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 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. >
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