“He needs to change jobs.” As I said, what you really want is for these people
to go out of business. Barring religious minorities from professions is a very
traditional form of religious persecution. Reviving it here is not the solution
to these disagreements over conscience.
I think that race is constitutionally unique. And it is clear that in the
comparable period with race discrimination laws, resistance was so
geographically concentrated, and so widespread within those locations, that
exemptions would have defeated the purpose of the law. The government would
have had a compelling interest in refusing religious exemptions.
I see no reason to think that we are in anything like that situation with
respect to gay rights today. If it turns out that we are, then there will be a
compelling interest. And under the legislative proposals we have offered, if
all the wedding planners in a community refuse to do gay weddings, then all of
them lose their exemption.
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: Wednesday, February 26, 2014 3:19 PM
To: religionlaw@lists.ucla.edu
Subject: Re: Subject: Re: Kansas/Arizona statutes protecting for-profit
businesses
Would you suggest this if it were based on race rather than homosexuality?
If the wedding photographer thinks what the couple is doing, as in getting
married under the state's duly enacted laws, is seriously evil, he needs to
change jobs.
Become a school photographer, though I suppose then he would object to taking
pictures of children from same-sex
families.
I get the clergy and house of worship exemption. I don't get the business
exemption. As Chip has said, these "compromise" exemptions have gone nowhere,
and in this environment, I would wager that they won't.
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 <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: Wed, Feb 26, 2014 2:56 pm
Subject: RE: Subject: Re: Kansas/Arizona statutes protecting for-profit
businesses
It would protect only very small businesses that are personal extensions of the
owner, and where the owner must necessarily be involved in providing the
services. We have suggested five or fewer employees as a workable rule that is
in the right range. And it would have a hardship exception for local
monopolies; ir you’re the only wedding planner in the area, you have to do
same-sex weddings too. So it would guarantee that same-sex couples get the
goods and services they need. It would not enable that couple to demand those
services from the merchant who thinks that what they’re doing is seriously
evil.
They don’t want personal services from that guy anyway. They want that guy to
change his religious views or to go out of business.
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>
[mailto:religionlaw-boun...@lists.ucla.edu
<mailto:religionlaw-boun...@lists.ucla.edu?> ] On Behalf Of hamilto...@aol.com
<mailto:hamilto...@aol.com>
Sent: Wednesday, February 26, 2014 2:32 PM
To: religionlaw@lists.ucla.edu <mailto:religionlaw@lists.ucla.edu>
Subject: Re: Subject: Re: Kansas/Arizona statutes protecting for-profit
businesses
Doug--What does such an exemption look like if it is available to anyone other
than clergy or a house of worship? Or is that limitation what makes it
reasonable?
I take it that the Arizona law does not fit your "well-drafted" notion?
well drafted, narrowly targeted bill when or after same-sex marriage becomes
the law in those states.
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 <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: Wed, Feb 26, 2014 2:24 pm
Subject: RE: Subject: Re: Kansas/Arizona statutes protecting for-profit
businesses
Many state laws on sexual-orientation discrimination, and most laws on same-sex
marriage, have exemptions for religious organizations. Some are broad; some are
narrow. Some are well drafted; some are a mess. But they are mostly there.
Apart from marriage, there is no reason to have religious exemptions for
businesses from laws on sexual-orientation discrimination. No one in the groups
I have been part of has ever suggested such exemptions. Not even the Kansas
bill provides such exemptions.
Chip is correct that no state has explicitly exempted small businesses in the
wedding industry, or in marriage counseling, from its same-sex marriage
legislation. All those laws so far have been in blue states. The absurd
overreach in the Kansas bill, and the resulting political reaction to the
radically different Arizona bill, and some bills caught in the fire elsewhere
with less publicity, may indicate that such exemptions will be hard to enact
even in red states. Or maybe not, if someone offers a well drafted, narrowly
targeted bill when or after same-sex marriage becomes the law in those states.
I agree with Alan Brownstein that part of the problem in red states is that
they want to protect religious conservatives without protecting gays and
lesbians. Not only does Arizona not have same-sex marriage; it doesn’t have a
law on sexual-orientation discrimination. The blue states are mostly the mirror
image. More and more they want to protect gays and lesbians but not religious
conservatives. Hardly any political actors appear to be interested in
protecting the liberty of both sides.
Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA 22903
434-243-8546
From: <mailto:religionlaw-boun...@lists.ucla.edu>
religionlaw-boun...@lists.ucla.edu [
<mailto:religionlaw-boun...@lists.ucla.edu?>
mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Wednesday, February 26, 2014 11:34 AM
To: Law & Religion issues for Law Academics
Subject: Re: Subject: Re: Kansas/Arizona statutes protecting for-profit
businesses
That is my understanding, Hillel. If Doug, Rick, Tom, or others know of
counterexamples, I'm sure they will bring them forward to the list.
On Wed, Feb 26, 2014 at 11:28 AM, Hillel Y. Levin <hillelle...@gmail.com
<mailto:hillelle...@gmail.com> > wrote:
Chip:
Thanks for the cite! I will take a look.
And just so I understand: are you asserting that none have adopted the broader
exceptions (wedding vendors, etc)?
On Wed, Feb 26, 2014 at 11:23 AM, Ira Lupu <icl...@law.gwu.edu
<mailto:icl...@law.gwu.edu> > wrote:
Hillel:
The same sex marriage laws to which you refer do have "exceptions," for clergy,
houses of worship, and (sometimes) for religious charities and social services.
Bob Tuttle and I analyze and collect some of that here:
http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1055
<http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1055&context=njlsp>
&context=njlsp. There is plenty of other literature on the subject.
What has happened in other states since we wrote that piece is quite consistent
with the pattern we described. These laws do NOT contain exceptions for
wedding vendors (bakers, caterers, etc.) or public employees like marriage
license clerks. Those are the efforts that have failed, over and over.
Chip (not Ira, please)
On Wed, Feb 26, 2014 at 11:13 AM, Hillel Y. Levin <hillelle...@gmail.com
<mailto:hillelle...@gmail.com> > wrote:
Ira:
You say that these bills have failed over and over again. If I'm not mistaken,
several states that recognize same-sex marriage and/or have non-discrimination
laws protecting gays and lesbians do have religious exceptions (as does the
ENDA that passed the senate not long ago, only to die in the House). Am I
mistaken? Do you (or anyone else here!) know of any literature that canvasses
the laws in this context?
Many thanks.
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