Religious Groups and Gays and Lesbians

[Newsom Michael]

Not when read together.

-----Original Message-----
From: Volokh, Eugene [mailto:VOLOKH at law.ucla.edu] 
Sent: Tuesday, March 21, 2006 2:02 PM
To: Law & Religion issues for Law Academics
Subject: RE: Religious Groups and Gays and Lesbians

	But of course religious liberty includes, at least sometimes,
the right to exclude.  We agree that it does so as to clergy hiring, for
instance.  There is likewise a presumptive right, under the
Sherbert/Yoder regime or under a RFRA regime, of religious people and
institutions to not deal with others when they think this dealing
violates their religious principles -- when, for instance, renting to an
unmarried straight couple or a gay couple is seen by the claimant's
religion as aiding and abetting a sin.  The question is when this right
is trumped by a compelling government interest in barring such
exclusion; the answer is sometimes (again, consider clergy hiring), and
we disagree about what those times are.  But few of us really think (I
think) that religious liberty *never* includes the right to exclude.

	As to harass, of course, the question is what we mean by
harassment.  I take it that we'd agree that a religious school has the
right to teach that homosexuality is sinful, even if the pervasive
repetition of that message makes homosexual students creates a hostile
educational environment and thus constitutes hostile environment
harassment.  I take it that we'd also agree that other forms of
harassment are unprotected, for instance if someone wants to harass
using residential picketing in violation of a constitutional residential
picketing ordinance, or using continued unwanted mailings in violation
of the law upheld in Rowan, or using telephone calls in violation of a
constitutionally valid telephone harassment law.

	My broader point is that general terms like "exclude," "harass,"
and "worse" are probably cast at too high a level of generality here.

	Eugene

-----Original Message-----
From: religionlaw-bounces at lists.ucla.edu
[mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Newsom Michael
Sent: Tuesday, March 21, 2006 10:34 AM
To: Law & Religion issues for Law Academics
Subject: RE: Religious Groups and Gays and Lesbians



Doug, with respect, you misstate the case, unless you mean by "religious
liberty" the right to exclude, harass and worse.
 



From: Douglas Laycock [mailto:religionlaw-bounces at lists.ucla.edu] On
Behalf Of Douglas Laycock
Sent: Tuesday, March 21, 2006 9:35 AM
To: Law & Religion issues for Law Academics
Subject: RE: Religious Groups and Gays and Lesbians
 
As an empirical matter, it would be odd if gay rights groups, or any
other groups, supported religious exemptions from their favorite
legislation.  But it would not be contrary to their constituents'
interests.  
 
As Michael McConnell has pointed out, a regime of regulation plus
religious exemptions makes it possible to compromise otherwise
noncompromisable interests.  A strong gay rights law with a strong
religious exemption would be easier to enact than a weak gay rights law
without a religious exemption.  In a proposed regulation has no
religious exemptions, religious conscientious objectors have no choice
but to declare total war.  If a proposed regulation has reliable
religious exemptions, the stakes are much less.
 
Of course we see some of the conservative religious groups declaring
total war either way, partly for the reasons Marty suggests, and partly
because the pattern of gay-rights hostility to religious liberty has
destroyed all confidence that exemptions offered will be sensibly
interpreted or permanent.  We are in a quite unnecessary impasse, and
both sides are very much to blame.
 
Douglas Laycock
University of Texas Law School
727 E. Dean Keeton St.
Austin, TX  78705
512-232-1341
512-471-6988 (fax)
 



From: religionlaw-bounces at lists.ucla.edu on behalf of Marty Lederman
Sent: Tue 3/21/2006 8:24 AM
To: Law & Religion issues for Law Academics
Subject: Religious Groups and Gays and Lesbians
A very small qualification to this discussion:  The examples Doug and
Marc cite are, if I'm not mistaken, all cases involving opposition to
religious exemptions.  Gay- and lesbian-rights groups will generally
oppose any exemptions from the laws that protect them, regardless of
whether the exemption has anything to do with religion.  That should not
be at all surprising, or alarming.  It's true of virtually any group or
organization that has secured certain legal protections, particularly
equality protections, or across-the-board restrictions.  Thus, for
example, I can assure you that the State Department and DEA were
vociferously opposed to the requested RFRA exemption for hoasca tea in
the recent case -- because they're opposed to any exceptions to
performance of treaty obligations or to the Controlled Substances Act.
(I was at the table for the discussions within the government, but I
don't think I'm revealing any non-obvious secrets by stating this.)
This doesn't make them hostile to religion.  (Although one might say it
makes them hostile to RFRA -- to an exemption regime -- at least as
applied to their statutes and treaties.  In this, they are no different
from virtually every other government agency and component, save OLC
and, on occasion, the Civil Rights Division.)
 
By contrast, sometimes the opposition of certain religious denominations
to gays and lesbians is based on, well, opposition to gays and lesbians
(or to their behavior), as such, and they oppose treating gays and
lesbians equally (usually based on sincere religious convictions).
 
To put it in terms analogous to Free Exercise debates -- gays and
lesbians (and the DEA, and those favoring child-protection and
immunization laws, etc.) are opposed to exemptions from generally
applicable rules, religious or otherwise.  They're akin to the state in
Employment Division v. Smith.  By contrast, some religions (I don't want
to overstate or simplify the case; it's complicated) favor
discrimination against gays and lesbians, and that's analogous to the
position of the state in cases such as Lukumi and McDaniel v. Paty.
 
This doesn't mean that gay- and lesbian-rights groups, and the DEA, and
. . . . everyone else, shouldn't be more sensitive to claims for
religious exemptions, or that they should treat religious objections as
morally equivalent to, say, outright bigotry.  I'm a strong proponent of
RLUIPA, after all.  But it would be odd, and contrary to their
constituencies' interests, wouldn't it, if such groups actually
supported granting certain employers/landlords/schools the right to
exclude them from some of the benefits of civil society based solely on
their sexual orientation?
 
 
----- Original Message ----- 
From: Marc Stern 
To: Law & Religion issues for Law Academics 
Sent: Tuesday, March 21, 2006 8:48 AM
Subject: RE: Catholic Charities Issue
 
You could add the op[position to enhance d protection for religions
workers in the workplace because such legislation might empower claims
impinging on gay rights, gay groups that sued Yeshiva University over it
refusal to allow gay couples access to  a married only dorm in its
medical school, the opposition to an exemption for Catholic Charities in
Boston, the suit over doctors refusing to assist  lesbian couple have a
child by artificial insemination and on and on....What ever the merits
of particular suits, there has been as pattern of opposition to
religious claims in the gay rights context. 
.
Marc Stern
f
 



From: religionlaw-bounces at lists.ucla.edu
[mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Douglas Laycock
Sent: Monday, March 20, 2006 8:25 PM
To: Law & Religion issues for Law Academics
Subject: RE: Catholic Charities Issue
 
 



From: religionlaw-bounces at lists.ucla.edu on behalf of Newsom Michael
Sent: Mon 3/20/2006 3:36 PM
To: Law & Religion issues for Law Academics
Subject: RE: Catholic Charities Issue
Could you give some examples of gay rights proponents who ignore
religious liberty interests?  
 
Doug Laycock's Answer:  The gay rights groups organized and led the
charge that killed the Religious Liberty Protection Act.  They did it by
insisting on a categorical exception for all civil rights cases,
refusing to rely on the case law that most civil rights claims present
compelling interests or their own view that all civil rights claims
present compelling interests.
 
"All civil rights claims" would include challenges to the male-only
priesthood.  It would include claims of religious discrimination in
awarding membership or leadership positions in churches and other
religions organizations.  In Colorado and several other states, civil
rights laws prohibit employers from penalizing "any lawful off-the-job
activity."  So civil rights claims include any immoral, disreputable,
but not illegal act you can think of:  using pornography, appearing in
pornography, moonlighting at a strip club, gambling heavily in lawful
casinos, and similar things that religious organizations might tell
their employees not to do.  The gay rights groups and the coalition of
civil rights organizations they put together refused to listen to any
such argument.  They wanted a global and absolute civil rights
exception; take it or leave it.  They produced party-line gridlock over
that demand.
 
At the state and local level, gay rights groups insist on no religious
exemption to gay rights laws or, if they can't prevail on that, the
narrowest possible definition of religious organizations entitled to
exemption.
 
I assume it was these recurring political conflicts, in which gay rights
groups simply refuse to recognize any competing interest on the other
side of the table, that Alan Brownstein was referring to, and not the
occasional acts of disruptive protest.
 
Of course many of the conservative religious groups are equally
intractable with respect to gay rights organizations.  In the particular
case of RLPA, most of them were at all time willing to concede the
compelling-interest exception, fully understanding that courts were
likely to find a compelling interest in most civil rights claims.
 
 
 
Douglas Laycock
University of Texas Law School
727 E. Dean Keeton St.
Austin, TX  78705
512-232-1341
512-471-6988 (fax)



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