Reasonable people can disagree about how to solve the bathroom issue. That provision is not why I called it an anti-gay bill. But the bill didn’t stop there. It also precludes Charlotte from prohibiting any other form of discrimination against gays. Gays and lesbians shall not be protected from discrimination in public accommodations in any place in North Carolina. Hard to describe that as other than an anti-gay bill.
Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Will Esser Sent: Tuesday, March 29, 2016 2:44 PM To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>; Paul Finkelman <paul.finkel...@yahoo.com> Subject: Re: Arizona, Indiana . . . and now Georgia Doug, With all due respect, I think characterizing the North Carolina bill as an "anti-gay law" is inaccurate. As a Charlotte, NC resident, I've been in the thick of this debate for several years now. The NC Legislature's hand was forced by the insistence of the City of Charlotte to pass a local regulation which would have allowed men to use women's bathrooms, and vice versa. There was a strong outcry regarding privacy and concern over protecting children from individuals who would abuse the regulation, since, among other grounds, there would be no realistic way to enforce the ordinance to limit the application of the law to those who were truly transgendered. A significant part of the problem was that the ordinance was local to just the City of Charlotte. Thus, by way of example, other smaller municipalities (such as the Town of Matthews also located in Mecklenburg County) would have ended up with differing discrimination ordinances. There was very little discussion or opposition to the Charlotte ordinance on the ground that it included sexual orientation in the non-discrimination regulation. (I was involved in requesting that the City Attorney include an exemption limited to protecting religious objectors from penalties for declining to participate in wedding ceremonies they found religiously objectionable, but that request was denied). The main reason the legislature ended up passing the bill was to override the ability of local municipalities like Charlotte to pass their own anti-discrimination ordinances, and to simply have a statewide anti-discrimination statute. Of course, it's fair to debate whether the legislature should have included sexual orientation in the statewide non-discrimination statute that they passed, but that is a very different debate than summarily dismissing the statute as an "anti-gay law". There were any number of NC municipalities that had sexual orientation in their non-discrimination ordinances for a long time, and the NC Legislature never took any steps to override those ordinances when they were passed. If the Charlotte City Council had not included the transgender bathroom provision over massive public protest, the NC Legislature would never have felt the need to pass a uniform statewide anti-discrimination provision. (For anyone interested in a helpful FAQ on what the bill does or does not do, you can find that here: Myths vs Facts: What New York Times, Huffington Post and other media outlets aren't saying about common-sense privacy law | State of North Carolina: Governor Pat McCrory<http://governor.nc.gov/press-release/myths-vs-facts-what-new-york-times-huffington-post-and-other-media-outlets-arent> ) [cid:image001.jpg@01D189C9.F802A610] [Text Box:] Myths vs Facts: What New York Times, Huffington Post and other media outlet... 1. Does the new bill limit or prohibit private sector companies from adopting their own nondiscrimination polici... Will Will Esser --- Charlotte, North Carolina ________________________________ From: "Laycock, H Douglas (hdl5c)" <hd...@virginia.edu<mailto:hd...@virginia.edu>> To: Paul Finkelman <paul.finkel...@yahoo.com<mailto:paul.finkel...@yahoo.com>>; Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>> Sent: Tuesday, March 29, 2016 10:29 AM Subject: RE: Arizona, Indiana . . . and now Georgia The North Carolina bill is here: http://www.ncleg.net/Sessions/2015E2/Bills/House/PDF/H2v4.pdf It is not in any sense a religious freedom bill. None of its provisions are tied in any way to religious objections. It prohibits discrimination in public accommodations on the basis of race, color, religion, national origin, and biological sex, omitting sexual orientation and gender identity, and explicitly preempts any local ordinances on discrimination in public accommodations. It requires that multiple occupancy bathrooms and changing rooms be designated for a single biological sex, and requires that all persons use the rooms designated for their biological sex, without regard to the sex they identify with. It preempts all local ordinances regulating any aspect of compensation of employees. None of these provisions depends in any way on conscientious objection or burdens on the exercise of religion. This is an anti-gay law, not a religious liberty law. This actually does what people have falsely accused state RFRAs of doing -- it prevents the enforcement of local laws on sexual orientation discrimination. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia 580 Massie Road Charlottesville, VA 22903 434-243-8546 ________________________________ From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [religionlaw-boun...@lists.ucla.edu] on behalf of Paul Finkelman [paul.finkel...@yahoo.com] Sent: Tuesday, March 29, 2016 12:56 AM To: Law & Religion issues for Law Academics Subject: Re: Arizona, Indiana . . . and now Georgia Doug: I defer to your knowledge of RFRA law. So, tell me if this is wrong: The proposed NC law will make it a crime for a man to use a public men's room even if he has full ID as a man; a social security number tied to him as a man, and is legally male where he lives; or a woman to use a woman's room. The cases are not "out there" yet because the law has not been implemented. Other parts of the proposed law would allow businesses to refuse to serve people on the basis of gender, gender presentation, or sexual preference. Am I wrong about this reading of the law? If I am not wrong, then the only issue is whether this law is being passed under a RFRA rubric. If it is then you are right in saying that the cases are not there, but clearly the cases can and will be there. If I am wrong about this, then I defer to your more skilled reading of the proposed NC law. ****************** Paul Finkelman Ariel F. Sallows Visiting Professor of Human Rights Law College of Law University of Saskatchewan 15 Campus Drive Saskatoon, SK S7N 5A6 CANADA paul.finkel...@yahoo.com c) 518.605.0296 and Senior Fellow Democracy, Citizenship and Constitutionalism Program University of Pennsylvania Call Send SMS Call from mobile Add to Skype You'll need Skype CreditFree via Skype ________________________________ From: "Laycock, H Douglas (hdl5c)" <hd...@virginia.edu<mailto:hd...@virginia.edu>> To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>> Sent: Monday, March 28, 2016 8:32 PM 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 ________________________________________ From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Michael Peabody [mich...@californialaw.org] Sent: Monday, March 28, 2016 7:01 PM To: Law & Religion issues for Law Academics Subject: Re: Arizona, Indiana . . . and now Georgia Unfortunately, for many, the entire spectrum of "religious liberty" in the United States appears to revolve around LGBT rights. That may, in fact, be the case for religious "majorities" who are not otherwise adversely affected by facially neutral state laws that infringe upon their religious practices and who cry "persecution!" at the slightest provocation. But going back to the original Smith case where members of a native American group were denied their unemployment benefits because of peyote use, the people who could really benefit from state RFRAs aren't just visible on the surface but are the minorities whose situations need to be "teased out" from between the social cracks. Certainly Antonin Scalia, lauded for his "conservative" credentials, is often forgotten in his role of drafting the Smith decision in the first place, although now it is the conservatives who are on the losing end of the latest social/legal developments and who now claim to be most in need of RFRA's protections. Nor is it lost that the original proponents of RFRA often came from the left, and as Professor Brownstein notes, the California RFRA was vetoed by a Republican in 1998. RFRA exists for religious minorities such as a Sikh teacher in a public school who wears religious garb as part of who she is, not to proselytize. It is to protect an Orthodox Jewish person who is forced by state law to take an exam on Saturday. And yes, it is to protect a native American who may lose employment benefits because he uses peyote as part of a religious ritual. To understand the full value of RFRA, one must look to members of religious minorities and observe when they are unintentionally adversely affected by neutral laws. Then an effort must be made to attempt to to try to accommodate them. These kinds of situations normally won't make the headlines, but it is at the heart of why RFRA matters. Michael Peabody, Esq. Editor ReligiousLiberty.TV http://www.religiousliberty.tv _______________________________________________ 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<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.
