lots of smart people – still oppose same-sex marriage, and smart people who oppose same-sex marriage will naturally come up with ways to treat their opposition to same-sex marriage as less problematic than other types of discrimination that have been more widely discredited. But that doesn’t change what otherwise appears to be purely invidious discrimination. On Feb 27, 2014, at 8:40 PM, Ira Lupu icl...@law.gwu.edumailto:icl...@law.gwu.edu wrote: 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. On Thu, Feb 27, 2014 at 7:43 PM, Sisk, Gregory C. gcs...@stthomas.edumailto:gcs...@stthomas.edu wrote: Although Steve’s post could be dismissed as filled with overstatements, unfair characterizations, demonization of dissenting voices, and setting up strawmen to easily knock down, let me take his points at face value and use them as a starting point for a conversation that might lower the tension and find some common ground. Much of the back-and-forth accusations that fly past each other without true engagement may be traced to (1) the over-use or the mis-use of the term “discriminate” and (2) at least the appearance of overreaching in requesting accommodation. The central point of dispute here really comes down to situations that involve a personal decision not to be forced to participate in a celebration or an affirmance of something with which one does not agree. Yes, other situations may arise and deserve consideration on their own merits. But let’s set those to one side for now. If we were to narrow the battlefield down to the point of coerced personal participation and identification with a position or message and preserving freedom of association in a narrow category, perhaps we might find a place where the heat could be lowered, where the accusation of discrimination is strained, and accommodations less grudgingly accepted. Steve states that “general societal laws . . . would require [religious believers] to ignore the sexual orientation of students, employees, customers, etc.” Now that is not an accurate description of new anti-discrimination laws, which go much further in effect. But suppose that his description were correct. Indeed, perhaps it should be correct and anti-discrimination laws should be recalibrated to fit Steve’s description. If we did so, we might be able to establish a common ground in which anti-discrimination laws would be harder to challenge on religious grounds and easier to defend as not imposing a governmental orthodoxy
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
What kind of principled basis are you looking for? It can be readily observed that good and reasonable men and women find a principled reason from a place of deep conviction, so respecting that seems to be principled in turn. But even if we assume that as a matter of general principles that it is 1.) wrong to invidiously discriminate and 2.) race and sexuality are interchangeable at that level it does not follow that both should be illegal and enforced by otherwise identical law. Law is a tool by which policy is pursued, and policy should be shaped by facts on the ground. As many here have argued and demonstrated, the policy goal behind anti-discrimination laws is not merely to defend the class discriminated against, it is to punish the discriminators and hopefully extinguish them from the political community. There is a strong argument for a take-no-prisoners attitude with race. For literally the entire history of the American nation, race has been a defining characteristic, including the largest forced migration in known history, a sustained system of not only slavery, but increasing brutality, a civil war, Jim Crow and *three *constitutional amendments as major issues of note, as well as the occasional race riot. For anti-miscegenation in particular, one might also contemplate the long, long history of various cultures struggling with exogamy and endogamy. Social cognizance and attitude on same-sex marriage, on the other hand, has changed so fast, I know people who have honestly forgotten they ever been against it. State power is a blunt instrument, and I'm not convinced every anti-gay bigot needs to be bludgeoned in our pursuit of a better society. I'm also not convinced it'd work. The short, principled answer to slowing down a rush to include sexual orientation in anti-discrimination and/or keeping is this: it has a good chance of making things worse at an unjustified cost. This is not a peculiar sort of argument, it is the driving force behind many objections to anti-abortion laws. -Kevin Chen On Thu, Feb 27, 2014 at 8:54 PM, Greg Lipper lip...@au.org wrote: I would also add that Greg Sisk's syllogism only works if (1) you are also willing to allow photographers, florists, caterers, bakers, etc. to refuse to work at mixed-race weddings, or (2) you conclude that refusal to participate in same-sex wedding ceremonies is somehow more worthy of protection than refusal to participate in mixed-race weddings. As to the former, we as a society (or so I had thought) have concluded that we are unwilling to tolerate that type of discrimination, whatever its motivation. As to the latter, I still haven't seen a principled basis for saying that sexual-orientation-based discrimination is somehow more benign than race-based discrimination (be it in the context of marriage, marriage ceremonies, or otherwise). Perhaps this debate is hopelessly circular: lots of people - including lots of smart people - still oppose same-sex marriage, and smart people who oppose same-sex marriage will naturally come up with ways to treat their opposition to same-sex marriage as less problematic than other types of discrimination that have been more widely discredited. But that doesn't change what otherwise appears to be purely invidious discrimination. On Feb 27, 2014, at 8:40 PM, Ira Lupu icl...@law.gwu.edu wrote: 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:
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 that we should treat it as seriously as we treat discrimination against Jews and Moslems. Yet we accommodate discrimination on the basis of religion by religious nonprofits even for jobs that do not appear to have any serious religious dimension to them. And I do not believe that this discrimination is cost free. With regard to discrimination on grounds other than race, and in particular with regard to discrimination on the basis of religion, I think we accommodate discriminatory behavior on the part of religious individuals in some limited circumstances defined categorically. We don't do the kind of case by case sorting that Chip rejects as futile. Jim Oleske in a recent post wrote about how we accomplished that kind of sorting by separating the world into different spheres. Nonprofit religious organizations could discriminate but commercial enterprises were forbidden to do so. I think what we are trying to do is identify categories of circumstances where accommodations may be appropriate because the likelihood of sincere religious beliefs as opposed to bigotry is higher and the harm caused to the victims of discrimination is lower. I'm not sure that the nonprofit/for profit distinction is adequate to do this job. Nonprofit organizations can
