That's a great argument for Smith, and under Smith. But I don't see
how it works under RFRA or other Sherbert/Yoder-type regimes.
Sherbert makes clear that even when the government is giving
unemployment benefits, it must pass strict scrutiny when it requires
behavior that violates religious beliefs as condition of those benefits.
I would think the substantial burden is even clearer when the government
requires behavior that violates religious beliefs as a condition of
someone's use of his own property.
Assume, for instance, that the government requires certain
businesses (say, gasoline filling stations) to be open Saturdays, and
Adele Sherbert -- who went into this line of business -- objects,
claiming that the law violates her obligation to keep her business
closed on the Sabbath. Would we say that there's no RFRA claim because
"no one forces [Sherbert] to run and operate [a gas station]," and that
the law imposes a "self-selected conflict"? I don't think so; after
all, no-one forced Sherbert to apply for unemployment, either. The
same, I think, is true as to someone who is required by the law to allow
her property (or, in the New Mexico photographer's case, her services)
to be used for behavior that her religious beliefs forbid her to assist
in.
Now one could argue that antidiscrimination law does pass strict
scrutiny, though I'm not sure why requiring Elane Huguenin to photograph
same-sex weddings -- or interfaith weddings or interracial weddings or
whatever else -- is necessary to serve a compelling government interest.
But I think one has to get into the strict scrutiny analysis; one can't
just avoid it by saying that Huguenin or Sherbert or whoever else could
quit her profession or refuse to apply for unemployment benefits.
Eugene
________________________________
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Engelken, Sheri
Sent: Tuesday, August 05, 2008 9:03 AM
To: Law & Religion issues for Law Academics
Subject: Conflicts between religious exercise and gay rights
Religious beliefs can serve as justifications for many types of
conduct that we condemn, e.g., slavery, wife-beating, concubinage,
genocide. Discrimination, be it based on race, ethnicity, gender,
sexual preference, or other irrelevant personal status, is to be
condemned. No one forces service providers to run and operate places of
public accommodation. Choosing to do so, when it flies in the face of
one's religious beliefs, is self-selected conflict. The individual
discriminated again is not in a similar "choice" position. And telling
victims of discrimination that they should look for alternatives --
non-discriminatory service providers -- is not a proper solution.
That's reminiscent of black Americans facing Jim Crow practices being
told "we don't serve blacks here" and having to look for and ultimately
find alternative services where such practices weren't in use.
Service providers with discriminatory religious beliefs don't
face any restriction on their beliefs from public accommodations laws.
They're just barred from engaging in unlawful conduct, i.e., refusing to
provide a non-religious service they willingly provide to others not in
the class at issue. This isn't about whether you have to ordain women
or allow people in the class to participate in religious activities in
ways that impinge on religious beliefs. This is about whether providers
of non-religious services (public accommodations) should be permitted to
engage in the unlawful conduct of discrimination.
SJE
Sheri J Engelken
Gonzaga University School of Law
PO Box 3528; 721 N Cincinnati
Spokane, WA 99220
509 313 5891
[EMAIL PROTECTED]
________________________________
From: [EMAIL PROTECTED] on behalf of
Brownstein, Alan
Sent: Mon 8/4/2008 5:06 PM
To: Law & Religion issues for Law Academics
Subject: RE: Conflicts between religious exefcise and gay rights
and "cudgels"
As someone who, in times long past, has had the decidedly
miserable experience of looking unsuccessfully for jobs and housing for
significant periods of time, I do not think for a moment that people can
always find alternative jobs or quality places to live from other
providers if they are subject to discrimination. Both jobs and housing
can often be hard to find - even when you are not the victim of
discrimination.
But when alternative services are clearly available, I think Art
is correct that what is at issue here is a clash of protected liberty
and equality rights that cause somewhat analogous harms.
As Vik Amar and I wrote recently,
"Just as it makes no sense to tell a gay person who has been
living with his partner for 20 years to end his relationship, or to stop
being gay and enter into a heterosexual relationship, it makes no sense
to tell a devout religious individual to set his or her convictions
about homosexual conduct aside and adopt a new religion. Neither the gay
person nor the religious adherent can reasonably be asked to change who
they are. Our laws should reflect that reality in both circumstances. "
Alan Brownstein
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of
[EMAIL PROTECTED]
Sent: Monday, August 04, 2008 4:35 PM
To: religionlaw@lists.ucla.edu
Subject: Re: Conflicts between religious exefcise and gay rights
and "cudgels"
Marty Lederman writes:
I would respectfully dissent from [the] suggestion that ... gays
and lesbians really suffer much harm by being denied services or jobs or
housing on the basis of their sexual orientation because they "could get
such services -- often at a higher quality -- just fine from lots of
other providers." ... With all respect, I think this sort of standard
libertarian skepticism about the need for antidiscrimination laws
significantly trivializes very serious harms.
- I don't doubt that some people suffer very serious harms from
being denied goods and services based on their race, religion, sexual
orientation, etc., even if they could easily obtain the same goods and
services elsewhere.
- Nor, however, do I doubt that some people suffer very serious
harms from being forced to serve certain other people in certain ways,
when providing such service contravenes their sincerely-held religious
or moral beliefs.
- And it seems to me that the harms in these two cases are
essentially identical: some combination of emotional distress and moral
outrage.
- So is there any reason (other than where our personal
sympathies happen to lie) to assume that the harm in case #1 is
categorically greater than the harm in case #2, or that the harm in case
#2 is categorically greater than the harm in case #1?
- Given that equal protection and religious freedom are both
constitutional values, is there any reason why the legal system should
categorically favor the person suffering harm in case #1 over the person
suffering harm in case #2, or the person suffering harm in case #2 over
the person suffering harm in case #1?
Art Spitzer
**************
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