Same-sex marriage and religious exemptions

[Ira (Chip) Lupu]

Doug writes:

"On the gay rights issues, religious conservatives are pretty much getting exemptions only within the church itself -- not even their affiliated religious organizations -- which is to say, they are getting only those exemptions that no sensible person on the gay rights side actually opposes."

>From everything I have heard, no version of ENDA (the bill that would extend Title VII to discrimination based on sexual orientation) can possibly pass unless it includes the same exemption for religious organizations (not just "houses of worship") as the current Title VII exemption for such organizations to engage in religious selectivity.  If that is right, such an exemption will include a broad range of religiously affiliated entities (i.e., schools, charities, etc, organized for religious purposes).  So Doug's "pretty much" in the first sentence above may be obscuring some very important matters. 

---- Original message ----
>Date: Fri, 10 Apr 2009 12:46:30 -0400
>From: Douglas Laycock <laycockd at umich.edu>  
>Subject: Re: Same-sex marriage and religious exemptions  
>To: religionlaw at lists.ucla.edu
>
>   It is patently easier to do one deal than to do
>   fifty.  And on this issue, it is easier to do a deal
>   in a legislature where both Vermont and Alabama are
>   represented than to do a deal in Vermont or to do a
>   deal in Alabama.  Maybe we want to let Vermont and
>   Alabama each go their own way on marriage; maybe we
>   even want to let them each go their own way on free
>   exercise of religion; those are two distinct issues
>   different from the political possibilities of deal
>   making.
>
>   American legislatures have enacted lots of religious
>   exemptions, but not many controversial exemptions
>   with an organized interest group in active
>   opposition.  On the gay rights issues, religious
>   conservatives are pretty much getting exemptions
>   only within the church itself -- not even their
>   affiliated religious organizations -- which is to
>   say, they are getting only those exemptions that no
>   sensible person on the gay rights side actually
>   opposes.
>
>   Quoting hamilton02 at aol.com:
>
>   > Boerne only makes the deal harder to strike if one
>   assumes the
>   > federal government should drive social policy in
>   every state from
>   > Washington DC and only if one is inclined to
>   engage in blind
>   > lawmaking that operates at an abstract level
>   without reference to
>   > facts.  All Congress could do here is foreclose
>   the 50 state
>   > experiment in finding the right balance for
>   everyone.
>   > In light of history, it is patently ridiculous to
>   argue that it is
>   > ever too late for religious exemptions in this
>   country.  Religious
>   > entities have both political access and power
>   disproportionate to
>   > their numbers even if they do not win every single
>   request they make.
>   >  J Scalia was empirically correct when he said in
>   Smith that the
>   > American legislative system is inclined toward
>   exemptions.
>   > Marci
>   > Sent from my Verizon Wireless BlackBerry
>   >
>   > -----Original Message-----
>   > From: Douglas Laycock <laycockd at umich.edu>
>   >
>   > Date: Fri, 10 Apr 2009 10:51:08
>   > To: <religionlaw at lists.ucla.edu>
>   > Subject: Same-sex marriage and religious
>   exemptions
>   >
>   >
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>    
>
>   Douglas Laycock
>   Yale Kamisar Collegiate Professor of Law
>   University of Michigan Law School
>   625 S. State St.
>   Ann Arbor, MI  48109-1215
>     734-647-9713
>________________
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>Please note that messages sent to this large list cannot be viewed as private.  Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Ira C. Lupu
F. Elwood & Eleanor Davis Professor of Law
George Washington University Law School
2000 H St., NW 
Washington, DC 20052
(202)994-7053