Mark is of course right about this. But I wonder if we might distinguish the
two issues, as we might distinguish questions of racial discrimination
generally from questions of gay rights -- including the question of whether
there is Scriptural support for slavery, racial discrimination, racial
integration, sex discrimination, and sexual orientation discrimination.
And to Marty's point, I think Eugene has begun to point out the way in which
this issue is something quite more than whether one is "uncomfortable" with gay
marriage. It might be more akin to whether a health care provider (or, say,
Catholic Charities) might be be coerced into violating a prohibition against
contraception or abortion.Richard Dougherty
-----Original Message-----
From: "Mark Tushnet" <[EMAIL PROTECTED]>
Sent 8/4/2008 1:27:41 PM
To: "Law & Religion issues for Law Academics" <religionlaw@lists.ucla.edu>,
"Law & Religion issues for Law Academics" <religionlaw@lists.ucla.edu>, "Law &
Religion issues for Law Academics" <religionlaw@lists.ucla.edu>
Subject: RE: Conflicts between religious exefcise and gay rightsIn connection
with this discussion, it might be worth noting that prior to the Civil War
there was, in the South, quite a vigorous discussion of why slavery was
sancitoned by the Bible, and -- toward the end of the pre-war period -- why it
was mandated by Ciristianity properly understood.
Mark Tushnet
William Nelson Cromwell Professor of Law
Harvard Law School
Areeda 223
Cambridge, MA 02138
ph: 617-496-4451 (office); 202-374-9571 (mobile)
-----Original Message-----
From: [EMAIL PROTECTED] on behalf of [EMAIL PROTECTED]
Sent: Mon 8/4/2008 12:10 PM
To: Law & Religion issues for Law Academics; Law & Religion issues for Law
Academics
Subject: Conflicts between religious exefcise and gay rights
I tend to agree with Alan here. Of course there are occasional conflicts
between gay rights laws and religious beliefs -- principally in the commercial
sector, such as in employment and housing rentals -- but is it really that much
of a problem? Or is it a relatively infrequent phenomenon that's being
exploited as a cudgel against gay rights? (A sincere question -- I really am
uncertain of the answer.)
I'm confident -- given that Doug and Anthony edited it -- that the new volume
will be very worthwhile, fair and balanced. But I have some trepidation that
it, and similar endeavors, will unnecessarily add fuel to this fire. Same-sex
*marriage* implicates religious liberty? How so? It's not as if religious
congregations will soon be compelled to offer membership to gay and lesbian
couples, right? Or that ministers will be legally required to perform same-sex
ceremonies.
Of course, many people are deeply uncomfortable with same-sex marriage, and
such discomfort often derives from (or finds sustenance in) certain religious
moral codes. But that's not the same as a threat to religious liberty, is it?
I suppose this is one way of framing my doubts here: Is this very different
from the religiously motivated resistance when race- and sex-discrimination
norms began to find favor in the law? Twenty years from now, will today's
religiously oriented opposition to gay rights seem as distant and odd to the
ReligionLaw list of 2028 (still administered by Eugene, one can hope!) as the
1960's resistance to race-and sex-discrimination laws looks to us now?
-------------- Original message ----------------------
From: "Brownstein, Alan" <[EMAIL PROTECTED]>
> If we are talking about conflicts between gay rights and religious liberty,
> surely this is a coin that has two sides to it. Many gay people see religion
> as
> a sword that is being used to burden their liberty and equality rights. What
> we
> have are two groups claiming basic autonomy rights with each seeing the other
> side as a threat to be feared, rather than as people with basic liberty
> interests that need to be accommodated. When we have one side of the debate
> arguing that to avoid potential conflicts with religious liberty, gay people
> should be denied the right to marry or to be protected against discrimination
> in
> housing or employment, it is hardly surprising that the other side of the
> debate
> is going to offer little sympathy to requests for religious accommodation.
>
> I continue to believe that while there will be some real conflicts between
> religious liberty and gay rights in some circumstances, at a deeper level
> these
> two assertions of autonomy rights can and should be positively reinforcing
> each
> other. Sometimes this happens inadvertantly. The Equal Access Act has helped
> gay
> and lesbian clubs be recognized at schools. But this was done over the
> opposition of people who insisted that freedom of association and speech for
> religious students should not be extended to gay students. To have the mutual
> reinforcement of autonomy rights (that I think is possible) happen at a
> broader,
> practical level, however, there would have to be some commitment to compromise
> from both sides.
>
> Minor shameless plug, Doug. Take a look at the Findlaw column (published last
> Friday) that Vik Amar and I recently
> wrote.
>
> Alan Brownstein
> UC Davis School of Law
>
>
>
>
> ________________________________
> From: [EMAIL PROTECTED] [EMAIL PROTECTED] On
> Behalf Of Douglas Laycock [EMAIL PROTECTED]
> Sent: Monday, August 04, 2008 7:13 AM
> To: religionlaw@lists.ucla.edu
> Subject: Defamation of Religion - and Gay Rights
>
>
> Mr. Diamond is quite right to see gay rights as the likely source of this kind
> of litigation in the US. Marc Stern at the American Jewish Congress (and a
> participant on this list) has a great chapter forthcoming on litigation to
> date
> over conflicts between gay rights and religious liberty and free speech. The
> Canadian speech cases are terrifying; the US cases in the context of schools
> and
> employment are quite unprotective of speech.
>
> This chapter is forthcoming in a book (now comes the shamless plug) that I
> edited with Robin Fretwell Wilson at Washington & Lee and Anthony Picarello,
> formerly at the Becket Fund and now the General Counsel to the Conference of
> Catholic Bishops. The book is Same-Sex Marriage and Religious Liberty:
> Emerging
> Conflicts, due out from Rowman & Littlefield in September. Other contributors
> are Jonathan Turley at GW, Chai Feldbum at Georgetown, Doug Kmiec at
> Pepperdine,
> Charles Reid at St. Thomas (Minnesota), Wilson, and me. I won't vouch for my
> chapter, but I'll vouch for all the others.
>
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