I'm afraid that what the state RFRA legislation is doing is encouraging, on the part of its supporters, an extravagant view of "religious liberty" (just read some of the material in the Austin, TX newspapers) that will then breed anger and frustration when "liberal" and "secular" judges interpret the legislation in the sensible manner that Doug would advocate (and that I assumed would be the case when I supported RFRA back in 1993). But I now believe, as a practical matter, that "legalization" of such issuess serves primarily to increase general acrimony. Either they are what Madison called "parchment barriers," of little value in predicting actual legal outcomes (as Doug suggests) or licenses to engage in egregious discrimination (as several people on this list suggest). We turn to law when the community can't work things out in sensible "conventional" compromises. Sometimes that works, and sometimes it doesn't. Tocqueville might have said (incorrectly, as an empirical matter, at least in 1835), that in America political issues become matters for the judiciary to adjudicate, but it is an open question whether those adjudications will in fact be accepted or simply serve as grist for additional political hostility and cleavages. Hobby Lobby isn't going to lead to civil war, but I suspect that it is like Dred Scott (which also, incidentally, did not "cause" the War) inasmuch as almost new readers shifted from their priors because of anything contained in either the majority or dissenting opinions and, indeed, used those opinions as evidence that the "other side" just doesn't get what's at stake.
sandy From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar Sent: Saturday, March 28, 2015 1:11 PM To: Law Religion & Law List Subject: Re: Amazing what Hobby Lobby has wrought I know there are those who think the Indiana RFRA only protects religious adherents through an exemption or exception-based regime. But that is not how everyone will understand it. Some will think of it as a license to discriminate: http://thinkprogress.org/lgbt/2015/03/28/3640221/indiana-business-owner-admits-discriminating-lgbt-people/ We can't know how many people use subterfuge like this or who (erroneously) think liberty is license to do whatever they want despite the common good as decided through majoritarian actions. This person should say out loud who he is, what his restaurant is, where it is, and tell people the reason he is discriminating against them and not use subterfuge. To do less is to lose all moral standing on the basis of some claim of liberty. Steve - Prof. Steven D. Jamar Assoc. Dir. of International Programs Institute for Intellectual Property and Social Justice http://iipsj.org http://sdjlaw.org "If you want to bake an apple pie from scratch, you must first invent the universe." Carl Sagan
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