Religious Groups and Gays and Lesbians
Volokh, Eugene
VOLOKH at law.ucla.edu
Tue Mar 21 13:16:12 PST 2006
OK, if you say so. I read them together and still find them too
general to be helpful -- too cover a wide range of behavior that
religious objectors should have the liberty to engage in, as well as a
wide range of behavior that they shouldn't have the liberty to engage
in. But if you think this is just an idiosyncratic response, that's
surely fine.
> -----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 12:05 PM
> To: Law & Religion issues for Law Academics
> Subject: RE: Religious Groups and Gays and Lesbians
>
>
> 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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