Conflicts between religious exefcise and gay rights and "cudgels"

Thu Aug 7 00:53:08 PDT 2008

Interestingly, there is a similarity of argument on same sex issues in the 
US, and the removal of discrimination in the UK on the subject of Islam 
(although very different subject matter).   Recent developments in the UK 
include the Muslim marriage contract and welfare payment for 2nd -4th wives 
to reflect a new social norm.

Eugene summised the issues:

Now antidiscrimination law is being urged not just to trump the
traditional but constitutionally unprotected freedom to choose one's
business relationships, but the freedom of expressive association, the
freedom of speech, and (most relevant to this thread) religious
accommodation regimes.  Even standing on its own, this seems troubling.
But in broader perspective, it seems to me to be yet another step down
the slope.

This is the position in the UK and Canada; and the US needs to be resolute 
to ensure that these practices do not come to you. This reflects the shift 
in modern liberalism to require private actors to conform to public values 
determinate by the State.

A fundamental issue is that the First Amendment (and Article 9 of the 
Convention) gives primacy to religious exercise.  However, this fundamental 
right needs to be directly considered; and not justified against equality/ 
non- discrimination criteria, against which the religious practice must be 
justified. or, in reality, justified.

Substantive rights have primacy over procedural rights.  To take a 
procedural right (non discrimination) to a substantive right is a political 
decision (some discrimination against stupid people or alcohol might be 
good).  Constitutional rights cannot be subject to political vissitudes.

British courts rarely analysis religious rights, but re-write the legal 
question to whether it is a legitimate exercise of governmental policy to 
conform to international norms (EC/UN Treaties/ international law) for the 
erradication of discrimination and. thereafter, Courts hold that they should 
defer to the legislature on socio economic issues.  Many decisions by 
individuals, business that were once considered virtuous are now unlawful as 
discriminatory- such as lending funds to certain projects only.

On the New Mexico photographer case, the above position might assist; but 
why should there not be a correlative duty not to require consceince 
violation of another where alternative service provision is available.  A 
mutual duty to protect/ respect each other rights.

I have been immensely benefited in my discussion with Canadian attorney, 
Iain Benson (credit where credit is due).

Paul Diamond, barrister

----- Original Message ----- 
From: "Volokh, Eugene" <VOLOKH at law.ucla.edu>
To: "Law & Religion issues for Law Academics" <religionlaw at lists.ucla.edu>
Sent: Tuesday, August 05, 2008 9:15 PM
Subject: RE: Conflicts between religious exefcise and gay rights and 
"cudgels"

> Well, it's true that there were limits -- clearly
> unconstitutional limits -- on this right, in the form of Jim Crow laws
> and the like.  But it seems to me that people have long cherished their
> right to choose whom to deal with.  This is true even at lunch counters,
> where I suspect many proprietors like to exclude patrons whom they see
> as disruptive, or whom they dislike for some reason.  Consider the case
> from a couple of decades ago where the  owner of a German restaurant in
> L.A. kicked out four patrons for wearing Nazi lapel pins (and was
> ultimately held liable under California's unusually broad public
> accommodation discrimination law).  Of course proprietors rarely
> exercise this right, but it doesn't mean that the right isn't treasured
> precisely for the freedom that it provides.
>
> But surely this is even more so when we're talking not just
> about goods, but about personal services, like a wedding photographer's.
> What ground is there to pooh-pooh the notion that a photographer, whose
> job it is to provide a sympathetic, emotionally warm portrayal of events
> -- in an investment of many hours of labor -- might cherish her right to
> choose what she'll photograph and what she won't?   Perhaps the law
> there has indeed gone far beyond the "rule of reason" that Prof. Black
> was advocating.
>
> And more broadly, how would we feel if we were told that, as
> consumers, we had an obligation not to discriminate in our choice of
> providers of goods and services?  The Legal Writing Institute (perhaps
> including others) is boycotting a hotel owner on the grounds that the
> owner contributed to the anti-same-sex-marriage initiative.  How would
> we feel if the law barred such action (even setting aside the calls for
> the boycott, which might be speech, unless they were found to be
> incitement, and focusing on the action) and required everyone not to
> discriminate in choice of hotel based on the hotel owner's political
> activities, or the hotel owner's religion, or anything else?  Even if
> the law would very rarely be enforced, wouldn't we rightly bristle at
> the notion that we were being told by the government to do business with
> service providers whom we otherwise didn't want to do business with?
> Nor is it sound, it seems to me, to say that somehow consumers' actions
> don't deprive anyone of a likelihood while business owners' do.  A
> business owner may often suffer more from loss of patrons -- especially
> in a coordinated boycott -- than a particular same-sex couple would from
> not being able to hire a particular wedding photographer (and a wedding
> photographer who probably isn't emotionally in sync enough with their
> planned event to do a good job in any case).
>
> Now perhaps on balance this freedom to choose -- without
> government coercion -- whom to do business with should indeed yield to
> compelling (or even not-so-compelling) government interests.  But I
> don't think we can just casually dismiss this freedom as something that
> no-one thinks about until the Negro comes in.
>
> Eugene
>
>> -----Original Message-----
>> From: marty.lederman at comcast.net [mailto:marty.lederman at comcast.net]
>> Sent: Tuesday, August 05, 2008 12:04 PM
>> To: Law & Religion issues for Law Academics; Law & Religion
>> issues for Law Academics
>> Cc: Volokh, Eugene
>> Subject: RE: Conflicts between religious exefcise and gay
>> rights and "cudgels"
>>
>> With respect to the notion that, before the dreaded 1964
>> Civil Rights Act, everyone enjoyed "the traditionally
>> recognized ability of people in a free society not to have
>> the government tell them whom to work with, whom to sell to,
>> whom to buy from, and so on":
>>
>> It is not a warranted assumption of our civilization that a
>> lunch-counter proprietor will practice a general choosiness
>> about his customers, or that the law is expected to leave him
>> alone in this regard. If the equal protection clause limits
>> his "freedom of choice," it limits something which people in
>> his position do not ordinarily think about until the Negro
>> comes in, and something which has frequently been limited by
>> other kinds of law.  [FN:  It remains a wonder that so much
>> emotion about the sacred right to choose one's customers
>> could be generated and maintained in communities where
>> segregation laws and ordinances, drastically limiting freedom
>> to choose customers as well as other associates, were so long
>> a matter of course. A good night's sleep after the Brown
>> case, and one woke to find that a restaurant was just like a
>> home.]  If the equal protection clause were held to apply to
>> his dinner-list at home, it would be breaking in upon a
>> process of discriminating selective!
>>  ness wh
>> ich has the flesh-tones of real life; it would be doing so in
>> a manner quite unknown to prior law and astounding to his
>> expectations as to the ambit of law, constitutional and
>> otherwise, in our society. It seems to me that considerations
>> such as these would fully warrant the development, if cases
>> ever arise, of the suggested 'rule of reason.' The social
>> reality of the general distinction projected also vouches for
>> the feasibility of its being drawn.
>>
>> Charles L. Black, Jr., FOREWORD: "STATE ACTION," EQUAL
>> PROTECTION, AND CALIFORNIA'S PROPOSITION 14, 81 Harv. L. Rev.
>> 69, 102-103 (1967).
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