I agree with Paul’s comments about most of Greg S's hypotheticals. And to put a finer point on my post from yesterday – my bakery would be required to serve the evangelicals even if they were going to serve my baked goods at a church service featuring worship at odds with my own religious beliefs.
And that is good for religious freedom: just as race-discrimination laws also prohibit me from refusing to sell a cake to be served at a mixed-race wedding, religious-discrimination laws prohibit me from refusing to sell a cake to be served at a religious ceremony that I oppose (indeed, even if certain views expressed at that religious ceremony are becoming increasingly disfavored in society at large). Greg Gregory M. Lipper Senior Litigation Counsel Americans United for Separation of Church & State (202) 466-3234 x210 On Feb 28, 2014, at 10:35 PM, Sisk, Gregory C. <gcs...@stthomas.edu> wrote: > But of course! I quite agree "that's how it should be." I too believe that > our two Christian evangelists should be able to walk into Greg Lipper's > hypothetical bakery and be served. > > If that were all that is on the table for legal regulation, then we all could > breath a sigh of relief and quickly come to an amicable agreement on the > lion's share of the matter. I might quibble that an expansion of > anti-discrimination laws to accomplish this simple purpose is a solution in > search of a problem, given that there are no reports in the media of an > epidemic of bakeries or grocery stores or other merchants that are refusing > to take money from people until after checking their sexual orientation or > religious or other identification card. In addition, we might still have a > much lower stakes debate about whether even the principle of basic affording > of basic merchant goods to everyone should admit to a rare exception where > the harm is minimal and the idiosyncratic religious claim is severe. But, > again, I'd acknowledge that we’d be at least 99 percent of the way there if > this were all we are talking about. > > Unfortunately, unless I've misread the many posts over the last couple of > weeks, this does not appear to be all that is demanded by advocates of a > broader anti-discrimination regime that admits of no religious liberty > exceptions. > > Suppose that our two Christian evangelists walk into Greg Lipper’s > hypothetical bakery and the baker says, “you’re welcome to come in and buy > baked goods, but I won’t allow any Christian leafleting or prosyletizing of > my customers.” I imagine that nearly all of us would agree that the baker > would be well within his rights to refuse to allow his bakery to be a venue > to promote the evangelist's message. Would everyone still agree if the baker > applies this no-leafletting policy in a “discriminatory” way? Suppose that > the baker does not permit the Christian evangelists to hand out flyers, but > then he circulates for customer signatures his own petition asking Governor > Brewer to veto the Religious Freedom Restoration Act amendments? I would > hope that most of us would stand by the baker here,. But such a freedom for > the baker to so "discriminate" is hard to reconcile with some comments on > this list suggesting a more absolute value for anti-discrimination. > > Or suppose that our intrepid Christian evangelists, exhausted after a Friday > afternoon of preaching and receiving regular epithets from a hostile street > audience, arrive at our baker’s door, hungry and thirsty, only to find the > baker putting out the "closed sign", as he explains, “I’m Jewish, so I’m > closing on Friday evening as the Sabbath is beginning.” Should our Christian > evangelists be heard to make a legal claim that the baker is "discriminating" > against non-Jews by denying them service on a Friday evening -- and on > explicitly religious grounds no less? Again, I hope list members would not > reach that conclusion. But then I've been reading posted messages saying > that merchants of differing religious views should be required "to adjust" to > the demands of the majority. > > In sum, my prior points about the over- and mis-use of "discrimination" to > characterize choices, as well as the danger of allowing government to > pressure people into proper and decent behavior, do not disappear when we > reach the door to a business. > > Greg Sisk > > ________________________________ > From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] > on behalf of Greg Lipper [lip...@au.org] > Sent: Friday, February 28, 2014 7:25 PM > To: Law & Religion issues for Law Academics > Subject: Re: The pain of discrimination and the role of government > > But if those evangelicals walked into the corner bakery afterwards, the law > would require that they be served – even if the owner hated their religious > beliefs. And that’s how it should be, I think. > > > On Feb 28, 2014, at 8:11 PM, Sisk, Gregory C. > <gcs...@stthomas.edu<mailto:gcs...@stthomas.edu>> wrote: > > Over the past day, I’ve withheld from posting to the list, wanting to hear > other points of view, see how the conversation unfolds, and learn from others > (especially from those with whom I tend to disagree and perspectives that > contrast with mine). I hope what follows may be woven into the tapestry of > today’s other posts. > > In reading posts poignantly describing the pain of suffering discrimination, > I was reminded of something that I observed on the streets of a major > American city to which I was traveling. On a major downtown pedestrian > thoroughfare, two young people, looking to be in their early twenties, were > handing out flyers and trying to engage passers-by in conversation. Their > t-shirts, leaflets, and spoken words readily identified them as evangelical > Christians preaching the Gospel. Their persistence in the face of a rather > disdainful audience, as well as the tone and message, confirmed that they > were speaking from the heart and acting in furtherance of what they > understood to be a genuine calling to share good news with others. > > The response was anything but receptive; indeed, it was, no two ways around > it, frequently hostile and, yes, bigoted. While most of those walking by > simply ignored the two or gave them a cold stare as they passed, several made > derogatory remarks, laughed or jeered loudly, or even told them to “[epithet > deleted] off.” No one physically accosted the two, and the comments did not > provoke any violence, so I don’t think it could be called disorderly conduct. > But the targeted response was despicable in manner. > > The two evangelists never responded in kind, instead saying “God bless you” > or “Jesus loves you” to each person. But it was plain that the hostile > treatment left its psychological mark. The young woman, who I am guessing > was the veteran at street ministry, seemed less impacted. But the young man > was shaken, as I could tell from his mannerisms, what looked to be tears in > his eyes, and the quaver that appeared in his voice after he received a > particularly vituperative comment. > > Now what these two evangelical Christians experienced was plainly > “discrimination.” And it was blatant and invidious discrimination. The > remarks were not merely negative and disrespectful, but many were hateful and > cruel. And the basis for the discrimination plainly was their religious > identity and message. In the words of more than one poster to this list over > the past day, these two were suffering an injury to their dignity, the pain > of rejection, and the shame of stigma based on their identity. > > Despite the undeniable fact that these two were the victims of discriminatory > treatment and that they plainly felt the sting of that discrimination, I am > guessing that all or most on this list will agree with me that it would be > inappropriate to use the power of government to prevent such unfortunate > behavior in the future or to pass a law that would compel those who pass by > to treat evangelists with respect. And I think that choice to refrain from > use of government and law is correct for at least two reasons. > > First, a legally binding directive to treat evangelists – or for that matter > others who present a message – with respect, or instead a government > regulation that induces such respect at the cost of some type of sanction or > withheld benefit, would be difficult to separate from an improper government > endorsement of the message at issue. At the very least, legal action would > put the heavy thumb of the government on the side of refraining from > expressing opposition or indifference to a value-laden message. > > But, second, it simply is not the proper role of government to enforce > standards of courtesy or to wield legal power (as contrasted with appropriate > exercise of persuasion) to shape human interactions. I definitely assert a > moral right to be treated with dignity, but I do not have a legal right in a > free society to demand that other private citizens extend such courtesy to me > or even refrain from being discourteous. (By statute, of course, I do have > the right to object to even private discrimination on certain grounds when it > denies me the necessary tools for educational and economic opportunity. > That’s something on which I’ll comment more later – but this post is already > too long. My specific point here is that the real pain of discrimination > alone, unaccompanied by something concrete like an economic deprivation, is > like other failures in human behavior that are not properly the subject of > government and where the imprudent use of law often transgresses the > fundamental rights of some while attempting to address the grievances of > others.) > > Instead, it belongs to all of us, with personal commitment, through > investment of time and talents, by telling our stories, and in how we live > our lives, to enhance human dignity. We should resist the temptation to > delegate that responsibility to government, through its use of power or its > imposition of laws and liabilities. In a free society, we do not empower the > government to shape our souls. That remains our job as the people. > > 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 > > _______________________________________________ > To post, send message to > Religionlaw@lists.ucla.edu<mailto: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. _______________________________________________ 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.
