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Professor Chen's response seems a bit over the top. The government is not, after all, interested in closing businesses. It is interested in making sure that businesses which are licensed by the government and are open to the public serve the entire public and that business owners do not act on their personal bigotries (or beliefs) when offering their goods and services to the public. Put another way, the government cannot force people to change their views about others; it can only (and properly) compel them to treat others with dignity, respect, and equality. I am surprised anyone on this list would object to this. Of course anti-gay bigotry may be closeted. That is far better than having it out in the open to harm people on a day-to-day basis. Idaho is considering a law that would allow doctors and dentists (among others) to refuse to treat gay patients. This is not about opposition to marriage but hostility to gay people per se. That the hostility is religiously motivated is hardly relevant. The KKK lynched Jews and Catholics (not as often as blacks) because they KKK members were religiously motivated to do so. If I were a gay man in Idaho with a broken arm, I would probably not care if the doctor was a closeted bigot who hated gays; or had anti-gay religious beliefs (clearly not along the line of doing unto others or loving thy neighbor). All I would want is that the professional with the MD set my arm properly and give me a cast and send me on my way to healing. After my arm was set (or after I bought flowers for my wedding) I would not be too concerned about the doctor or florist crawling back into his or her closet to be bigoted. Indeed, I would argue that civil rights laws are designed precisely to force the bigots into the closet (or the privacy of their home, private club, or even their church) where they can exercise their right to despise people for religious reasons or any other reasons. But, when the go outside engage in businesses and professions, they cannot let those prejudices (or deeply held religious convictions) prevent them from accepting all comers in their businesses. Professor Paul Finkelman
Justice Pike Hall, Jr. Visiting
Professor
Paul M. Hebert Law Center
Louisiana State University
1 East Campus Drive
Baton Rouge, LA 70803-0106 225-578-0894 518-605-0296 From: tznkai <tzn...@gmail.com> To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu> Sent: Thursday, February 27, 2014 9:39 AM Subject: Re: bigotry and sincere religious belief 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:
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