The Kansas bill is very sex/gender specific, and it is not limited to weddings in any way. The rights it creates appear absolute -- no interest balancing. It would authorize all sincere religious objectors (persons and entities, including businesses) to treat same sex marriages/domestic partnerships, etc. as invalid, even if the 14th A required states to license and respect such weddings. It would authorize those objectors to refuse to provide goods and services to anyone celebrating such a wedding or commitment, and to deny employee spousal benefits to same sex spouses.
The Arizona bill protects religious freedom generally, and the amendment extends the coverage explicitly to corporations. The same religious objections to same sex weddings, marriages, etc. could be made under the Arizona bill. The AZ bill permits a compelling interest defense (therefore more "moderate"?), but it also is far more sweeping because it might be invoked to justify religious discrimination against customers for all sorts of reasons of status and identity, not limited to sexual orientation. Unlike federal RFRA, which was a generic response to Smith and brought together a coalition of many faith groups and civil liberties groups, the amendments to Arizona RFRA are driven by exactly the same political forces as are driving the Kansas bill and others -- opposition to same sex marriage and same sex intimacy, and an assertion of rights of some business people to refuse to serve that population. So the good lawyers on this list can parse the differences in the bills, and we can debate which bill would do more harm or more good, if you think there is any good here to be done. But no one can credibly deny that all of these current legislative efforts are driven by the same political forces. Doug Laycock, Tom Berg, Rick Garnett, Robin Wilson and others have for the past 5 years been pushing narrower versions of these bills in states that have legislated same sex marriage (NY, Illinois, NH, Hawaii, etc.) Those efforts have failed over and over again. Now that same sex marriage seems headed for the red states, we are just seeing broader, uglier, less nuanced versions of the same agenda. I hope and expect that Gov. Brewer will veto the AZ bill, and it's nice to see the fierce national pushback against these attempts to legitimate anti-gay bigotry, whatever its religious underpinnings in some cases. On Wed, Feb 26, 2014 at 10:03 AM, Scarberry, Mark < mark.scarbe...@pepperdine.edu> wrote: > That should have been "much more moderate/less sweeping." > > Mark > > Mark S. Scarberry > Pepperdine University School of y > > > Sent from my Verizon Wireless 4G LTE Smartphone > > > -------- Original message -------- > From: "Scarberry, Mark" > Date:02/26/2014 6:47 AM (GMT-08:00) > To: Law & Religion issues for Law Academics > Subject: RE: Subject: Re: Kansas/Arizona statutes protecting for-profit > businesses > > Marci's view of the rights of a Walmart under tha AZ bill, and likely even > the Kansas bill, is simply wrong. > > The application in the AZ bill to private enforcement by way of lawsuit > simply prevents the state from doing indirectly what it can't do directly, > cf. NY Times v. Sullivan, and makes clear something that already should be > the case under RFRAs, properly interpreted. > > It also is the case that the AZ bill is much more moderate/sweeping than > the Kansas bill. > > Mark S. Scarberry > Pepperdine University School of Law > > Sent from my Verizon Wireless 4G LTE Smartphone > > > -------- Original message -------- > From: Marci Hamilton > Date:02/26/2014 5:09 AM (GMT-08:00) > To: Law & Religion issues for Law Academics > Cc: Law & Religion issues for Law Academics > Subject: Re: Subject: Re: Kansas/Arizona statutes protecting for-profit > businesses > > They are similar in that both involve believers demanding a right to > discriminate due to their religion. If Hobby Lobby wins, Walmart will have > an argument to get around prohibitions based on race, gender, religion, > alienage, and disability. > All they need is one owner or board member and they are good to go. > > But here is the critical difference: The state amendment proposals are > not moderate or almost identical. Rfra applies only against the govt. > These bills bring private vs private disputes under its misguided, > concocted standard. It's ugly. > > Marci > > > > Sent from my iPhone > > On Feb 25, 2014, at 11:58 PM, Michael Worley <mwor...@byulaw.net> wrote: > > I have. My point is your condemnation is not compelling to me when we > disagree on a either more moderate or almost identical bill (depending on > how Hobby Lobby comes out). > > > On Tue, Feb 25, 2014 at 8:55 PM, <hamilto...@aol.com> wrote: > >> Have you read anything I've written for the last 20 years? >> >> >> Marci A. Hamilton >> Paul R. Verkuil Chair in Public Law >> Benjamin N. Cardozo School of Law >> Yeshiva University >> 55 Fifth Avenue >> New York, NY 10003 >> (212) 790-0215 >> http://sol-reform.com >> <https://www.facebook.com/professormarciahamilton?fref=ts> >> <https://twitter.com/marci_hamilton> >> >> >> >> -----Original Message----- >> From: Michael Worley <mwor...@byulaw.net> >> To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu> >> Sent: Tue, Feb 25, 2014 8:47 pm >> Subject: Re: Subject: Re: Kansas/Arizona statutes protecting for-profit >> businesses >> >> Would you say the Federal RFRA is egregious, Marci? >> >> >> On Tue, Feb 25, 2014 at 6:38 PM, Marci Hamilton <hamilto...@aol.com>wrote: >> >>> I have read them and both are egregious. >>> >>> Sent from my iPhone >>> >>> On Feb 25, 2014, at 6:15 PM, "Scarberry, Mark" < >>> mark.scarbe...@pepperdine.edu> wrote: >>> >>> The Arizona bill and the Kansas bill are very different. I don't >>> have time right now to discuss this further, but all you have to do is to >>> read the bills. If you do, you will see that the arguments equating the two >>> are simply and egregiously wrong. I hope no one will comment in any strong >>> way without actually reading them. >>> >>> Mark >>> >>> Mark S. Scarberry >>> Professor of Law >>> Pepperdine Univ. School of Law >>> >>> >>> >>> *From:* religionlaw-boun...@lists.ucla.edu [ >>> mailto:religionlaw-boun...@lists.ucla.edu<religionlaw-boun...@lists.ucla.edu>] >>> *On Behalf Of *Greg Hamilton >>> *Sent:* Tuesday, February 25, 2014 1:55 PM >>> *To:* mich...@californialaw.org; Law & Religion issues for Law Academics >>> *Subject:* RE: Subject: Re: Kansas/Arizona statutes protecting >>> for-profit businesses >>> >>> ...and Alan has been championing this bill on the spot at the Arizona >>> capitol. Sigh. I have fought him over it when he tried to push me into >>> supporting the Idaho bill which was just as egregious as the Arizona bill, >>> but perhaps more targeted. >>> >>> Gregory W. Hamilton, President >>> Northwest Religious Liberty Association >>> 5709 N. 20th Street >>> Ridgefield, WA 98642 >>> Office: (360) 857-7040 >>> Website: www.nrla.com >>> >>> <image001.jpg> <http://www.nrla.com/> >>> >>> *Championing Religious Freedom and Human Rights for All People of Faith* >>> >>> *From:* religionlaw-boun...@lists.ucla.edu [ >>> mailto:religionlaw-boun...@lists.ucla.edu<religionlaw-boun...@lists.ucla.edu>] >>> *On Behalf Of *Michael Peabody >>> *Sent:* Tuesday, February 25, 2014 1:38 PM >>> *To:* religionlaw@lists.ucla.edu >>> *Subject:* Subject: Re: Kansas/Arizona statutes protecting for-profit >>> businesses >>> >>> After reading the legislation, it's amazing how broadly it is drafted. >>> It would seem to not only include permitting discrimination on the basis of >>> sexual orientation or marital status, but also on the basis of religion. >>> It would make it very easy for any business with a religious inkling to >>> refuse to accommodate the religious exercise of employees, or even >>> terminate them on the basis of religious differences. >>> >>> The Hobby Lobby case may go a long way in showing what rights >>> employers have, and it seems to be part of a general strike against the >>> application of the Bill of Rights to the states (14th Amendment). >>> >>> Any time the principle argument in favor of a potentially dangerous >>> law is, "What's the worse that can happen?" I think there's reason to get >>> really nervous. >>> >>> There is probably an answer for those who don't want to violate their >>> religious conscience by accommodating those members of protected classes >>> that disagree with them, but this legislation is not it. >>> >>> Michael D. Peabody, Esq. >>> Editor >>> ReligiousLiberty.TV >>> http://www.religiousliberty.tv >>> >>> >>> >>> >>> _______________________________________________ >>> >>> 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. >>> >>> >>> _______________________________________________ >>> 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. >>> >> >> >> >> -- >> Michael Worley >> BYU Law School, Class of 2014 >> >> _______________________________________________ >> 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. >> >> >> _______________________________________________ >> 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. >> > > > > -- > Michael Worley > BYU Law School, Class of 2014 > > _______________________________________________ > 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. > > > _______________________________________________ > 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. > -- 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.
