Conflicts between religious exefcise and gay rights and "cudgels"

[Sisk, Gregory C.]

Vik Amar and Alan Brownstein offer an attractive point of middle, if not
common, ground on these questions.  If we are to live together in this
diverse society, we need to find a means of resolving cultural
differences other than by scorched earth tactics.  Adopting a gay civil
rights regime in which few or no exceptions are allowed for persons of
religious conscience, as indeed has been proposed in some jurisdictions,
is just as intolerant toward difference as was the former regime in
which the only legal response to homosexuality was criminalization.  To
treat persons of traditional religious values as second-class citizens
who may not participate in the economy without surrendering the values
that form their identity is just as much of an injustice as was treating
homosexuals as second-class citizens who should be excluded from public
life.  Seeking to find a place of balance and extending tolerance toward
all is no mean task, but it is a worthy goal.  If those who achieve
political power in a particular jurisdiction, local or state, seek to
balance the genuine needs of people individuals for access to the
economy in terms of jobs, housing, and accommodations with the
protection of individual religious consicence and respect for religious
identity, then we all may better weather the present cultural
transition, whether it may lead to a monumental changes of attitudes
across the spectrum of mainstream America or instead to a place of more
permanent difference.

 

As we search for that balance, the traditional exemptions in civil
rights laws based upon size/numbers and types of activities may serve us
well.  Moreover, as a practical matter, overly-expansive and rigid
applications heighten cultural tensions. Thus, excepting smaller
employers and family home rentals, for example, where the impingement of
government-coerced directives upon intimate associations is most
profound, serves to protect conscience at its most poignant while not
having a meaningful effect on the economic availability of jobs and
housing.  By contrast, the larger scale employer and the multiple-unit
apartment owner generally have a lesser claim on intrusion into private
affairs and consicence and the exclusion of those from a civil rights
law, even on religious conscience grounds, might undermine the
protection of the laws.  (Of course, all of this assumes that the
proponents for new civil rights protections have made a concrete
empirical record of the need for any expansion of protected categories
to serve demonstrated economic needs, because the use of civil rights
laws primarily to make a political or moral point is a dubious and
arguably tyrannical exercise of governmental power).  Similarly, the
nature of the activity should be considered.  The easiest case for
exemptions covers religiously-affiliated institutions, as imposing a
government standard on to a religious entity intrudes directly on
religious liberty.  Characterizing professional services as a public
accommodation subject to civil rights rules also trespasses more closely
on conscience, as requiring an individual to offer such personal
services is much more burdensome than simply being required to open a
restaurant or hotel to all consumers.

 

The problem is a vexing one, on which people of good faith will differ
in working out the details of solutions.  But simply allowing whoever
secures political power to impose their preferences through the use of
governmental power, with disregard for the difficulties experienced by
those who may become political minorities, is unworthy of our American
tradition.

 

Gregory Sisk

Orestes A. Brownson Professor of Law

University of St. Thomas School of Law (Minnesota)

MSL 400, 1000 LaSalle Avenue

Minneapolis, MN  55403-2005

651-962-4923

gcsisk at stthomas.edu

http://personal2.stthomas.edu/GCSISK/sisk.html

Publications:  http://ssrn.com/author=44545

 

________________________________

From: religionlaw-bounces at lists.ucla.edu
[mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Brownstein,
Alan
Sent: Monday, August 04, 2008 7:06 PM
To: Law & Religion issues for Law Academics
Subject: RE: Conflicts between religious exefcise and gay rights and
"cudgels"

 

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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