Conflicts between religious exefcise and gay rights and "cudgels"

Brownstein, Alan aebrownstein at ucdavis.edu
Mon Aug 4 17:06:00 PDT 2008


As someone who, in times long past, has had the decidedly miserable experience of looking unsuccessfully for jobs and housing for significant periods of time, I do not think for a moment that people can always find alternative jobs or quality places to live from other providers if they are subject to discrimination. Both jobs and housing can often be hard to find - even when you are not the victim of discrimination.

But when alternative services are clearly available, I think Art is correct that what is at issue here is a clash of protected liberty and equality rights that cause somewhat analogous harms.

As Vik Amar and I wrote recently,

"Just as it makes no sense to tell a gay person who has been living with his partner for 20 years to end his relationship, or to stop being gay and enter into a heterosexual relationship, it makes no sense to tell a devout religious individual to set his or her convictions about homosexual conduct aside and adopt a new religion. Neither the gay person nor the religious adherent can reasonably be asked to change who they are. Our laws should reflect that reality in both circumstances. "

Alan Brownstein

From: religionlaw-bounces at lists.ucla.edu [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of ArtSpitzer at aol.com
Sent: Monday, August 04, 2008 4:35 PM
To: religionlaw at lists.ucla.edu
Subject: Re: Conflicts between religious exefcise and gay rights and "cudgels"

Marty Lederman writes:


I would respectfully dissent from [the] suggestion that ... gays and lesbians really suffer much harm by being denied services or jobs or housing on the basis of their sexual orientation because they "could get such services -- often at a higher quality -- just fine from lots of other providers." ...  With all respect, I think this sort of standard libertarian skepticism about the need for antidiscrimination laws significantly trivializes very serious harms.

- I don't doubt that some people suffer very serious harms from being denied goods and services based on their race, religion, sexual orientation, etc., even if they could easily obtain the same goods and services elsewhere.
- Nor, however, do I doubt that some people suffer very serious harms from being forced to serve certain other people in certain ways, when providing such service contravenes their sincerely-held religious or moral beliefs.
- And it seems to me that the harms in these two cases are essentially identical: some combination of emotional distress and moral outrage.
- So is there any reason (other than where our personal sympathies happen to lie) to assume that the harm in case #1 is categorically greater than the harm in case #2, or that the harm in case #2 is categorically greater than the harm in case #1?
- Given that equal protection and religious freedom are both constitutional values, is there any reason why the legal system should categorically favor the person suffering harm in case #1 over the person suffering harm in case #2, or the person suffering harm in case #2 over the person suffering harm in case #1?

Art Spitzer


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