Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses
I am going to go out on a limb here and say it is not right for businesses to discriminate based on race, gender, sexual orientation, alienage, religion, or disability. Religious groups won in Hosannah-Tabor the right to engage in invidious discrimination against ministers (not just clergy)even when their faith does no require the discrimination. That decision went too far in my view, but we have it. Enough. As I have said before, the ship has sailed on trying to manufacture discrimination against homosexuals and same-sex couples as distinct from discrimination based on race. I will never forget a national leader of theanti-gay marriage platform telling a large group of like-minded folks that the best way to sell their agenda was to rely heavliy on the "ick factor." Why? Because they had nothing else to sell their public policy preferences to the people. They have failed in the public policy arena, and the animus has shown itself for what it is. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.com -Original Message- From: Sisk, Gregory C. gcs...@stthomas.edu To: 'Law Religion issues for Law Academics' religionlaw@lists.ucla.edu Sent: Wed, Feb 26, 2014 4:16 pm Subject: RE: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses Every sorry episode in the long American history of suppression of religious minorities has been justified by the undoubtedly sincere beliefs of the majority at the time that they are on the right side of history and that taking additional steps to force the minority to fall into line is merely to advance progress. More than a half century ago, the public demand for fealty to America in the face of external and internal threats of totalitarian ideologies imposed itself on religious communities who refused to engage in certain public displays of loyalty. Not too long ago, the War on Drugs was extended to prohibit ceremonial use of sacred substances. Quite recently, fears about terrorism have been used to adopt measures that target, profile, and denigrate persons of Muslim faith. And now an expansion of anti-discrimination laws to cover new categories of protected persons, to include new sectors of society, and to apply to new entities, has imposed itself with a heavy hand on certain traditionalist religious groups. In the past, we learned from mistakes in overreaching through policy and accepted accommodations to religious minorities that expanded freedom without substantially undermining key public policies. We need to search for that balance again. Vigilance in defense of religious liberty, especially when the majority is convinced of its righteousness (which is almost always), must be renewed in every generation. In sum, it is dangerous for anyone exercising political power to come too readily to the certain conclusion that they are not only absolutely correct about the right answer to every issue but absolutely entitled to use whatever means are possible to advance that right answer without any concern for the impact on those who sincerely disagree, with the presumption of every powerful elite that those who think otherwise should learn “to adjust.” To quote Learned Hand, as I did several days ago, “The Spirit of Liberty is the spirit that is not too sure that it is right.” Gregory Sisk Laghi Distinguished Chair in Law University of St. Thomas School of Law (Minnesota) MSL 400, 1000 LaSalle Avenue Minneapolis, MN 55403-2005 651-962-4923 gcs...@stthomas.edu http://personal.stthomas.edu/GCSISK/sisk.html Publications: http://ssrn.com/author=44545 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com Sent: Wednesday, February 26, 2014 2:43 PM To: religionlaw@lists.ucla.edu Subject: Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses I don't have any desire for them to go out of "business," but if they are going to be in "business," they need to operate in the marketplace without discrimination. If the business they have chosen does not fit their belief, they need to adjust, or move on. No one is barring religious minorities from professions. What is being suggested is that believers cannot shape the business world and customers to fit their prejudices. The insidious notion that believers have a right not to adjust to the law is the most damaging element of the RFRA movement, not just to those harmed by it, but by the believers who are permitted to avoid dealing with the changes that increase human rights, and demand their consideration and accommodation. Believers have enthusiastically supported the subjugation of blacks, women, children, and homosexuals. Not requiring them to a
Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses
They are similar in that both involve believers demanding a right to discriminate due to their religion. If Hobby Lobby wins, Walmart will have an argument to get around prohibitions based on race, gender, religion, alienage, and disability. All they need is one owner or board member and they are good to go. But here is the critical difference: The state amendment proposals are not moderate or almost identical. Rfra applies only against the govt. These bills bring private vs private disputes under its misguided, concocted standard. It's ugly. Marci Sent from my iPhone On Feb 25, 2014, at 11:58 PM, Michael Worley mwor...@byulaw.net wrote: I have. My point is your condemnation is not compelling to me when we disagree on a either more moderate or almost identical bill (depending on how Hobby Lobby comes out). On Tue, Feb 25, 2014 at 8:55 PM, hamilto...@aol.com wrote: Have you read anything I've written for the last 20 years? Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.com -Original Message- From: Michael Worley mwor...@byulaw.net To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Tue, Feb 25, 2014 8:47 pm Subject: Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses Would you say the Federal RFRA is egregious, Marci? On Tue, Feb 25, 2014 at 6:38 PM, Marci Hamilton hamilto...@aol.com wrote: I have read them and both are egregious. Sent from my iPhone On Feb 25, 2014, at 6:15 PM, Scarberry, Mark mark.scarbe...@pepperdine.edu wrote: The Arizona bill and the Kansas bill are very different. I don’t have time right now to discuss this further, but all you have to do is to read the bills. If you do, you will see that the arguments equating the two are simply and egregiously wrong. I hope no one will comment in any strong way without actually reading them. Mark Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Greg Hamilton Sent: Tuesday, February 25, 2014 1:55 PM To: mich...@californialaw.org; Law Religion issues for Law Academics Subject: RE: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses …and Alan has been championing this bill on the spot at the Arizona capitol. Sigh. I have fought him over it when he tried to push me into supporting the Idaho bill which was just as egregious as the Arizona bill, but perhaps more targeted. Gregory W. Hamilton, President Northwest Religious Liberty Association 5709 N. 20th Street Ridgefield, WA 98642 Office: (360) 857-7040 Website: www.nrla.com image001.jpg Championing Religious Freedom and Human Rights for All People of Faith From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Michael Peabody Sent: Tuesday, February 25, 2014 1:38 PM To: religionlaw@lists.ucla.edu Subject: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses After reading the legislation, it's amazing how broadly it is drafted. It would seem to not only include permitting discrimination on the basis of sexual orientation or marital status, but also on the basis of religion. It would make it very easy for any business with a religious inkling to refuse to accommodate the religious exercise of employees, or even terminate them on the basis of religious differences. The Hobby Lobby case may go a long way in showing what rights employers have, and it seems to be part of a general strike against the application of the Bill of Rights to the states (14th Amendment). Any time the principle argument in favor of a potentially dangerous law is, What's the worse that can happen? I think there's reason to get really nervous. There is probably an answer for those who don't want to violate their religious conscience by accommodating those members of protected classes that disagree with them, but this legislation is not it. Michael D. 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 To subscribe, unsubscribe, change options
RE: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses
Marci's view of the rights of a Walmart under tha AZ bill, and likely even the Kansas bill, is simply wrong. The application in the AZ bill to private enforcement by way of lawsuit simply prevents the state from doing indirectly what it can't do directly, cf. NY Times v. Sullivan, and makes clear something that already should be the case under RFRAs, properly interpreted. It also is the case that the AZ bill is much more moderate/sweeping than the Kansas bill. Mark S. Scarberry Pepperdine University School of Law Sent from my Verizon Wireless 4G LTE Smartphone Original message From: Marci Hamilton Date:02/26/2014 5:09 AM (GMT-08:00) To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses They are similar in that both involve believers demanding a right to discriminate due to their religion. If Hobby Lobby wins, Walmart will have an argument to get around prohibitions based on race, gender, religion, alienage, and disability. All they need is one owner or board member and they are good to go. But here is the critical difference: The state amendment proposals are not moderate or almost identical. Rfra applies only against the govt. These bills bring private vs private disputes under its misguided, concocted standard. It's ugly. Marci Sent from my iPhone On Feb 25, 2014, at 11:58 PM, Michael Worley mwor...@byulaw.netmailto:mwor...@byulaw.net wrote: I have. My point is your condemnation is not compelling to me when we disagree on a either more moderate or almost identical bill (depending on how Hobby Lobby comes out). On Tue, Feb 25, 2014 at 8:55 PM, hamilto...@aol.commailto:hamilto...@aol.com wrote: Have you read anything I've written for the last 20 years? Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.comhttp://sol-reform.com/ [http://sol-reform.com/fb.png]https://www.facebook.com/professormarciahamilton?fref=ts [http://www.sol-reform.com/tw.png] https://twitter.com/marci_hamilton -Original Message- From: Michael Worley mwor...@byulaw.netmailto:mwor...@byulaw.net To: Law Religion issues for Law Academics religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Sent: Tue, Feb 25, 2014 8:47 pm Subject: Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses Would you say the Federal RFRA is egregious, Marci? On Tue, Feb 25, 2014 at 6:38 PM, Marci Hamilton hamilto...@aol.commailto:hamilto...@aol.com wrote: I have read them and both are egregious. Sent from my iPhone On Feb 25, 2014, at 6:15 PM, Scarberry, Mark mark.scarbe...@pepperdine.edumailto:mark.scarbe...@pepperdine.edu wrote: The Arizona bill and the Kansas bill are very different. I don’t have time right now to discuss this further, but all you have to do is to read the bills. If you do, you will see that the arguments equating the two are simply and egregiously wrong. I hope no one will comment in any strong way without actually reading them. Mark Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Greg Hamilton Sent: Tuesday, February 25, 2014 1:55 PM To: mich...@californialaw.orgmailto:mich...@californialaw.org; Law Religion issues for Law Academics Subject: RE: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses …and Alan has been championing this bill on the spot at the Arizona capitol. Sigh. I have fought him over it when he tried to push me into supporting the Idaho bill which was just as egregious as the Arizona bill, but perhaps more targeted. Gregory W. Hamilton, President Northwest Religious Liberty Association 5709 N. 20th Street Ridgefield, WA 98642 Office: (360) 857-7040 Website: www.nrla.comhttp://www.nrla.com/ image001.jpghttp://www.nrla.com/ Championing Religious Freedom and Human Rights for All People of Faith From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Michael Peabody Sent: Tuesday, February 25, 2014 1:38 PM To: religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Subject: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses After reading the legislation, it's amazing how broadly it is drafted. It would seem to not only include permitting discrimination on the basis of sexual orientation or marital status, but also on the basis of religion. It would make it very easy for any business with a religious inkling to refuse to accommodate the religious exercise of employees, or even terminate them on the basis of religious differences. The Hobby Lobby case may go a long way in showing
RE: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses
That should have been much more moderate/less sweeping. Mark Mark S. Scarberry Pepperdine University School of y Sent from my Verizon Wireless 4G LTE Smartphone Original message From: Scarberry, Mark Date:02/26/2014 6:47 AM (GMT-08:00) To: Law Religion issues for Law Academics Subject: RE: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses Marci's view of the rights of a Walmart under tha AZ bill, and likely even the Kansas bill, is simply wrong. The application in the AZ bill to private enforcement by way of lawsuit simply prevents the state from doing indirectly what it can't do directly, cf. NY Times v. Sullivan, and makes clear something that already should be the case under RFRAs, properly interpreted. It also is the case that the AZ bill is much more moderate/sweeping than the Kansas bill. Mark S. Scarberry Pepperdine University School of Law Sent from my Verizon Wireless 4G LTE Smartphone Original message From: Marci Hamilton Date:02/26/2014 5:09 AM (GMT-08:00) To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses They are similar in that both involve believers demanding a right to discriminate due to their religion. If Hobby Lobby wins, Walmart will have an argument to get around prohibitions based on race, gender, religion, alienage, and disability. All they need is one owner or board member and they are good to go. But here is the critical difference: The state amendment proposals are not moderate or almost identical. Rfra applies only against the govt. These bills bring private vs private disputes under its misguided, concocted standard. It's ugly. Marci Sent from my iPhone On Feb 25, 2014, at 11:58 PM, Michael Worley mwor...@byulaw.netmailto:mwor...@byulaw.net wrote: I have. My point is your condemnation is not compelling to me when we disagree on a either more moderate or almost identical bill (depending on how Hobby Lobby comes out). On Tue, Feb 25, 2014 at 8:55 PM, hamilto...@aol.commailto:hamilto...@aol.com wrote: Have you read anything I've written for the last 20 years? Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.comhttp://sol-reform.com/ [http://sol-reform.com/fb.png]https://www.facebook.com/professormarciahamilton?fref=ts [http://www.sol-reform.com/tw.png] https://twitter.com/marci_hamilton -Original Message- From: Michael Worley mwor...@byulaw.netmailto:mwor...@byulaw.net To: Law Religion issues for Law Academics religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Sent: Tue, Feb 25, 2014 8:47 pm Subject: Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses Would you say the Federal RFRA is egregious, Marci? On Tue, Feb 25, 2014 at 6:38 PM, Marci Hamilton hamilto...@aol.commailto:hamilto...@aol.com wrote: I have read them and both are egregious. Sent from my iPhone On Feb 25, 2014, at 6:15 PM, Scarberry, Mark mark.scarbe...@pepperdine.edumailto:mark.scarbe...@pepperdine.edu wrote: The Arizona bill and the Kansas bill are very different. I don’t have time right now to discuss this further, but all you have to do is to read the bills. If you do, you will see that the arguments equating the two are simply and egregiously wrong. I hope no one will comment in any strong way without actually reading them. Mark Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Greg Hamilton Sent: Tuesday, February 25, 2014 1:55 PM To: mich...@californialaw.orgmailto:mich...@californialaw.org; Law Religion issues for Law Academics Subject: RE: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses …and Alan has been championing this bill on the spot at the Arizona capitol. Sigh. I have fought him over it when he tried to push me into supporting the Idaho bill which was just as egregious as the Arizona bill, but perhaps more targeted. Gregory W. Hamilton, President Northwest Religious Liberty Association 5709 N. 20th Street Ridgefield, WA 98642 Office: (360) 857-7040 Website: www.nrla.comhttp://www.nrla.com/ image001.jpghttp://www.nrla.com/ Championing Religious Freedom and Human Rights for All People of Faith From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Michael Peabody Sent: Tuesday, February 25, 2014 1:38 PM To: religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Subject: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses After reading the legislation, it's amazing how broadly it is drafted. It would
Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses
Mark-- does the AZ bill permit discrimination on gender and race by private businesses? The RFRAs say explicitly they are good against the govt. expanding to private parties is a huge leap. Remember RFRAs are supposedly the return to constitutional protections. The Constitution requires state action but the RFRAs are explicit in the need for a govt defendant. It's not NYT v Sullivan Marci Sent from my iPhone On Feb 26, 2014, at 9:45 AM, Scarberry, Mark mark.scarbe...@pepperdine.edu wrote: Marci's view of the rights of a Walmart under tha AZ bill, and likely even the Kansas bill, is simply wrong. The application in the AZ bill to private enforcement by way of lawsuit simply prevents the state from doing indirectly what it can't do directly, cf. NY Times v. Sullivan, and makes clear something that already should be the case under RFRAs, properly interpreted. It also is the case that the AZ bill is much more moderate/sweeping than the Kansas bill. Mark S. Scarberry Pepperdine University School of Law Sent from my Verizon Wireless 4G LTE Smartphone Original message From: Marci Hamilton Date:02/26/2014 5:09 AM (GMT-08:00) To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses They are similar in that both involve believers demanding a right to discriminate due to their religion. If Hobby Lobby wins, Walmart will have an argument to get around prohibitions based on race, gender, religion, alienage, and disability. All they need is one owner or board member and they are good to go. But here is the critical difference: The state amendment proposals are not moderate or almost identical. Rfra applies only against the govt. These bills bring private vs private disputes under its misguided, concocted standard. It's ugly. Marci Sent from my iPhone On Feb 25, 2014, at 11:58 PM, Michael Worley mwor...@byulaw.net wrote: I have. My point is your condemnation is not compelling to me when we disagree on a either more moderate or almost identical bill (depending on how Hobby Lobby comes out). On Tue, Feb 25, 2014 at 8:55 PM, hamilto...@aol.com wrote: Have you read anything I've written for the last 20 years? Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.com -Original Message- From: Michael Worley mwor...@byulaw.net To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Tue, Feb 25, 2014 8:47 pm Subject: Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses Would you say the Federal RFRA is egregious, Marci? On Tue, Feb 25, 2014 at 6:38 PM, Marci Hamilton hamilto...@aol.com wrote: I have read them and both are egregious. Sent from my iPhone On Feb 25, 2014, at 6:15 PM, Scarberry, Mark mark.scarbe...@pepperdine.edu wrote: The Arizona bill and the Kansas bill are very different. I don’t have time right now to discuss this further, but all you have to do is to read the bills. If you do, you will see that the arguments equating the two are simply and egregiously wrong. I hope no one will comment in any strong way without actually reading them. Mark Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Greg Hamilton Sent: Tuesday, February 25, 2014 1:55 PM To: mich...@californialaw.org; Law Religion issues for Law Academics Subject: RE: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses …and Alan has been championing this bill on the spot at the Arizona capitol. Sigh. I have fought him over it when he tried to push me into supporting the Idaho bill which was just as egregious as the Arizona bill, but perhaps more targeted. Gregory W. Hamilton, President Northwest Religious Liberty Association 5709 N. 20th Street Ridgefield, WA 98642 Office: (360) 857-7040 Website: www.nrla.com image001.jpg Championing Religious Freedom and Human Rights for All People of Faith From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Michael Peabody Sent: Tuesday, February 25, 2014 1:38 PM To: religionlaw@lists.ucla.edu Subject: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses After reading the legislation, it's amazing how broadly it is drafted. It would seem to not only include permitting discrimination on the basis of sexual orientation or marital status, but also on the basis of religion. It would make it very easy for any business with a religious inkling to refuse to accommodate the religious exercise
Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses
Mark-- please elaborate. Can a Biblical white supremacist make an argument to refuse to serve a black person under the AZ bill? How about the KS bill? And while we're at it, how about the GA bill? I understand that the defenders of these bills have a long standing policy of not wanting to explain the details pf how the bill will work in operation, but that gambit is unethical in my view. The burden is on the defenders of these new bills to explain how they improve our society by increasing opportunities to discriminate by religious actors. As I have said before the supporters of extreme religious liberty are morally responsible for the consequences of these laws/bills. Marci Sent from my iPhone On Feb 26, 2014, at 10:03 AM, Scarberry, Mark mark.scarbe...@pepperdine.edu wrote: That should have been much more moderate/less sweeping. Mark Mark S. Scarberry Pepperdine University School of y Sent from my Verizon Wireless 4G LTE Smartphone Original message From: Scarberry, Mark Date:02/26/2014 6:47 AM (GMT-08:00) To: Law Religion issues for Law Academics Subject: RE: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses Marci's view of the rights of a Walmart under tha AZ bill, and likely even the Kansas bill, is simply wrong. The application in the AZ bill to private enforcement by way of lawsuit simply prevents the state from doing indirectly what it can't do directly, cf. NY Times v. Sullivan, and makes clear something that already should be the case under RFRAs, properly interpreted. It also is the case that the AZ bill is much more moderate/sweeping than the Kansas bill. Mark S. Scarberry Pepperdine University School of Law Sent from my Verizon Wireless 4G LTE Smartphone Original message From: Marci Hamilton Date:02/26/2014 5:09 AM (GMT-08:00) To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses They are similar in that both involve believers demanding a right to discriminate due to their religion. If Hobby Lobby wins, Walmart will have an argument to get around prohibitions based on race, gender, religion, alienage, and disability. All they need is one owner or board member and they are good to go. But here is the critical difference: The state amendment proposals are not moderate or almost identical. Rfra applies only against the govt. These bills bring private vs private disputes under its misguided, concocted standard. It's ugly. Marci Sent from my iPhone On Feb 25, 2014, at 11:58 PM, Michael Worley mwor...@byulaw.net wrote: I have. My point is your condemnation is not compelling to me when we disagree on a either more moderate or almost identical bill (depending on how Hobby Lobby comes out). On Tue, Feb 25, 2014 at 8:55 PM, hamilto...@aol.com wrote: Have you read anything I've written for the last 20 years? Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.com -Original Message- From: Michael Worley mwor...@byulaw.net To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Tue, Feb 25, 2014 8:47 pm Subject: Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses Would you say the Federal RFRA is egregious, Marci? On Tue, Feb 25, 2014 at 6:38 PM, Marci Hamilton hamilto...@aol.com wrote: I have read them and both are egregious. Sent from my iPhone On Feb 25, 2014, at 6:15 PM, Scarberry, Mark mark.scarbe...@pepperdine.edu wrote: The Arizona bill and the Kansas bill are very different. I don’t have time right now to discuss this further, but all you have to do is to read the bills. If you do, you will see that the arguments equating the two are simply and egregiously wrong. I hope no one will comment in any strong way without actually reading them. Mark Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Greg Hamilton Sent: Tuesday, February 25, 2014 1:55 PM To: mich...@californialaw.org; Law Religion issues for Law Academics Subject: RE: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses …and Alan has been championing this bill on the spot at the Arizona capitol. Sigh. I have fought him over it when he tried to push me into supporting the Idaho bill which was just as egregious as the Arizona bill, but perhaps more targeted. Gregory W. Hamilton, President Northwest Religious Liberty Association 5709 N. 20th Street Ridgefield, WA 98642 Office: (360) 857-7040 Website
Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses
The Kansas bill is very sex/gender specific, and it is not limited to weddings in any way. The rights it creates appear absolute -- no interest balancing. It would authorize all sincere religious objectors (persons and entities, including businesses) to treat same sex marriages/domestic partnerships, etc. as invalid, even if the 14th A required states to license and respect such weddings. It would authorize those objectors to refuse to provide goods and services to anyone celebrating such a wedding or commitment, and to deny employee spousal benefits to same sex spouses. The Arizona bill protects religious freedom generally, and the amendment extends the coverage explicitly to corporations.The same religious objections to same sex weddings, marriages, etc. could be made under the Arizona bill. The AZ bill permits a compelling interest defense (therefore more moderate?), but it also is far more sweeping because it might be invoked to justify religious discrimination against customers for all sorts of reasons of status and identity, not limited to sexual orientation. Unlike federal RFRA, which was a generic response to Smith and brought together a coalition of many faith groups and civil liberties groups, the amendments to Arizona RFRA are driven by exactly the same political forces as are driving the Kansas bill and others -- opposition to same sex marriage and same sex intimacy, and an assertion of rights of some business people to refuse to serve that population. So the good lawyers on this list can parse the differences in the bills, and we can debate which bill would do more harm or more good, if you think there is any good here to be done. But no one can credibly deny that all of these current legislative efforts are driven by the same political forces. Doug Laycock, Tom Berg, Rick Garnett, Robin Wilson and others have for the past 5 years been pushing narrower versions of these bills in states that have legislated same sex marriage (NY, Illinois, NH, Hawaii, etc.) Those efforts have failed over and over again. Now that same sex marriage seems headed for the red states, we are just seeing broader, uglier, less nuanced versions of the same agenda. I hope and expect that Gov. Brewer will veto the AZ bill, and it's nice to see the fierce national pushback against these attempts to legitimate anti-gay bigotry, whatever its religious underpinnings in some cases. On Wed, Feb 26, 2014 at 10:03 AM, Scarberry, Mark mark.scarbe...@pepperdine.edu wrote: That should have been much more moderate/less sweeping. Mark Mark S. Scarberry Pepperdine University School of y Sent from my Verizon Wireless 4G LTE Smartphone Original message From: Scarberry, Mark Date:02/26/2014 6:47 AM (GMT-08:00) To: Law Religion issues for Law Academics Subject: RE: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses Marci's view of the rights of a Walmart under tha AZ bill, and likely even the Kansas bill, is simply wrong. The application in the AZ bill to private enforcement by way of lawsuit simply prevents the state from doing indirectly what it can't do directly, cf. NY Times v. Sullivan, and makes clear something that already should be the case under RFRAs, properly interpreted. It also is the case that the AZ bill is much more moderate/sweeping than the Kansas bill. Mark S. Scarberry Pepperdine University School of Law Sent from my Verizon Wireless 4G LTE Smartphone Original message From: Marci Hamilton Date:02/26/2014 5:09 AM (GMT-08:00) To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses They are similar in that both involve believers demanding a right to discriminate due to their religion. If Hobby Lobby wins, Walmart will have an argument to get around prohibitions based on race, gender, religion, alienage, and disability. All they need is one owner or board member and they are good to go. But here is the critical difference: The state amendment proposals are not moderate or almost identical. Rfra applies only against the govt. These bills bring private vs private disputes under its misguided, concocted standard. It's ugly. Marci Sent from my iPhone On Feb 25, 2014, at 11:58 PM, Michael Worley mwor...@byulaw.net wrote: I have. My point is your condemnation is not compelling to me when we disagree on a either more moderate or almost identical bill (depending on how Hobby Lobby comes out). On Tue, Feb 25, 2014 at 8:55 PM, hamilto...@aol.com wrote: Have you read anything I've written for the last 20 years? Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.com https://www.facebook.com/professormarciahamilton?fref=ts https
Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses
Ira: You say that these bills have failed over and over again. If I'm not mistaken, several states that recognize same-sex marriage and/or have non-discrimination laws protecting gays and lesbians *do* have religious exceptions (as does the ENDA that passed the senate not long ago, only to die in the House). Am I mistaken? Do you (or anyone else here!) know of any literature that canvasses the laws in this context? Many thanks. On Wed, Feb 26, 2014 at 11:07 AM, Ira Lupu icl...@law.gwu.edu wrote: The Kansas bill is very sex/gender specific, and it is not limited to weddings in any way. The rights it creates appear absolute -- no interest balancing. It would authorize all sincere religious objectors (persons and entities, including businesses) to treat same sex marriages/domestic partnerships, etc. as invalid, even if the 14th A required states to license and respect such weddings. It would authorize those objectors to refuse to provide goods and services to anyone celebrating such a wedding or commitment, and to deny employee spousal benefits to same sex spouses. The Arizona bill protects religious freedom generally, and the amendment extends the coverage explicitly to corporations.The same religious objections to same sex weddings, marriages, etc. could be made under the Arizona bill. The AZ bill permits a compelling interest defense (therefore more moderate?), but it also is far more sweeping because it might be invoked to justify religious discrimination against customers for all sorts of reasons of status and identity, not limited to sexual orientation. Unlike federal RFRA, which was a generic response to Smith and brought together a coalition of many faith groups and civil liberties groups, the amendments to Arizona RFRA are driven by exactly the same political forces as are driving the Kansas bill and others -- opposition to same sex marriage and same sex intimacy, and an assertion of rights of some business people to refuse to serve that population. So the good lawyers on this list can parse the differences in the bills, and we can debate which bill would do more harm or more good, if you think there is any good here to be done. But no one can credibly deny that all of these current legislative efforts are driven by the same political forces. Doug Laycock, Tom Berg, Rick Garnett, Robin Wilson and others have for the past 5 years been pushing narrower versions of these bills in states that have legislated same sex marriage (NY, Illinois, NH, Hawaii, etc.) Those efforts have failed over and over again. Now that same sex marriage seems headed for the red states, we are just seeing broader, uglier, less nuanced versions of the same agenda. I hope and expect that Gov. Brewer will veto the AZ bill, and it's nice to see the fierce national pushback against these attempts to legitimate anti-gay bigotry, whatever its religious underpinnings in some cases. On Wed, Feb 26, 2014 at 10:03 AM, Scarberry, Mark mark.scarbe...@pepperdine.edu wrote: That should have been much more moderate/less sweeping. Mark Mark S. Scarberry Pepperdine University School of y Sent from my Verizon Wireless 4G LTE Smartphone Original message From: Scarberry, Mark Date:02/26/2014 6:47 AM (GMT-08:00) To: Law Religion issues for Law Academics Subject: RE: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses Marci's view of the rights of a Walmart under tha AZ bill, and likely even the Kansas bill, is simply wrong. The application in the AZ bill to private enforcement by way of lawsuit simply prevents the state from doing indirectly what it can't do directly, cf. NY Times v. Sullivan, and makes clear something that already should be the case under RFRAs, properly interpreted. It also is the case that the AZ bill is much more moderate/sweeping than the Kansas bill. Mark S. Scarberry Pepperdine University School of Law Sent from my Verizon Wireless 4G LTE Smartphone Original message From: Marci Hamilton Date:02/26/2014 5:09 AM (GMT-08:00) To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses They are similar in that both involve believers demanding a right to discriminate due to their religion. If Hobby Lobby wins, Walmart will have an argument to get around prohibitions based on race, gender, religion, alienage, and disability. All they need is one owner or board member and they are good to go. But here is the critical difference: The state amendment proposals are not moderate or almost identical. Rfra applies only against the govt. These bills bring private vs private disputes under its misguided, concocted standard. It's ugly. Marci Sent from my iPhone On Feb 25, 2014, at 11:58 PM, Michael Worley mwor...@byulaw.net wrote: I have. My
Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses
Hillel: The same sex marriage laws to which you refer do have exceptions, for clergy, houses of worship, and (sometimes) for religious charities and social services. Bob Tuttle and I analyze and collect some of that here: http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1055context=njlsp. There is plenty of other literature on the subject. What has happened in other states since we wrote that piece is quite consistent with the pattern we described. These laws do NOT contain exceptions for wedding vendors (bakers, caterers, etc.) or public employees like marriage license clerks. Those are the efforts that have failed, over and over. Chip (not Ira, please) On Wed, Feb 26, 2014 at 11:13 AM, Hillel Y. Levin hillelle...@gmail.comwrote: Ira: You say that these bills have failed over and over again. If I'm not mistaken, several states that recognize same-sex marriage and/or have non-discrimination laws protecting gays and lesbians *do* have religious exceptions (as does the ENDA that passed the senate not long ago, only to die in the House). Am I mistaken? Do you (or anyone else here!) know of any literature that canvasses the laws in this context? Many thanks. On Wed, Feb 26, 2014 at 11:07 AM, Ira Lupu icl...@law.gwu.edu wrote: The Kansas bill is very sex/gender specific, and it is not limited to weddings in any way. The rights it creates appear absolute -- no interest balancing. It would authorize all sincere religious objectors (persons and entities, including businesses) to treat same sex marriages/domestic partnerships, etc. as invalid, even if the 14th A required states to license and respect such weddings. It would authorize those objectors to refuse to provide goods and services to anyone celebrating such a wedding or commitment, and to deny employee spousal benefits to same sex spouses. The Arizona bill protects religious freedom generally, and the amendment extends the coverage explicitly to corporations.The same religious objections to same sex weddings, marriages, etc. could be made under the Arizona bill. The AZ bill permits a compelling interest defense (therefore more moderate?), but it also is far more sweeping because it might be invoked to justify religious discrimination against customers for all sorts of reasons of status and identity, not limited to sexual orientation. Unlike federal RFRA, which was a generic response to Smith and brought together a coalition of many faith groups and civil liberties groups, the amendments to Arizona RFRA are driven by exactly the same political forces as are driving the Kansas bill and others -- opposition to same sex marriage and same sex intimacy, and an assertion of rights of some business people to refuse to serve that population. So the good lawyers on this list can parse the differences in the bills, and we can debate which bill would do more harm or more good, if you think there is any good here to be done. But no one can credibly deny that all of these current legislative efforts are driven by the same political forces. Doug Laycock, Tom Berg, Rick Garnett, Robin Wilson and others have for the past 5 years been pushing narrower versions of these bills in states that have legislated same sex marriage (NY, Illinois, NH, Hawaii, etc.) Those efforts have failed over and over again. Now that same sex marriage seems headed for the red states, we are just seeing broader, uglier, less nuanced versions of the same agenda. I hope and expect that Gov. Brewer will veto the AZ bill, and it's nice to see the fierce national pushback against these attempts to legitimate anti-gay bigotry, whatever its religious underpinnings in some cases. On Wed, Feb 26, 2014 at 10:03 AM, Scarberry, Mark mark.scarbe...@pepperdine.edu wrote: That should have been much more moderate/less sweeping. Mark Mark S. Scarberry Pepperdine University School of y Sent from my Verizon Wireless 4G LTE Smartphone Original message From: Scarberry, Mark Date:02/26/2014 6:47 AM (GMT-08:00) To: Law Religion issues for Law Academics Subject: RE: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses Marci's view of the rights of a Walmart under tha AZ bill, and likely even the Kansas bill, is simply wrong. The application in the AZ bill to private enforcement by way of lawsuit simply prevents the state from doing indirectly what it can't do directly, cf. NY Times v. Sullivan, and makes clear something that already should be the case under RFRAs, properly interpreted. It also is the case that the AZ bill is much more moderate/sweeping than the Kansas bill. Mark S. Scarberry Pepperdine University School of Law Sent from my Verizon Wireless 4G LTE Smartphone Original message From: Marci Hamilton Date:02/26/2014 5:09 AM (GMT-08:00) To: Law Religion issues for Law Academics Cc: Law Religion issues for Law
Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses
Chip: Thanks for the cite! I will take a look. And just so I understand: are you asserting that *none* have adopted the broader exceptions (wedding vendors, etc)? On Wed, Feb 26, 2014 at 11:23 AM, Ira Lupu icl...@law.gwu.edu wrote: Hillel: The same sex marriage laws to which you refer do have exceptions, for clergy, houses of worship, and (sometimes) for religious charities and social services. Bob Tuttle and I analyze and collect some of that here: http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1055context=njlsp. There is plenty of other literature on the subject. What has happened in other states since we wrote that piece is quite consistent with the pattern we described. These laws do NOT contain exceptions for wedding vendors (bakers, caterers, etc.) or public employees like marriage license clerks. Those are the efforts that have failed, over and over. Chip (not Ira, please) On Wed, Feb 26, 2014 at 11:13 AM, Hillel Y. Levin hillelle...@gmail.comwrote: Ira: You say that these bills have failed over and over again. If I'm not mistaken, several states that recognize same-sex marriage and/or have non-discrimination laws protecting gays and lesbians *do* have religious exceptions (as does the ENDA that passed the senate not long ago, only to die in the House). Am I mistaken? Do you (or anyone else here!) know of any literature that canvasses the laws in this context? Many thanks. On Wed, Feb 26, 2014 at 11:07 AM, Ira Lupu icl...@law.gwu.edu wrote: The Kansas bill is very sex/gender specific, and it is not limited to weddings in any way. The rights it creates appear absolute -- no interest balancing. It would authorize all sincere religious objectors (persons and entities, including businesses) to treat same sex marriages/domestic partnerships, etc. as invalid, even if the 14th A required states to license and respect such weddings. It would authorize those objectors to refuse to provide goods and services to anyone celebrating such a wedding or commitment, and to deny employee spousal benefits to same sex spouses. The Arizona bill protects religious freedom generally, and the amendment extends the coverage explicitly to corporations.The same religious objections to same sex weddings, marriages, etc. could be made under the Arizona bill. The AZ bill permits a compelling interest defense (therefore more moderate?), but it also is far more sweeping because it might be invoked to justify religious discrimination against customers for all sorts of reasons of status and identity, not limited to sexual orientation. Unlike federal RFRA, which was a generic response to Smith and brought together a coalition of many faith groups and civil liberties groups, the amendments to Arizona RFRA are driven by exactly the same political forces as are driving the Kansas bill and others -- opposition to same sex marriage and same sex intimacy, and an assertion of rights of some business people to refuse to serve that population. So the good lawyers on this list can parse the differences in the bills, and we can debate which bill would do more harm or more good, if you think there is any good here to be done. But no one can credibly deny that all of these current legislative efforts are driven by the same political forces. Doug Laycock, Tom Berg, Rick Garnett, Robin Wilson and others have for the past 5 years been pushing narrower versions of these bills in states that have legislated same sex marriage (NY, Illinois, NH, Hawaii, etc.) Those efforts have failed over and over again. Now that same sex marriage seems headed for the red states, we are just seeing broader, uglier, less nuanced versions of the same agenda. I hope and expect that Gov. Brewer will veto the AZ bill, and it's nice to see the fierce national pushback against these attempts to legitimate anti-gay bigotry, whatever its religious underpinnings in some cases. On Wed, Feb 26, 2014 at 10:03 AM, Scarberry, Mark mark.scarbe...@pepperdine.edu wrote: That should have been much more moderate/less sweeping. Mark Mark S. Scarberry Pepperdine University School of y Sent from my Verizon Wireless 4G LTE Smartphone Original message From: Scarberry, Mark Date:02/26/2014 6:47 AM (GMT-08:00) To: Law Religion issues for Law Academics Subject: RE: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses Marci's view of the rights of a Walmart under tha AZ bill, and likely even the Kansas bill, is simply wrong. The application in the AZ bill to private enforcement by way of lawsuit simply prevents the state from doing indirectly what it can't do directly, cf. NY Times v. Sullivan, and makes clear something that already should be the case under RFRAs, properly interpreted. It also is the case that the AZ bill is much more moderate/sweeping than the Kansas bill. Mark S. Scarberry Pepperdine
Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses
That is my understanding, Hillel. If Doug, Rick, Tom, or others know of counterexamples, I'm sure they will bring them forward to the list. On Wed, Feb 26, 2014 at 11:28 AM, Hillel Y. Levin hillelle...@gmail.comwrote: Chip: Thanks for the cite! I will take a look. And just so I understand: are you asserting that *none* have adopted the broader exceptions (wedding vendors, etc)? On Wed, Feb 26, 2014 at 11:23 AM, Ira Lupu icl...@law.gwu.edu wrote: Hillel: The same sex marriage laws to which you refer do have exceptions, for clergy, houses of worship, and (sometimes) for religious charities and social services. Bob Tuttle and I analyze and collect some of that here: http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1055context=njlsp. There is plenty of other literature on the subject. What has happened in other states since we wrote that piece is quite consistent with the pattern we described. These laws do NOT contain exceptions for wedding vendors (bakers, caterers, etc.) or public employees like marriage license clerks. Those are the efforts that have failed, over and over. Chip (not Ira, please) On Wed, Feb 26, 2014 at 11:13 AM, Hillel Y. Levin hillelle...@gmail.comwrote: Ira: You say that these bills have failed over and over again. If I'm not mistaken, several states that recognize same-sex marriage and/or have non-discrimination laws protecting gays and lesbians *do* have religious exceptions (as does the ENDA that passed the senate not long ago, only to die in the House). Am I mistaken? Do you (or anyone else here!) know of any literature that canvasses the laws in this context? Many thanks. On Wed, Feb 26, 2014 at 11:07 AM, Ira Lupu icl...@law.gwu.edu wrote: The Kansas bill is very sex/gender specific, and it is not limited to weddings in any way. The rights it creates appear absolute -- no interest balancing. It would authorize all sincere religious objectors (persons and entities, including businesses) to treat same sex marriages/domestic partnerships, etc. as invalid, even if the 14th A required states to license and respect such weddings. It would authorize those objectors to refuse to provide goods and services to anyone celebrating such a wedding or commitment, and to deny employee spousal benefits to same sex spouses. The Arizona bill protects religious freedom generally, and the amendment extends the coverage explicitly to corporations.The same religious objections to same sex weddings, marriages, etc. could be made under the Arizona bill. The AZ bill permits a compelling interest defense (therefore more moderate?), but it also is far more sweeping because it might be invoked to justify religious discrimination against customers for all sorts of reasons of status and identity, not limited to sexual orientation. Unlike federal RFRA, which was a generic response to Smith and brought together a coalition of many faith groups and civil liberties groups, the amendments to Arizona RFRA are driven by exactly the same political forces as are driving the Kansas bill and others -- opposition to same sex marriage and same sex intimacy, and an assertion of rights of some business people to refuse to serve that population. So the good lawyers on this list can parse the differences in the bills, and we can debate which bill would do more harm or more good, if you think there is any good here to be done. But no one can credibly deny that all of these current legislative efforts are driven by the same political forces. Doug Laycock, Tom Berg, Rick Garnett, Robin Wilson and others have for the past 5 years been pushing narrower versions of these bills in states that have legislated same sex marriage (NY, Illinois, NH, Hawaii, etc.) Those efforts have failed over and over again. Now that same sex marriage seems headed for the red states, we are just seeing broader, uglier, less nuanced versions of the same agenda. I hope and expect that Gov. Brewer will veto the AZ bill, and it's nice to see the fierce national pushback against these attempts to legitimate anti-gay bigotry, whatever its religious underpinnings in some cases. On Wed, Feb 26, 2014 at 10:03 AM, Scarberry, Mark mark.scarbe...@pepperdine.edu wrote: That should have been much more moderate/less sweeping. Mark Mark S. Scarberry Pepperdine University School of y Sent from my Verizon Wireless 4G LTE Smartphone Original message From: Scarberry, Mark Date:02/26/2014 6:47 AM (GMT-08:00) To: Law Religion issues for Law Academics Subject: RE: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses Marci's view of the rights of a Walmart under tha AZ bill, and likely even the Kansas bill, is simply wrong. The application in the AZ bill to private enforcement by way of lawsuit simply prevents the state from doing indirectly what it can't do directly, cf. NY Times v
RE: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses
Whether or not the bills are similar in political motivation or in potential impact, the media coverage of the Arizona bill – at least what I’ve seen – has been woeful. Until reading the actual Kansas bill, I certainly thought that it was a specific accommodation for religious objectors to sexual-orientation discrimination claims and that its protection was absolute, not subject to balancing. Dan Conkle Daniel O. Conkle Robert H. McKinney Professor of Law Indiana University Maurer School of Law Bloomington, Indiana 47405 (812) 855-4331 fax (812) 855-0555 e-mail con...@indiana.edu From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton Sent: Wednesday, February 26, 2014 8:07 AM To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses They are similar in that both involve believers demanding a right to discriminate due to their religion. If Hobby Lobby wins, Walmart will have an argument to get around prohibitions based on race, gender, religion, alienage, and disability. All they need is one owner or board member and they are good to go. But here is the critical difference: The state amendment proposals are not moderate or almost identical. Rfra applies only against the govt. These bills bring private vs private disputes under its misguided, concocted standard. It's ugly. Marci Sent from my iPhone On Feb 25, 2014, at 11:58 PM, Michael Worley mwor...@byulaw.netmailto:mwor...@byulaw.net wrote: I have. My point is your condemnation is not compelling to me when we disagree on a either more moderate or almost identical bill (depending on how Hobby Lobby comes out). On Tue, Feb 25, 2014 at 8:55 PM, hamilto...@aol.commailto:hamilto...@aol.com wrote: Have you read anything I've written for the last 20 years? Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.comhttp://sol-reform.com/ [http://sol-reform.com/fb.png]https://www.facebook.com/professormarciahamilton?fref=ts [http://www.sol-reform.com/tw.png] https://twitter.com/marci_hamilton -Original Message- From: Michael Worley mwor...@byulaw.netmailto:mwor...@byulaw.net To: Law Religion issues for Law Academics religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Sent: Tue, Feb 25, 2014 8:47 pm Subject: Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses Would you say the Federal RFRA is egregious, Marci? On Tue, Feb 25, 2014 at 6:38 PM, Marci Hamilton hamilto...@aol.commailto:hamilto...@aol.com wrote: I have read them and both are egregious. Sent from my iPhone On Feb 25, 2014, at 6:15 PM, Scarberry, Mark mark.scarbe...@pepperdine.edumailto:mark.scarbe...@pepperdine.edu wrote: The Arizona bill and the Kansas bill are very different. I don’t have time right now to discuss this further, but all you have to do is to read the bills. If you do, you will see that the arguments equating the two are simply and egregiously wrong. I hope no one will comment in any strong way without actually reading them. Mark Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Greg Hamilton Sent: Tuesday, February 25, 2014 1:55 PM To: mich...@californialaw.orgmailto:mich...@californialaw.org; Law Religion issues for Law Academics Subject: RE: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses …and Alan has been championing this bill on the spot at the Arizona capitol. Sigh. I have fought him over it when he tried to push me into supporting the Idaho bill which was just as egregious as the Arizona bill, but perhaps more targeted. Gregory W. Hamilton, President Northwest Religious Liberty Association 5709 N. 20th Street Ridgefield, WA 98642 Office: (360) 857-7040 Website: www.nrla.comhttp://www.nrla.com/ image001.jpghttp://www.nrla.com/ Championing Religious Freedom and Human Rights for All People of Faith From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Michael Peabody Sent: Tuesday, February 25, 2014 1:38 PM To: religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Subject: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses After reading the legislation, it's amazing how broadly it is drafted. It would seem to not only include permitting discrimination on the basis of sexual orientation or marital status, but also on the basis of religion. It would make it very easy for any business with a religious inkling
Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses
I am tracking the state RFRAs and proposals and commentary on my site www.RFRAperils.com I welcome any and all commentary to add to the site. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.com -Original Message- From: Hillel Y. Levin hillelle...@gmail.com To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Wed, Feb 26, 2014 11:14 am Subject: Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses Ira: You say that these bills have failed over and over again. If I'm not mistaken, several states that recognize same-sex marriage and/or have non-discrimination laws protecting gays and lesbians do have religious exceptions (as does the ENDA that passed the senate not long ago, only to die in the House). Am I mistaken? Do you (or anyone else here!) know of any literature that canvasses the laws in this context? Many thanks. On Wed, Feb 26, 2014 at 11:07 AM, Ira Lupu icl...@law.gwu.edu wrote: The Kansas bill is very sex/gender specific, and it is not limited to weddings in any way. The rights it creates appear absolute -- no interest balancing. It would authorize all sincere religious objectors (persons and entities, including businesses) to treat same sex marriages/domestic partnerships, etc. as invalid, even if the 14th A required states to license and respect such weddings. It would authorize those objectors to refuse to provide goods and services to anyone celebrating such a wedding or commitment, and to deny employee spousal benefits to same sex spouses. The Arizona bill protects religious freedom generally, and the amendment extends the coverage explicitly to corporations.The same religious objections to same sex weddings, marriages, etc. could be made under the Arizona bill. The AZ bill permits a compelling interest defense (therefore more moderate?), but it also is far more sweeping because it might be invoked to justify religious discrimination against customers for all sorts of reasons of status and identity, not limited to sexual orientation. Unlike federal RFRA, which was a generic response to Smith and brought together a coalition of many faith groups and civil liberties groups, the amendments to Arizona RFRA are driven by exactly the same political forces as are driving the Kansas bill and others -- opposition to same sex marriage and same sex intimacy, and an assertion of rights of some business people to refuse to serve that population. So the good lawyers on this list can parse the differences in the bills, and we can debate which bill would do more harm or more good, if you think there is any good here to be done. But no one can credibly deny that all of these current legislative efforts are driven by the same political forces. Doug Laycock, Tom Berg, Rick Garnett, Robin Wilson and others have for the past 5 years been pushing narrower versions of these bills in states that have legislated same sex marriage (NY, Illinois, NH, Hawaii, etc.) Those efforts have failed over and over again. Now that same sex marriage seems headed for the red states, we are just seeing broader, uglier, less nuanced versions of the same agenda. I hope and expect that Gov. Brewer will veto the AZ bill, and it's nice to see the fierce national pushback against these attempts to legitimate anti-gay bigotry, whatever its religious underpinnings in some cases. On Wed, Feb 26, 2014 at 10:03 AM, Scarberry, Mark mark.scarbe...@pepperdine.edu wrote: That should have been much more moderate/less sweeping. Mark Mark S. Scarberry Pepperdine University School of y Sent from my Verizon Wireless 4G LTE Smartphone Original message From: Scarberry, Mark Date:02/26/2014 6:47 AM (GMT-08:00) To: Law Religion issues for Law Academics Subject: RE: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses Marci's view of the rights of a Walmart under tha AZ bill, and likely even the Kansas bill, is simply wrong. The application in the AZ bill to private enforcement by way of lawsuit simply prevents the state from doing indirectly what it can't do directly, cf. NY Times v. Sullivan, and makes clear something that already should be the case under RFRAs, properly interpreted. It also is the case that the AZ bill is much more moderate/sweeping than the Kansas bill. Mark S. Scarberry Pepperdine University School of Law Sent from my Verizon Wireless 4G LTE Smartphone Original message From: Marci Hamilton Date:02/26/2014 5:09 AM (GMT-08:00) To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses They are similar in that both involve believers demanding a right
RE: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses
I have been struck by the intensity of the blowback against both bills, but particularly the reaction to the Arizona bill. I think there are several possible rationales for the power of the reaction. The breadth of the bill is one factor. Another factor is that the business community is increasingly viewing these kinds of laws as having a significant downside and no upside. Economic forces may do more to advance marriage equality in red states than anything else. I think a final factor is that legislation providing some accommodations for religious objectors to same-sex marriage can be justified by its supporters as a “live and let live” solution to conflicting views when these accommodations are proposed at the same time the legislature is considering recognizing same-sex marriages. The Kansas and Arizona bills are more like “live and let die” laws. These states have made it clear that they do not respect the liberty and equality interests of same-sex couples. In this context, the laws cannot be justified under a broader principle of attempting to reconcile conflicting interests. The laws seem to suggest that only certain people count in these states and deserve respect for their autonomy rights. For many people, that is a problematic message. Alan From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Conkle, Daniel O. Sent: Wednesday, February 26, 2014 9:35 AM To: Law Religion issues for Law Academics Subject: RE: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses Whether or not the bills are similar in political motivation or in potential impact, the media coverage of the Arizona bill – at least what I’ve seen – has been woeful. Until reading the actual Kansas bill, I certainly thought that it was a specific accommodation for religious objectors to sexual-orientation discrimination claims and that its protection was absolute, not subject to balancing. Dan Conkle Daniel O. Conkle Robert H. McKinney Professor of Law Indiana University Maurer School of Law Bloomington, Indiana 47405 (812) 855-4331 fax (812) 855-0555 e-mail con...@indiana.edumailto:con...@indiana.edu ___ 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: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses
Many state laws on sexual-orientation discrimination, and most laws on same-sex marriage, have exemptions for religious organizations. Some are broad; some are narrow. Some are well drafted; some are a mess. But they are mostly there. Apart from marriage, there is no reason to have religious exemptions for businesses from laws on sexual-orientation discrimination. No one in the groups I have been part of has ever suggested such exemptions. Not even the Kansas bill provides such exemptions. Chip is correct that no state has explicitly exempted small businesses in the wedding industry, or in marriage counseling, from its same-sex marriage legislation. All those laws so far have been in blue states. The absurd overreach in the Kansas bill, and the resulting political reaction to the radically different Arizona bill, and some bills caught in the fire elsewhere with less publicity, may indicate that such exemptions will be hard to enact even in red states. Or maybe not, if someone offers a well drafted, narrowly targeted bill when or after same-sex marriage becomes the law in those states. I agree with Alan Brownstein that part of the problem in red states is that they want to protect religious conservatives without protecting gays and lesbians. Not only does Arizona not have same-sex marriage; it doesn't have a law on sexual-orientation discrimination. The blue states are mostly the mirror image. More and more they want to protect gays and lesbians but not religious conservatives. Hardly any political actors appear to be interested in protecting the liberty of both sides. 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 Ira Lupu Sent: Wednesday, February 26, 2014 11:34 AM To: Law Religion issues for Law Academics Subject: Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses That is my understanding, Hillel. If Doug, Rick, Tom, or others know of counterexamples, I'm sure they will bring them forward to the list. On Wed, Feb 26, 2014 at 11:28 AM, Hillel Y. Levin hillelle...@gmail.com mailto:hillelle...@gmail.com wrote: Chip: Thanks for the cite! I will take a look. And just so I understand: are you asserting that none have adopted the broader exceptions (wedding vendors, etc)? On Wed, Feb 26, 2014 at 11:23 AM, Ira Lupu icl...@law.gwu.edu mailto:icl...@law.gwu.edu wrote: Hillel: The same sex marriage laws to which you refer do have exceptions, for clergy, houses of worship, and (sometimes) for religious charities and social services. Bob Tuttle and I analyze and collect some of that here: http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=105 5 http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=10 55context=njlsp context=njlsp. There is plenty of other literature on the subject. What has happened in other states since we wrote that piece is quite consistent with the pattern we described. These laws do NOT contain exceptions for wedding vendors (bakers, caterers, etc.) or public employees like marriage license clerks. Those are the efforts that have failed, over and over. Chip (not Ira, please) On Wed, Feb 26, 2014 at 11:13 AM, Hillel Y. Levin hillelle...@gmail.com mailto:hillelle...@gmail.com wrote: Ira: You say that these bills have failed over and over again. If I'm not mistaken, several states that recognize same-sex marriage and/or have non-discrimination laws protecting gays and lesbians do have religious exceptions (as does the ENDA that passed the senate not long ago, only to die in the House). Am I mistaken? Do you (or anyone else here!) know of any literature that canvasses the laws in this context? Many thanks. ___ 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: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses
Doug--What does such an exemption look like if it is available to anyone other than clergy or a house of worship? Or is that limitation what makes it reasonable? I take it that the Arizona law does not fit your well-drafted notion? well drafted, narrowly targeted bill when or after same-sex marriage becomes the law in those states. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.com -Original Message- From: Douglas Laycock dlayc...@virginia.edu To: 'Law Religion issues for Law Academics' religionlaw@lists.ucla.edu Sent: Wed, Feb 26, 2014 2:24 pm Subject: RE: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses Many state laws on sexual-orientation discrimination, and most laws on same-sex marriage, have exemptions for religious organizations. Some are broad; some are narrow. Some are well drafted; some are a mess. But they are mostly there. Apart from marriage, there is no reason to have religious exemptions for businesses from laws on sexual-orientation discrimination. No one in the groups I have been part of has ever suggested such exemptions. Not even the Kansas bill provides such exemptions. Chip is correct that no state has explicitly exempted small businesses in the wedding industry, or in marriage counseling, from its same-sex marriage legislation. All those laws so far have been in blue states. The absurd overreach in the Kansas bill, and the resulting political reaction to the radically different Arizona bill, and some bills caught in the fire elsewhere with less publicity, may indicate that such exemptions will be hard to enact even in red states. Or maybe not, if someone offers a well drafted, narrowly targeted bill when or after same-sex marriage becomes the law in those states. I agree with Alan Brownstein that part of the problem in red states is that they want to protect religious conservatives without protecting gays and lesbians. Not only does Arizona not have same-sex marriage; it doesn’t have a law on sexual-orientation discrimination. The blue states are mostly the mirror image. More and more they want to protect gays and lesbians but not religious conservatives. Hardly any political actors appear to be interested in protecting the liberty of both sides. 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 Ira Lupu Sent: Wednesday, February 26, 2014 11:34 AM To: Law Religion issues for Law Academics Subject: Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses That is my understanding, Hillel. If Doug, Rick, Tom, or others know of counterexamples, I'm sure they will bring them forward to the list. On Wed, Feb 26, 2014 at 11:28 AM, Hillel Y. Levin hillelle...@gmail.com wrote: Chip: Thanks for the cite! I will take a look. And just so I understand: are you asserting that none have adopted the broader exceptions (wedding vendors, etc)? On Wed, Feb 26, 2014 at 11:23 AM, Ira Lupu icl...@law.gwu.edu wrote: Hillel: The same sex marriage laws to which you refer do have exceptions, for clergy, houses of worship, and (sometimes) for religious charities and social services. Bob Tuttle and I analyze and collect some of that here: http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1055context=njlsp. There is plenty of other literature on the subject. What has happened in other states since we wrote that piece is quite consistent with the pattern we described. These laws do NOT contain exceptions for wedding vendors (bakers, caterers, etc.) or public employees like marriage license clerks. Those are the efforts that have failed, over and over. Chip (not Ira, please) On Wed, Feb 26, 2014 at 11:13 AM, Hillel Y. Levin hillelle...@gmail.com wrote: Ira: You say that these bills have failed over and over again. If I'm not mistaken, several states that recognize same-sex marriage and/or have non-discrimination laws protecting gays and lesbians do have religious exceptions (as does the ENDA that passed the senate not long ago, only to die in the House). Am I mistaken? Do you (or anyone else here!) know of any literature that canvasses the laws in this context? Many thanks. ___ 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
Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses
Doug: What do you mean by the following: Apart from marriage, there is no reason to have religious exemptions for businesses from laws on sexual-orientation discrimination. There certainly are some religious people (I don't agree with them, but I could give you their names and numbers) who would find it religiously problematic to provide certain services to same-sex couples, including, for example, renting them an apartment. Why is there no reason to accommodate such people if you *would* accommodate the wedding photographer? Am I misunderstanding you? On Wed, Feb 26, 2014 at 2:22 PM, Douglas Laycock dlayc...@virginia.eduwrote: Many state laws on sexual-orientation discrimination, and most laws on same-sex marriage, have exemptions for religious organizations. Some are broad; some are narrow. Some are well drafted; some are a mess. But they are mostly there. Apart from marriage, there is no reason to have religious exemptions for businesses from laws on sexual-orientation discrimination. No one in the groups I have been part of has ever suggested such exemptions. Not even the Kansas bill provides such exemptions. Chip is correct that no state has explicitly exempted small businesses in the wedding industry, or in marriage counseling, from its same-sex marriage legislation. All those laws so far have been in blue states. The absurd overreach in the Kansas bill, and the resulting political reaction to the radically different Arizona bill, and some bills caught in the fire elsewhere with less publicity, may indicate that such exemptions will be hard to enact even in red states. Or maybe not, if someone offers a well drafted, narrowly targeted bill when or after same-sex marriage becomes the law in those states. I agree with Alan Brownstein that part of the problem in red states is that they want to protect religious conservatives without protecting gays and lesbians. Not only does Arizona not have same-sex marriage; it doesn't have a law on sexual-orientation discrimination. The blue states are mostly the mirror image. More and more they want to protect gays and lesbians but not religious conservatives. Hardly any political actors appear to be interested in protecting the liberty of both sides. 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 *Ira Lupu *Sent:* Wednesday, February 26, 2014 11:34 AM *To:* Law Religion issues for Law Academics *Subject:* Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses That is my understanding, Hillel. If Doug, Rick, Tom, or others know of counterexamples, I'm sure they will bring them forward to the list. On Wed, Feb 26, 2014 at 11:28 AM, Hillel Y. Levin hillelle...@gmail.com wrote: Chip: Thanks for the cite! I will take a look. And just so I understand: are you asserting that *none* have adopted the broader exceptions (wedding vendors, etc)? On Wed, Feb 26, 2014 at 11:23 AM, Ira Lupu icl...@law.gwu.edu wrote: Hillel: The same sex marriage laws to which you refer do have exceptions, for clergy, houses of worship, and (sometimes) for religious charities and social services. Bob Tuttle and I analyze and collect some of that here: http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1055context=njlsp. There is plenty of other literature on the subject. What has happened in other states since we wrote that piece is quite consistent with the pattern we described. These laws do NOT contain exceptions for wedding vendors (bakers, caterers, etc.) or public employees like marriage license clerks. Those are the efforts that have failed, over and over. Chip (not Ira, please) On Wed, Feb 26, 2014 at 11:13 AM, Hillel Y. Levin hillelle...@gmail.com wrote: Ira: You say that these bills have failed over and over again. If I'm not mistaken, several states that recognize same-sex marriage and/or have non-discrimination laws protecting gays and lesbians *do* have religious exceptions (as does the ENDA that passed the senate not long ago, only to die in the House). Am I mistaken? Do you (or anyone else here!) know of any literature that canvasses the laws in this context? Many thanks. ___ 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. -- Hillel Y. Levin Associate Professor
RE: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses
It would protect only very small businesses that are personal extensions of the owner, and where the owner must necessarily be involved in providing the services. We have suggested five or fewer employees as a workable rule that is in the right range. And it would have a hardship exception for local monopolies; ir you’re the only wedding planner in the area, you have to do same-sex weddings too. So it would guarantee that same-sex couples get the goods and services they need. It would not enable that couple to demand those services from the merchant who thinks that what they’re doing is seriously evil. They don’t want personal services from that guy anyway. They want that guy to change his religious views or to go out of business. 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 hamilto...@aol.com Sent: Wednesday, February 26, 2014 2:32 PM To: religionlaw@lists.ucla.edu Subject: Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses Doug--What does such an exemption look like if it is available to anyone other than clergy or a house of worship? Or is that limitation what makes it reasonable? I take it that the Arizona law does not fit your well-drafted notion? well drafted, narrowly targeted bill when or after same-sex marriage becomes the law in those states. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.com/ http://sol-reform.com https://www.facebook.com/professormarciahamilton?fref=ts https://twitter.com/marci_hamilton -Original Message- From: Douglas Laycock mailto:dlayc...@virginia.edu dlayc...@virginia.edu To: 'Law Religion issues for Law Academics' mailto:religionlaw@lists.ucla.edu religionlaw@lists.ucla.edu Sent: Wed, Feb 26, 2014 2:24 pm Subject: RE: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses Many state laws on sexual-orientation discrimination, and most laws on same-sex marriage, have exemptions for religious organizations. Some are broad; some are narrow. Some are well drafted; some are a mess. But they are mostly there. Apart from marriage, there is no reason to have religious exemptions for businesses from laws on sexual-orientation discrimination. No one in the groups I have been part of has ever suggested such exemptions. Not even the Kansas bill provides such exemptions. Chip is correct that no state has explicitly exempted small businesses in the wedding industry, or in marriage counseling, from its same-sex marriage legislation. All those laws so far have been in blue states. The absurd overreach in the Kansas bill, and the resulting political reaction to the radically different Arizona bill, and some bills caught in the fire elsewhere with less publicity, may indicate that such exemptions will be hard to enact even in red states. Or maybe not, if someone offers a well drafted, narrowly targeted bill when or after same-sex marriage becomes the law in those states. I agree with Alan Brownstein that part of the problem in red states is that they want to protect religious conservatives without protecting gays and lesbians. Not only does Arizona not have same-sex marriage; it doesn’t have a law on sexual-orientation discrimination. The blue states are mostly the mirror image. More and more they want to protect gays and lesbians but not religious conservatives. Hardly any political actors appear to be interested in protecting the liberty of both sides. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: mailto:religionlaw-boun...@lists.ucla.edu religionlaw-boun...@lists.ucla.edu [ mailto:religionlaw-boun...@lists.ucla.edu? mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu Sent: Wednesday, February 26, 2014 11:34 AM To: Law Religion issues for Law Academics Subject: Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses That is my understanding, Hillel. If Doug, Rick, Tom, or others know of counterexamples, I'm sure they will bring them forward to the list. On Wed, Feb 26, 2014 at 11:28 AM, Hillel Y. Levin mailto:hillelle...@gmail.com hillelle...@gmail.com wrote: Chip: Thanks for the cite! I will take a look. And just so I understand: are you asserting that none have adopted the broader exceptions (wedding vendors, etc)? On Wed, Feb 26, 2014 at 11:23 AM, Ira Lupu mailto:icl...@law.gwu.edu icl...@law.gwu.edu wrote: Hillel: The same sex marriage laws to which you refer do have exceptions, for clergy, houses
RE: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses
There certainly is reason to give particular protection to people with regard to First Amendment expression, such as the creation of celebratory art by wedding photographers. That is not an accommodation given as a matter of legislative grace, at least not under any sensible approach to the First Amendment. It is a separate question whether others' religious conscience should be protected by accommodations under the regime created by Employment Division v. Smith. Mark Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Hillel Y. Levin Sent: Wednesday, February 26, 2014 11:49 AM To: Law Religion issues for Law Academics Subject: Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses Doug: What do you mean by the following: Apart from marriage, there is no reason to have religious exemptions for businesses from laws on sexual-orientation discrimination. There certainly are some religious people (I don't agree with them, but I could give you their names and numbers) who would find it religiously problematic to provide certain services to same-sex couples, including, for example, renting them an apartment. Why is there no reason to accommodate such people if you would accommodate the wedding photographer? Am I misunderstanding you? On Wed, Feb 26, 2014 at 2:22 PM, Douglas Laycock dlayc...@virginia.edumailto:dlayc...@virginia.edu wrote: Many state laws on sexual-orientation discrimination, and most laws on same-sex marriage, have exemptions for religious organizations. Some are broad; some are narrow. Some are well drafted; some are a mess. But they are mostly there. Apart from marriage, there is no reason to have religious exemptions for businesses from laws on sexual-orientation discrimination. No one in the groups I have been part of has ever suggested such exemptions. Not even the Kansas bill provides such exemptions. Chip is correct that no state has explicitly exempted small businesses in the wedding industry, or in marriage counseling, from its same-sex marriage legislation. All those laws so far have been in blue states. The absurd overreach in the Kansas bill, and the resulting political reaction to the radically different Arizona bill, and some bills caught in the fire elsewhere with less publicity, may indicate that such exemptions will be hard to enact even in red states. Or maybe not, if someone offers a well drafted, narrowly targeted bill when or after same-sex marriage becomes the law in those states. I agree with Alan Brownstein that part of the problem in red states is that they want to protect religious conservatives without protecting gays and lesbians. Not only does Arizona not have same-sex marriage; it doesn't have a law on sexual-orientation discrimination. The blue states are mostly the mirror image. More and more they want to protect gays and lesbians but not religious conservatives. Hardly any political actors appear to be interested in protecting the liberty of both sides. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546tel:434-243-8546 From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu Sent: Wednesday, February 26, 2014 11:34 AM To: Law Religion issues for Law Academics Subject: Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses That is my understanding, Hillel. If Doug, Rick, Tom, or others know of counterexamples, I'm sure they will bring them forward to the list. On Wed, Feb 26, 2014 at 11:28 AM, Hillel Y. Levin hillelle...@gmail.commailto:hillelle...@gmail.com wrote: Chip: Thanks for the cite! I will take a look. And just so I understand: are you asserting that none have adopted the broader exceptions (wedding vendors, etc)? On Wed, Feb 26, 2014 at 11:23 AM, Ira Lupu icl...@law.gwu.edumailto:icl...@law.gwu.edu wrote: Hillel: The same sex marriage laws to which you refer do have exceptions, for clergy, houses of worship, and (sometimes) for religious charities and social services. Bob Tuttle and I analyze and collect some of that here: http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1055context=njlsp. There is plenty of other literature on the subject. What has happened in other states since we wrote that piece is quite consistent with the pattern we described. These laws do NOT contain exceptions for wedding vendors (bakers, caterers, etc.) or public employees like marriage license clerks. Those are the efforts that have failed, over and over. Chip (not Ira, please) On Wed, Feb 26, 2014 at 11:13 AM, Hillel Y. Levin hillelle...@gmail.commailto:hillelle...@gmail.com wrote: Ira
Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses
Since I've already accidentally intruded on this conversation (Hello everyone), why are you looking at a count of employees rather than whether the business entity is closely held, which would also go to the Walmart objection. In my experience, small business owners operate as if their legal entities are an extension of their personalities, regardless of the number of employees. -Kevin Chen, Esq. On Wed, Feb 26, 2014 at 2:54 PM, Douglas Laycock dlayc...@virginia.eduwrote: It would protect only very small businesses that are personal extensions of the owner, and where the owner must necessarily be involved in providing the services. We have suggested five or fewer employees as a workable rule that is in the right range. And it would have a hardship exception for local monopolies; ir you're the only wedding planner in the area, you have to do same-sex weddings too. So it would guarantee that same-sex couples get the goods and services they need. It would not enable that couple to demand those services from the merchant who thinks that what they're doing is seriously evil. They don't want personal services from that guy anyway. They want that guy to change his religious views or to go out of business. 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 *hamilto...@aol.com *Sent:* Wednesday, February 26, 2014 2:32 PM *To:* religionlaw@lists.ucla.edu *Subject:* Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses Doug--What does such an exemption look like if it is available to anyone other than clergy or a house of worship? Or is that limitation what makes it reasonable? I take it that the Arizona law does not fit your well-drafted notion? well drafted, narrowly targeted bill when or after same-sex marriage becomes the law in those states. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.com [image: http://sol-reform.com/fb.png]https://www.facebook.com/professormarciahamilton?fref=ts [image: http://www.sol-reform.com/tw.png]https://twitter.com/marci_hamilton -Original Message- From: Douglas Laycock dlayc...@virginia.edu To: 'Law Religion issues for Law Academics' religionlaw@lists.ucla.edu Sent: Wed, Feb 26, 2014 2:24 pm Subject: RE: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses Many state laws on sexual-orientation discrimination, and most laws on same-sex marriage, have exemptions for religious organizations. Some are broad; some are narrow. Some are well drafted; some are a mess. But they are mostly there. Apart from marriage, there is no reason to have religious exemptions for businesses from laws on sexual-orientation discrimination. No one in the groups I have been part of has ever suggested such exemptions. Not even the Kansas bill provides such exemptions. Chip is correct that no state has explicitly exempted small businesses in the wedding industry, or in marriage counseling, from its same-sex marriage legislation. All those laws so far have been in blue states. The absurd overreach in the Kansas bill, and the resulting political reaction to the radically different Arizona bill, and some bills caught in the fire elsewhere with less publicity, may indicate that such exemptions will be hard to enact even in red states. Or maybe not, if someone offers a well drafted, narrowly targeted bill when or after same-sex marriage becomes the law in those states. I agree with Alan Brownstein that part of the problem in red states is that they want to protect religious conservatives without protecting gays and lesbians. Not only does Arizona not have same-sex marriage; it doesn't have a law on sexual-orientation discrimination. The blue states are mostly the mirror image. More and more they want to protect gays and lesbians but not religious conservatives. Hardly any political actors appear to be interested in protecting the liberty of both sides. 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.edureligionlaw-boun...@lists.ucla.edu?] *On Behalf Of *Ira Lupu *Sent:* Wednesday, February 26, 2014 11:34 AM *To:* Law Religion issues for Law Academics *Subject:* Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses That is my understanding, Hillel. If Doug, Rick, Tom, or others know of counterexamples, I'm sure they will bring them forward to the list. On Wed, Feb 26, 2014
Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses
Mark: I don't accept your account of wedding cake designers. As you surely know, to qualify as expressive conduct, conduct must be both intended to convey a particular message and to be interpreted by the community in such a manner. I don't know why anyone would assume that baking a nice cake for money amounts to a message of support for a gay marriage. It isn't quite as articulate as burning a flag. Further, this is commercial speech that we are talking about, which also gets lesser protection. And if it is expressive conduct, I don't see why the same theory shouldn't extend to renting an apartment to a same-sex couple (or single mother). I assume that renting an apartment expresses the same thing as baking and decorating a cake. To me, neither one of them expresses anything, but if either one does, then they both do. On Wed, Feb 26, 2014 at 2:59 PM, Scarberry, Mark mark.scarbe...@pepperdine.edu wrote: There certainly is reason to give particular protection to people with regard to First Amendment expression, such as the creation of celebratory art by wedding photographers. That is not an accommodation given as a matter of legislative grace, at least not under any sensible approach to the First Amendment. It is a separate question whether others' religious conscience should be protected by accommodations under the regime created by Employment Division v. Smith. Mark Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Hillel Y. Levin *Sent:* Wednesday, February 26, 2014 11:49 AM *To:* Law Religion issues for Law Academics *Subject:* Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses Doug: What do you mean by the following: Apart from marriage, there is no reason to have religious exemptions for businesses from laws on sexual-orientation discrimination. There certainly are some religious people (I don't agree with them, but I could give you their names and numbers) who would find it religiously problematic to provide certain services to same-sex couples, including, for example, renting them an apartment. Why is there no reason to accommodate such people if you *would* accommodate the wedding photographer? Am I misunderstanding you? On Wed, Feb 26, 2014 at 2:22 PM, Douglas Laycock dlayc...@virginia.edu wrote: Many state laws on sexual-orientation discrimination, and most laws on same-sex marriage, have exemptions for religious organizations. Some are broad; some are narrow. Some are well drafted; some are a mess. But they are mostly there. Apart from marriage, there is no reason to have religious exemptions for businesses from laws on sexual-orientation discrimination. No one in the groups I have been part of has ever suggested such exemptions. Not even the Kansas bill provides such exemptions. Chip is correct that no state has explicitly exempted small businesses in the wedding industry, or in marriage counseling, from its same-sex marriage legislation. All those laws so far have been in blue states. The absurd overreach in the Kansas bill, and the resulting political reaction to the radically different Arizona bill, and some bills caught in the fire elsewhere with less publicity, may indicate that such exemptions will be hard to enact even in red states. Or maybe not, if someone offers a well drafted, narrowly targeted bill when or after same-sex marriage becomes the law in those states. I agree with Alan Brownstein that part of the problem in red states is that they want to protect religious conservatives without protecting gays and lesbians. Not only does Arizona not have same-sex marriage; it doesn't have a law on sexual-orientation discrimination. The blue states are mostly the mirror image. More and more they want to protect gays and lesbians but not religious conservatives. Hardly any political actors appear to be interested in protecting the liberty of both sides. 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 *Ira Lupu *Sent:* Wednesday, February 26, 2014 11:34 AM *To:* Law Religion issues for Law Academics *Subject:* Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses That is my understanding, Hillel. If Doug, Rick, Tom, or others know of counterexamples, I'm sure they will bring them forward to the list. On Wed, Feb 26, 2014 at 11:28 AM, Hillel Y. Levin hillelle...@gmail.com wrote: Chip: Thanks for the cite! I will take a look. And just so I understand: are you asserting that *none* have adopted the broader exceptions (wedding vendors, etc)? On Wed, Feb 26, 2014 at 11:23
Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses
Would you suggest this if it were based on race rather than homosexuality? If the wedding photographer thinks what the couple is doing, as in getting married under the state's duly enacted laws, is seriously evil, he needs to change jobs. Become a school photographer, though I suppose then he would object to taking pictures of children from same-sex families. I get the clergy and house of worship exemption. I don't get the business exemption. As Chip has said, these compromise exemptions have gone nowhere, and in this environment, I would wager that they won't. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.com -Original Message- From: Douglas Laycock dlayc...@virginia.edu To: 'Law Religion issues for Law Academics' religionlaw@lists.ucla.edu Sent: Wed, Feb 26, 2014 2:56 pm Subject: RE: Subject: Re: Kansas/Arizona statutes protectingfor-profit businesses It would protect only very small businesses that are personal extensions of the owner, and where the owner must necessarily be involved in providing the services. We have suggested five or fewer employees as a workable rule that is in the right range. And it would have a hardship exception for local monopolies; ir you’re the only wedding planner in the area, you have to do same-sex weddings too. So it would guarantee that same-sex couples get the goods and services they need. It would not enable that couple to demand those services from the merchant who thinks that what they’re doing is seriously evil. They don’t want personal services from that guy anyway. They want that guy to change his religious views or to go out of business. 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 hamilto...@aol.com Sent: Wednesday, February 26, 2014 2:32 PM To: religionlaw@lists.ucla.edu Subject: Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses Doug--What does such an exemption look like if it is available to anyone other than clergy or a house of worship? Or is that limitation what makes it reasonable? I take it that the Arizona law does not fit your well-drafted notion? well drafted, narrowly targeted bill when or after same-sex marriage becomes the law in those states. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.com -Original Message- From: Douglas Laycock dlayc...@virginia.edu To: 'Law Religion issues for Law Academics' religionlaw@lists.ucla.edu Sent: Wed, Feb 26, 2014 2:24 pm Subject: RE: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses Many state laws on sexual-orientation discrimination, and most laws on same-sex marriage, have exemptions for religious organizations. Some are broad; some are narrow. Some are well drafted; some are a mess. But they are mostly there. Apart from marriage, there is no reason to have religious exemptions for businesses from laws on sexual-orientation discrimination. No one in the groups I have been part of has ever suggested such exemptions. Not even the Kansas bill provides such exemptions. Chip is correct that no state has explicitly exempted small businesses in the wedding industry, or in marriage counseling, from its same-sex marriage legislation. All those laws so far have been in blue states. The absurd overreach in the Kansas bill, and the resulting political reaction to the radically different Arizona bill, and some bills caught in the fire elsewhere with less publicity, may indicate that such exemptions will be hard to enact even in red states. Or maybe not, if someone offers a well drafted, narrowly targeted bill when or after same-sex marriage becomes the law in those states. I agree with Alan Brownstein that part of the problem in red states is that they want to protect religious conservatives without protecting gays and lesbians. Not only does Arizona not have same-sex marriage; it doesn’t have a law on sexual-orientation discrimination. The blue states are mostly the mirror image. More and more they want to protect gays and lesbians but not religious conservatives. Hardly any political actors appear to be interested in protecting the liberty of both sides. 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 Ira Lupu Sent: Wednesday, February 26, 2014 11:34
RE: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses
There are very few people who object on religious grounds to selling ordinary goods and services to gays. The sincerity of any such claim is obviously suspect; some of them may be sincere but many of them probably are not. It does not support anyone's gay sexual relationships to sell them groceries or hardware, or to mow their lawn or repair their plumbing. And as the breadth of any claimed exemption expands, the government's claim of compelling interest expands with it. Some landlords view renting the apartment as directly supporting the marriage-like sexual relationship. As one casebook points, out, the landlord supplies the bedroom. Many of these people are clearly sincere. I would protect the very small landlords. And by the way, the law does hold landlords responsible for how tenants use their premises. If your tenant creates a nuisance, or violates the zoning laws, or runs a drug den or a house of prostitution, the property is at risk and the landlord is on the hook in many states. It is not so odd for these small landlords to feel morally responsible for what they allow on their property. 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 Hillel Y. Levin Sent: Wednesday, February 26, 2014 2:49 PM To: Law Religion issues for Law Academics Subject: Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses Doug: What do you mean by the following: Apart from marriage, there is no reason to have religious exemptions for businesses from laws on sexual-orientation discrimination. There certainly are some religious people (I don't agree with them, but I could give you their names and numbers) who would find it religiously problematic to provide certain services to same-sex couples, including, for example, renting them an apartment. Why is there no reason to accommodate such people if you would accommodate the wedding photographer? Am I misunderstanding you? On Wed, Feb 26, 2014 at 2:22 PM, Douglas Laycock dlayc...@virginia.edu mailto:dlayc...@virginia.edu wrote: Many state laws on sexual-orientation discrimination, and most laws on same-sex marriage, have exemptions for religious organizations. Some are broad; some are narrow. Some are well drafted; some are a mess. But they are mostly there. Apart from marriage, there is no reason to have religious exemptions for businesses from laws on sexual-orientation discrimination. No one in the groups I have been part of has ever suggested such exemptions. Not even the Kansas bill provides such exemptions. Chip is correct that no state has explicitly exempted small businesses in the wedding industry, or in marriage counseling, from its same-sex marriage legislation. All those laws so far have been in blue states. The absurd overreach in the Kansas bill, and the resulting political reaction to the radically different Arizona bill, and some bills caught in the fire elsewhere with less publicity, may indicate that such exemptions will be hard to enact even in red states. Or maybe not, if someone offers a well drafted, narrowly targeted bill when or after same-sex marriage becomes the law in those states. I agree with Alan Brownstein that part of the problem in red states is that they want to protect religious conservatives without protecting gays and lesbians. Not only does Arizona not have same-sex marriage; it doesn't have a law on sexual-orientation discrimination. The blue states are mostly the mirror image. More and more they want to protect gays and lesbians but not religious conservatives. Hardly any political actors appear to be interested in protecting the liberty of both sides. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 tel:434-243-8546 434-243-8546 From: mailto:religionlaw-boun...@lists.ucla.edu religionlaw-boun...@lists.ucla.edu [mailto: mailto:religionlaw-boun...@lists.ucla.edu religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu Sent: Wednesday, February 26, 2014 11:34 AM To: Law Religion issues for Law Academics Subject: Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses That is my understanding, Hillel. If Doug, Rick, Tom, or others know of counterexamples, I'm sure they will bring them forward to the list. On Wed, Feb 26, 2014 at 11:28 AM, Hillel Y. Levin hillelle...@gmail.com mailto:hillelle...@gmail.com wrote: Chip: Thanks for the cite! I will take a look. And just so I understand: are you asserting that none have adopted the broader exceptions (wedding vendors, etc)? On Wed, Feb 26, 2014 at 11:23 AM, Ira Lupu icl...@law.gwu.edu mailto:icl...@law.gwu.edu wrote: Hillel: The same sex marriage laws
RE: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses
I believe my post dealt with creation of celebratory art by wedding photographers, not bakers. More later but this isn't commercial speech. Getting paid for expression (novelists? newspaper publishers?) doesn't make speech commercial. Speech proposing a commercial transaction is commercial speech. Mark Scarberry Sent from my Verizon Wireless 4G LTE Smartphone Original message From: Hillel Y. Levin Date:02/26/2014 12:18 PM (GMT-08:00) To: Law Religion issues for Law Academics Subject: Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses Mark: I don't accept your account of wedding cake designers. As you surely know, to qualify as expressive conduct, conduct must be both intended to convey a particular message and to be interpreted by the community in such a manner. I don't know why anyone would assume that baking a nice cake for money amounts to a message of support for a gay marriage. It isn't quite as articulate as burning a flag. Further, this is commercial speech that we are talking about, which also gets lesser protection. And if it is expressive conduct, I don't see why the same theory shouldn't extend to renting an apartment to a same-sex couple (or single mother). I assume that renting an apartment expresses the same thing as baking and decorating a cake. To me, neither one of them expresses anything, but if either one does, then they both do. On Wed, Feb 26, 2014 at 2:59 PM, Scarberry, Mark mark.scarbe...@pepperdine.edumailto:mark.scarbe...@pepperdine.edu wrote: There certainly is reason to give particular protection to people with regard to First Amendment expression, such as the creation of celebratory art by wedding photographers. That is not an “accommodation” given as a matter of legislative grace, at least not under any sensible approach to the First Amendment. It is a separate question whether others’ religious conscience should be protected by “accommodations” under the regime created by Employment Division v. Smith. Mark Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Hillel Y. Levin Sent: Wednesday, February 26, 2014 11:49 AM To: Law Religion issues for Law Academics Subject: Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses Doug: What do you mean by the following: Apart from marriage, there is no reason to have religious exemptions for businesses from laws on sexual-orientation discrimination. There certainly are some religious people (I don't agree with them, but I could give you their names and numbers) who would find it religiously problematic to provide certain services to same-sex couples, including, for example, renting them an apartment. Why is there no reason to accommodate such people if you would accommodate the wedding photographer? Am I misunderstanding you? On Wed, Feb 26, 2014 at 2:22 PM, Douglas Laycock dlayc...@virginia.edumailto:dlayc...@virginia.edu wrote: Many state laws on sexual-orientation discrimination, and most laws on same-sex marriage, have exemptions for religious organizations. Some are broad; some are narrow. Some are well drafted; some are a mess. But they are mostly there. Apart from marriage, there is no reason to have religious exemptions for businesses from laws on sexual-orientation discrimination. No one in the groups I have been part of has ever suggested such exemptions. Not even the Kansas bill provides such exemptions. Chip is correct that no state has explicitly exempted small businesses in the wedding industry, or in marriage counseling, from its same-sex marriage legislation. All those laws so far have been in blue states. The absurd overreach in the Kansas bill, and the resulting political reaction to the radically different Arizona bill, and some bills caught in the fire elsewhere with less publicity, may indicate that such exemptions will be hard to enact even in red states. Or maybe not, if someone offers a well drafted, narrowly targeted bill when or after same-sex marriage becomes the law in those states. I agree with Alan Brownstein that part of the problem in red states is that they want to protect religious conservatives without protecting gays and lesbians. Not only does Arizona not have same-sex marriage; it doesn’t have a law on sexual-orientation discrimination. The blue states are mostly the mirror image. More and more they want to protect gays and lesbians but not religious conservatives. Hardly any political actors appear to be interested in protecting the liberty of both sides. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546tel:434-243-8546 From: religionlaw-boun
RE: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses
“He needs to change jobs.” As I said, what you really want is for these people to go out of business. Barring religious minorities from professions is a very traditional form of religious persecution. Reviving it here is not the solution to these disagreements over conscience. I think that race is constitutionally unique. And it is clear that in the comparable period with race discrimination laws, resistance was so geographically concentrated, and so widespread within those locations, that exemptions would have defeated the purpose of the law. The government would have had a compelling interest in refusing religious exemptions. I see no reason to think that we are in anything like that situation with respect to gay rights today. If it turns out that we are, then there will be a compelling interest. And under the legislative proposals we have offered, if all the wedding planners in a community refuse to do gay weddings, then all of them lose their exemption. 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 hamilto...@aol.com Sent: Wednesday, February 26, 2014 3:19 PM To: religionlaw@lists.ucla.edu Subject: Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses Would you suggest this if it were based on race rather than homosexuality? If the wedding photographer thinks what the couple is doing, as in getting married under the state's duly enacted laws, is seriously evil, he needs to change jobs. Become a school photographer, though I suppose then he would object to taking pictures of children from same-sex families. I get the clergy and house of worship exemption. I don't get the business exemption. As Chip has said, these compromise exemptions have gone nowhere, and in this environment, I would wager that they won't. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.com http://sol-reform.com/ https://www.facebook.com/professormarciahamilton?fref=ts https://twitter.com/marci_hamilton -Original Message- From: Douglas Laycock dlayc...@virginia.edu mailto:dlayc...@virginia.edu To: 'Law Religion issues for Law Academics' religionlaw@lists.ucla.edu mailto:religionlaw@lists.ucla.edu Sent: Wed, Feb 26, 2014 2:56 pm Subject: RE: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses It would protect only very small businesses that are personal extensions of the owner, and where the owner must necessarily be involved in providing the services. We have suggested five or fewer employees as a workable rule that is in the right range. And it would have a hardship exception for local monopolies; ir you’re the only wedding planner in the area, you have to do same-sex weddings too. So it would guarantee that same-sex couples get the goods and services they need. It would not enable that couple to demand those services from the merchant who thinks that what they’re doing is seriously evil. They don’t want personal services from that guy anyway. They want that guy to change his religious views or to go out of business. 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 [mailto:religionlaw-boun...@lists.ucla.edu mailto:religionlaw-boun...@lists.ucla.edu? ] On Behalf Of hamilto...@aol.com mailto:hamilto...@aol.com Sent: Wednesday, February 26, 2014 2:32 PM To: religionlaw@lists.ucla.edu mailto:religionlaw@lists.ucla.edu Subject: Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses Doug--What does such an exemption look like if it is available to anyone other than clergy or a house of worship? Or is that limitation what makes it reasonable? I take it that the Arizona law does not fit your well-drafted notion? well drafted, narrowly targeted bill when or after same-sex marriage becomes the law in those states. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.com http://sol-reform.com/ https://www.facebook.com/professormarciahamilton?fref=ts https://twitter.com/marci_hamilton -Original Message- From: Douglas Laycock dlayc...@virginia.edu mailto:dlayc...@virginia.edu To: 'Law Religion issues for Law Academics' religionlaw@lists.ucla.edu mailto:religionlaw@lists.ucla.edu Sent: Wed, Feb 26, 2014 2:24 pm Subject: RE: Subject: Re: Kansas/Arizona statutes
Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses
I don't have any desire for them to go out of business, but if they are going to be in business, they need to operate in the marketplace without discrimination. If the business they have chosen does not fit their belief, they need to adjust, or move on. No one is barring religious minorities from professions. What is being suggested is that believers cannot shape the business world and customers to fit their prejudices. The insidious notion that believers have a right not to adjust to the law is the most damaging element of the RFRA movement, not just to those harmed by it, but by the believers who are permitted to avoid dealing with the changes that increase human rights, and demand their consideration and accommodation. Believers have enthusiastically supported the subjugation of blacks, women, children, and homosexuals.Not requiring them to adjust when what they are doing is a violation of human rights is a disservice to all. It is an understanding of religion removed from history, which is false. The ship has sailed on distinguishing homophobic discrimination and race discrimination. Even if the compelling interest test can be overcome (assuming we are dealing with balancing and not an absolute right), the least restrictive means test remains, and that is the element that drives cases in favor of the religious actor and against those they burden and harm. Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.com -Original Message- From: Douglas Laycock dlayc...@virginia.edu To: 'Law Religion issues for Law Academics' religionlaw@lists.ucla.edu Sent: Wed, Feb 26, 2014 3:31 pm Subject: RE: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses “He needs to change jobs.” As I said, what you really want is for these people to go out of business. Barring religious minorities from professions is a very traditional form of religious persecution. Reviving it here is not the solution to these disagreements over conscience. I think that race is constitutionally unique. And it is clear that in the comparable period with race discrimination laws, resistance was so geographically concentrated, and so widespread within those locations, that exemptions would have defeated the purpose of the law. The government would have had a compelling interest in refusing religious exemptions. I see no reason to think that we are in anything like that situation with respect to gay rights today. If it turns out that we are, then there will be a compelling interest. And under the legislative proposals we have offered, if all the wedding planners in a community refuse to do gay weddings, then all of them lose their exemption. 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 hamilto...@aol.com Sent: Wednesday, February 26, 2014 3:19 PM To: religionlaw@lists.ucla.edu Subject: Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses Would you suggest this if it were based on race rather than homosexuality? If the wedding photographer thinks what the couple is doing, as in getting married under the state's duly enacted laws, is seriously evil, he needs to change jobs. Become a school photographer, though I suppose then he would object to taking pictures of children from same-sex families. I get the clergy and house of worship exemption. I don't get the business exemption. As Chip has said, these compromise exemptions have gone nowhere, and in this environment, I would wager that they won't. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.com -Original Message- From: Douglas Laycock dlayc...@virginia.edu To: 'Law Religion issues for Law Academics' religionlaw@lists.ucla.edu Sent: Wed, Feb 26, 2014 2:56 pm Subject: RE: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses It would protect only very small businesses that are personal extensions of the owner, and where the owner must necessarily be involved in providing the services. We have suggested five or fewer employees as a workable rule that is in the right range. And it would have a hardship exception for local monopolies; ir you’re the only wedding planner in the area, you have to do same-sex weddings too. So it would guarantee that same-sex couples get the goods and services they need. It would not enable that couple to demand those services from the merchant who thinks that what they’re doing is seriously evil
FW from Paul Salamanca: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses
From: Salamanca, Paul E Sent: Wednesday, February 26, 2014 3:28 PM To: 'Law Religion issues for Law Academics' Subject: RE: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses Dear friends, The Supreme Court has interpreted the First Amendment to do much more than protect articulable messages. I wonder if Professor Levin's argument, which appears to reflect Spence, takes into account such decisions as Hurley and Brown (the video-game case). Surely the First Amendment protects art, which doesn't necessarily have a clear message. What's the clear message of Beethoven's Fifth Symphony? Rothko? I think a fair argument can be made that the First Amendment protects such artistic endeavors as making a fancy cake and taking clever photographs, and I can see a plausible distinction between these forms of art and renting an apartment. Paul Salamanca University of Kentucky ___ 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: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses
Every sorry episode in the long American history of suppression of religious minorities has been justified by the undoubtedly sincere beliefs of the majority at the time that they are on the right side of history and that taking additional steps to force the minority to fall into line is merely to advance progress. More than a half century ago, the public demand for fealty to America in the face of external and internal threats of totalitarian ideologies imposed itself on religious communities who refused to engage in certain public displays of loyalty. Not too long ago, the War on Drugs was extended to prohibit ceremonial use of sacred substances. Quite recently, fears about terrorism have been used to adopt measures that target, profile, and denigrate persons of Muslim faith. And now an expansion of anti-discrimination laws to cover new categories of protected persons, to include new sectors of society, and to apply to new entities, has imposed itself with a heavy hand on certain traditionalist religious groups. In the past, we learned from mistakes in overreaching through policy and accepted accommodations to religious minorities that expanded freedom without substantially undermining key public policies. We need to search for that balance again. Vigilance in defense of religious liberty, especially when the majority is convinced of its righteousness (which is almost always), must be renewed in every generation. In sum, it is dangerous for anyone exercising political power to come too readily to the certain conclusion that they are not only absolutely correct about the right answer to every issue but absolutely entitled to use whatever means are possible to advance that right answer without any concern for the impact on those who sincerely disagree, with the presumption of every powerful elite that those who think otherwise should learn “to adjust.” To quote Learned Hand, as I did several days ago, “The Spirit of Liberty is the spirit that is not too sure that it is right.” Gregory Sisk Laghi Distinguished Chair in Law University of St. Thomas School of Law (Minnesota) MSL 400, 1000 LaSalle Avenue Minneapolis, MN 55403-2005 651-962-4923 gcs...@stthomas.edu http://personal.stthomas.edu/GCSISK/sisk.htmlhttp://personal2.stthomas.edu/GCSISK/sisk.html Publications: http://ssrn.com/author=44545 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com Sent: Wednesday, February 26, 2014 2:43 PM To: religionlaw@lists.ucla.edu Subject: Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses I don't have any desire for them to go out of business, but if they are going to be in business, they need to operate in the marketplace without discrimination. If the business they have chosen does not fit their belief, they need to adjust, or move on. No one is barring religious minorities from professions. What is being suggested is that believers cannot shape the business world and customers to fit their prejudices. The insidious notion that believers have a right not to adjust to the law is the most damaging element of the RFRA movement, not just to those harmed by it, but by the believers who are permitted to avoid dealing with the changes that increase human rights, and demand their consideration and accommodation. Believers have enthusiastically supported the subjugation of blacks, women, children, and homosexuals.Not requiring them to adjust when what they are doing is a violation of human rights is a disservice to all. It is an understanding of religion removed from history, which is false. The ship has sailed on distinguishing homophobic discrimination and race discrimination. Even if the compelling interest test can be overcome (assuming we are dealing with balancing and not an absolute right), the least restrictive means test remains, and that is the element that drives cases in favor of the religious actor and against those they burden and harm. Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.comhttp://sol-reform.com/ [Image removed by sender.]https://www.facebook.com/professormarciahamilton?fref=ts [Image removed by sender.] https://twitter.com/marci_hamilton -Original Message- From: Douglas Laycock dlayc...@virginia.edu To: 'Law Religion issues for Law Academics' religionlaw@lists.ucla.edu Sent: Wed, Feb 26, 2014 3:31 pm Subject: RE: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses “He needs to change jobs.” As I said, what you really want is for these people to go out of business. Barring religious minorities from professions is a very traditional form of religious persecution. Reviving it here is not the solution to these disagreements over conscience. I think that race is constitutionally unique
Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses
Prof. Laycock makes interesting points, as usual, but as to the mirror-image one: Arizona actually does have laws on sexual-orientation discrimination in employment. They're local laws, but they cover some 35% of Arizonans (i.e., around 2.3 million) in the cities of Phoenix, Tucson, Flagstaff, and Scottsdale. The pending Arizona bill would have an impact on such ordinances. In truth, of course, most if not all states are speckled rather than just red or blue. Bill Kelley, Chicago William B. Kelley Attorney at Law 2012 West Estes Avenue Chicago, Illinois 60645-2404 (773) 907-9266 w...@wbkelley.com On 2/26/2014 1:22 PM, Douglas Laycock wrote: Many state laws on sexual-orientation discrimination, and most laws on same-sex marriage, have exemptions for religious organizations. Some are broad; some are narrow. Some are well drafted; some are a mess. But they are mostly there. Apart from marriage, there is no reason to have religious exemptions for businesses from laws on sexual-orientation discrimination. No one in the groups I have been part of has ever suggested such exemptions. Not even the Kansas bill provides such exemptions. Chip is correct that no state has explicitly exempted small businesses in the wedding industry, or in marriage counseling, from its same-sex marriage legislation. All those laws so far have been in blue states. The absurd overreach in the Kansas bill, and the resulting political reaction to the radically different Arizona bill, and some bills caught in the fire elsewhere with less publicity, may indicate that such exemptions will be hard to enact even in red states. Or maybe not, if someone offers a well drafted, narrowly targeted bill when or after same-sex marriage becomes the law in those states. I agree with Alan Brownstein that part of the problem in red states is that they want to protect religious conservatives without protecting gays and lesbians. Not only does Arizona not have same-sex marriage; it doesn't have a law on sexual-orientation discrimination. The blue states are mostly the mirror image. More and more they want to protect gays and lesbians but not religious conservatives. Hardly any political actors appear to be interested in protecting the liberty of both sides. 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 *Ira Lupu *Sent:* Wednesday, February 26, 2014 11:34 AM *To:* Law Religion issues for Law Academics *Subject:* Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses That is my understanding, Hillel. If Doug, Rick, Tom, or others know of counterexamples, I'm sure they will bring them forward to the list. On Wed, Feb 26, 2014 at 11:28 AM, Hillel Y. Levin hillelle...@gmail.com mailto:hillelle...@gmail.com wrote: Chip: Thanks for the cite! I will take a look. And just so I understand: are you asserting that /none/ have adopted the broader exceptions (wedding vendors, etc)? On Wed, Feb 26, 2014 at 11:23 AM, Ira Lupu icl...@law.gwu.edu mailto:icl...@law.gwu.edu wrote: Hillel: The same sex marriage laws to which you refer do have exceptions, for clergy, houses of worship, and (sometimes) for religious charities and social services. Bob Tuttle and I analyze and collect some of that here: http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1055context=njlsp. There is plenty of other literature on the subject. What has happened in other states since we wrote that piece is quite consistent with the pattern we described. These laws do NOT contain exceptions for wedding vendors (bakers, caterers, etc.) or public employees like marriage license clerks. Those are the efforts that have failed, over and over. Chip (not Ira, please) On Wed, Feb 26, 2014 at 11:13 AM, Hillel Y. Levin hillelle...@gmail.com mailto:hillelle...@gmail.com wrote: Ira: You say that these bills have failed over and over again. If I'm not mistaken, several states that recognize same-sex marriage and/or have non-discrimination laws protecting gays and lesbians /do/ have religious exceptions (as does the ENDA that passed the senate not long ago, only to die in the House). Am I mistaken? Do you (or anyone else here!) know of any literature that canvasses the laws in this context? Many thanks. ___ 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
RE: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses
Glad to hear it. One more inaccurate fact from the press coverage here. 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 William B. Kelley Sent: Wednesday, February 26, 2014 4:22 PM To: Law Religion issues for Law Academics Subject: Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses Prof. Laycock makes interesting points, as usual, but as to the mirror-image one: Arizona actually does have laws on sexual-orientation discrimination in employment. They're local laws, but they cover some 35% of Arizonans (i.e., around 2.3 million) in the cities of Phoenix, Tucson, Flagstaff, and Scottsdale. The pending Arizona bill would have an impact on such ordinances. In truth, of course, most if not all states are speckled rather than just red or blue. Bill Kelley, Chicago William B. Kelley Attorney at Law 2012 West Estes Avenue Chicago, Illinois 60645-2404 (773) 907-9266 w...@wbkelley.com mailto:w...@wbkelley.com On 2/26/2014 1:22 PM, Douglas Laycock wrote: Many state laws on sexual-orientation discrimination, and most laws on same-sex marriage, have exemptions for religious organizations. Some are broad; some are narrow. Some are well drafted; some are a mess. But they are mostly there. Apart from marriage, there is no reason to have religious exemptions for businesses from laws on sexual-orientation discrimination. No one in the groups I have been part of has ever suggested such exemptions. Not even the Kansas bill provides such exemptions. Chip is correct that no state has explicitly exempted small businesses in the wedding industry, or in marriage counseling, from its same-sex marriage legislation. All those laws so far have been in blue states. The absurd overreach in the Kansas bill, and the resulting political reaction to the radically different Arizona bill, and some bills caught in the fire elsewhere with less publicity, may indicate that such exemptions will be hard to enact even in red states. Or maybe not, if someone offers a well drafted, narrowly targeted bill when or after same-sex marriage becomes the law in those states. I agree with Alan Brownstein that part of the problem in red states is that they want to protect religious conservatives without protecting gays and lesbians. Not only does Arizona not have same-sex marriage; it doesn't have a law on sexual-orientation discrimination. The blue states are mostly the mirror image. More and more they want to protect gays and lesbians but not religious conservatives. Hardly any political actors appear to be interested in protecting the liberty of both sides. 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 [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu Sent: Wednesday, February 26, 2014 11:34 AM To: Law Religion issues for Law Academics Subject: Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses That is my understanding, Hillel. If Doug, Rick, Tom, or others know of counterexamples, I'm sure they will bring them forward to the list. On Wed, Feb 26, 2014 at 11:28 AM, Hillel Y. Levin hillelle...@gmail.com mailto:hillelle...@gmail.com wrote: Chip: Thanks for the cite! I will take a look. And just so I understand: are you asserting that none have adopted the broader exceptions (wedding vendors, etc)? On Wed, Feb 26, 2014 at 11:23 AM, Ira Lupu icl...@law.gwu.edu mailto:icl...@law.gwu.edu wrote: Hillel: The same sex marriage laws to which you refer do have exceptions, for clergy, houses of worship, and (sometimes) for religious charities and social services. Bob Tuttle and I analyze and collect some of that here: http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=105 5 http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=10 55context=njlsp context=njlsp. There is plenty of other literature on the subject. What has happened in other states since we wrote that piece is quite consistent with the pattern we described. These laws do NOT contain exceptions for wedding vendors (bakers, caterers, etc.) or public employees like marriage license clerks. Those are the efforts that have failed, over and over. Chip (not Ira, please) On Wed, Feb 26, 2014 at 11:13 AM, Hillel Y. Levin hillelle...@gmail.com mailto:hillelle...@gmail.com wrote: Ira: You say that these bills have failed over and over again. If I'm not mistaken, several states that recognize same-sex marriage and/or have non-discrimination laws protecting gays and lesbians do have religious exceptions
Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses
The ship that has clearly sailed on this list is respect. That scholars and professional educators cannot refrain from calling their colleagues bigots for holding a position that the President of the United States himself held publicly (until being politically forced into evolving) less than two years ago is frankly insulting. The more one shouts bigot, though, the more one thinks there is no argument there. And of course innocent people are being harmed; ask the children who have gone unadopted because their prospective parents have been told they aren't worthy as parents because they are bigots. Richard Dougherty University of Dallas On Wed, Feb 26, 2014 at 3:00 PM, Douglas Laycock dlayc...@virginia.eduwrote: They need to adjust [which here clearly means give up their religious commitments] or move on. As I said. 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 *hamilto...@aol.com *Sent:* Wednesday, February 26, 2014 3:43 PM *To:* religionlaw@lists.ucla.edu *Subject:* Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses I don't have any desire for them to go out of business, but if they are going to be in business, they need to operate in the marketplace without discrimination. If the business they have chosen does not fit their belief, they need to adjust, or move on. No one is barring religious minorities from professions. What is being suggested is that believers cannot shape the business world and customers to fit their prejudices. The insidious notion that believers have a right not to adjust to the law is the most damaging element of the RFRA movement, not just to those harmed by it, but by the believers who are permitted to avoid dealing with the changes that increase human rights, and demand their consideration and accommodation. Believers have enthusiastically supported the subjugation of blacks, women, children, and homosexuals.Not requiring them to adjust when what they are doing is a violation of human rights is a disservice to all. It is an understanding of religion removed from history, which is false. The ship has sailed on distinguishing homophobic discrimination and race discrimination. Even if the compelling interest test can be overcome (assuming we are dealing with balancing and not an absolute right), the least restrictive means test remains, and that is the element that drives cases in favor of the religious actor and against those they burden and harm. ___ 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: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses
Assume neither bill becomes law. A wedding photographer hangs a sign in his shop saying SSM is immoral but state civil rights require us to photograph SSM ceremonies. A complaint of discrimination is filed. What result? Marc Stern From: Richard Dougherty [mailto:dou...@udallas.edu] Sent: Wednesday, February 26, 2014 06:51 PM To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Subject: Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses The ship that has clearly sailed on this list is respect. That scholars and professional educators cannot refrain from calling their colleagues bigots for holding a position that the President of the United States himself held publicly (until being politically forced into evolving) less than two years ago is frankly insulting. The more one shouts bigot, though, the more one thinks there is no argument there. And of course innocent people are being harmed; ask the children who have gone unadopted because their prospective parents have been told they aren't worthy as parents because they are bigots. Richard Dougherty University of Dallas On Wed, Feb 26, 2014 at 3:00 PM, Douglas Laycock dlayc...@virginia.edumailto:dlayc...@virginia.edu wrote: “They need to adjust [which here clearly means give up their religious commitments] or move on.” As I said. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546tel:434-243-8546 From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.commailto:hamilto...@aol.com Sent: Wednesday, February 26, 2014 3:43 PM To: religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Subject: Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses I don't have any desire for them to go out of business, but if they are going to be in business, they need to operate in the marketplace without discrimination. If the business they have chosen does not fit their belief, they need to adjust, or move on. No one is barring religious minorities from professions. What is being suggested is that believers cannot shape the business world and customers to fit their prejudices. The insidious notion that believers have a right not to adjust to the law is the most damaging element of the RFRA movement, not just to those harmed by it, but by the believers who are permitted to avoid dealing with the changes that increase human rights, and demand their consideration and accommodation. Believers have enthusiastically supported the subjugation of blacks, women, children, and homosexuals.Not requiring them to adjust when what they are doing is a violation of human rights is a disservice to all. It is an understanding of religion removed from history, which is false. The ship has sailed on distinguishing homophobic discrimination and race discrimination. Even if the compelling interest test can be overcome (assuming we are dealing with balancing and not an absolute right), the least restrictive means test remains, and that is the element that drives cases in favor of the religious actor and against those they burden and harm. ___ 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: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses
At least under the New Mexico Supreme Court’s analysis in Elane Photography, I believe the discrimination claim would be rejected. From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marc Stern Sent: Wednesday, February 26, 2014 4:20 PM To: religionlaw@lists.ucla.edu Subject: Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses Assume neither bill becomes law. A wedding photographer hangs a sign in his shop saying SSM is immoral but state civil rights require us to photograph SSM ceremonies. A complaint of discrimination is filed. What result? Marc Stern ___ 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: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses
Doesn't Runyon v. McRary's resolution of the freedom of association claim, understood to be derived from the first amendment's protection of the freedom of speech, suggest the answer? The photographer has a first amendment right of expression that would protect the display of the sign, but no affirmative constitutional right to engage in statutorily forbidden discrimination. Complaint dismissed. Mike Michael R. Masinter 3305 College Avenue Professor of Law Fort Lauderdale, FL 33314 Nova Southeastern University 954.262.6151 (voice) masin...@nova.edu954.262.3835 (fax) Quoting Marc Stern ste...@ajc.org: Assume neither bill becomes law. A wedding photographer hangs a sign in his shop saying SSM is immoral but state civil rights require us to photograph SSM ceremonies. A complaint of discrimination is filed. What result? Marc Stern From: Richard Dougherty [mailto:dou...@udallas.edu] Sent: Wednesday, February 26, 2014 06:51 PM To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Subject: Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses The ship that has clearly sailed on this list is respect. That scholars and professional educators cannot refrain from calling their colleagues bigots for holding a position that the President of the United States himself held publicly (until being politically forced into evolving) less than two years ago is frankly insulting. The more one shouts bigot, though, the more one thinks there is no argument there. And of course innocent people are being harmed; ask the children who have gone unadopted because their prospective parents have been told they aren't worthy as parents because they are bigots. Richard Dougherty University of Dallas On Wed, Feb 26, 2014 at 3:00 PM, Douglas Laycock dlayc...@virginia.edumailto:dlayc...@virginia.edu wrote: ?They need to adjust [which here clearly means give up their religious commitments] or move on.? As I said. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546tel:434-243-8546 From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.commailto:hamilto...@aol.com Sent: Wednesday, February 26, 2014 3:43 PM To: religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Subject: Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses I don't have any desire for them to go out of business, but if they are going to be in business, they need to operate in the marketplace without discrimination. If the business they have chosen does not fit their belief, they need to adjust, or move on. No one is barring religious minorities from professions. What is being suggested is that believers cannot shape the business world and customers to fit their prejudices. The insidious notion that believers have a right not to adjust to the law is the most damaging element of the RFRA movement, not just to those harmed by it, but by the believers who are permitted to avoid dealing with the changes that increase human rights, and demand their consideration and accommodation. Believers have enthusiastically supported the subjugation of blacks, women, children, and homosexuals.Not requiring them to adjust when what they are doing is a violation of human rights is a disservice to all. It is an understanding of religion removed from history, which is false. The ship has sailed on distinguishing homophobic discrimination and race discrimination. Even if the compelling interest test can be overcome (assuming we are dealing with balancing and not an absolute right), the least restrictive means test remains, and that is the element that drives cases in favor of the religious actor and against those they burden and harm. ___ 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: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses
List members who have not had the chance to read Tom and Doug’s brief in Windsor/Perry should do so. It is a powerful statement in support of same-sex couples right to marry while urging some accommodation of religious objectors who consider same-sex marriage to be unacceptable for religious reasons. One need not agree with the specific accommodations Tom and Doug endorse (and I don’t ) to recognize that they see great value in people being able to live their lives authentically and with integrity. Reading some of the posts in this thread, I am not sure that for some list members, there is any empathy for, or commitment to, religious people being able to be true to their identity, faith and conscience. Am I correct that some list members are arguing that religious identity, faith and conscience should be assigned no weight in balancing religious accommodations against majority preferences or the costs accommodations may impose on others. Are religious liberty and freedom of conscience political goods we will only support if they are entirely without cost? Let me be more specific. Not that long ago, some people in San Francisco considered placing on the ballot an initiative that would ban male circumcision in the City. The initiative did not appear on the ballot. If, however, the state of California passed such a prohibition, would it be insidious or beyond the pale to consider exempting observant Jews (and Moslems) from this requirement? The alternatives to accommodation are apparent. We can demand under threat of sanction that observant Jews adjust to this prohibition by rejecting a command from G-d that Jews have obeyed for 4000 years. Or observant Jewish families planning on having children can go elsewhere and move on to some other state. Shouldn’t accommodation at least be worth considering in this circumstance? And if we assign some weight to religious beliefs in this case, shouldn’t we at least acknowledge the burden other laws impose on people whose beliefs conflict with government mandates? Or are people really arguing that religious identity, faith, and conscience should count for nothing in the face of a law that burdens religious exercise? Alan From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Berg, Thomas C. Sent: Wednesday, February 26, 2014 2:36 PM To: 'Law Religion issues for Law Academics' Subject: RE: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses Following up on this: gays and lesbians have been told (wrongly) for years to change their orientation or just act on it in private, disregarding their interest in living lives of integrity. It’s therefore ironic if, in the service of gay rights, society simply tells the religious believer to change her belief or—more common, I suppose—just confine it to church, and act in the business world in ways s/he sincerely and conscientiously concludes are inconsistent with the belief. That’s why Doug and I said in our Windsor/Perry brief (supporting same-sex marriage rights and religious exemptions) that there are parallels between gay-rights claims and religious-objector claims. I’m not claiming that the ability to change or compartmentalize these two things is exactly the same. But to dismiss the religious believer’s dilemma altogether shows a lack of sympathy—no concern for his or her interest in living a life of integrity—and ignores one of the central reasons we protect religious freedom in the first place. Broad exemptions in the commercial sphere would expose gays and lesbians to disadvantage based on a central aspect of identity that they should not be asked to change or hide. But if we can craft exemptions where the religious business owner’s integrity interest is at its highest (sole-proprietor or small businesses where the owner is providing personal services focused directly on the marriage) and the effect on married couples is not real loss of access to services (the aim of the size limit and the hardship exception), then it seems to me the religious believer’s integrity interest is stronger in the balance. - Thomas C. Berg James L. Oberstar Professor of Law and Public Policy University of St. Thomas School of Law MSL 400, 1000 LaSalle Avenue Minneapolis, MN 55403-2015 Phone: (651) 962-4918 Fax: (651) 962-4996 E-mail: tcb...@stthomas.edumailto:tcb...@stthomas.edu SSRN: http://ssrn.com/author='261564 Weblog: http://www.mirrorofjustice.blogs.comhttp://www.mirrorofjustice.blogs.com/mirrorofjustice ___ 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
Subject: Re: Kansas/Arizona statutes protecting for-profit businesses
After reading the legislation, it's amazing how broadly it is drafted. It would seem to not only include permitting discrimination on the basis of sexual orientation or marital status, but also on the basis of religion. It would make it very easy for any business with a religious inkling to refuse to accommodate the religious exercise of employees, or even terminate them on the basis of religious differences. The Hobby Lobby case may go a long way in showing what rights employers have, and it seems to be part of a general strike against the application of the Bill of Rights to the states (14th Amendment). Any time the principle argument in favor of a potentially dangerous law is, What's the worse that can happen? I think there's reason to get really nervous. There is probably an answer for those who don't want to violate their religious conscience by accommodating those members of protected classes that disagree with them, but this legislation is not it. Michael D. 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.
RE: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses
...and Alan has been championing this bill on the spot at the Arizona capitol. Sigh. I have fought him over it when he tried to push me into supporting the Idaho bill which was just as egregious as the Arizona bill, but perhaps more targeted. Gregory W. Hamilton, President Northwest Religious Liberty Association 5709 N. 20th Street Ridgefield, WA 98642 Office: (360) 857-7040 Website: www.nrla.comhttp://www.nrla.com/ [NRLA2013-final-350px]http://www.nrla.com/ Championing Religious Freedom and Human Rights for All People of Faith From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Michael Peabody Sent: Tuesday, February 25, 2014 1:38 PM To: religionlaw@lists.ucla.edu Subject: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses After reading the legislation, it's amazing how broadly it is drafted. It would seem to not only include permitting discrimination on the basis of sexual orientation or marital status, but also on the basis of religion. It would make it very easy for any business with a religious inkling to refuse to accommodate the religious exercise of employees, or even terminate them on the basis of religious differences. The Hobby Lobby case may go a long way in showing what rights employers have, and it seems to be part of a general strike against the application of the Bill of Rights to the states (14th Amendment). Any time the principle argument in favor of a potentially dangerous law is, What's the worse that can happen? I think there's reason to get really nervous. There is probably an answer for those who don't want to violate their religious conscience by accommodating those members of protected classes that disagree with them, but this legislation is not it. Michael D. Peabody, Esq. Editor ReligiousLiberty.TV http://www.religiousliberty.tv inline: image001.jpg___ 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: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses
The Arizona bill and the Kansas bill are very different. I don't have time right now to discuss this further, but all you have to do is to read the bills. If you do, you will see that the arguments equating the two are simply and egregiously wrong. I hope no one will comment in any strong way without actually reading them. Mark Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Greg Hamilton Sent: Tuesday, February 25, 2014 1:55 PM To: mich...@californialaw.org; Law Religion issues for Law Academics Subject: RE: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses ...and Alan has been championing this bill on the spot at the Arizona capitol. Sigh. I have fought him over it when he tried to push me into supporting the Idaho bill which was just as egregious as the Arizona bill, but perhaps more targeted. Gregory W. Hamilton, President Northwest Religious Liberty Association 5709 N. 20th Street Ridgefield, WA 98642 Office: (360) 857-7040 Website: www.nrla.comhttp://www.nrla.com/ [cid:image001.jpg@01CF323C.54BF1830]http://www.nrla.com/ Championing Religious Freedom and Human Rights for All People of Faith From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Michael Peabody Sent: Tuesday, February 25, 2014 1:38 PM To: religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Subject: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses After reading the legislation, it's amazing how broadly it is drafted. It would seem to not only include permitting discrimination on the basis of sexual orientation or marital status, but also on the basis of religion. It would make it very easy for any business with a religious inkling to refuse to accommodate the religious exercise of employees, or even terminate them on the basis of religious differences. The Hobby Lobby case may go a long way in showing what rights employers have, and it seems to be part of a general strike against the application of the Bill of Rights to the states (14th Amendment). Any time the principle argument in favor of a potentially dangerous law is, What's the worse that can happen? I think there's reason to get really nervous. There is probably an answer for those who don't want to violate their religious conscience by accommodating those members of protected classes that disagree with them, but this legislation is not it. Michael D. Peabody, Esq. Editor ReligiousLiberty.TV http://www.religiousliberty.tv inline: image001.jpg___ 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: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses
I have read them and both are egregious. Sent from my iPhone On Feb 25, 2014, at 6:15 PM, Scarberry, Mark mark.scarbe...@pepperdine.edu wrote: The Arizona bill and the Kansas bill are very different. I don’t have time right now to discuss this further, but all you have to do is to read the bills. If you do, you will see that the arguments equating the two are simply and egregiously wrong. I hope no one will comment in any strong way without actually reading them. Mark Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Greg Hamilton Sent: Tuesday, February 25, 2014 1:55 PM To: mich...@californialaw.org; Law Religion issues for Law Academics Subject: RE: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses …and Alan has been championing this bill on the spot at the Arizona capitol. Sigh. I have fought him over it when he tried to push me into supporting the Idaho bill which was just as egregious as the Arizona bill, but perhaps more targeted. Gregory W. Hamilton, President Northwest Religious Liberty Association 5709 N. 20th Street Ridgefield, WA 98642 Office: (360) 857-7040 Website: www.nrla.com image001.jpg Championing Religious Freedom and Human Rights for All People of Faith From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Michael Peabody Sent: Tuesday, February 25, 2014 1:38 PM To: religionlaw@lists.ucla.edu Subject: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses After reading the legislation, it's amazing how broadly it is drafted. It would seem to not only include permitting discrimination on the basis of sexual orientation or marital status, but also on the basis of religion. It would make it very easy for any business with a religious inkling to refuse to accommodate the religious exercise of employees, or even terminate them on the basis of religious differences. The Hobby Lobby case may go a long way in showing what rights employers have, and it seems to be part of a general strike against the application of the Bill of Rights to the states (14th Amendment). Any time the principle argument in favor of a potentially dangerous law is, What's the worse that can happen? I think there's reason to get really nervous. There is probably an answer for those who don't want to violate their religious conscience by accommodating those members of protected classes that disagree with them, but this legislation is not it. Michael D. 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 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: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses
Would you say the Federal RFRA is egregious, Marci? On Tue, Feb 25, 2014 at 6:38 PM, Marci Hamilton hamilto...@aol.com wrote: I have read them and both are egregious. Sent from my iPhone On Feb 25, 2014, at 6:15 PM, Scarberry, Mark mark.scarbe...@pepperdine.edu wrote: The Arizona bill and the Kansas bill are very different. I don't have time right now to discuss this further, but all you have to do is to read the bills. If you do, you will see that the arguments equating the two are simply and egregiously wrong. I hope no one will comment in any strong way without actually reading them. Mark Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law *From:* religionlaw-boun...@lists.ucla.edu [ mailto:religionlaw-boun...@lists.ucla.edureligionlaw-boun...@lists.ucla.edu] *On Behalf Of *Greg Hamilton *Sent:* Tuesday, February 25, 2014 1:55 PM *To:* mich...@californialaw.org; Law Religion issues for Law Academics *Subject:* RE: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses ...and Alan has been championing this bill on the spot at the Arizona capitol. Sigh. I have fought him over it when he tried to push me into supporting the Idaho bill which was just as egregious as the Arizona bill, but perhaps more targeted. Gregory W. Hamilton, President Northwest Religious Liberty Association 5709 N. 20th Street Ridgefield, WA 98642 Office: (360) 857-7040 Website: www.nrla.com image001.jpg http://www.nrla.com/ *Championing Religious Freedom and Human Rights for All People of Faith* *From:* religionlaw-boun...@lists.ucla.edu [ mailto:religionlaw-boun...@lists.ucla.edureligionlaw-boun...@lists.ucla.edu] *On Behalf Of *Michael Peabody *Sent:* Tuesday, February 25, 2014 1:38 PM *To:* religionlaw@lists.ucla.edu *Subject:* Subject: Re: Kansas/Arizona statutes protecting for-profit businesses After reading the legislation, it's amazing how broadly it is drafted. It would seem to not only include permitting discrimination on the basis of sexual orientation or marital status, but also on the basis of religion. It would make it very easy for any business with a religious inkling to refuse to accommodate the religious exercise of employees, or even terminate them on the basis of religious differences. The Hobby Lobby case may go a long way in showing what rights employers have, and it seems to be part of a general strike against the application of the Bill of Rights to the states (14th Amendment). Any time the principle argument in favor of a potentially dangerous law is, What's the worse that can happen? I think there's reason to get really nervous. There is probably an answer for those who don't want to violate their religious conscience by accommodating those members of protected classes that disagree with them, but this legislation is not it. Michael D. 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 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. -- Michael Worley BYU Law School, Class of 2014 ___ 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: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses
Have you read anything I've written for the last 20 years? Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.com -Original Message- From: Michael Worley mwor...@byulaw.net To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Tue, Feb 25, 2014 8:47 pm Subject: Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses Would you say the Federal RFRA is egregious, Marci? On Tue, Feb 25, 2014 at 6:38 PM, Marci Hamilton hamilto...@aol.com wrote: I have read them and both are egregious. Sent from my iPhone On Feb 25, 2014, at 6:15 PM, Scarberry, Mark mark.scarbe...@pepperdine.edu wrote: The Arizona bill and the Kansas bill are very different. I don’t have time right now to discuss this further, but all you have to do is to read the bills. If you do, you will see that the arguments equating the two are simply and egregiously wrong. I hope no one will comment in any strong way without actually reading them. Mark Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Greg Hamilton Sent: Tuesday, February 25, 2014 1:55 PM To: mich...@californialaw.org; Law Religion issues for Law Academics Subject: RE: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses …and Alan has been championing this bill on the spot at the Arizona capitol. Sigh. I have fought him over it when he tried to push me into supporting the Idaho bill which was just as egregious as the Arizona bill, but perhaps more targeted. Gregory W. Hamilton, President Northwest Religious Liberty Association 5709 N. 20th Street Ridgefield, WA 98642 Office: (360) 857-7040 Website: www.nrla.com image001.jpg Championing Religious Freedom and Human Rights for All People of Faith From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Michael Peabody Sent: Tuesday, February 25, 2014 1:38 PM To: religionlaw@lists.ucla.edu Subject: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses After reading the legislation, it's amazing how broadly it is drafted. It would seem to not only include permitting discrimination on the basis of sexual orientation or marital status, but also on the basis of religion. It would make it very easy for any business with a religious inkling to refuse to accommodate the religious exercise of employees, or even terminate them on the basis of religious differences. The Hobby Lobby case may go a long way in showing what rights employers have, and it seems to be part of a general strike against the application of the Bill of Rights to the states (14th Amendment). Any time the principle argument in favor of a potentially dangerous law is, What's the worse that can happen? I think there's reason to get really nervous. There is probably an answer for those who don't want to violate their religious conscience by accommodating those members of protected classes that disagree with them, but this legislation is not it. Michael D. 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 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. -- Michael Worley BYU Law School, Class of 2014 ___ 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
Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses
I have. My point is your condemnation is not compelling to me when we disagree on a either more moderate or almost identical bill (depending on how Hobby Lobby comes out). On Tue, Feb 25, 2014 at 8:55 PM, hamilto...@aol.com wrote: Have you read anything I've written for the last 20 years? Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.com https://www.facebook.com/professormarciahamilton?fref=ts https://twitter.com/marci_hamilton -Original Message- From: Michael Worley mwor...@byulaw.net To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Tue, Feb 25, 2014 8:47 pm Subject: Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses Would you say the Federal RFRA is egregious, Marci? On Tue, Feb 25, 2014 at 6:38 PM, Marci Hamilton hamilto...@aol.comwrote: I have read them and both are egregious. Sent from my iPhone On Feb 25, 2014, at 6:15 PM, Scarberry, Mark mark.scarbe...@pepperdine.edu wrote: The Arizona bill and the Kansas bill are very different. I don't have time right now to discuss this further, but all you have to do is to read the bills. If you do, you will see that the arguments equating the two are simply and egregiously wrong. I hope no one will comment in any strong way without actually reading them. Mark Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law *From:* religionlaw-boun...@lists.ucla.edu [ mailto:religionlaw-boun...@lists.ucla.edureligionlaw-boun...@lists.ucla.edu] *On Behalf Of *Greg Hamilton *Sent:* Tuesday, February 25, 2014 1:55 PM *To:* mich...@californialaw.org; Law Religion issues for Law Academics *Subject:* RE: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses ...and Alan has been championing this bill on the spot at the Arizona capitol. Sigh. I have fought him over it when he tried to push me into supporting the Idaho bill which was just as egregious as the Arizona bill, but perhaps more targeted. Gregory W. Hamilton, President Northwest Religious Liberty Association 5709 N. 20th Street Ridgefield, WA 98642 Office: (360) 857-7040 Website: www.nrla.com image001.jpg http://www.nrla.com/ *Championing Religious Freedom and Human Rights for All People of Faith* *From:* religionlaw-boun...@lists.ucla.edu [ mailto:religionlaw-boun...@lists.ucla.edureligionlaw-boun...@lists.ucla.edu] *On Behalf Of *Michael Peabody *Sent:* Tuesday, February 25, 2014 1:38 PM *To:* religionlaw@lists.ucla.edu *Subject:* Subject: Re: Kansas/Arizona statutes protecting for-profit businesses After reading the legislation, it's amazing how broadly it is drafted. It would seem to not only include permitting discrimination on the basis of sexual orientation or marital status, but also on the basis of religion. It would make it very easy for any business with a religious inkling to refuse to accommodate the religious exercise of employees, or even terminate them on the basis of religious differences. The Hobby Lobby case may go a long way in showing what rights employers have, and it seems to be part of a general strike against the application of the Bill of Rights to the states (14th Amendment). Any time the principle argument in favor of a potentially dangerous law is, What's the worse that can happen? I think there's reason to get really nervous. There is probably an answer for those who don't want to violate their religious conscience by accommodating those members of protected classes that disagree with them, but this legislation is not it. Michael D. 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 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. -- Michael Worley BYU Law School, Class of 2014 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe