Re: Conflicts between religious exefcise and gay rights and cudgels
Interestingly, there is a similarity of argument on same sex issues in the US, and the removal of discrimination in the UK on the subject of Islam (although very different subject matter). Recent developments in the UK include the Muslim marriage contract and welfare payment for 2nd -4th wives to reflect a new social norm. Eugene summised the issues: Now antidiscrimination law is being urged not just to trump the traditional but constitutionally unprotected freedom to choose one's business relationships, but the freedom of expressive association, the freedom of speech, and (most relevant to this thread) religious accommodation regimes. Even standing on its own, this seems troubling. But in broader perspective, it seems to me to be yet another step down the slope. This is the position in the UK and Canada; and the US needs to be resolute to ensure that these practices do not come to you. This reflects the shift in modern liberalism to require private actors to conform to public values determinate by the State. A fundamental issue is that the First Amendment (and Article 9 of the Convention) gives primacy to religious exercise. However, this fundamental right needs to be directly considered; and not justified against equality/ non- discrimination criteria, against which the religious practice must be justified. or, in reality, justified. Substantive rights have primacy over procedural rights. To take a procedural right (non discrimination) to a substantive right is a political decision (some discrimination against stupid people or alcohol might be good). Constitutional rights cannot be subject to political vissitudes. British courts rarely analysis religious rights, but re-write the legal question to whether it is a legitimate exercise of governmental policy to conform to international norms (EC/UN Treaties/ international law) for the erradication of discrimination and. thereafter, Courts hold that they should defer to the legislature on socio economic issues. Many decisions by individuals, business that were once considered virtuous are now unlawful as discriminatory- such as lending funds to certain projects only. On the New Mexico photographer case, the above position might assist; but why should there not be a correlative duty not to require consceince violation of another where alternative service provision is available. A mutual duty to protect/ respect each other rights. I have been immensely benefited in my discussion with Canadian attorney, Iain Benson (credit where credit is due). Paul Diamond, barrister - Original Message - From: Volokh, Eugene [EMAIL PROTECTED] To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Tuesday, August 05, 2008 9:15 PM Subject: RE: Conflicts between religious exefcise and gay rights and cudgels Well, it's true that there were limits -- clearly unconstitutional limits -- on this right, in the form of Jim Crow laws and the like. But it seems to me that people have long cherished their right to choose whom to deal with. This is true even at lunch counters, where I suspect many proprietors like to exclude patrons whom they see as disruptive, or whom they dislike for some reason. Consider the case from a couple of decades ago where the owner of a German restaurant in L.A. kicked out four patrons for wearing Nazi lapel pins (and was ultimately held liable under California's unusually broad public accommodation discrimination law). Of course proprietors rarely exercise this right, but it doesn't mean that the right isn't treasured precisely for the freedom that it provides. But surely this is even more so when we're talking not just about goods, but about personal services, like a wedding photographer's. What ground is there to pooh-pooh the notion that a photographer, whose job it is to provide a sympathetic, emotionally warm portrayal of events -- in an investment of many hours of labor -- might cherish her right to choose what she'll photograph and what she won't? Perhaps the law there has indeed gone far beyond the rule of reason that Prof. Black was advocating. And more broadly, how would we feel if we were told that, as consumers, we had an obligation not to discriminate in our choice of providers of goods and services? The Legal Writing Institute (perhaps including others) is boycotting a hotel owner on the grounds that the owner contributed to the anti-same-sex-marriage initiative. How would we feel if the law barred such action (even setting aside the calls for the boycott, which might be speech, unless they were found to be incitement, and focusing on the action) and required everyone not to discriminate in choice of hotel based on the hotel owner's political activities, or the hotel owner's religion, or anything else? Even if the law would very rarely be enforced, wouldn't we rightly bristle at the notion that we were being told
Re: Conflicts between religious exefcise and gay rights and cudgels
Paul Diamond wrote: Interestingly, there is a similarity of argument on same sex issues in the US, and the removal of discrimination in the UK on the subject of Islam (although very different subject matter). Recent developments in the UK include the Muslim marriage contract and welfare payment for 2nd -4th wives to reflect a new social norm. This is very interesting. Where can I find out more (on line) about it? The discussion is very relevant to me, probably more than others on the list, because I live in Israel. The Bedouins in the Negev often have a number of wives. Quite apart from the security question (they bring extra wives in from Gaza - so I'm told), we have the question of paying welfare benefits to all the families, and the question of citizenship. In practice, we tend to be pretty compassionate in who gets benefits - our hospitals care for wounded from Gaza, and we're taking in a lot of refugees from Darfur and the Sudan. But I enjoy playing with the legal questions. Susan ___ 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.
RE: Conflicts between religious exefcise and gay rights and cudgels
Let me note, by the way, how this illustrates why people worry about the slippery slope. In 1964, federal civil rights law covered a narrow set of categories -- race, religion, national origin, sex -- and a relatively narrow zone of behaviors. What's more, while the law undoubtedly interfered with our freedom from the government's telling us whom to deal with, the law was carefully drafted to minimize this interference. Covered public accommodations were distinctly limited, and excluded personal services. Covered employers were limited to large ones, and excluded small businesses in which people often had to work more closely together. I speak here not of a constitutional right, but just of the traditionally recognized ability of people in a free society not to have the government tell them whom to work with, whom to sell to, whom to buy from, and so on. Over the years, all these constraints have been relaxed, and the common argument now assumes that this freedom from government constraint is just valueless -- not just trumped by compelling interests, but not important at all. The common argument is we ban race discrimination in all these other areas, why not ban this other form of discrimination here. The sense is not that freedom to choose, without government interference, whom to deal with was important but was overcome by the compelling interest in dismantling Jim Crow and its legacy. Rather, it's that this freedom to choose one's business partners without government interference just doesn't matter. That didn't happen overnight, I think, nor did it happen just because of changes in social attitudes as such. Rather, this was the attitude-altering effect of antidiscrimination law: Legal inroads (for very powerful reasons) into the freedom to choose one's business relationships without government mandate or prohibition happened one at a time, and over time these legal constraints helped bring about an assumption that the right just doesn't exist. Now antidiscrimination law is being urged not just to trump the traditional but constitutionally unprotected freedom to choose one's business relationships, but the freedom of expressive association, the freedom of speech, and (most relevant to this thread) religious accommodation regimes. Even standing on its own, this seems troubling. But in broader perspective, it seems to me to be yet another step down the slope. Of course, if we should be at the bottom of the slope, with all sorts of decisions -- a photographer's choices of what to photograph, a movie director's choices of which race actors to cast, a person's choices of which roommates to select, a scouting organization's choices of whether to accept gays, the irreligious (like me), or girls, and so on -- being subject to government-imposed antidiscrimination mandates, then we should cheer on the slippage, rather than worrying about it. But it seems to me this is one area where slippage is quite a real risk. And this in turn leads me to wonder whether people should feel so secure with Marty's and others' assurances that there won't be further slippage, for instance to Bob-Jones-like denials of tax exemptions for religions that dare to discriminate based on sexual orientation (alongside the many denials of other generally available benefits that such organizations are finding in many other contexts). And this is especially so if the argument is (cf. Marty's post, Mark Tushnet's post, and others) expressly linked to the analogy to race discrimination; if that argument prevails in one context, why shouldn't it end up being adopted in other contexts, suh as the Bob Jones tax exemption context? Eugene -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] Sent: Monday, August 04, 2008 10:09 AM To: Law Religion issues for Law Academics; Law Religion issues for Law Academics Cc: Volokh, Eugene Subject: Re: Conflicts between religious exefcise and gay rights and cudgels Well, I'm surely not trying to pooh-pooh the religious concerns -- merely to try to probe what, exactly, they are, and how much these conflicts differ from those we saw several decades ago. Eugene helpfully identifies two sorts of cases: 1. Businesses and property owners being required to treat gays and straights alike. OK, I suppose I must concede that I'm not very moved by these cases, nor do I see how those requirements impose much of a burden on religious exercise. Do they require some business owners (and employees) to do things they find distasteful -- often due to religiously inspired moral beliefs? Surely. And that's something to be regretted. But that's true of race-discrimination laws, as well -- and of basic laws prohibiting discrimination against unmarried couples, and on the basis of sexual orientation in the provision of commercial services. There are many, many shopkeepers, landlords
RE: Conflicts between religious exefcise and gay rights and cudgels
On a related note, several groups have threatened to boycott this January's AALS meeting because of the main convention hotel owner's anti-same sex marriage political activities (a sizeable contribution to the Calif. Prop 8 campaign). See http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202423529779. The impulse is strong not to tolerate dissent from what is believed to be justified expansion of antidiscrimination principles. That impulse decreases the coefficient of friction, creating, as Eugene argues, a rather slippery slope. Mark S. Scarberry Pepperdine University School of Law -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Tuesday, August 05, 2008 11:26 AM To: Law Religion issues for Law Academics Subject: RE: Conflicts between religious exefcise and gay rights and cudgels Let me note, by the way, how this illustrates why people worry about the slippery slope. In 1964, federal civil rights law covered a narrow set of categories -- race, religion, national origin, sex -- and a relatively narrow zone of behaviors. What's more, while the law undoubtedly interfered with our freedom from the government's telling us whom to deal with, the law was carefully drafted to minimize this interference. Covered public accommodations were distinctly limited, and excluded personal services. Covered employers were limited to large ones, and excluded small businesses in which people often had to work more closely together. I speak here not of a constitutional right, but just of the traditionally recognized ability of people in a free society not to have the government tell them whom to work with, whom to sell to, whom to buy from, and so on. Over the years, all these constraints have been relaxed, and the common argument now assumes that this freedom from government constraint is just valueless -- not just trumped by compelling interests, but not important at all. The common argument is we ban race discrimination in all these other areas, why not ban this other form of discrimination here. The sense is not that freedom to choose, without government interference, whom to deal with was important but was overcome by the compelling interest in dismantling Jim Crow and its legacy. Rather, it's that this freedom to choose one's business partners without government interference just doesn't matter. That didn't happen overnight, I think, nor did it happen just because of changes in social attitudes as such. Rather, this was the attitude-altering effect of antidiscrimination law: Legal inroads (for very powerful reasons) into the freedom to choose one's business relationships without government mandate or prohibition happened one at a time, and over time these legal constraints helped bring about an assumption that the right just doesn't exist. Now antidiscrimination law is being urged not just to trump the traditional but constitutionally unprotected freedom to choose one's business relationships, but the freedom of expressive association, the freedom of speech, and (most relevant to this thread) religious accommodation regimes. Even standing on its own, this seems troubling. But in broader perspective, it seems to me to be yet another step down the slope. Of course, if we should be at the bottom of the slope, with all sorts of decisions -- a photographer's choices of what to photograph, a movie director's choices of which race actors to cast, a person's choices of which roommates to select, a scouting organization's choices of whether to accept gays, the irreligious (like me), or girls, and so on -- being subject to government-imposed antidiscrimination mandates, then we should cheer on the slippage, rather than worrying about it. But it seems to me this is one area where slippage is quite a real risk. And this in turn leads me to wonder whether people should feel so secure with Marty's and others' assurances that there won't be further slippage, for instance to Bob-Jones-like denials of tax exemptions for religions that dare to discriminate based on sexual orientation (alongside the many denials of other generally available benefits that such organizations are finding in many other contexts). And this is especially so if the argument is (cf. Marty's post, Mark Tushnet's post, and others) expressly linked to the analogy to race discrimination; if that argument prevails in one context, why shouldn't it end up being adopted in other contexts, suh as the Bob Jones tax exemption context? Eugene -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] Sent: Monday, August 04, 2008 10:09 AM To: Law Religion issues for Law Academics; Law Religion issues for Law Academics Cc: Volokh, Eugene Subject: Re: Conflicts between religious exefcise and gay rights and cudgels Well, I'm surely not trying to pooh-pooh the religious concerns -- merely to try to probe what
RE: Conflicts between religious exefcise and gay rights and cudgels
slippage is quite a real risk. And this in turn leads me to wonder whether people should feel so secure with Marty's and others' assurances that there won't be further slippage, for instance to Bob-Jones-like denials of tax exemptions for religions that dare to discriminate based on sexual orientation (alongside the many denials of other generally available benefits that such organizations are finding in many other contexts). And this is especially so if the argument is (cf. Marty's post, Mark Tushnet's post, and others) expressly linked to the analogy to race discrimination; if that argument prevails in one context, why shouldn't it end up being adopted in other contexts, suh as the Bob Jones tax exemption context? Eugene -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] Sent: Monday, August 04, 2008 10:09 AM To: Law Religion issues for Law Academics; Law Religion issues for Law Academics Cc: Volokh, Eugene Subject: Re: Conflicts between religious exefcise and gay rights and cudgels Well, I'm surely not trying to pooh-pooh the religious concerns -- merely to try to probe what, exactly, they are, and how much these conflicts differ from those we saw several decades ago. Eugene helpfully identifies two sorts of cases: 1. Businesses and property owners being required to treat gays and straights alike. OK, I suppose I must concede that I'm not very moved by these cases, nor do I see how those requirements impose much of a burden on religious exercise. Do they require some business owners (and employees) to do things they find distasteful -- often due to religiously inspired moral beliefs? Surely. And that's something to be regretted. But that's true of race-discrimination laws, as well -- and of basic laws prohibiting discrimination against unmarried couples, and on the basis of sexual orientation in the provision of commercial services. There are many, many shopkeepers, landlords, employers, restaurants, etc., that would rather not deal with gays and lesbians, often because of moral objections. (I doubt, in other words, that such discrimination is as relatively infrequent as Eugene assumes in many places in the United States.) Yet if legislatures conclude, as I do, that gays an! d lesbi ans should not be treated as second-class citizens in the commercial marketplace, then is there any really compelling reason to provide religious exemptions here that are not provided for analogous race and sex discrimination? On this one, by the way, I would respectfully dissent from Eugene's suggestion that gays and lesbians are seeking such equal treatment as a cudgel against religious objectors -- that we should question whether gays and lesbians really suffer much harm by being denied services or jobs or housing on the basis of their sexual orientation because they could get such services -- often at a higher quality -- just fine from lots of other providers, suggesting that they are insisting upon equal treatment merely in order to commandeer objectors to act in ways that offend their sincere beliefs. With all respect, I think this sort of standard libertarian skepticism about the need for antidiscrimination laws significantly trivializes very serious harms. But that's obviously a much broader topic, somewhat far afield from what's germane to this list. 2. Loss of tax benefits. Is this a real concern? I assume that sexual-orientation-discrimination rules in this context will be treated more or less like sex-discrimination rules -- i.e., there will be reasonable exemptions for religious institutions, roughly in line with the ministerial exemption and the title IX exemptions. I can't see much of a prospect for a Bob-Jones-like, across-the-board, no-religious-exemptions denial of tax benefits here unless and until we see the day when discrimination against gays and lesbians is as categorically viewed as immoral as race discrimination is today. That is to say, not likely in my lifetime. In any event, I'm grateful to Eugene for making the potential conflicts a bit more concrete. -- Original message -- From: Volokh, Eugene [EMAIL PROTECTED] I wonder which way the cudgel is being exploited (or maybe both). It seems to me, for instance, that religiously motivated discrimination in public accommodations against gays is likely also a relatively infrequent phenomenon, partly because it's financially costly to the discriminators, and one that is not terribly tangibly harmful (setting aside symbolic offense, which cuts both ways) to the target. Yet we see cases in which businesses and property owners that provide services are being forced to provide such services to same-sex commitment
RE: Conflicts between religious exefcise and gay rights and cudgels
Well, it's true that there were limits -- clearly unconstitutional limits -- on this right, in the form of Jim Crow laws and the like. But it seems to me that people have long cherished their right to choose whom to deal with. This is true even at lunch counters, where I suspect many proprietors like to exclude patrons whom they see as disruptive, or whom they dislike for some reason. Consider the case from a couple of decades ago where the owner of a German restaurant in L.A. kicked out four patrons for wearing Nazi lapel pins (and was ultimately held liable under California's unusually broad public accommodation discrimination law). Of course proprietors rarely exercise this right, but it doesn't mean that the right isn't treasured precisely for the freedom that it provides. But surely this is even more so when we're talking not just about goods, but about personal services, like a wedding photographer's. What ground is there to pooh-pooh the notion that a photographer, whose job it is to provide a sympathetic, emotionally warm portrayal of events -- in an investment of many hours of labor -- might cherish her right to choose what she'll photograph and what she won't? Perhaps the law there has indeed gone far beyond the rule of reason that Prof. Black was advocating. And more broadly, how would we feel if we were told that, as consumers, we had an obligation not to discriminate in our choice of providers of goods and services? The Legal Writing Institute (perhaps including others) is boycotting a hotel owner on the grounds that the owner contributed to the anti-same-sex-marriage initiative. How would we feel if the law barred such action (even setting aside the calls for the boycott, which might be speech, unless they were found to be incitement, and focusing on the action) and required everyone not to discriminate in choice of hotel based on the hotel owner's political activities, or the hotel owner's religion, or anything else? Even if the law would very rarely be enforced, wouldn't we rightly bristle at the notion that we were being told by the government to do business with service providers whom we otherwise didn't want to do business with? Nor is it sound, it seems to me, to say that somehow consumers' actions don't deprive anyone of a likelihood while business owners' do. A business owner may often suffer more from loss of patrons -- especially in a coordinated boycott -- than a particular same-sex couple would from not being able to hire a particular wedding photographer (and a wedding photographer who probably isn't emotionally in sync enough with their planned event to do a good job in any case). Now perhaps on balance this freedom to choose -- without government coercion -- whom to do business with should indeed yield to compelling (or even not-so-compelling) government interests. But I don't think we can just casually dismiss this freedom as something that no-one thinks about until the Negro comes in. Eugene -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] Sent: Tuesday, August 05, 2008 12:04 PM To: Law Religion issues for Law Academics; Law Religion issues for Law Academics Cc: Volokh, Eugene Subject: RE: Conflicts between religious exefcise and gay rights and cudgels With respect to the notion that, before the dreaded 1964 Civil Rights Act, everyone enjoyed the traditionally recognized ability of people in a free society not to have the government tell them whom to work with, whom to sell to, whom to buy from, and so on: It is not a warranted assumption of our civilization that a lunch-counter proprietor will practice a general choosiness about his customers, or that the law is expected to leave him alone in this regard. If the equal protection clause limits his freedom of choice, it limits something which people in his position do not ordinarily think about until the Negro comes in, and something which has frequently been limited by other kinds of law. [FN: It remains a wonder that so much emotion about the sacred right to choose one's customers could be generated and maintained in communities where segregation laws and ordinances, drastically limiting freedom to choose customers as well as other associates, were so long a matter of course. A good night's sleep after the Brown case, and one woke to find that a restaurant was just like a home.] If the equal protection clause were held to apply to his dinner-list at home, it would be breaking in upon a process of discriminating selective! ness wh ich has the flesh-tones of real life; it would be doing so in a manner quite unknown to prior law and astounding to his expectations as to the ambit of law, constitutional and otherwise, in our society. It seems to me that considerations such as these would fully warrant the development, if cases ever arise, of the suggested 'rule of reason
RE: Conflicts between religious exefcise and gay rights and cudgels
Well, historically, the impulse has also been strong to stifle dissent from what was believed to be the justified maintenance of discriminatory principles and policies. Boycotts and far worse has been done to people who challenged discriminatory regimes. I wonder if there is a slippery slope here too. The acceptance of discriminatory policies directed at one group defined by race, nationality, religion, sex or sexual orientation over tine weakens society's commitment to prohibit discrimination against other groups as well. If there is an anti-discrimination slippery slope, is there a pro-discrimination slippery slope as well -- depending on the cultural momentum of a given society at a given time. Alan Brownstein -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Scarberry, Mark Sent: Tuesday, August 05, 2008 11:58 AM To: Law Religion issues for Law Academics Subject: RE: Conflicts between religious exefcise and gay rights and cudgels On a related note, several groups have threatened to boycott this January's AALS meeting because of the main convention hotel owner's anti-same sex marriage political activities (a sizeable contribution to the Calif. Prop 8 campaign). See http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202423529779. The impulse is strong not to tolerate dissent from what is believed to be justified expansion of antidiscrimination principles. That impulse decreases the coefficient of friction, creating, as Eugene argues, a rather slippery slope. Mark S. Scarberry Pepperdine University School of Law -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Tuesday, August 05, 2008 11:26 AM To: Law Religion issues for Law Academics Subject: RE: Conflicts between religious exefcise and gay rights and cudgels Let me note, by the way, how this illustrates why people worry about the slippery slope. In 1964, federal civil rights law covered a narrow set of categories -- race, religion, national origin, sex -- and a relatively narrow zone of behaviors. What's more, while the law undoubtedly interfered with our freedom from the government's telling us whom to deal with, the law was carefully drafted to minimize this interference. Covered public accommodations were distinctly limited, and excluded personal services. Covered employers were limited to large ones, and excluded small businesses in which people often had to work more closely together. I speak here not of a constitutional right, but just of the traditionally recognized ability of people in a free society not to have the government tell them whom to work with, whom to sell to, whom to buy from, and so on. Over the years, all these constraints have been relaxed, and the common argument now assumes that this freedom from government constraint is just valueless -- not just trumped by compelling interests, but not important at all. The common argument is we ban race discrimination in all these other areas, why not ban this other form of discrimination here. The sense is not that freedom to choose, without government interference, whom to deal with was important but was overcome by the compelling interest in dismantling Jim Crow and its legacy. Rather, it's that this freedom to choose one's business partners without government interference just doesn't matter. That didn't happen overnight, I think, nor did it happen just because of changes in social attitudes as such. Rather, this was the attitude-altering effect of antidiscrimination law: Legal inroads (for very powerful reasons) into the freedom to choose one's business relationships without government mandate or prohibition happened one at a time, and over time these legal constraints helped bring about an assumption that the right just doesn't exist. Now antidiscrimination law is being urged not just to trump the traditional but constitutionally unprotected freedom to choose one's business relationships, but the freedom of expressive association, the freedom of speech, and (most relevant to this thread) religious accommodation regimes. Even standing on its own, this seems troubling. But in broader perspective, it seems to me to be yet another step down the slope. Of course, if we should be at the bottom of the slope, with all sorts of decisions -- a photographer's choices of what to photograph, a movie director's choices of which race actors to cast, a person's choices of which roommates to select, a scouting organization's choices of whether to accept gays, the irreligious (like me), or girls, and so on -- being subject to government-imposed antidiscrimination mandates, then we should cheer on the slippage, rather than worrying about it. But it seems to me this is one area where slippage is quite a real risk. And this in turn leads me to wonder whether people should feel so secure with Marty's and others' assurances
Conflicts between religious exefcise and gay rights
I tend to agree with Alan here. Of course there are occasional conflicts between gay rights laws and religious beliefs -- principally in the commercial sector, such as in employment and housing rentals -- but is it really that much of a problem? Or is it a relatively infrequent phenomenon that's being exploited as a cudgel against gay rights? (A sincere question -- I really am uncertain of the answer.) I'm confident -- given that Doug and Anthony edited it -- that the new volume will be very worthwhile, fair and balanced. But I have some trepidation that it, and similar endeavors, will unnecessarily add fuel to this fire. Same-sex *marriage* implicates religious liberty? How so? It's not as if religious congregations will soon be compelled to offer membership to gay and lesbian couples, right? Or that ministers will be legally required to perform same-sex ceremonies. Of course, many people are deeply uncomfortable with same-sex marriage, and such discomfort often derives from (or finds sustenance in) certain religious moral codes. But that's not the same as a threat to religious liberty, is it? I suppose this is one way of framing my doubts here: Is this very different from the religiously motivated resistance when race- and sex-discrimination norms began to find favor in the law? Twenty years from now, will today's religiously oriented opposition to gay rights seem as distant and odd to the ReligionLaw list of 2028 (still administered by Eugene, one can hope!) as the 1960's resistance to race-and sex-discrimination laws looks to us now? -- Original message -- From: Brownstein, Alan [EMAIL PROTECTED] If we are talking about conflicts between gay rights and religious liberty, surely this is a coin that has two sides to it. Many gay people see religion as a sword that is being used to burden their liberty and equality rights. What we have are two groups claiming basic autonomy rights with each seeing the other side as a threat to be feared, rather than as people with basic liberty interests that need to be accommodated. When we have one side of the debate arguing that to avoid potential conflicts with religious liberty, gay people should be denied the right to marry or to be protected against discrimination in housing or employment, it is hardly surprising that the other side of the debate is going to offer little sympathy to requests for religious accommodation. I continue to believe that while there will be some real conflicts between religious liberty and gay rights in some circumstances, at a deeper level these two assertions of autonomy rights can and should be positively reinforcing each other. Sometimes this happens inadvertantly. The Equal Access Act has helped gay and lesbian clubs be recognized at schools. But this was done over the opposition of people who insisted that freedom of association and speech for religious students should not be extended to gay students. To have the mutual reinforcement of autonomy rights (that I think is possible) happen at a broader, practical level, however, there would have to be some commitment to compromise from both sides. Minor shameless plug, Doug. Take a look at the Findlaw column (published last Friday) that Vik Amar and I recently wrote. Alan Brownstein UC Davis School of Law From: [EMAIL PROTECTED] [EMAIL PROTECTED] On Behalf Of Douglas Laycock [EMAIL PROTECTED] Sent: Monday, August 04, 2008 7:13 AM To: religionlaw@lists.ucla.edu Subject: Defamation of Religion - and Gay Rights Mr. Diamond is quite right to see gay rights as the likely source of this kind of litigation in the US. Marc Stern at the American Jewish Congress (and a participant on this list) has a great chapter forthcoming on litigation to date over conflicts between gay rights and religious liberty and free speech. The Canadian speech cases are terrifying; the US cases in the context of schools and employment are quite unprotective of speech. This chapter is forthcoming in a book (now comes the shamless plug) that I edited with Robin Fretwell Wilson at Washington Lee and Anthony Picarello, formerly at the Becket Fund and now the General Counsel to the Conference of Catholic Bishops. The book is Same-Sex Marriage and Religious Liberty: Emerging Conflicts, due out from Rowman Littlefield in September. Other contributors are Jonathan Turley at GW, Chai Feldbum at Georgetown, Doug Kmiec at Pepperdine, Charles Reid at St. Thomas (Minnesota), Wilson, and me. I won't vouch for my chapter, but I'll vouch for all the 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
Conflicts between religious exefcise and gay rights and cudgels
I wonder which way the cudgel is being exploited (or maybe both). It seems to me, for instance, that religiously motivated discrimination in public accommodations against gays is likely also a relatively infrequent phenomenon, partly because it's financially costly to the discriminators, and one that is not terribly tangibly harmful (setting aside symbolic offense, which cuts both ways) to the target. Yet we see cases in which businesses and property owners that provide services are being forced to provide such services to same-sex commitment ceremonies (or being punished by the law for failure to provide such services), even though I suspect that the same-sex couples could get such services -- often at a higher quality -- just fine from lots of other providers. Couldn't one equally say that equal rights law is here being exploited as a cudgel against religious objectors? Moreover, the very analogy to race discrimination, it seems to me, shows why the practical concerns of religious groups that have religious objections to homosexuality are reasonable. Consider how the law has treated even religious groups that engage in race discrimination, for instance in cases such as Bob Jones. If the law adopts the proposed analogy between sexual orientation discrimination and race discrimination, it seems quite plausible that similar threats (e.g., loss of tax exemptions) will manifest themselves. Likewise, we're already seeing some denial of access to generally available benefits to groups that discriminate in their leadership and membership choices based on sexual orientation; if that's adopted, denial of access to benefits in the form of generally available tax exemptions -- a hugely important matter to all nonprofits -- could well follow. Now I should stress that I personally don't share the views of the religious groups that stand to lose from this, and in some situations I condemn their views. But it's a mistake, I think, to pooh-pooh their concerns as being about relatively infrequent phenomen[a] that (the implication seems to go) shouldn't really matter to the groups. I should note that I agree that the concern is about sexual orientation discrimination bans, and not same-sex marriage as such. Still, I think one effect of the elimination of governmental discrimination based on sexual orientation in marriage will have is an extra push for enacting and broadening antidiscrimination laws. Again, one could argue that this is a good effect; but it does seem like a likely effect. Another effect may well be to lead to the rejection of religious exemption claims under state RFRAs and similar regimes; right now, one can argue -- in, for instance, the New Mexico wedding photographer case -- that the state's failure to recognize same-sex marriages undermines the state's compelling interest argument for forcing wedding photographers to photograph same-sex marriages on equal terms with legally recognized marriages. Once same-sex marriages are legally recognized, that argument will no longer be present. Eugene Marty Lederman writes: I tend to agree with Alan here. Of course there are occasional conflicts between gay rights laws and religious beliefs -- principally in the commercial sector, such as in employment and housing rentals -- but is it really that much of a problem? Or is it a relatively infrequent phenomenon that's being exploited as a cudgel against gay rights? (A sincere question -- I really am uncertain of the answer.) I'm confident -- given that Doug and Anthony edited it -- that the new volume will be very worthwhile, fair and balanced. But I have some trepidation that it, and similar endeavors, will unnecessarily add fuel to this fire. Same-sex *marriage* implicates religious liberty? How so? It's not as if religious congregations will soon be compelled to offer membership to gay and lesbian couples, right? Or that ministers will be legally required to perform same-sex ceremonies. Of course, many people are deeply uncomfortable with same-sex marriage, and such discomfort often derives from (or finds sustenance in) certain religious moral codes. But that's not the same as a threat to religious liberty, is it? I suppose this is one way of framing my doubts here: Is this very different from the religiously motivated resistance when race- and sex-discrimination norms began to find favor in the law? Twenty years from now, will today's religiously oriented opposition to gay rights seem as distant and odd to the ReligionLaw list of 2028 (still administered by Eugene, one can hope!) as the 1960's resistance to race-and sex-discrimination laws looks to us now? ___ 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
Re: Conflicts between religious exefcise and gay rights and cudgels
Well, I'm surely not trying to pooh-pooh the religious concerns -- merely to try to probe what, exactly, they are, and how much these conflicts differ from those we saw several decades ago. Eugene helpfully identifies two sorts of cases: 1. Businesses and property owners being required to treat gays and straights alike. OK, I suppose I must concede that I'm not very moved by these cases, nor do I see how those requirements impose much of a burden on religious exercise. Do they require some business owners (and employees) to do things they find distasteful -- often due to religiously inspired moral beliefs? Surely. And that's something to be regretted. But that's true of race-discrimination laws, as well -- and of basic laws prohibiting discrimination against unmarried couples, and on the basis of sexual orientation in the provision of commercial services. There are many, many shopkeepers, landlords, employers, restaurants, etc., that would rather not deal with gays and lesbians, often because of moral objections. (I doubt, in other words, that such discrimination is as relatively infrequent as Eugene assumes in many places in the United States.) Yet if legislatures conclude, as I do, that gays an! d lesbi ans should not be treated as second-class citizens in the commercial marketplace, then is there any really compelling reason to provide religious exemptions here that are not provided for analogous race and sex discrimination? On this one, by the way, I would respectfully dissent from Eugene's suggestion that gays and lesbians are seeking such equal treatment as a cudgel against religious objectors -- that we should question whether gays and lesbians really suffer much harm by being denied services or jobs or housing on the basis of their sexual orientation because they could get such services -- often at a higher quality -- just fine from lots of other providers, suggesting that they are insisting upon equal treatment merely in order to commandeer objectors to act in ways that offend their sincere beliefs. With all respect, I think this sort of standard libertarian skepticism about the need for antidiscrimination laws significantly trivializes very serious harms. But that's obviously a much broader topic, somewhat far afield from what's germane to this list. 2. Loss of tax benefits. Is this a real concern? I assume that sexual-orientation-discrimination rules in this context will be treated more or less like sex-discrimination rules -- i.e., there will be reasonable exemptions for religious institutions, roughly in line with the ministerial exemption and the title IX exemptions. I can't see much of a prospect for a Bob-Jones-like, across-the-board, no-religious-exemptions denial of tax benefits here unless and until we see the day when discrimination against gays and lesbians is as categorically viewed as immoral as race discrimination is today. That is to say, not likely in my lifetime. In any event, I'm grateful to Eugene for making the potential conflicts a bit more concrete. -- Original message -- From: Volokh, Eugene [EMAIL PROTECTED] I wonder which way the cudgel is being exploited (or maybe both). It seems to me, for instance, that religiously motivated discrimination in public accommodations against gays is likely also a relatively infrequent phenomenon, partly because it's financially costly to the discriminators, and one that is not terribly tangibly harmful (setting aside symbolic offense, which cuts both ways) to the target. Yet we see cases in which businesses and property owners that provide services are being forced to provide such services to same-sex commitment ceremonies (or being punished by the law for failure to provide such services), even though I suspect that the same-sex couples could get such services -- often at a higher quality -- just fine from lots of other providers. Couldn't one equally say that equal rights law is here being exploited as a cudgel against religious objectors? Moreover, the very analogy to race discrimination, it seems to me, shows why the practical concerns of religious groups that have religious objections to homosexuality are reasonable. Consider how the law has treated even religious groups that engage in race discrimination, for instance in cases such as Bob Jones. If the law adopts the proposed analogy between sexual orientation discrimination and race discrimination, it seems quite plausible that similar threats (e.g., loss of tax exemptions) will manifest themselves. Likewise, we're already seeing some denial of access to generally available benefits to groups that discriminate in their leadership and membership choices based on sexual orientation; if that's adopted, denial of access to benefits in the form of generally available tax exemptions -- a hugely important matter to all nonprofits -- could well
RE: Conflicts between religious exefcise and gay rights
In connection with this discussion, it might be worth noting that prior to the Civil War there was, in the South, quite a vigorous discussion of why slavery was sancitoned by the Bible, and -- toward the end of the pre-war period -- why it was mandated by Ciristianity properly understood. Mark Tushnet William Nelson Cromwell Professor of Law Harvard Law School Areeda 223 Cambridge, MA 02138 ph: 617-496-4451 (office); 202-374-9571 (mobile) -Original Message- From: [EMAIL PROTECTED] on behalf of [EMAIL PROTECTED] Sent: Mon 8/4/2008 12:10 PM To: Law Religion issues for Law Academics; Law Religion issues for Law Academics Subject: Conflicts between religious exefcise and gay rights I tend to agree with Alan here. Of course there are occasional conflicts between gay rights laws and religious beliefs -- principally in the commercial sector, such as in employment and housing rentals -- but is it really that much of a problem? Or is it a relatively infrequent phenomenon that's being exploited as a cudgel against gay rights? (A sincere question -- I really am uncertain of the answer.) I'm confident -- given that Doug and Anthony edited it -- that the new volume will be very worthwhile, fair and balanced. But I have some trepidation that it, and similar endeavors, will unnecessarily add fuel to this fire. Same-sex *marriage* implicates religious liberty? How so? It's not as if religious congregations will soon be compelled to offer membership to gay and lesbian couples, right? Or that ministers will be legally required to perform same-sex ceremonies. Of course, many people are deeply uncomfortable with same-sex marriage, and such discomfort often derives from (or finds sustenance in) certain religious moral codes. But that's not the same as a threat to religious liberty, is it? I suppose this is one way of framing my doubts here: Is this very different from the religiously motivated resistance when race- and sex-discrimination norms began to find favor in the law? Twenty years from now, will today's religiously oriented opposition to gay rights seem as distant and odd to the ReligionLaw list of 2028 (still administered by Eugene, one can hope!) as the 1960's resistance to race-and sex-discrimination laws looks to us now? -- Original message -- From: Brownstein, Alan [EMAIL PROTECTED] If we are talking about conflicts between gay rights and religious liberty, surely this is a coin that has two sides to it. Many gay people see religion as a sword that is being used to burden their liberty and equality rights. What we have are two groups claiming basic autonomy rights with each seeing the other side as a threat to be feared, rather than as people with basic liberty interests that need to be accommodated. When we have one side of the debate arguing that to avoid potential conflicts with religious liberty, gay people should be denied the right to marry or to be protected against discrimination in housing or employment, it is hardly surprising that the other side of the debate is going to offer little sympathy to requests for religious accommodation. I continue to believe that while there will be some real conflicts between religious liberty and gay rights in some circumstances, at a deeper level these two assertions of autonomy rights can and should be positively reinforcing each other. Sometimes this happens inadvertantly. The Equal Access Act has helped gay and lesbian clubs be recognized at schools. But this was done over the opposition of people who insisted that freedom of association and speech for religious students should not be extended to gay students. To have the mutual reinforcement of autonomy rights (that I think is possible) happen at a broader, practical level, however, there would have to be some commitment to compromise from both sides. Minor shameless plug, Doug. Take a look at the Findlaw column (published last Friday) that Vik Amar and I recently wrote. Alan Brownstein UC Davis School of Law From: [EMAIL PROTECTED] [EMAIL PROTECTED] On Behalf Of Douglas Laycock [EMAIL PROTECTED] Sent: Monday, August 04, 2008 7:13 AM To: religionlaw@lists.ucla.edu Subject: Defamation of Religion - and Gay Rights Mr. Diamond is quite right to see gay rights as the likely source of this kind of litigation in the US. Marc Stern at the American Jewish Congress (and a participant on this list) has a great chapter forthcoming on litigation to date over conflicts between gay rights and religious liberty and free speech. The Canadian speech cases are terrifying; the US cases in the context of schools and employment are quite unprotective of speech. This chapter is forthcoming in a book (now comes the shamless plug) that I edited with Robin Fretwell Wilson at Washington Lee and Anthony
Re: Conflicts between religious exefcise and gay rights
Mark is of course right about this. But I wonder if we might distinguish the two issues, as we might distinguish questions of racial discrimination generally from questions of gay rights -- including the question of whether there is Scriptural support for slavery, racial discrimination, racial integration, sex discrimination, and sexual orientation discrimination. And to Marty's point, I think Eugene has begun to point out the way in which this issue is something quite more than whether one is uncomfortable with gay marriage. It might be more akin to whether a health care provider (or, say, Catholic Charities) might be be coerced into violating a prohibition against contraception or abortion.Richard Dougherty -Original Message- From: Mark Tushnet [EMAIL PROTECTED] Sent 8/4/2008 1:27:41 PM To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu, Law Religion issues for Law Academics religionlaw@lists.ucla.edu, Law Religion issues for Law Academics religionlaw@lists.ucla.edu Subject: RE: Conflicts between religious exefcise and gay rightsIn connection with this discussion, it might be worth noting that prior to the Civil War there was, in the South, quite a vigorous discussion of why slavery was sancitoned by the Bible, and -- toward the end of the pre-war period -- why it was mandated by Ciristianity properly understood. Mark Tushnet William Nelson Cromwell Professor of Law Harvard Law School Areeda 223 Cambridge, MA 02138 ph: 617-496-4451 (office); 202-374-9571 (mobile) -Original Message- From: [EMAIL PROTECTED] on behalf of [EMAIL PROTECTED] Sent: Mon 8/4/2008 12:10 PM To: Law Religion issues for Law Academics; Law Religion issues for Law Academics Subject: Conflicts between religious exefcise and gay rights I tend to agree with Alan here. Of course there are occasional conflicts between gay rights laws and religious beliefs -- principally in the commercial sector, such as in employment and housing rentals -- but is it really that much of a problem? Or is it a relatively infrequent phenomenon that's being exploited as a cudgel against gay rights? (A sincere question -- I really am uncertain of the answer.) I'm confident -- given that Doug and Anthony edited it -- that the new volume will be very worthwhile, fair and balanced. But I have some trepidation that it, and similar endeavors, will unnecessarily add fuel to this fire. Same-sex *marriage* implicates religious liberty? How so? It's not as if religious congregations will soon be compelled to offer membership to gay and lesbian couples, right? Or that ministers will be legally required to perform same-sex ceremonies. Of course, many people are deeply uncomfortable with same-sex marriage, and such discomfort often derives from (or finds sustenance in) certain religious moral codes. But that's not the same as a threat to religious liberty, is it? I suppose this is one way of framing my doubts here: Is this very different from the religiously motivated resistance when race- and sex-discrimination norms began to find favor in the law? Twenty years from now, will today's religiously oriented opposition to gay rights seem as distant and odd to the ReligionLaw list of 2028 (still administered by Eugene, one can hope!) as the 1960's resistance to race-and sex-discrimination laws looks to us now? -- Original message -- From: Brownstein, Alan [EMAIL PROTECTED] If we are talking about conflicts between gay rights and religious liberty, surely this is a coin that has two sides to it. Many gay people see religion as a sword that is being used to burden their liberty and equality rights. What we have are two groups claiming basic autonomy rights with each seeing the other side as a threat to be feared, rather than as people with basic liberty interests that need to be accommodated. When we have one side of the debate arguing that to avoid potential conflicts with religious liberty, gay people should be denied the right to marry or to be protected against discrimination in housing or employment, it is hardly surprising that the other side of the debate is going to offer little sympathy to requests for religious accommodation. I continue to believe that while there will be some real conflicts between religious liberty and gay rights in some circumstances, at a deeper level these two assertions of autonomy rights can and should be positively reinforcing each other. Sometimes this happens inadvertantly. The Equal Access Act has helped gay and lesbian clubs be recognized at schools. But this was done over the opposition of people who insisted that freedom of association and speech for religious students should not be extended to gay students. To have the mutual reinforcement of autonomy rights (that I think is possible) happen at a broader, practical level, however, there would have to be some commitment to compromise
Re: Conflicts between religious exefcise and gay rights and cudgels
Marty Lederman writes: I would respectfully dissent from [the] suggestion that ... gays and lesbians really suffer much harm by being denied services or jobs or housing on the basis of their sexual orientation because they could get such services -- often at a higher quality -- just fine from lots of other providers. ... With all respect, I think this sort of standard libertarian skepticism about the need for antidiscrimination laws significantly trivializes very serious harms. - I don't doubt that some people suffer very serious harms from being denied goods and services based on their race, religion, sexual orientation, etc., even if they could easily obtain the same goods and services elsewhere. - Nor, however, do I doubt that some people suffer very serious harms from being forced to serve certain other people in certain ways, when providing such service contravenes their sincerely-held religious or moral beliefs. - And it seems to me that the harms in these two cases are essentially identical: some combination of emotional distress and moral outrage. - So is there any reason (other than where our personal sympathies happen to lie) to assume that the harm in case #1 is categorically greater than the harm in case #2, or that the harm in case #2 is categorically greater than the harm in case #1? - Given that equal protection and religious freedom are both constitutional values, is there any reason why the legal system should categorically favor the person suffering harm in case #1 over the person suffering harm in case #2, or the person suffering harm in case #2 over the person suffering harm in case #1? Art Spitzer ** Looking for a car that's sporty, fun and fits in your budget? Read reviews on AOL Autos. (http://autos.aol.com/cars-BMW-128-2008/expert-review?ncid=aolaut000517 ) ___ 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.
RE: Conflicts between religious exefcise and gay rights and cudgels
As someone who, in times long past, has had the decidedly miserable experience of looking unsuccessfully for jobs and housing for significant periods of time, I do not think for a moment that people can always find alternative jobs or quality places to live from other providers if they are subject to discrimination. Both jobs and housing can often be hard to find - even when you are not the victim of discrimination. But when alternative services are clearly available, I think Art is correct that what is at issue here is a clash of protected liberty and equality rights that cause somewhat analogous harms. As Vik Amar and I wrote recently, Just as it makes no sense to tell a gay person who has been living with his partner for 20 years to end his relationship, or to stop being gay and enter into a heterosexual relationship, it makes no sense to tell a devout religious individual to set his or her convictions about homosexual conduct aside and adopt a new religion. Neither the gay person nor the religious adherent can reasonably be asked to change who they are. Our laws should reflect that reality in both circumstances. Alan Brownstein From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of [EMAIL PROTECTED] Sent: Monday, August 04, 2008 4:35 PM To: religionlaw@lists.ucla.edu Subject: Re: Conflicts between religious exefcise and gay rights and cudgels Marty Lederman writes: I would respectfully dissent from [the] suggestion that ... gays and lesbians really suffer much harm by being denied services or jobs or housing on the basis of their sexual orientation because they could get such services -- often at a higher quality -- just fine from lots of other providers. ... With all respect, I think this sort of standard libertarian skepticism about the need for antidiscrimination laws significantly trivializes very serious harms. - I don't doubt that some people suffer very serious harms from being denied goods and services based on their race, religion, sexual orientation, etc., even if they could easily obtain the same goods and services elsewhere. - Nor, however, do I doubt that some people suffer very serious harms from being forced to serve certain other people in certain ways, when providing such service contravenes their sincerely-held religious or moral beliefs. - And it seems to me that the harms in these two cases are essentially identical: some combination of emotional distress and moral outrage. - So is there any reason (other than where our personal sympathies happen to lie) to assume that the harm in case #1 is categorically greater than the harm in case #2, or that the harm in case #2 is categorically greater than the harm in case #1? - Given that equal protection and religious freedom are both constitutional values, is there any reason why the legal system should categorically favor the person suffering harm in case #1 over the person suffering harm in case #2, or the person suffering harm in case #2 over the person suffering harm in case #1? Art Spitzer ** ___ 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.
RE: Conflicts between religious exefcise and gay rights and cudgels
Vik Amar and Alan Brownstein offer an attractive point of middle, if not common, ground on these questions. If we are to live together in this diverse society, we need to find a means of resolving cultural differences other than by scorched earth tactics. Adopting a gay civil rights regime in which few or no exceptions are allowed for persons of religious conscience, as indeed has been proposed in some jurisdictions, is just as intolerant toward difference as was the former regime in which the only legal response to homosexuality was criminalization. To treat persons of traditional religious values as second-class citizens who may not participate in the economy without surrendering the values that form their identity is just as much of an injustice as was treating homosexuals as second-class citizens who should be excluded from public life. Seeking to find a place of balance and extending tolerance toward all is no mean task, but it is a worthy goal. If those who achieve political power in a particular jurisdiction, local or state, seek to balance the genuine needs of people individuals for access to the economy in terms of jobs, housing, and accommodations with the protection of individual religious consicence and respect for religious identity, then we all may better weather the present cultural transition, whether it may lead to a monumental changes of attitudes across the spectrum of mainstream America or instead to a place of more permanent difference. As we search for that balance, the traditional exemptions in civil rights laws based upon size/numbers and types of activities may serve us well. Moreover, as a practical matter, overly-expansive and rigid applications heighten cultural tensions. Thus, excepting smaller employers and family home rentals, for example, where the impingement of government-coerced directives upon intimate associations is most profound, serves to protect conscience at its most poignant while not having a meaningful effect on the economic availability of jobs and housing. By contrast, the larger scale employer and the multiple-unit apartment owner generally have a lesser claim on intrusion into private affairs and consicence and the exclusion of those from a civil rights law, even on religious conscience grounds, might undermine the protection of the laws. (Of course, all of this assumes that the proponents for new civil rights protections have made a concrete empirical record of the need for any expansion of protected categories to serve demonstrated economic needs, because the use of civil rights laws primarily to make a political or moral point is a dubious and arguably tyrannical exercise of governmental power). Similarly, the nature of the activity should be considered. The easiest case for exemptions covers religiously-affiliated institutions, as imposing a government standard on to a religious entity intrudes directly on religious liberty. Characterizing professional services as a public accommodation subject to civil rights rules also trespasses more closely on conscience, as requiring an individual to offer such personal services is much more burdensome than simply being required to open a restaurant or hotel to all consumers. The problem is a vexing one, on which people of good faith will differ in working out the details of solutions. But simply allowing whoever secures political power to impose their preferences through the use of governmental power, with disregard for the difficulties experienced by those who may become political minorities, is unworthy of our American tradition. Gregory Sisk Orestes A. Brownson Professor of Law University of St. Thomas School of Law (Minnesota) MSL 400, 1000 LaSalle Avenue Minneapolis, MN 55403-2005 651-962-4923 [EMAIL PROTECTED] http://personal2.stthomas.edu/GCSISK/sisk.html Publications: http://ssrn.com/author=44545 From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Brownstein, Alan Sent: Monday, August 04, 2008 7:06 PM To: Law Religion issues for Law Academics Subject: RE: Conflicts between religious exefcise and gay rights and cudgels As someone who, in times long past, has had the decidedly miserable experience of looking unsuccessfully for jobs and housing for significant periods of time, I do not think for a moment that people can always find alternative jobs or quality places to live from other providers if they are subject to discrimination. Both jobs and housing can often be hard to find - even when you are not the victim of discrimination. But when alternative services are clearly available, I think Art is correct that what is at issue here is a clash of protected liberty and equality rights that cause somewhat analogous harms. As Vik Amar and I wrote recently, Just as it makes no sense to tell a gay person who has been living with his partner for 20 years to end his relationship, or to stop being gay and enter
