Doug writes: "The cases of the sort Michael describes (and that Chris Lund has described in public work) are still out there; they still happen. And the cases Paul Finkelman imagines, in which state RFRAs justify all kinds of discrimination against gays, are not out there. They have not happened."
If Doug is wrong, I very much would like to know. So I have a few serious questions: How frequently have people tried to excuse discrimination against gays and lesbians by claiming that their religion required them to do so? There are lots of states that have RFRAs or state constitutional equivalents; how often have state RFRAs or state constitutions been relied upon in this regard? I know of the New Mexico wedding photographers, a couple of cake bakers, and at least one person who did not want to rent out a hall for a same sex ceremony. I know of some clerks who refused to issue marriage licenses (which strikes me as the most serious of these occurrences). We all know about the Boy Scouts and the Dale case, which is still good law, I think, under the U.S. Constitution. Are LGBT persons being denied access to restaurants and hotels on the basis of a claim of religious freedom? Are they being fired (or not hired) by employers other than religious institutions? Are they being denied medical treatment? To what degree is such discrimination comparable to the racial discrimination faced by African Americans in the 1950s and before (and perhaps in the 1960s and later)? Are there a lot of cases that involve something other than same-sex weddings or commitment ceremonies? These are not rhetorical questions. I think the answers are important; and there may be a lot that I don't know. Mark Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law -----Original Message----- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Laycock, H Douglas (hdl5c) Sent: Monday, March 28, 2016 5:32 PM To: Law & Religion issues for Law Academics Subject: RE: Arizona, Indiana . . . and now Georgia The cases of the sort Michael describes (and that Chris Lund has described in public work) are still out there; they still happen. And the cases Paul Finkelman imagines, in which state RFRAs justify all kinds of discrimination against gays, are not out there. They have not happened. But gay rights and contraception are getting all the political and press attention. Both sides are to blame. Republican legislators who are only now getting around to enacting RFRAs didn't care about the generally small religious minorities in the cases that don't raise culture war issues. They and their predecessors weren't motivated to pass a RFRA back when all the other states were. They don't talk about those cases now, not because they aren't happening, but because they don't know about them and apparently wouldn't care if they knew. So they promise their base things about marriage equality that they can't possibly deliver. At the Republican debate in Houston, a reporter asked a long series of questions about religious liberty, and all he got from the candidates was gays and contraception. That's the only religious liberty issue they know about it. And then the other side plays off this rhetoric, and imagines horror stories with no basis in experience, and some that are beyond imagining. Emergency med techs could refuse to treat gays! The Indiana RFRA "feels very much like a prelude to another Kristallnacht." Both real "arguments" that got reported in the press as though they were serious. If anyone needs a narrative about why RFRAs are still needed, just consider the Kansas woman who died for her faith for lack of a state RFRA. She was Jehovah's Witness, She needed a bloodless liver transplant. It was available in Omaha. It was even cheaper than a Kansas transplant with blood transfusions. But Kansas Medicaid doesn't pay for out of state medical care. Neutral and generally applicable rule. Kansas argued that the state constitution should be interpreted to mean Smith. By the time she won that lawsuit on appeal, her medical condition had deteriorated to where she was no longer eligible for a transplant. Stinemetz v. Kansas Health Policy Authority, 252 P.3d 141 (Kan. Ct. App. 2011). Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia 580 Massie Road Charlottesville, VA 22903 434-243-8546 _______________________________________________ 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.
