Conflicts between religious exefcise and gay rights and "cudgels"

[ArtSpitzer at aol.com]

Marty Lederman writes:

> I would respectfully dissent from [the] suggestion that ... gays and 
> lesbians really suffer much harm by being denied services or jobs or housing on the 
> basis of their sexual orientation because they "could get such services -- 
> often at a higher quality -- just fine from lots of other providers." ...  
> With all respect, I think this sort of standard libertarian skepticism about the 
> need for antidiscrimination laws significantly trivializes very serious 
> harms.  
> 
- I don't doubt that some people suffer very serious harms from being denied 
goods and services based on their race, religion, sexual orientation, etc., 
even if they could easily obtain the same goods and services elsewhere.
- Nor, however, do I doubt that some people suffer very serious harms from 
being forced to serve certain other people in certain ways, when providing such 
service contravenes their sincerely-held religious or moral beliefs.
- And it seems to me that the harms in these two cases are essentially 
identical: some combination of emotional distress and moral outrage.
- So is there any reason (other than where our personal sympathies happen to 
lie) to assume that the harm in case #1 is categorically greater than the harm 
in case #2, or that the harm in case #2 is categorically greater than the 
harm in case #1?
- Given that equal protection and religious freedom are both constitutional 
values, is there any reason why the legal system should categorically favor the 
person suffering harm in case #1 over the person suffering harm in case #2, 
or the person suffering harm in case #2 over the person suffering harm in case 
#1?

Art Spitzer 


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