Dear Greg, If you or others are genuinely interested in exploring detailed arguments explaining why opposition to same sex marriage is not irrational bigotry, I would commend either the law review article or the longer book by Sherif Girgis, Robert P. George, and Ryan T. Anderson entitled "What Is Marriage?". You might also read the brief recently filed in the 10th Circuit by Catholics, Southern Baptists, Lutherans, and Mormons that also seeks to rebut the claim that defense of marriage as being between one man and one woman is necessarily based on bigotry.
Grace and peace to you, Derek From: Greg Lipper Sent: Thursday, February 27, 2014 8:57 PM To: Law & Religion issues for Law Academics Reply To: Greg Lipper Subject: Re: bigotry and sincere religious belief I would also add that Greg Sisk’s syllogism only works if (1) you are also willing to allow photographers, florists, caterers, bakers, etc. to refuse to work at mixed-race weddings, or (2) you conclude that refusal to participate in same-sex wedding ceremonies is somehow more worthy of protection than refusal to participate in mixed-race weddings. As to the former, we as a society (or so I had thought) have concluded that we are unwilling to tolerate that type of discrimination, whatever its motivation. As to the latter, I still haven’t seen a principled basis for saying that sexual-orientation-based discrimination is somehow more benign than race-based discrimination (be it in the context of marriage, marriage ceremonies, or otherwise). Perhaps this debate is hopelessly circular: lots of people – including lots of smart people – still oppose same-sex marriage, and smart people who oppose same-sex marriage will naturally come up with ways to treat their opposition to same-sex marriage as less problematic than other types of discrimination that have been more widely discredited. But that doesn’t change what otherwise appears to be purely invidious discrimination. On Feb 27, 2014, at 8:40 PM, Ira Lupu <icl...@law.gwu.edu<mailto:icl...@law.gwu.edu>> wrote: Greg Sisk's post re: how to think about the wedding photographer is just the compelled speech argument one more time. In the case of a photographer, a First A claim of compelled speech is plausible, though not entirely persuasive. In the case of a baker, florist, wine vendor, or caterer, the argument that their providing service to a same sex wedding involves compelling them to speak about the moral/religious bona fides of the ceremony is not even plausible. But there is a deeper issue lurking in Greg's post. If the photographer has a good compelled speech claim, it is entirely independent of religion. She can have any reason, or no reason at all, to refuse to speak. She can have religious objections, homophobic reactions, or aesthetic concerns about taking pictures of two brides or two grooms. Her reasons are totally irrelevant. This is the precise lesson of Minersville v. Gobitis (no free exercise exemptions from compulsory Flag Salute at school) and West Va Bd of Ed v. Barnette (no one can be compelled to salute the American flag). And if reasons are irrelevant, because this is a compelled speech problem, then it extends to all weddings -- inter-racial, inter-religious, Italian, Polish, Jewish, etc. The photographer cannot be "conscripted" by civil rights laws into taking and displaying photos against her will. Maybe this is a good result; I have my doubts. But it is NOT a religious exemption, and it does NOT require any parsing of phobic/bigoted/sincerely religious reasons to abstain. So, under Greg's approach, the problem raised by RFRA's, re: separating religious sincerity from phobic bigotry, remains entirely unresolved. On Thu, Feb 27, 2014 at 7:43 PM, Sisk, Gregory C. <gcs...@stthomas.edu<mailto:gcs...@stthomas.edu>> wrote: Although Steve’s post could be dismissed as filled with overstatements, unfair characterizations, demonization of dissenting voices, and setting up strawmen to easily knock down, let me take his points at face value and use them as a starting point for a conversation that might lower the tension and find some common ground. Much of the back-and-forth accusations that fly past each other without true engagement may be traced to (1) the over-use or the mis-use of the term “discriminate” and (2) at least the appearance of overreaching in requesting accommodation. The central point of dispute here really comes down to situations that involve a personal decision not to be forced to participate in a celebration or an affirmance of something with which one does not agree. Yes, other situations may arise and deserve consideration on their own merits. But let’s set those to one side for now. If we were to narrow the battlefield down to the point of coerced personal participation and identification with a position or message and preserving freedom of association in a narrow category, perhaps we might find a place where the heat could be lowered, where the accusation of discrimination is strained, and accommodations less grudgingly accepted. Steve states that “general societal laws . . . would require [religious believers] to ignore the sexual orientation of students, employees, customers, etc.” Now that is not an accurate description of new anti-discrimination laws, which go much further in effect. But suppose that his description were correct. Indeed, perhaps it should be correct and anti-discrimination laws should be recalibrated to fit Steve’s description. If we did so, we might be able to establish a common ground in which anti-discrimination laws would be harder to challenge on religious grounds and easier to defend as not imposing a governmental orthodoxy on others. If persons of traditional religious faith with a dissenting view on sexual morality were simply required to “ignore the sexual orientation” of those with whom study or teach, work, or engage in the marketplace, it would indeed be more difficult to defend resistance to such a requirement as (1) involving a substantial burden on religious exercise, (2) justifying an exemption from anti-discrimination laws, or (3) involving a religious principle as opposed to simple hostility. Of course, few or none of the real world religious liberty cases that arise involve such things as a grocer refusing to allow someone to purchase a bag of groceries or a physician refusing to set someone’s broken leg. But that just goes to show that Steve might have pointed us to a place of consensual rest. An anti-discrimination law of such scope would find near universal approbation. To be sure, there would still be a subset of instances in which religious liberty claims would be more powerful as a matter of affirmative association more than negative exclusion, although that line is often hard to draw. I’m speaking here about something like a small family business that wants to hire only fellow religious believers so as to maintain a spiritual environment at work or a retired person who wishes to sublet a room in the house to a compatible person of shared religious values. As long as an exemption for this would be restricted to small, intimate settings – that is, truly small mom-and-pop style businesses, along the lines that Doug Laycock suggests, and perhaps subject to limitations where a hardship or denial of service would apply. But let’s set this situation to one side for the moment. What is more problematic for those of us who advocate for a more robust religious liberty regime are those cases, such as the Elane photography case, where an individual in either personal or business life is effectively coerced by the law to participate in a ceremony or to become a tool to advance an ideological message. In other words, we are not talking at all about being required to “ignore sexual orientation” but rather the opposite. To focus on the most visible case on the matter, the wedding photographer is not being asked to simply ignore the sexual orientation of those in a same-sex marriage, but to be part of a ceremony in which a same-sex union is affirmed. Importantly, this is not a concern that turns on a single situation or type of message. And denial of the right to refuse to participate carries dangerous for freedom of religion, thought, association, etc. far beyond the current debate about same-sex marriage. A photographer who objects to being used to promote a military program or a political rally or a religious ceremony should likewise have the freedom to decline to be used for a message that she chooses not to advance. Now we could, of course, call this refusal to participate “discrimination.” But at some point that term proves too much and becomes diluted by over-use and quite distant in application from the kind of invidious and immediately harmful discrimination that traditionally was addressed by civil rights laws. If someone invites me to a boxing match, and I decline because I find the spectacle distasteful, I have in a generic sense discriminated, both against the boxing enthusiast who invites me and the culture of boxing. Let me take it step further. If you run an advertising agency and are asked to prepare an advertisement for a political candidate whose message you find repugnant and you decline, you again are discriminating, now on the basis of political views. While that has not yet become basis for anti-discrimination laws, it is being proposed in some municipalities. But I still have not come to a traditional civil rights law classification. So let me take it still another step. If I invite you to join me for a prayer services, and you decline because you do not share my religious views, you have “discriminated” against me and done so on the basis of religion. But surely we are not going to legislate on such a subject and justify it as fighting “discrimination.” So if we were to formulate a narrow exemption that makes clear that no person is required to participate in or directly provide services to a ceremony or campaign whose message that person does not wish to advance, could we find a point of common agreement at last? For the wedding photographer or the event planner or the bed-and-breakfast, their resistance is really no different in nature than the person who declines to accompany another to a prayer service. Of course, we’d need to be careful in tailoring such an exception, so that it was not misused to, say, allow the taxi driver to refuse to deliver a person to a location, such as a church or military recruitment center. But I think we could come to a description that tied into more intimate involvement in a ceremony or message. Again, I’m not saying this clears the decks altogether, but it would be a starting point toward balance. Gregory Sisk Laghi Distinguished Chair in Law University of St. Thomas School of Law (Minnesota) MSL 400, 1000 LaSalle Avenue Minneapolis, MN 55403-2005 651-962-4923 gcs...@stthomas.edu<mailto:gcs...@stthomas.edu> http://personal.stthomas.edu/GCSISK/sisk.html<http://personal2.stthomas.edu/GCSISK/sisk.html> Publications: http://ssrn.com/author=44545
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