Ira wrote that “I have no idea how to parse such distinctions among religious objections to various types of marriage, and I agree that courts should not try to evaluate the respect that one deserves compared to the other (nor label some of them as prejudice and others as properly religion-based).”
I want to be clear that the distinction I think courts can make is the difference between “prejudice” and “not prejudice” not “prejudice” and “religion based.” Outside of the internal employment domains of churches, temples, mosques, etc., “prejudice” based on religion and “prejudice” based on non-religion should, in my opinion, be treated the same when impacted by general laws (which is why I suggested in my last post that this controversial position may be behind much of this discussion as it relates to religious exemptions). Best, Eric From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu Sent: Wednesday, October 12, 2016 5:21 PM To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu> Subject: Re: Noteworthy, puzzling scholars' brief in Arlene Flowers Responding to Eugene's question -- I don't have anything like a theory of how compelled speech arguments should work in the anti-discrimination context. The most I have said in print is in a footnote to a recent article (7 Ala. Civ. Rts. Civ. Lib. Rev. 1, 52, n. 171). My intuition is that those in commerce who make themselves generally available for all customers, and whose work tends to track customer preferences (e.g., the DJ who plays the songs the hosts like best; the photographer who takes the standard shots of marrying couple, guests, family, etc.) would have a very weak compelled speech claim. Those who are creating different products with their own independent content (e.g., a motivational speech, even if tailored to a group) might well have a better claim, though I wonder whether those people make themselves "generally available." In any event, I make no sweeping assertion about how this line of argument should be resolved across the universe of cases. When Mitch Berman asked about "solicitude" for Fred, I took him to be asking whether Fred's religious opposition to inter-religious marriage was more deserving of respect than a commercial photographer's religious opposition to same sex marriage. I have no idea how to parse such distinctions among religious objections to various types of marriage, and I agree that courts should not try to evaluate the respect that one deserves compares to the other (nor label some of them as prejudice and others as properly religion-based).
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