Should Yeshiva University Have Been Forced To Allow Same-Sex Couples In Its Married Dormitory?

Robert Anthony Maranto, who supports equal marriage for same-sex couples but is worried about religious rights, wrote “Do Gay Rights Trump Religion?”. From Professor Maranto’s essay:

…a number of recent court and bureaucratic decisions [have forced] faith-based institutions to embrace gay rights, no matter their sacred beliefs.

Yeshiva University was ordered to allow same-sex couples in its married dormitory. In Boston, Catholic Charities ended adoptions after the state supreme court forced it to place children with gay and lesbian couples. In short, many intellectuals not only want to permit same-sex marriage; they want to stigmatize religious dissenters as either bigots or fools.

First of all, it’s obvious Maranto’s examples don’t warrant his unkind conclusion. If I want anti-discrimination laws to apply to all businesses and student groups equally, that isn’t because I want to stigmatize religious people; it’s because I sincerely think that it’s important for queers to be treated as equal members of society at all levels. It would have been kinder, and also more accurate, for Professor Maranto to assume that those who want equal rights act out of a desire for equality, not a desire to stigmatize.1

(If I said supermarkets shouldn’t be allowed to refuse gay customers, would Professor Maranto conclude my goal is to stigmatize grocery owners?)

Now let’s consider Professor Maranto’s examples, Yeshiva University and Catholic Charities of Boston.

I support narrow exemptions to anti-discrimination laws; for instance, no religious congregation should be forced to perform same-sex weddings, nor should individual ministers (or rabbis, or priests, or imams, etc) be forced to conduct such ceremonies.2 A wedding in a church (shul, etc) is a religious ceremony, and the government shouldn’t intrude on that cermony. Similarly, no independent minister should be forced to participate in a wedding she doesn’t want to participate in.3

But Professor Maranto’s examples aren’t narrow, and he doesn’t suggest any limits on his proposed exemption.

For example, when people read that “Yeshiva University was ordered to allow same-sex couples in its married dormitory,” I think many of them imagine a place for formal religious instruction, a college where religious Jews go to combine religious practice with education, or to learn to become Orthodox rabbis.

In fact, the Yeshiva University lawsuit concerned student housing at the Albert Einstein College of Medicine, which is owned by Y.U.. Albert Einstein College isn’t a religious school — it’s a secular medical school which accepts students regardless of ethnicity or religion, and which prides itself on diversity.

Furthermore, Albert Einstein College is located in one of the most expensive housing markets in the country. The difference between having access to cheap student housing, or not, could be the difference between being able to complete a medical school education or not. Why should going to medical school be cheaper for straight married couples? When weighing these conflicts, we have to consider not only freedom of worship, but also if lesbian and gay students are being treated fairly.

I don’t want to intrude on anyone’s religious freedom. But state anti-discrimination laws applying to a secular medical school don’t limit any Jew’s ability to worship as she pleases. The claim of a religious exemption shouldn’t mean that essentially secular businesses are exempt from the same laws all other businesses follow.

Regarding Catholic Charities of Boston, Professor Maranto’s summary is simply wrong; there was no order from the Massachusetts Supreme Court. Quoting Morris Thurston:

Catholic Charities in Boston was not forced to close its doors–indeed it is still very active. (See its website at www.ccab.org.) Rather, Catholic Charities voluntarily ceased providing adoption service in Massachusetts. According to the Boston Globe, Catholic Charities elected to close its doors in protest over the legalization of gay marriage in Massachusetts and because it was reluctant to undertake a lawsuit that might be lost.

LDS Family Services still operates in Massachusetts, as it does in California. There are several differences between LDSFS and Catholic Charities. LDSFS does not take federal and state funds; Catholic Charities does. LDSFS facilities only voluntary adoptions and permits the birth mother to approve the adoptive parents. Catholic Charities handled non-voluntary adoptions (where the state seizes the children) and normally did not accommodate birth mother approval. Catholic Charities had contracts with the state and was, in effect, acting as an agent of the state. LDSFS does not. To date, LDS Family Services has never been forced to place any children with a gay couple, and has never been sued for not doing so.

These details aside, it’s unclear why adoption is a case where religious freedoms should trump the legitimate desire of states to ensure equal treatment. Requiring adoption businesses — especially those that act as agents of the state — to treat gays equally, does not prevent Catholics and others from worshiping as they choose. And as Scot at Utah Cog points out in an excellent post, the adoption rates in Massachusetts didn’t go down as a result of Catholic Charities of Boston’s choice.

* * *

In his editorial, Professor Maranto doesn’t describe the standards he used to decide that Yeshiva University and Catholic Charities should be exempt from anti-discrimination laws. Nor does he say if he wants this exemption applied across the board, or if he thinks that lesbians and gays are the only people whose legal protections should be weakened in the name of religious freedom.

But as far as I can infer from his examples, he simply thinks that all groups or businesses owned or run by religious institutions should get a “get out of discrimination laws free” card, at least when it comes to discrimination against gays. But this supposed “right” of religions, if it is applied without limits, could easily have far-reaching and unfair consequences.

For instance, what happens when a nurse or doctor at a Church-owned hospital decides not to acknowlege a patient’s same-sex partner or spouse? (And if Professor Maranto says that no, hospitals shouldn’t discriminate that way, then why is it less of an affront to religion to forbid discrimination in a hospital, than it is to forbid discrimination in a secular medical school, or in an adoption agency?)

What prevents a small business owner who wants to discriminate from simply forming a “church” to be the legal owner of her business?

Religious institutions are sometimes huge and wealthy, and the biggest ones can own dozens of businesses. I would never want the government to intrude on anyone’s right to worship as they please, but it goes too far to say that any business owned by a church — no matter how secular that business is in practice — should be exempt from anti-discrimination law. To say that would be to say that the right of religions to discriminate — not to worship as they please, but to discriminate as they please — trumps the right of lesbian and gay people to be treated as equal members of society, with equal dignity.

  1. Even where people do criticize or even stigmatize others for bigotry, I’d argue that their purpose is still equality; the stigmatization is a means towards the end of equality. []
  2. Of course, many congregations and officiants freely choose to conduct same-sex ceremonies. []
  3. Of course, there’s no legal need to pass a law stating these exemptions, since they’re already implicit in the First Amendment’s guarantee of freedom of religion. But if passing a law restating this right would make religious people feel more secure and comfortable, then I’m all for it. []
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41 Responses to Should Yeshiva University Have Been Forced To Allow Same-Sex Couples In Its Married Dormitory?

  1. 1
    Sailorman says:

    For instance, what happens when a nurse or doctor at a Church-owned hospital decides not to acknowlege a patient’s same-sex partner or spouse? (And if Professor Maranto says that no, hospitals shouldn’t discriminate that way, then why is it less of an affront to religion to forbid discrimination in a hospital, than it is to forbid discrimination in a secular medical school, or in an adoption agency?)

    Peoople often don’t have much choice in hospitals–the closest one is best in a variety of situations–and as a result they are less fungible. Furthermore, there is less chance for clear and accurate disclosure and free choice when it comes to the high stress and difficult choices of medical care. So hospitals have a particular level of public service which is distinct from that for medical schools or adoption agencies. The latter two are numerous, relatively fungible, and are generally sought on a non-emergent basis.

    What prevents a small business owner who wants to discriminate from simply forming a “church” to be the legal owner of her business?

    I don’t know, but it may be somewhat moot: Generally, small business are not subject to federal anti discrimination laws anyway.

    To say that would be to say that the right of religions to discriminate — not to worship as they please, but to discriminate as they please — trumps the right of lesbian and gay people to be treated as equal members of society, with equal dignity.

    You are drawing a distinction between “worship” and “discriminate,” but it’s not clear that you have the right to do so. You are, in essence, defining other people’s religion for them, in a way which suits your worldview.

    To use a deliberately selected example: Would you say that a devout christian small business owner would be required to hire a person bearing tattoos which said “jesus is a false messiah and Satan is lord”? I assume not, for the moment (correct me if I’m wrong.)

    So then, if that same christian is telling you that she believes homosexual activity to be equivalent to the beliefs referenced in the tattoo, and that displaying homosexual activity to be equivalent to the tattoo itself: then what?

    You can’t in good faith argue that she is lying, or that she doesn’t get to define her own belief set. So it’s a bit tricky.

    This quote of yours is out of order:

    Religious institutions are sometimes huge and wealthy, and the biggest ones can own dozens of businesses. I would never want the government to intrude on anyone’s right to worship as they please, but it goes too far to say that any business owned by a church — no matter how secular that business is in practice — should be exempt from anti-discrimination law.

    Well, there are a few ways around it.
    One is to say that any business which gets a government contract or government funding must also adhere to anti-discrimination laws. This is a good start and already happens.

    Next is to say that certain businesses–hospitals, say–can’t get an exemption, for other socially compelling reasons as described above.

    There are other reasons, of course. But the concept of religious business discrimination isn’t obviously improper.

  2. 2
    PG says:

    Sailorman,

    Generally, small business are not subject to federal anti discrimination laws anyway.

    How are we defining a “small business”? The SBA allows up to 50 employees in every industry (and in some industries, up to 1000) while still being considered a “small business.” The Civil Rights Act of 1964, one of the earliest federal anti-discrimination laws applying to the private sector, applies to businesses with 15 or more employees.

    To use a deliberately selected example: Would you say that a devout christian small business owner would be required to hire a person bearing tattoos which said “jesus is a false messiah and Satan is lord”? I assume not, for the moment (correct me if I’m wrong.)

    If the tattoos are in places that can be covered and the employee is willing to do so (I’d refuse to hire someone whose voluntarily-chosen tattoos, regardless of how compatible with my own beliefs, couldn’t be covered because all tattoos look unprofessional), religious disagreement is not a valid reason to refuse to hire someone. Religious discrimination in employment is forbidden under the CRA of 1964. So your example fails the law we’ve had for the last 45 years. I know some Christians consider my family’s faith to constitute devil worship; they cannot refuse to hire me on that basis so long as my faith is no way disrupts the workplace (i.e. so long as I am willing to work Saturdays, deal with beef, etc.).

    There’s actually MORE protection under existing federal law for a Satanic worshipper than there are for LGBT folks.

    Anyway, I don’t understand why there should be any more exemptions for religious folks/institutions with regard to discrimination law protecting people based on sexual orientation than there are exemptions for religious folks/institutions with regard to discrimination law protecting people based on “race, color, religion, sex, or national origin.” I might have a religious objection to hiring or serving black people because my religion says they’re soulless mud people; I might have a religious objection to hiring women because my religion says they belong in the home; I might have a religious objection to hiring non-Christians because my religion says I shouldn’t consort with those who have not accepted Christ as Lord and Savior (and once I’ve hired them, federal law forbids my religiously harassing them in the workplace, so I can’t take it as an opportunity to evangelize them and win one for Jesus).

    The law already provides a few narrow exceptions for these objections, but generally tells me to shut up and deal. Why should sexual orientation be treated differently? It’s certainly no more a matter of choice than being a non-Christian.

  3. 3
    FurryCatHerder says:

    For what?

    If Y.U. allows non-Jews (or Jews, even) to have a bacon cheeseburger in the dorm room, how can they claim that forbidding same-sex married couples is for “religious reasons”.

    The other way this fails the “religious reasons” test is that Jewish Law is NOT NOT NOT applicable to non-Jews. It’s not a sin, under Jewish Law, for a goy to eat a bacon cheeseburger (so long as the animal was not tortured, etc — lets assume these are humanely raised cattle and pigs and other condiments).

    If Y.U. =were= an Orthodox Yeshiva, with nothing but frummies for students, sure — keep the married gays and lesbians out of the dorm rooms. Not that there are huge numbers of gay and lesbian frummies out there. But Y.U. is not an Orthodox Yeshiva and the existence of shrimp cocktail and bacon cheeseburgers anywhere on campus pretty much rules out any claim they have that halacha (Jewish Law) requires it.

  4. 4
    CybrgnX says:

    I do not see the big problem here. You are accepting public funds for ANY reason…then the public govenmental laws hold —NO dicrimination allowed.

    If the oganization is private with NO public funds, and is OPEN with their rules then what they want is OK.

    So the school in question is using public funds – then pluck thier idiot beliefs the GAYs win. Private ‘religious school’ NO public funds – the GAYs loose.

    Anyone who doesn’t like it go private with NO public funds.

  5. 5
    jdalton says:

    I think I agree with every last bit of this. This part is particularly relevant to current societal debates, I think-

    I support narrow exemptions to anti-discrimination laws; for instance, no religious congregation should be forced to perform same-sex weddings, nor should individual ministers (or rabbis, or priests, or imams, etc) be forced to conduct such ceremonies.2 A wedding in a church (shul, etc) is a religious ceremony, and the government shouldn’t intrude on that cermony. Similarly, no independent minister should be forced to participate in a wedding she doesn’t want to participate in.3

    What finally worked in Canada to get religiously-minded and human-rights-minded people to, if not see eye-to-eye, to at least agree to stop fighting, was a guarantee that legalized same sex marriage would not mean religious institutions would be required to perform them. The separation of church and state (and by extension, the separation of churches from each other so that each can make decisions for itself) is really what’s in the best interest of all concerned. Thank goodness some country to the south of here came up with that idea.

  6. 6
    PG says:

    “What finally worked in Canada to get religiously-minded and human-rights-minded people to, if not see eye-to-eye, to at least agree to stop fighting, was a guarantee that legalized same sex marriage would not mean religious institutions would be required to perform them.”

    This seems unnecessary in the U.S., given that the legalization of interracial marriages did not mean religious institutions would be required to perform them. If the War Memorial Chapel at Bob Jones University does not want to allow an interracial alumni couple to be wed there, that’s legal. The law forbids religious discrimination and allows inter-religious marriages, but I can’t march into a Catholic or Greek Orthodox or Jewish Orthodox church and demand that I, not belonging to any of those faiths, be allowed to marry there. We have always allowed churches to decide which marriages they will perform — why would SSMs be any different?

  7. 7
    Manju says:

    To say that would be to say that the right of religions to discriminate — not to worship as they please, but to discriminate as they please — trumps the right of lesbian and gay people to be treated as equal members of society, with equal dignity.

    Freedom of religion does trump anti-discrimination since the former is a constitutional right while the latter is therefore the lesser law that must conform to the constitution (via judicial review), not vice versa. Anti-discrimination laws are highly problematic to our regime based on individual rights, and to the first amendment in particular, because they’re legislation of morality. I think these laws are on a collision course with the first amendment, the boy scouts case being one of the first examples.

    Best way to resolve these issues is to uphold religious institutions right to practice however they want, even if they are only vaguely religious like the boy scouts or yeshiva, but prevent them from receiving govt funds. given how NIH grants and the such are a critical part of research universities, that should slove this problem.

  8. 8
    colophon says:

    While I’m proud of Canada’s legalisation of same-sex marriage we don’t have
    a separation of church and state in the same way the America does. For example Catholic (but not other religions) schools are fully funded in Ontario and many other provinces provide partial funding to religious schools which follow the provincial curriculum.

    Whether an organisation is exempt from human rights legislation religious grounds seems to hinge mostly on whether it is providing a public service.

  9. 9
    Manju says:

    If Y.U. allows non-Jews (or Jews, even) to have a bacon cheeseburger in the dorm room, how can they claim that forbidding same-sex married couples is for “religious reasons”.

    because freedom of religion means you have the right to practice your religion any way you see fit, short of initiating force on another individual. so if they want to punish their subjects for pedophilia but let masturbation go, or even vice versa as one church i know apparently does, that’s their freedom of choice.

  10. 10
    PG says:

    Manju,

    “because freedom of religion means you have the right to practice your religion any way you see fit, short of initiating force on another individual.”

    Uh, no, that’s not what freedom of religion means. Freedom of religion in the United States has always meant that the individual is free to believe as he wishes and cannot be forced to conform to a religion in which he does not believe, either by practicing that faith or by supporting it monetarily. But breaking a law in the name of religion is not protected under the First Amendment if the law was not passed with the intention of obstructing your religion.

    For example, if my religion commands animal sacrifice, but I live in NYC and animal slaughter by a person unlicensed as a butcher is forbidden under municipal law for health and safety reasons, then I can’t stand in my tiny yard and start cutting off goats’ heads. OTOH, if the law only prohibits *religious* animal slaughter and lets people raise chickens and cut off their heads to cook ‘em for Sunday dinner, then the law discriminates based on religion and cannot stand under the First Amendment.

  11. 11
    Manju says:

    Freedom of religion in the United States has always meant that the individual is free to believe as he wishes and cannot be forced to conform to a religion in which he does not believe, either by practicing that faith or by supporting it monetarily. But breaking a law in the name of religion is not protected under the First Amendment if the law was not passed with the intention of obstructing your religion.

    i think the gist of what your saying–religion is not exempt from secular laws–is correct but i think the founders had a more of a concern for excess government, specifically how seemingly secular laws could impinge on individual religious rights, than you’re giving them credit for.

    this concern appears in constitutional law for example in the lemon test, where even if a law is secular it shouldn’t inhibit religion. furthermore, the sherbert test asks judges to take into consideration if a law unduly burdens a sincerely held religious belief. i know the peyote case sppears have thrown this into doubt but variosu federal and state religious freedom acts have pushed sherbet back into law.

  12. 12
    PG says:

    “but i think the founders had a more of a concern for excess government, specifically how seemingly secular laws could impinge on individual religious rights, than you’re giving them credit for.”

    Please offer a citation for this claim.

    “variosu federal and state religious freedom acts have pushed sherbet back into law.”

    (1) If you’re relying on legislation for religious freedom, that conflicts with your claim that the Constitution trumps mere statutes.

    (2) The RFRA is limited to federal laws that might impinge on religious freedom (see City of Boerne v. Flores, 521 U.S. 507 (1997)).

    (3) The RFRA prohibits the Federal Government from substantially burdening a person’s exercise of religion, “even if the burden results from a rule of general applicability,” 42 U. S. C. §2000bb-1(a), except when the Government can “demonstrat[e] that application of the burden to the person (1) [furthers] a compelling government interest; and (2) is the least restrictive means of furthering that … interest,” §2000bb-1(b). The Supreme Court has previously found the government’s interest in ending invidious discrimination to be compelling (see Bob Jones v. U.S., 461 U.S. 574 (1983)), and I don’t know of a less restrictive means of furthering that interest than, well, banning invidious discrimination.

  13. 13
    Manju says:

    Please offer a citation for this claim.

    been too long since i read the federalist papers but i offered up sherbet and lemon tests as examples of this logic finding its way into consitiuional law.

    (1) If you’re relying on legislation for religious freedom, that conflicts with your claim that the Constitution trumps mere statutes.

    the acts don’t Trump he constitution, but it lends credence to the theses of how deeply embedded religious accommodation is in the American tradition.

    (3

    ) The RFRA prohibits the Federal Government from substantially burdening a person’s exercise of religion, “even if the burden results from a rule of general applicability,” 42 U. S. C. §2000bb-1(a), except when the Government can “demonstrat[e] that application of the burden to the person (1) [furthers] a compelling government interest; and (2) is the least restrictive means of furthering that … interest,” §2000bb-1(b). The Supreme Court has previously found the government’s interest in ending invidious discrimination to be compelling (see Bob Jones v. U.S., 461 U.S. 574 (1983)), and I don’t know of a less restrictive means of furthering that interest than, well, banning invidious discrimination.

    i’m not sure why you think this conflicts with what i said. it mentions “least restrictive means” and the bob jones case is precisely the type of solution i offered up (as did CybrgnX) in 7…a way to preserve religious freedom while enforcing anti-discrimination laws.

  14. 14
    Elusis says:

    a guarantee that legalized same sex marriage would not mean religious institutions would be required to perform them.

    To add to PG’s point at 6…

    Divorce is legal. Show me a Catholic church required to marry a couple where one or both parties have been divorced.

    Marriage without counseling is legal. Show me a church, Catholic or otherwise, that has been forced to disregard its religious tradition of pre-marital counseling and marry people on the spot.

    Marriage among agnostics and atheists is legal. Show me a church that has been required to marry non-members.

    Marriage among non-virgins is legal. Show me a church that has been required to marry sexually active individuals if they prohibit such behavior.

    No one is required to perform marriages that violate their religious tenets.

    I don’t care what you do in your cathedral, temple, or mosque when it comes to marriages. What I care about is if you take my tax money, hire people to staff your secular drug and alcohol rehab program or your welfare-to-work program, and then petition for the right not to hire people like me in defiance of the laws that otherwise cover me and my human rights.

  15. 15
    FurryCatHerder says:

    I’m going to spare the poster the embarassment of identifying them ;)

    The law forbids religious discrimination and allows inter-religious marriages, but I can’t march into a Catholic or Greek Orthodox or Jewish Orthodox church and demand that I, not belonging to any of those faiths, be allowed to marry there.

    We don’t have churches.

    (Also, “Orthodox” goes before “Jew” and “Judaism”, not after)

  16. 16
    PG says:

    sherbet and lemon tests as examples of this logic finding its way into consitiuional law.

    But Lemon is a test about the Establishment Clause, not Free Exercise, and it actually struck down the law that would have allowed taxpayer money to be spent on teachers and materials for religious schools. Sherbert certainly doesn’t say what you originally claimed, which was “freedom of religion means you have the right to practice your religion any way you see fit, short of initiating force on another individual.”

    On the contrary, Sherbert asks whether the individual’s religious belief is sincere; whether the law actually puts a substantial burden on the ability to act on that belief; whether the government has a compelling state interest; and whether it is pursuing that interest in the manner least burdensome to the religious exercise. Both of these tests post-date the Founding by almost 200 years, and more importantly post-date the 14th Amendment by almost 100 years (they were applied to cases regarding state law, and states were not bound by the Bill of Rights until passage of the 14th).

    the acts don’t Trump he constitution, but it lends credence to the theses of how deeply embedded religious accommodation is in the American tradition.

    You’re relying on a law passed in 1993 for an example of “deeply embedded religious accommodation”? Well, shoot, then I can say that preventing a hetero majority from discriminating against a homosexual minority is “deeply embedded” in our Constitutional tradition because of Romer v. Evans, 517 U.S. 620 (1996).

    i’m not sure why you think this conflicts with what i said.

    Because you said “freedom of religion means you have the right to practice your religion any way you see fit, short of initiating force on another individual,” and that’s not the standard under any Constitutional test nor under any statute. I cited Bob Jones as an example of anti-discrimination public policy being considered a “compelling state interest.”

    Bob Jones was not discriminating in admissions or hiring on the basis of race itself; rather, BJU forbade interracial marriage/dating. This was contrary to public policy, which is to treat interracial relationships as equal with intra-racial ones, but the Civil Rights Act doesn’t expressly forbid discriminating based on behavior (being in an interracial marriage) or advocacy (speaking in favor of interracial dating), only based on status (race). If the CRA did forbid discrimination based on behavior or belief, then it already would prohibit discrimination based on intra-sex sexual activity (i.e. homosexual acts) or advocacy for intra-sex relationships (i.e. homosexual political advocacy). I’m all for that reading, but it hasn’t worked with the courts.

    Had BJU been discriminating on the basis of race in its hiring and admissions, it would have violated the CRA of 1964.

    Charitable tax exemptions can be removed even for nonprofits that are not actually breaking the law, so long as the nonprofit is deemed not to be acting in the public interest. That’s what happened with BJU — there was no determination that they had violated the CRA of 1964.

    If a person hasn’t received a tax exemption in the first place because their activities were never deemed to be in the public interest — e.g., she is running a for-profit Christian bookstore — then the Bob Jones precedent is only relevant for what I cited it for: the fact that anti-discrimination policy is a compelling state interest.

    Beyond that, the bookstore owner is subject to the CRA of 1964 (if she has 15 or more employees) and must abide by it regardless of her religious beliefs. I assure you that if it had been a longstanding religious accommodation to let people dodge anti-discrimination law based on religious belief, many businesses in the South would have pointed out the part of the Old Testament that says Ham’s sons are cursed to forever be darker than and servants to their lighter-skinned counterparts, and said that therefore their business could not serve blacks because it was counter to Biblical law.

    You haven’t cited a single example of someone’s being allowed to violate anti-discrimination laws based on their religious beliefs. We’ve had such laws for 40-odd years, so I think the case would have come up by now.

  17. 17
    allburningup says:

    The difference between LDSFS and Catholic Charities is quite telling. LDSFS really is a private religious organization. Catholic Charities is not. But it seems that some people in positions of power at Catholic Charities would like to think that it is–or would like to get the benefits of a private religious organization as well as the perks of a secular, public organization. I think it’s quite shameful the way they try to play both sides like that. Shameful and pretty much guaranteed to result in conflicts of interest. And then all this protesting when they are actually held to the requirements of their government contract. It’s not just them, but several religious organizations that decide to provide a public service (rather than remaining private) and then get upset that they can’t pick and choose which sections of the public they want to serve. LDSFS did it right by remaining private.

  18. 18
    PG says:

    @ 17,

    I wonder to what extent it has to do with the religion’s history of church-state ties? LDS has pretty much *always* been on the outs with government for as long as it has existed, so it doesn’t expect state support, whereas the Catholic Church was THE Church in Europe for centuries and continues to be in some countries (Ireland, Italy, etc.).

  19. 19
    Manju says:

    But Lemon is a test about the Establishment Clause, not Free Exercise, and it actually struck down the law that would have allowed taxpayer money to be spent on teachers and materials for religious schools.

    the relevance is that the test demands even a secular law doesn’t inhibit a religion, which was my central point. As far as it being used to strike down laws that aid religion, i think scotus has since reestablished the prominence of the free exercise clause.

    Sherbert certainly doesn’t say what you originally claimed, which was “freedom of religion means you have the right to practice your religion any way you see fit, short of initiating force on another individual.”

    right. which is why i didn’t say it did but rather said the gist of what you say is correct. my original statement was far too Lockean, and isn’t where the US constitution ended up, though that was the philosophical context.

    Because you said “freedom of religion means you have the right to practice your religion any way you see fit, short of initiating force on another individual,” and that’s not the standard under any Constitutional test nor under any statute

    .

    right, see above.

    I cited Bob Jones as an example of anti-discrimination public policy being considered a “compelling state interest.”

    it is, but its problematic to individual rights. i think as a nation we are still working out how anti-discrimination laws can coexist with the first amendment, including free speech (think hostile work environment). There’s tension here and i don’t think things are as clear cut as you present them, considering the long tradition of classic liberty, not just religious, that underpins our regime.

    but the Civil Rights Act doesn’t expressly forbid discriminating based on behavior (being in an interracial marriage) or advocacy (speaking in favor of interracial dating), only based on status (race)

    this will be problematic going forward. i think if an employer for examples hires homosexuals but bans them from engaging in homosexual activity they’re going to be challenged in court.

    then the Bob Jones precedent is only relevant for what I cited it for: the fact that anti-discrimination policy is a compelling state interest.

    i think its also relevant that they didn’t try to go after them on CRA grounds, reflecting a respect for religious liberty.

    I assure you that if it had been a longstanding religious accommodation to let people dodge anti-discrimination law based on religious belief, many businesses in the South would have pointed out the part of the Old Testament that says Ham’s sons are cursed to forever be darker than and servants to their lighter-skinned counterparts, and said that therefore their business could not serve blacks because it was counter to Biblical law.

    There’s a long standing tradition of religious liberty as classically defined, but its on a collision course with the first amendment, so i wouldn’t say this tradition is longstanding vis a vis anti-discrimination laws, which are relatively new and still evolving. I’m not sure if the courts are gong to practice as much judicial restraint when it comes to limiting religious freedom for the sake of isms other than racism beacsue of a few reasons like context (blacks were subjected to govt imposed discrimination) and the sincerity of belief (sexism and homphobia are more intricate parts of most religions than is racism).

    The theoretical examples you cite appear to be otherwise secular public accommodations wishing to use a religious exception. while its problematic for the courts to decide what is a genuine religion, i think most biz owners in the south didn’t try to use that excuse b/c they couldn’t prove their institutions were primarily religious.

    You haven’t cited a single example of someone’s being allowed to violate anti-discrimination laws based on their religious beliefs. We’ve had such laws for 40-odd years, so I think the case would have come up by now

    .

    well, the boy scouts and st pattys day parade cases come to mind.

  20. 20
    PG says:

    the relevance is that the test demands even a secular law doesn’t inhibit a religion, which was my central point. As far as it being used to strike down laws that aid religion, i think scotus has since reestablished the prominence of the free exercise clause.

    That makes no sense. The Lemon test isn’t about inhibiting religion; it’s about what constitutes government aid to religion. And the Free Exercise clause isn’t somehow more or less prominent than the Establishment Clause; they do different things. Free exercise is about liberty to practice religion; Establishment is about taxpayers avoiding being forced to support a religion. Where do you get your synopses of Supreme Court cases?

    this will be problematic going forward. i think if an employer for examples hires homosexuals but bans them from engaging in homosexual activity they’re going to be challenged in court.

    These aren’t analogous. Being in an interracial relationship isn’t a “black activity,” or a “white activity.” Interracial relationships don’t define what it means to be black or white. A sexual attraction to persons of the same sex defines what it means to be homosexual.

    i think its also relevant that they didn’t try to go after them on CRA grounds, reflecting a respect for religious liberty.

    That’s because BOB JONES UNIVERSITY DIDN’T VIOLATE THE CIVIL RIGHTS ACT. I said this already, with an extensive explanation of the difference between refusing to admit or hire someone based on his race, sex, religion or national origin (which violates the CRA) and refusing to admit or hire someone based on his voluntary choice to engage in an interracial relationship.

    There’s a long standing tradition of religious liberty as classically defined, but its on a collision course with the first amendment

    Whaaa? I thought your whole point was that the First Amendment aligns with your conception of “a long standing tradition of religious liberty as classically defined.”

    I’m not sure if the courts are gong to practice as much judicial restraint when it comes to limiting religious freedom for the sake of isms other than racism beacsue of a few reasons like context (blacks were subjected to govt imposed discrimination) and the sincerity of belief (sexism and homphobia are more intricate parts of most religions than is racism).

    But the Civil Right Act along with other anti-discrimination law ALREADY protects against sexism. See the CRA, the Equal Pay Act of 1963, the Pregnancy Discrimination Act…

    well, the boy scouts and st pattys day parade cases come to mind.

    These are freedom of association cases (specifically dealing with “expressive association”), not free exercise cases.

    I’m not going to bother responding to any more of your comments if you haven’t even read the cases you’re citing. Let me just say for anyone reading this thread: my future lack of responses to Manju’s extremely erroneous claims about the law in no way constitutes an admission that those claims have any basis in reality whatsoever.

  21. 21
    Manju says:

    The Lemon test isn’t about inhibiting religion; it’s about what constitutes government aid to religion.

    But if the primary effect of even a secular law is to inhibit a religion, its unconstitutional. The sherbert test has a similar stipulation (not to burden a religion).

    And the Free Exercise clause isn’t somehow more or less prominent than the Establishment Clause; they do different things. Free exercise is about liberty to practice religion; Establishment is about taxpayers avoiding being forced to support a religion. Where do you get your synopses of Supreme Court cases?

    The distinction isn’t as clear cut as you make it appear. There’s tension, with liberals generally believing in a wall of separation and conservatives worried that that such a strict separation impinges on the free exercise clause.

    So for example, Milford Central School justified banning an after school evangelical Christian club citing a compelling govt interest interest in not violating the Establishment Clause. Conservatives, in response, viewed the ban as a violation of the free speech clause, and by extension religious liberty. This tension is also seen when it comes to various religious displays on public land, with scotus often split.

    One interesting case is Oregon which as a law on the books that says: “No teacher in any public school shall wear any religious dress while engaged in the performance of duties as a teacher,” presumably over similar fears of establishment and separation of chuirch and state. Turban and yamaka wearers have been very upset over it but for some resaon it has never gone up the federal judaical system. i think the conservative members of the bench would rule in favor of free specch/expression over establishment fears. I see less Judaical restraint when it comes to free speech and free expression after the conservative revolution.

    These aren’t analogous. Being in an interracial relationship isn’t a “black activity,” or a “white activity.” Interracial relationships don’t define what it means to be black or white. A sexual attraction to persons of the same sex defines what it means to be homosexual.

    I can see that nuance but it might be too technical a distinction (think DADT, though i realize tradtion holds the military to different standards) Have the courts ruled on that or is that just your opinion?

    That’s because BOB JONES UNIVERSITY DIDN’T VIOLATE THE CIVIL RIGHTS ACT. I said this already, with an extensive explanation of the difference between refusing to admit or hire someone based on his race, sex, religion or national origin (which violates the CRA) and refusing to admit or hire someone based on his voluntary choice to engage in an interracial relationship.

    This is argument by assertion. Have the courts ruled they didn’t violate the CRA because of the distinctoins you make or did the state just decide not to even bring a CRA case against them? Is this just your opinion or is it settled law? How can you be so certain the courts won’t find public accommodations that ban interracial dating a violation of the CRA in the future. Sounds more than plausible, no? after all, there was a time when sexual harassment wasn’t considered a violation of the CRA.

    Whaaa? I thought your whole point was that the First Amendment aligns with your conception of “a long standing tradition of religious liberty as classically defined.”

    No. I’m speaking on 2 levels. You’re reacting to my construction of the first amendment in a philosophical vacuum, one that faults on the side of indiscriminate freedom, but i recognize this isn’t the state of the law. (If I recall in a previous discussion you yourself referred to the absolutist nature of the first amendment—”congress shall make NO law”–while recognizing thats not where the courts are). There are exceptions, in this case because we’ve decided past discriminations must be remedied–so now we must decide where to place the limits.

    I just don’t think things are as resolved as you do, and I’m probably more concerned about protecting the liberties enumerated in the constitution, even if i don’t care for the practitioners of the aforementioned liberties.

    But the Civil Right Act along with other anti-discrimination law ALREADY protects against sexism. See the CRA, the Equal Pay Act of 1963, the Pregnancy Discrimination Act…

    True, but notice how sepretion of the sexes or a boys only school is genrally allowed while its not for race.

    These are freedom of association cases (specifically dealing with “expressive association”), not free exercise cases.

    well, since free association is in the first amendment its relevant and related, just like free speech is related to religious freedom in the aforementioned Milford case. The majority opinion in the boyscouts case discussed religious freedom as it relates to free association. These freedoms are interrelated which is why we see them in the same amendment.

    In fact, by relying on the free association clause as opposed to free expression, scoutus buttresses my assertion (of the problems with anti-discrimination laws and liberal freedoms) because free association is a larger net, encompassing all individuals not just religious ones.

    However, if it helps you accept my thesis (that anti-discrimonation laws are on a collision course with the first amendment) to say that it is more the free association or free speech clauses standing in the way of anti-discrimination laws than the free expression clause, then I’m happy to concede the point.

  22. 22
    PG says:

    But if the primary effect of even a secular law is to inhibit a religion, its unconstitutional.

    Lemon v. Kurtzman cites Board of Education v. Allen, 392 U. S. 236 (1968) for the requirement that a law’s “principal or primary effect must be one that neither advances nor inhibits religion.” The question in Lemon was whether the law ADVANCED religion, and the Court held that it did. There was no question in the case about the law’s INHIBITING religion. Your interpretations to the contrary are just nonsensical.

    Conservatives, in response, viewed the ban as a violation of the free speech clause, and by extension religious liberty.

    Conservatives nowadays view the president as illegitimate and born in Kenya (or maybe Indonesia?). The fact that they saw the ban a certain way doesn’t mean that’s how it was considered by the Court, and “conservatives see it this way,” when the conservatives in question are not conservative judges, is a useless argument. The phrase “free exercise” is never mentioned in Thomas’s opinion for the Court, and is bloody irrelevant to the case, which was about the school’s obligation to treat all speakers equally once it had created a limited public forum. Again, you bring a nonsensical interpretation with little or no basis in the text.

    Turban and yamaka wearers have been very upset over it but for some resaon it has never gone up the federal judaical system.

    Have you considered the possibility that a law signed by the governor three weeks ago might take a little while to “go up the federal judicial system”?

    I can see that nuance but it might be too technical a distinction (think DADT, though i realize tradtion holds the military to different standards) Have the courts ruled on that or is that just your opinion?

    (1) DADT is itself a Congressional statute, as anyone from the military will tell you if you discuss DADT with him. Later Congressional enactments supersede prior ones. The military, with Congress’s blessing, already violates the CRA by limiting what jobs women may take (i.e. no combat).

    (2) The Civil Rights Act prohibits discrimination based on sex. If it were a violation of the CRA to discriminate against someone based on her sex relative to that of the person with whom she has a relationship (as you are claiming the CRA is violated to discriminate against someone based on her race relative to that of the person with whom she has a relationship), then the CRA would already prohibit discrimination based one one’s having a homosexual relationship. The courts have held that it doesn’t (yes, gay people tried this argument out a long time ago!): DeSantis v. Pacific Tel. & Tel. Co., 608 F.2d 327 (9th Cir.1979); Williamson v. A.G. Edwards & Sons, Inc., 876 F.2d 69 (8th Cir. 1989). The Supreme Court denied cert but the Circuit courts are in agreement, thereby making this the law of the land unless the Supreme Court decides otherwise (which is unlikely to do, especially as Congress moves toward explicitly prohibiting sexual orientation).

    This is argument by assertion. Have the courts ruled they didn’t violate the CRA because of the distinctoins you make or did the state just decide not to even bring a CRA case against them?

    Do you not feel even a little shy about telling someone else, “This is argument by assertion”?

    First, it’s rarely the state that brings a Civil Right Act case; usually the person alleging discrimination brings the case. In the absence of anyone in an interracial relationship who wanted to attend BJU to claim injury from BJU’s policies, the tax exempt status was the only question worth pursuing.

    Second, court decisions have been mixed on the question of whether discrimination due to an interracial association violates the Civil Right Act (as distinct from whether one may bring a Sec. 1981 claim based on such discrimination, which most courts have said one may). The Fifth, Sixth, and Eleventh Circuits have ruled that it is a violation, in decisions that post-date the Bob Jones case; the other circuits have not. At the time of the Bob Jones case, discrimination based on an interracial relationship had not been established as part of discrimination based on race.

    True, but notice how sepretion of the sexes or a boys only school is genrally allowed while its not for race.

    (1) That’s not an employment practice, and a school is not a public accommodation. Title VI of the CRA forbade discrimination in public education only on the basis of of race, color, or national origin; it took Title IX of the 1972 Education Amendments to add sex to the forbidden grounds for discrimination.
    (2) A “boys only school” is generally not allowed for state-run colleges and universities (see the VMI case), and sex segregation in public schools, where it is mandatory rather than voluntary and no other option is available, is illegal.

    well, since free association is in the first amendment its relevant and related, just like free speech is related to religious freedom in the aforementioned Milford case.

    Freedom of the press is in the First Amendment too. Does that mean that if the government seeks an injunction to prevent a newspaper from printing troop movements, religious freedom is somehow related?

  23. 23
    Manju says:

    Lemon v. Kurtzman cites Board of Education v. Allen, 392 U. S. 236 (1968) for the requirement that a law’s “principal or primary effect must be one that neither advances nor inhibits religion.” The question in Lemon was whether the law ADVANCED religion, and the Court held that it did. There was no question in the case about the law’s INHIBITING religion. Your interpretations to the contrary are just nonsensical.

    The Lemon test went beyond the individual case of Lemon v. Kurtzman. Since it held an otherwise constitutional law to be unconstitutional if it “inhibits religion,” I cited it as an example of “how seemingly secular laws could impinge on individual religious rights.”

    Granted Lemon concerns the establishment clause so the Sherbert test (“whether the government action is a substantial burden on the person’s ability to act on that belief”) is a better example of the constitutional tradition of which I speak, but Lemon nonetheless adds some colour.

    Conservatives nowadays view the president as illegitimate and born in Kenya (or maybe Indonesia?). The fact that they saw the ban a certain way doesn’t mean that’s how it was considered by the Court, and “conservatives see it this way,” when the conservatives in question are not conservative judges, is a useless argument

    I was referring to conservative judges when I said; “Conservatives, in response, viewed the ban as a violation of the free speech clause, and by extension religious liberty.”

    For example, Scalia in Pinette, a case also concerning the establishment clause vs free speech (the KKK’s free speech) wrote: “religious expression cannot violate the Establishment Clause where it (1) is purely private and (2) occurs in a traditional or designated public forum, publicly announced and open to all on equal terms.”

    The phrase “free exercise” is never mentioned in Thomas’s opinion for the Court…

    I didn’t say it was.

    …,and is bloody irrelevant to the case, which was about the school’s obligation to treat all speakers equally once it had created a limited public forum. Again, you bring a nonsensical interpretation with little or no basis in the text.

    Since Milford and the lower courts saw a potential establishment clause violation, only religious speech is at risk at being banned, so I see this nuance as a distinction without a difference.

    Nonetheless, as I mentioned earlier, if your main contention is that religious speech falls under the free speech clause, and therefore the tension I mentioned is not really between establishment and “free exercise” but rather the former and “free speech” (or “free association”, if we look at boy scouts) then for the sake of argument I’m happy to concede the point and amend my claim, especially since it doesn’t distract from my original point: ” think these laws are on a collision course with the first amendment, the boy scouts case being one of the first examples.”

    Have you considered the possibility that a law signed by the governor three weeks ago might take a little while to “go up the federal judicial system”?

    I never considered that because the law I quoted has been on the books for decades:

    Oregon has had a law on the books for decades that states, “No teacher in any public school shall wear any religious dress while engaged in the performance of duties as a teacher.” Pennsylvania has a similar law

    court decisions have been mixed on the question of whether discrimination due to an interracial association violates the Civil Right Act (as distinct from whether one may bring a Sec. 1981 claim based on such discrimination, which most courts have said one may). The Fifth, Sixth, and Eleventh Circuits have ruled that it is a violation, in decisions that post-date the Bob Jones case; the other circuits have not.

    Well, if its mixed than I don’t see why you shouted bombastically: “BOB JONES UNIVERSITY DIDN’T VIOLATE THE CIVIL RIGHTS ACT.”

    Title IX of the 1972 Education Amendments to add sex to the forbidden grounds for discrimination. (2) A “boys only school” is generally not allowed for state-run colleges and universities (see the VMI case), and sex segregation in public schools, where it is mandatory rather than voluntary and no other option is available, is illegal.

    Well, you made my case. Title IX has been on the books since 1972 yet same sex private schools are allowed (though of course not public, but that obcvious ).

    My point was, as anti-discrimination laws get applied and reviewed, I suspect, given the long tradition of homophobia that major religions have practiced, we’re going to have a higher first amendment hurdle for outlawing anti-gay discrimination than racial ones…due to the burdening of religion (sherbert) as well as the free association and free speech clauses.

    To be clear, I find these beliefs and practices as abhorrent as anyone on this blog, but I think the bill of rights generally protect them, as it ideally should.

    Freedom of the press is in the First Amendment too. Does that mean that if the government seeks an injunction to prevent a newspaper from printing troop movements, religious freedom is somehow related?

    No, it just means free exercise of religion is meaningless without freedom of press. After all, the religious need to have the right to print and disseminate their views. These freedoms are intertwined.

    .

  24. 24
    PG says:

    You keep ignoring the part of the Lemon test that says, “its principal or primary effect must be one that neither advances nor inhibits religion.” That’s kind of crucial. If the law inhibits religion — e.g., it prevents me from doing animal sacrifices — but that is not its PRIMARY effect (I am inhibited by the law only inasmuch as it prevents everyone in the city limits from engaging in freelance butchering), then it is constitutional. The diversity of religion in America is so great that if every law were rendered unconstitutional due to having an incidental effect of inhibiting some obscure religion of which the legislators hadn’t even heard and certainly hadn’t intended to inhibit, most of our laws could be declared unconstitutional.

    For example, Scalia in Pinette, a case also concerning the establishment clause vs free speech (the KKK’s free speech) wrote: “religious expression cannot violate the Establishment Clause where it (1) is purely private and (2) occurs in a traditional or designated public forum, publicly announced and open to all on equal terms.”

    And which part of that refers to religious liberty? Both Milford and Pinette are about allowing religious expression equal standing with other kinds of expression, not seeing religious expression as particularly protected by the Free Exercise clause.

    Since Milford and the lower courts saw a potential establishment clause violation, only religious speech is at risk at being banned, so I see this nuance as a distinction without a difference.

    I think this is precisely the problem we’re running into. You keep insisting that the clauses of the First Amendment can all be collapsed together into one mass of liberty; I keep pointing out that the courts see them quite distinctly. Free speech is a right to have all speech content treated equally by the government. Discrimination in an otherwise open public forum against a certain political speech is no less a violation of the First Amendment than discrimination against religious speech, even though the First Amendment doesn’t protect the “free exercise of politics.”

    The Free Exercise clause doesn’t provide some sort of plus factor of EXTRA EXTRA First Amendment violation when the religious speech is at risk compared to when the political speech is at risk. Indeed, political speech, particularly in protest of governmental tyranny, generally is regarded as the most core and protected form of speech.

    I never considered that because the law I quoted has been on the books for decades:

    But the older version of the Oregon law existed in a state that had no protection for anyone to wear religious garb on the job at all. And that law has been tested at the highest level of the state court and was refused cert by the Supreme Court (Cooper v. Eugene School District). The PA law HAS gone through the federal courts, and was upheld by the 3d Cir. in U.S. v. Board of Education because “the preservation of religious neutrality is a compelling state interest.”

    “BOB JONES UNIVERSITY DIDN’T VIOLATE THE CIVIL RIGHTS ACT.”

    Because at the time of the Bob Jones case, interracial associations had not been held by any court to be protected by the Civil Rights Act of 1964, and there was no holding that Bob Jones had violated the Civil Rights Act. Your claim that there was a violation would be like someone’s claiming that organized prayer in a state-run public school in 1830 was a violation of the First Amendment — the First Amendment did not apply to the states until the passage of the 14th Amendment. YOU might think, based on YOUR construction of the law, that the prayer violated the 1st Amendment, but your constructions is wholly unsupported in the case law. If we are going to discuss this based on Manju’s Interpretation Of What The Constitution And Statutes Mean, rather than on what the law has been held to be by the courts, then I’m not interested.

    Well, you made my case. Title IX has been on the books since 1972 yet same sex private schools are allowed (though of course not public, but that obcvious ).

    Except Title IX only applies to schools receiving federal assistance. Read the law, please.

    My point was, as anti-discrimination laws get applied and reviewed, I suspect, given the long tradition of homophobia that major religions have practiced, we’re going to have a higher first amendment hurdle for outlawing anti-gay discrimination than racial ones…due to the burdening of religion (sherbert) as well as the free association and free speech clauses.

    There’s a long tradition of racism in some major religions too, at least as how they have manifested in certain parts of the world.

    To be clear, I find these beliefs and practices as abhorrent as anyone on this blog, but I think the bill of rights generally protect them, as it ideally should.

    Why doesn’t the Bill of Rights protect the beliefs and practices of people in racist religions, then? After all, the specific “practice” at issue is not any requirement that a religious group include people it doesn’t want in its rituals or its membership, only that in its non-religious activities — and running a medical school is a fairly secular activity, as manifested by the many non-religious groups doing it — not discriminate. You’re apparently advocating for the idea that if my religion says gays are bad, the Bill of Rights protects me from having to treat gays equally in my secular activities. So if my religion says black people are inferior, why doesn’t the Bill of Rights protect me from having to treat black people equally in my secular activities?

    No, it just means free exercise of religion is meaningless without freedom of press. After all, the religious need to have the right to print and disseminate their views. These freedoms are intertwined.

    So do the non-religious. So do the people who want to discuss in an entirely secular vein whether we should have troops in Afghanistan. As I’ve said, there’s no particular protection for religious speech or a religious press compared to secular speech and press.

  25. 25
    Julie Herds Cats says:

    PG @ 24:

    So do the non-religious. So do the people who want to discuss in an entirely secular vein whether we should have troops in Afghanistan. As I’ve said, there’s no particular protection for religious speech or a religious press compared to secular speech and press.

    I’m not sure if I get what you’re saying, but there is no freedom of speech for “religious speech” the way there is for “political speech”, and there is absolutely no absolute right for “non-political speech”. If there was, religious invocations at state-sponsored secular events WOULD be protected.

    An invocation in which an unpopular political position was expressed WOULD be protected, while “You need to love up on Moses / Jesus / Muhammed” wouldn’t, under the Establishment clause, the same as a “Moment of Silence” for the victims of a secular tragedy would be acceptable, but a “Moment of Silence” commemorating the anniversary of the destruction of the Temple in Jerusalem, or the death of Imam Ali in Karbala (both of which were observed last week) wouldn’t.

    The Establishment Clause does create an effective muzzle against religious activities, which includes religious speech, when the government is involved in the event. Manju’s position seems to be that the Exercise Clause augments the Free Press, providing extra protection, while yours seems to be more neutral — neither aiding nor restricting. If I’m reading you wrong, my apologies — it’s hard to follow what you’re saying given Manju’s arguments.

  26. 26
    PG says:

    “If there was, religious invocations at state-sponsored secular events WOULD be protected.”

    The University of Virginia is a state university, and its graduation ceremonies are presumably “state-sponsored secular events.” Yet there is no First Amendment problem* with having a self-identified “born again” alumnus give a commencement speech that includes telling graduates that they should be sure to include God in their lives:

    Decision number two: Well, this is the one that makes people squirm. What are you going to do about faith? Uh oh, not that one. But can there be any more important questions than these: How did we all get here? What is the meaning of life? How is it that we know deep-down inside what is right and wrong and yet rarely succeed in doing what is right for more than about thirty minutes? What happens to us after we die?

    Surely these are among the most critical questions in life. And ones which a university should carefully consider. But how much time have you spent on them? Perhaps you, like I, grew up in a home where faith played a significant role, but you never made it your own. Or you concluded it was a fuzzy area that made you uncomfortable. Or even concluded that it was all superstition, like Mark Twain’s schoolboy, who when requested to define faith said, ‘It is believing what you know ain’t so.’ Or perhaps you simply assumed that as you grew in knowledge of science that faith was incompatible with a rigorous intellect and that God was irrelevant and obsolete. Well, I am here to tell you that this is not so.

    All of those half-truths against the possibility of God have holes in them big enough to drive a truck through, as I learned by reading C.S. Lewis. In my view, there is no conflict between being a ‘rigorous, show me the data’ physician-scientist and a person who believes in a God who takes a personal interest in each one of us and whose domain is in the spiritual world. A domain not possible to explore by the tools and language and science, but with the heart, the mind and the soul.

    Yet, it is remarkable how many of us fail to consider those questions of eternal significance until some personal crisis or advancing age forces us to face our own spiritual impoverishment. Don’t make that mistake.

    The bar on mentioning religion at public institutions is most strict at the elementary and secondary school level because such education is legally mandatory (whereas a college education isn’t), and thus the state has made students 18 and under a captive audience of religious statements. Where attendance and support is not mandatory, state-sponsored secular events can and do include references to religion such as the one I quoted.

    * I feel fairly secure in saying that there wasn’t a First Amendment problem, because certain among the audience at UVa would have been ready to protest/ bring a lawsuit if there had been. This is a university founded by the guy who wrote the Statute For Religious Freedom, and that includes among its former presidents and current faculty a First Amendment legal scholar.

  27. 27
    Julie Herds Cats says:

    PG @ 26:

    The bar on mentioning religion at public institutions is most strict at the elementary and secondary school level because such education is legally mandatory (whereas a college education isn’t), and thus the state has made students 18 and under a captive audience of religious statements. Where attendance and support is not mandatory, state-sponsored secular events can and do include references to religion such as the one I quoted.

    There is no protection for “religious speech” because if there WERE a protection for religious SPEECH there would be no such bar. You can’t have this one both ways. Either religious speech is protected, and the principal of a high school can give a sermon about loving Jesus, or religious speech is not protected and the State can set limits.

    Contrast that with the protections on political speech — you and I can stand on opposites sides of the street, expressing radically different political opinions, covering most of the entire spectrum of political ideology and we can’t be stopped by the State, unless we’re violating some law that doesn’t also prevent us from doing what we’re doing in a calm and orderly fashion.

  28. 28
    PG says:

    you and I can stand on opposites sides of the street, expressing radically different political opinions, covering most of the entire spectrum of political ideology and we can’t be stopped by the State, unless we’re violating some law that doesn’t also prevent us from doing what we’re doing in a calm and orderly fashion.

    You can do that with religious opinions too.

  29. 29
    Julie Herds Cats says:

    PG,

    Yes, you and I can stand on opposite sides of the street, on our own, having nothing to do with any State support, and express our religious opinions.

    However, a public school teacher cannot stand in her classroom and express religious opinions the same way she can express political ones. Believe me — I know this one all too well. My History teacher in 11th grade and I went around and around about politics and there was nothing I could do to make her stop being a No-Nukes, Save-The-Whales, Hug-The-Trees, I-Love-Granola person. But the I-Love-Jesus club I was in was pretty well muzzled. (Just after TMI she told us to send Carter letters opposing nukes. I sent him a very nice letter saying how much I loved nukes and how I wanted to be a Navy officer, just like him, when I grew up. He sent me a very nice reply saying he thought that was just great. My teacher was beyond irate.)

    And that’s the difference you just don’t want to acknowledge and there’s no conclusion other than “Religious Speech Is Not Protected”.

  30. 30
    Manju says:

    You keep ignoring the part of the Lemon test that says, “its principal or primary effect must be one that neither advances nor inhibits religion.”

    Since a law that has the primary effect of inhibiting a religion is unconstitutional, while there is no equivalent test stipulating secular belief systems are similarly protected, I used Lemon as an example of religion being privileged. Now in my ideal republic religion would be on equal footing with other belief systems, but since its singled out for protection in the first amendment, above and beyond free speech and free press which also includes religious expressions, I guess that’s the law.

    Sherbert is even more dramatic b/c if an individual has a sincere religious belief and the govt substantially burdens the person’s ability to act on that belief, the the govt must demonstrate a compelling state interest and act in a manner least restrictive to religion or risk violating bill of rights. Since secular beliefs aren’t afforded such protection, religion is privileged.

    Frankly, my thoughts are more along the line of Harlan’s dissent, which reads the first amendment as requiring neutrality toward religion, But sherbert is a dominant line of thinking (peyote notwithstanding) and since the founders did single out religion (for various historical reasons such as religious minorities are historically targeted) I can see Sherberts extra protection as a more than plausible interpretation.

    And which part of that refers to religious liberty?

    That would be Scalia reference to “religious expression,”

    Both Milford and Pinette are about allowing religious expression equal standing with other kinds of expression, not seeing religious expression as particularly protected by the Free Exercise clause.

    Did I use Milford and Pinette as examples of religion being privileged? I thought I used them as examples of liberals using the establishment clause as an excuse to censor while conservatives saw it as a violation of religious freedoms, albeit freedoms that exist under the free speech clause, not free exercise clause , as I’m happy to concede

    You keep insisting that the clauses of the First Amendment can all be collapsed together into one mass of liberty; I keep pointing out that the courts see them quite distinctly.

    Firstly, I thought I conceded twice already that the freedoms found in Milford, BoyScouts, and Pinette exist under the free speech clause, and therefore apply equally to secular as well as religious groups –though in Milford and Pinette secular speech is a moot point since the restriction on free speech emanated from ( a bad interpretation of) the establishment clause. I’m happy to concede this because it bolsters my fundamental point—of the tension between anti-discrimination laws and the first amendment—by revealing the clause most likely to cause these laws trouble is one encompassing all individuals, not just the religious.

    But as to whether or not these clauses are “one mass” or quite distinct is a bit peripheral to our argument but an interesting philosophical debate nonetheless. While I wouldn’t use the phrase “one mass” I do think the bill of rights consists of interconnected rights with an internal logic that flows from the classic liberal philosophy underpinning our regime.

    That’s why you can’t just add say “right to a decent wage” to the first amendment and expect it to make any sense. It’s completely unrelated. The first 8 amendment limit government by restricting where the government can use its power—reflecting a philosophy of limited government and freedom (from physical compulsion) and equality (under the law). That’s why various judges can find the same liberties in different amendments. For example, in Roe v Wade, Blackmun found the right to privacy/abortion in the 14th amendment while the lower courts found it in the 9th.

    Free speech is a right to have all speech content treated equally by the government. Discrimination in an otherwise open public forum against a certain political speech is no less a violation of the First Amendment than discrimination against religious speech, even though the First Amendment doesn’t protect the “free exercise of politics.”

    Agreed.

    The Free Exercise clause doesn’t provide some sort of plus factor of EXTRA EXTRA First Amendment violation when the religious speech is at risk compared to when the political speech is at risk.

    Perhaps not additional SPEECH rights but Sherbert suggest that religious traditions impose unique needs upon people and the government must reasonably accommodate them.

  31. 31
    Manju says:

    Why doesn’t the Bill of Rights protect the beliefs and practices of people in racist religions, then?

    To a certain degree it does. Freedom of association is a fundamental right and it generally can’t be restricted for those engaging in both intimate and expressive associations. Hate groups are allowed to exist and hate speech is constitutionally protected, unless spoken during a crime. Banning such beliefs and practices outright would be completely unamerican and the partial bans existing today arguably contradict the the plain meaning of the first amendment.

    The problem is slavery, Jim crow, denial of rights to women and homosexuals, internment of the Japanese, and the decimation of the American Indians where and are even more of a violation of the American creed, making the tyranny of anti-discrimination laws pale in comparison. So, in this context we have a compelling state interest to reverse such insidious discrimination. The laws have been narrowly tailored enough to protect personal choices and expressive associations while focusing on public accommodations and commerce in particular.

    The problem is anti-discrimination laws are expanding, not narrowing, as we move further and further away from state sponsored discrimination. Amp wants “narrow exemptions to anti-discrimination laws” as opposed to a narrow exceptions to the first amendment, a sort of reverse strict scrutiny. In New Mexico, a photographer is fined for refusing to photograph a same-sex ceremony, raising issues of personal liberty as well as artistic ones. We have vaguely Orwellian hate crime laws with many on the left agitating for restrictions on hate speech. A UN agency is trying to include criticism of religion within the hate speech category.

    I would like to reverse this process and I’m glad to see the courts are beginning to do so. I think these laws should apply to large organizations, but not sole-proprietorships like the New Mexican photographer, and I wouldn’t be surprised if scoutus agreed. As far as the yeshiva goes, I think it could be reasonably argued they’re an expressive association under the free speech clause and a religious one under free exercise. I understand medical school is a secular activity but so is camping (Boyscouts). While Runyon may have set the precedent that you can’t discriminate against students, the context–ie no legacy of slavery and Jim crow that has resulted in an entire group with lower class status and denial of opportunity—is now very different since homosexual students have access to non-religious schools. I think we can even revisit the notion of compelling governmental interest, if the context has so changed.

    But that is not to say I don’t want to do anything about discrimination. I favor rescinding the yeshiva’s tax advantaged status. This would be the least restrictive a most narrowly tailored way to achieve our goals, arguably what the constitution requires. That should take care of the worry that religions can operate a lot of busnesses and evade the anti-discrimination laws. The religious group running the business would lose their tax status. If no religious group runs the biz then there is no exception to the anti-discrimination law, unless the business is very small. I thnk this would be even more effective than the current regime and it preserves our nation’s philosophical underpinnings more effectively.

    If we were on scotus together, in return for you supporting my agenda, I’d offer up finding a right to same sex marriage within the equal protection clause of the 14th amendment. On top of that you can be chief justice, since I don’t have a law degree. I think this would actually work out best for all concerned.

  32. 32
    Manju says:

    However, a public school teacher cannot stand in her classroom and express religious opinions the same way she can express political ones. Believe me — I know this one all too well. My History teacher in 11th grade and I went around and around about politics and there was nothing I could do to make her stop being a No-Nukes, Save-The-Whales, Hug-The-Trees, I-Love-Granola person. But the I-Love-Jesus club I was in was pretty well muzzled.

    This sounds accurate. The only nuance I’d add is that the school could require the teacher to stop but the constitution doesn’t require the school to require the teacher to stop…whereas it does for the teacher preaching religion.

    So i think its fair to say the establishment clause gives religion a somewhat lesser status in certain circumstances but the free exercise clause returns the favor by slightly privileging it.

  33. 33
    Julie Herds Cats says:

    Manju,

    A public school is a State actor. It doesn’t get a free pass on the Constitution just because it calls itself a “School”.

  34. 34
    Manju says:

    A public school is a State actor. It doesn’t get a free pass on the Constitution just because it calls itself a “School”.

    You lost me, Julie. Where do you think public schools got a pass?

  35. 35
    Julie Herds Cats says:

    Manju –

    From this:

    This sounds accurate. The only nuance I’d add is that the school could require the teacher to stop but the constitution doesn’t require the school to require the teacher to stop…whereas it does for the teacher preaching religion.

    The “School” is a State actor. It can’t add restrictions just because it is a “School”.

  36. 36
    Manju says:

    The “School” is a State actor. It can’t add restrictions just because it is a “School”.

    Actually, it can…precisely because it is a school, though the restrictions have to be limited to those relevant to schooling. You see, the problem with the first amendment is it reads as if written by Ayn Rand or somebody: an absolutist, ahistorical, ode to freedom that would be completely unworkable if applied as its plain meaning indicates.

    So, for example, a teacher decides to exercise her first amendment rights in chemistry class by spouting andrea dworkin. Now reading, believing in, and communicating dworkin’s theories is constitutionally protected behaviour normally, but if a teacher did this in chemistry class how would the students learn? How could the school function? so these narrow commonsensical exceptions to free speech are carved out.

    You’ll see in the news recently cops who’ve sent racist e-mails. Again, such speech is usually constitutionally protected, but in the context of police work, it reasonably can be interpreted as a sign that the officer is incapable of doing his job, ie enforce equal protection under the law.

    I don’t know what they are off the top of my head, but there’s some case law on this and some technical legal terms that set the boundaries in a very precise way, probably PG knows, but suffice to say this is the gist. The state doesn’t have complete leeway here to be sure, the same racsit e-mail would probably be protected if sent by a janitor in the police dept, but this is the basic framework.

  37. 37
    PG says:

    JHC,

    However, a public school teacher cannot stand in her classroom and express religious opinions the same way she can express political ones. Believe me — I know this one all too well…. But the I-Love-Jesus club I was in was pretty well muzzled. … And that’s the difference you just don’t want to acknowledge and there’s no conclusion other than “Religious Speech Is Not Protected”.

    If we’re going based on personal experiences, I have had my public school teachers express their religious opinions to me. My 8th grade earth science teacher told us about how if abortion had been legal in Beethoven’s time, the great musician never would have been born, and said that only God knew what He planned for us, therefore no human being should have the power to kill. My 11th grade AP Biology teacher said he wasn’t going to teach us evolution (one of the subjects that may be tested on the AP Bio exam, btw) because of his religious beliefs, and then told us about those beliefs. I once sat through a third of a “Christians In Action” meeting by accident because I thought it was the Student Council (significant overlap of membership, and no surprise to have a meeting start with a prayer).

    Indeed, I’m amazed that in Louisiana (I believe you’ve mentioned that’s where you grew up) that the “I Love Jesus” club (was that it’s real name?) was “muzzled.” I grew up just over the border in East Texas, and Christianity was very much present in my public schooling. We had “Meet Me at the Pole” (a national day of prayer where students meet at their school’s flagpole), the National Honor Society induction was at a church, there were prayers broadcast over the loudspeaker at football games …

    Religious speech in public elementary and secondary schools is protected inasmuch as students are allowed to make such speech. Teachers and others in authority and paid by the state to staff those schools are not supposed to do so because (a) 6-17 year olds are thought too young and impressionable to withstand having their authority figures tell them something without accepting that belief; (b) attendance is mandatory under the law and Americans shouldn’t be forced to sit through a religious inculcation; and (c) taxpayer money isn’t supposed to go for religious speech.

    These are all Establishment issues. They are all about ensuring that the state does not throw its support behind one religion to the exclusion of others (or of non-religion). The lawsuits challenging practices as constituting Establishment often are brought by Christians belonging to a locally-marginalized denomination, who are tormented by members of the majority denomination for not going to the right church. They are trying to retain their *own* religious liberty, not decrease the liberty of others.

    Manju,

    What is a law that has as its primary effect the inhibiting of a secular belief system? Laws that required Americans to pledge that they were not Communists, for example, were ultimately held to be unconstitutional.

    Sherbert is even more dramatic b/c if an individual has a sincere religious belief and the govt substantially burdens the person’s ability to act on that belief, the the govt must demonstrate a compelling state interest and act in a manner least restrictive to religion or risk violating bill of rights. Since secular beliefs aren’t afforded such protection, religion is privileged.

    And for the dozenth time, Sherbert is no longer the Court’s interpretation of the First Amendment. It’s still the standard for federal laws because Congress chose to pass the RFRA and RLUIPA, but that is not the same as its being a First Amendment standard. Congress could choose to repeal the RFRA and RLUIPA, and then there would be no such protection for religious beliefs.

    That would be Scalia reference to “religious expression,”

    Religious expression =/= “religious liberty.” Scalia was saying that religious expression could not be put on a *lower* plane than secular expression so long as the religious expression did not constitute Establishment. Seriously, these are separate clauses of the Constitution. If you have so much respect for the Founders, you might want to consider why they specified BOTH that Congress could not abridge the freedom of religion AND that Congress could not establish religion. Why include the establishment clause if it’s always about liberty?

    Banning such beliefs and practices outright would be completely unamerican and the partial bans existing today arguably contradict the the plain meaning of the first amendment.

    What “partial bans” do you mean?

    In New Mexico, a photographer is fined for refusing to photograph a same-sex ceremony, raising issues of personal liberty as well as artistic ones.

    There’s an issue of personal and artistic liberty for fining a photographer who refuses to photograph a black couple’s ceremony, or an interracial ceremony, or a Hindu ceremony, yet these violations of liberty don’t seem to worry you nearly as much as the violation of a homophobic person’s liberty.

    We have vaguely Orwellian hate crime laws with many on the left agitating for restrictions on hate speech.

    What is Orwellian about our hate crimes laws? An actual quote from Orwell would be great here.

    I understand medical school is a secular activity but so is camping (Boyscouts).

    The Boy Scouts’ activities go well beyond camping, and camping is not actually a requirement for being a Boy Scout. They justified barring homosexuals from membership on the grounds that homosexuality was incompatible with “moral straightness,” one of the guiding precepts of the Boy Scouts. The Boy Scouts, having declared that it was part of their mission to indicate that homosexuality is morally wrong, have now lost a great deal of their support from people who had not heretofore realized this was the Boy Scouts’ message and who are unwilling to associate with such a group. I suspect that if Yeshiva University wants to bar homosexual students because it needs to express its opposition to homosexuality, it will see a similar decline in people’s willingness to support and associate with it (especially in NYC).

    So, in this context we have a compelling state interest to reverse such insidious discrimination.

    Except the laws protect the majority groups as well as the minorities (men and whites also are protected by anti-discrimination laws) and apply much further than just race and sex. They also apply to religion. As I’ve explained at great length, I cannot be barred from employment solely for being a Satanist. That would constitute religious discrimination and that also is illegal under the Civil Rights Act of 1964. What exactly is the long and terrible history of state-sponsored discrimination against people of minority faiths that justifies prohibiting religious discrimination?

    ETA: An article about how racism can be a significant part of a church’s belief system — at least until the law and society in which that church operates reject racism.

  38. 38
    Manju says:

    What is a law that has as its primary effect the inhibiting of a secular belief system? Laws that required Americans to pledge that they were not Communists, for example, were ultimately held to be unconstitutional.

    The 1964 civil rights act has a provision allowing employers to discriminate against communists:

    (f) Members of Communist Party or Communist-action or Communist-front organizations

    As used in this subchapter, the phrase “unlawful employment practice” shall not be deemed to include any action or measure taken by an employer, labor organization, joint labor­ management committee, or employment agency with respect to an individual who is a member of the Communist Party of the United States or of any other organization required to register as a Communist­-action or Communist-­front organization by final order of the Subversive Activities Control Board pursuant to the Subversive Activities Control Act of 1950 [50 U.S.C. 781 et seq.].

    And for the dozenth time, Sherbert is no longer the Court’s interpretation of the First Amendment

    “dozenth time”? I don’t recall you ever mentioning that. After all, why would you when I mentioned it myself in my references to peyote? And for what seems like the dozenth time on my end, I also mentioned how I thought this interpretation was more or less correct (in the sense that religions generally can’t avoid secular laws), how I’m personally more inclined to that view, and how that view bolsters my fundamental point (about the tension between anti-discrimination laws and the first amendment) by positioning the free speech clause (one that encompasses all belief systems not just religions and is therefore more all-encompassing) as the major roadblock to these laws.

    So we’re really arguing around the edges here because I’m not willing to accept your certainty that this will be the standard going forward…given the tradition enumerated in Sherbet, the reaction to peyote, and because how sherbert appears to be a reasonable interpretation as to why the founders singled out religion. You asked for case law and I gave you a major strand of constitutional thought that reasonably could be reestablished in upcoming decisions even though it’s been limited since its introduction. Even in her concurring opinion in Peyote, O’Conner wrote: “The compelling interest test effectuates the First Amendment’s command that religious liberty is an independent liberty, that it occupies a preferred position, and that the Court will not permit encroachment upon this liberty, whether direct or indirect, unless required by clear and compelling governmental interests of the highest order.”

    She views free expression as a prong above and beyond free speech, unlike Scalia who mashes the two together. While I’m more sympathetic to Scalia’s view, I can see the reasoning of o’conner, and suspect it could be used to argue that anti-discrimination laws are too broadly applied to religious institutions, especially when we could use the less draconian removal of tax-exempt status to achieve the same purpose.

    What “partial bans” do you mean?

    The ban on discrimination for large businesses and public accommodations.

    There’s an issue of personal and artistic liberty for fining a photographer who refuses to photograph a black couple’s ceremony, or an interracial ceremony, or a Hindu ceremony, yet these violations of liberty don’t seem to worry you nearly as much as the violation of a homophobic person’s liberty

    No, they worry me. I was using an actual case, one that involved a homosexual union, so that’s why it may have appeared that way. Anyway, I’m glad you see there’s an issue for personal and artistic liberty here.

    What is Orwellian about our hate crimes laws? An actual quote from Orwell would be great here.

    They’re vaguely Orwellian because they resemble thought crimes. I think they pass constitutional muster but I think they can evolve into something more worrisome. For example, there’s a case involving a pace university student who flushed a Koran down the toilet. normally the crime would’ve been a misdemeanor (theft and vandalism) but the addition of a hate crime turned it into a felony, which entails a substantially larger sentence.

    The bulk of the punishment is because of the individuals belief in regards to a religion. I’d say the same thing about laws designed to give extra punishment for crimes commited in the name of say anti-Americanism.

    I suspect that if Yeshiva University wants to bar homosexual students because it needs to express its opposition to homosexuality, it will see a similar decline in people’s willingness to support and associate with it (especially in NYC).

    I agree. Time and place may make anti-discrimination laws less a compelling governmental interest and therefore we can return to a more purist first amendment.

  39. 39
    PG says:

    Manju,

    I asked, “What is a law that has as its primary effect the inhibiting of a secular belief system?” Your example is the non-inclusion of Communism as a protected secular belief in the Civil Rights Act of 1964. This is a lousy example:

    (1) Equating a law’s failure to protect a particular belief from private sector discrimination, with a law that has as its a primary effect the inhibiting of that belief, is very strange to hear from someone who appears to have essentially libertarian beliefs. The two are decidedly different. I happen to believe The Big Lebowski is a severely overrated film. If I express this belief in a job interview at a certain Wall Street trading firm, I can be refused the job solely on that basis. The fact that a law doesn’t protect my belief does not mean that the law has as its primary effect the inhibiting of my belief.

    (2) The Civil Rights Act of 1964 bars “discrimination because of race, color, religion, sex, or national origin.” That’s it. Political belief, whether in communism or capitalism, is not included.

    I mentioned that Sherbert is no longer the Court’s interpretation of the 1st Amendment in my comment @12, where I note that inasmuch as the “substantial burden” test applies, it is solely through operation of statute, not the Constitution.

    by positioning the free speech clause (one that encompasses all belief systems not just religions and is therefore more all-encompassing) as the major roadblock to these laws.

    But the free speech clause only allows one to engage in *expression* of a belief, not to engage in any activity beyond speech. Refusing to labor on one’s Sabbath day (Sherbert), smoking peyote (Smith), tearing down an old church to build a bigger one in the same space (City of Boerne), and drinking sacramental tea (O Centro) are not expressive activities. They are not done to get an idea across to others. Rather, they are done to further one’s pursuit of religious ends for oneself. Under the First Amendment, religious *expression* is to be treated like any other kind of expression so long as it does not constitute Establishment, whereas religious *activity* has been treated differently than non-religious activity. (Even Scalia’s majority opinion in Smith states that it would violate the First Amendment to ban an activity with the purpose of inhibiting members of a religion for whom the activity is central to their practice of the faith.)

    She views free expression as a prong above and beyond free speech

    I don’t even know what this means. Most people use “free expression” and “free speech” synonymously, and O’Connor is not an exception.

    The ban on discrimination for large businesses and public accommodations.

    You consider the ban on discrimination in employment and accommodations to infringe on people’s ability to express their beliefs? Look, not everything someone does is expression protected by the First Amendment. I can claim that by dropping my pants and urinating on the Christopher Columbus statute at59th and Broadway, I am just expressing my contempt for imperialism, but no judge is going to say that arresting me for this “expression” violates my First Amendment rights.

    No, they worry me.

    Then why are you drawing the line at giving sexual orientation the same status in the law that race, religion, sex and national origin already have?

    They’re vaguely Orwellian because they resemble thought crimes. I think they pass constitutional muster but I think they can evolve into something more worrisome. For example, there’s a case involving a pace university student who flushed a Koran down the toilet. normally the crime would’ve been a misdemeanor (theft and vandalism) but the addition of a hate crime turned it into a felony, which entails a substantially larger sentence.

    I don’t think you’re using “thought crime” in the sense that Orwell did, which is why I requested a quote. In 1984, a “thoughtcrime” was a crime consisting solely of thinking thoughts that were not approved by the state. The similar “facecrime,” “to wear an improper expression on your face (to look incredulous when a victory was announced, for example) was itself a punishable offense.”

    As the folks who object to adding sexual orientation to the classifications under hate crimes laws don’t seem to grasp, you cannot be penalized for believing that homosexuality is wrong, nor for verbalizing your belief that homosexuality is wrong. You only get into trouble if you commit something that is in itself a crime, and your motive is based your belief that homosexuality is wrong.

    Under the Manju concept of “thoughtcrime,” in which one’s thoughts or motive in committing the crime are relevant to the type of crime it is categorized and punished as, almost all crimes are “thoughtcrimes” because almost all crimes depends on mens rea rather than being strict liability. The difference between my getting a few years for negligent manslaughter by pulling the trigger on a gun I think has blanks, and my getting the chair for murder by pulling the trigger on a gun I think has live rounds, is my THOUGHT: do I intend to kill, or am I stupidly horsing around? If the former, I am categorized and penalized as a morally wicked murderer; if the latter, I am categorized and penalized as a morally innocent fool.

    If I borrow someone’s else’s Koran without asking and read it while I’m taking a dump, then accidentally drop it in the toilet, in its consequences I have committed the same crime as Stanislav Shmulevich. However, our motives are wholly different, and it is standard under Anglo-American criminal law to treat criminals differently based on motive. Of course, if only Shmulevich had just used his own copy of the Koran and his own toilet, there would have been no crime at all, no matter what his motive.

  40. 40
    Manju says:

    I asked, “What is a law that has as its primary effect the inhibiting of a secular belief system?” Your example is the non-inclusion of Communism as a protected secular belief in the Civil Rights Act of 1964. This is a lousy example…Political belief, whether in communism or capitalism, is not included.

    The law doesn’t just fail to include communists as a protected group, as it similarly fails protecting capitalists, it singles out communists for non-inclusion….meaning if a communist is up for a job s/he doesn’t get protection against “unlawful employment practices.” They are targeted.

    Now such law to me sounds like it violates the spirit of the first amendment, but not the letter. Like hate crime laws, it passes constitutional muster problably but is highly problematic.

    But the free speech clause only allows one to engage in *expression* of a belief, not to engage in any activity beyond speech

    Association is a subset of free speech, as well as part of free assembly and free excercsie, thought that may be redundant. So as far as anti-discrimination laws go, the free speech clause would allow for a broader array of groups to challenge the enforcement of such laws. I would have a more expansive definition of expressive group, as adoption agencies, hospitals, universities, can be seen as an expression of a groups beliefs. I’d fight these groups, as i’ve mentioned, by tkaing away their tax advantages, which is the least restrictive means (but very effective) I can think off.

    I don’t even know what this means. Most people use “free expression” and “free speech” synonymously, and O’Connor is not an exception

    I meant to say “free excercise” not expression.

    I can claim that by dropping my pants and urinating on the Christopher Columbus statute at59th and Broadway, I am just expressing my contempt for imperialism, but no judge is going to say that arresting me for this “expression” violates my First Amendment rights.

    In this scenario you’re initiating force against other individuals by vandalizing their property and forcing captive viewers to view you naked. This falls within a classic category of actions that should be made illegal, ie you’re restricting the freedom of others. If you just didn’t drop you pants or urinate your behaviour would probably be constitutionally protected. But the bigot is doing no such comparable thing. The bigot who refuses to hire you is acting more like Mandolin if she decides to ban me from this blog. Its her blog. i have no right to be here.

    Then why are you drawing the line at giving sexual orientation the same status in the law that race, religion, sex and national origin already have?

    I have problems with all the categorys.

    I don’t think you’re using “thought crime” in the sense that Orwell did, which is why I requested a quote. In 1984, a “thoughtcrime” was a crime consisting solely of thinking thoughts that were not approved by the state

    Which Is why I said “vaguely” Orwellian and also said it passes constitutional muster. But the founders didn’t just want the judiciary to protect our freedoms, its also up to the people. Such laws violate the spirit. Take the Pace U guy, he’s at risk spending most of his time in prison due to the thought, not the crime (because the thought jumps his charges up to a felony 3 level or something). While that might not be a pure thoughtcrime, its close.

    The difference between my getting a few years for negligent manslaughter by pulling the trigger on a gun I think has blanks, and my getting the chair for murder by pulling the trigger on a gun I think has live rounds, is my THOUGHT: do I intend to kill, or am I stupidly horsing around? If the former, I am categorized and penalized as a morally wicked murderer; if the latter, I am categorized and penalized as a morally innocent fool.

    Intent, or premeditation, is a thought, but it’s a thought about committing the crime itself, involving deliberation, decision making, and planning and can be criminally actionable in and off itslef (conspiracy to commit murder) while hate speech cannot (at least not yet in the USA). Intent goes to a state of mnd. hate crimes in contrast are about punishing a system of belief within that mind, and are therefore similar to Orwell’s enforcement of ideological correctness.

    Its akin to adding 10 years to a vandalism charge if the vandal was motivated by animal liberation ideology. Not exactly a thoughtcrime, I agree, but not quite the same as punishing for premeditation either.

  41. 41
    PG says:

    it singles out communists for non-inclusion….meaning if a communist is up for a job s/he doesn’t get protection against “unlawful employment practices.” They are targeted.

    No, you misunderstand how the law works. The fact that one of my traits is not protected under the law does not mean that I have lost all protection against “unlawful employment practices.” My opinion that The Big Lebowski was mediocre is not a protected belief under the CRA and I can be discriminated against in employment for that belief. However, the fact that I hold that belief does not erase my protection against “unlawful employment practices” such as discrimination on the basis of sex, race, national origin or religion. I can be discriminated against on the Lebowski, but not on those protected traits. Similarly, a Communist can be discriminated against for being a communist, but not for her sex, race, national origin or (lack of) religion.

    The reasons to specify that Communist beliefs were not protected were that:

    (a) It avoided having the CRA get bogged down by opponents who would claim that the law somehow could be used to protect Communists. As we are seeing with the claims about euthanasia in the health care reform bills, the fact that something is nowhere mentioned in a law doesn’t prevent the law’s opponents from making claims about it, so sometimes it is best just to specify that whatever your opponents are yelling about is something that the law DOES NOT do. Read Black Struggle, Red Scare: Segregation and Anti-Communism in the South, 1948-1968, especially pp. 193-198, if you want to learn a bit about how opponents of the Civil Rights Act of 1964 did everything they could to tie it to Communism in order to sink the legislation.

    (b) Communism was (and continues to be) regarded by some as akin to a religious belief system, effectively replacing the idea of god’s heaven that exists in traditional religions with the idea of a post-revolutionary period in which there essentially will be “heaven on earth.” Thus in order to prevent Communists from using the religion protection in the CRA as an argument against being discriminated against for being a Communist, the CRA was written specifically to disallow its being used to protect Communist belief.

    I would have a more expansive definition of expressive group, as adoption agencies, hospitals, universities, can be seen as an expression of a groups beliefs.

    Which is fine, except your “expansive definition” has no grounding in the law. Indeed, the more conservative the judge, the more limited his concept of what constitutes “expression” that cannot be limited by otherwise-applicable law. If the law says nudity in public is illegal, even when done for supposedly “expressive” purposes, then my speech is not being targeted by the law; it simply does not receive an exception to generally-applicable law.

    You think that “forcing” people to see me naked (though the pants-dropping would be illegal even if I announced ahead of time and put up signs saying “If you do not wish to see someone bare-assed, do not look at the Columbus statute as you cross the street”) constitutes “initiating force against other individuals.” You claim my expression would be “restricting the freedom of others” (even though the Columbus statute is public property, and even if others are free not to look at me).

    The bigot who refuses to hire you is acting more like Mandolin if she decides to ban me from this blog. Its her blog. i have no right to be here.

    Do you see any difference between the level of harm imposed when someone doesn’t want you to leave comments on her blog, and that imposed when a society where employment decisions are dominated by white, hetero, male Christians leaves it to the discretion of those people whether they will discriminate on the basis of race, religion, sex and sexual orientation?

    I have problems with all the categorys.

    So your disagreement with Amp is not about whether homosexuality should be included in anti-discrimination law, but whether we should have any anti-discrimination law at all.

    Which Is why I said “vaguely” Orwellian and also said it passes constitutional muster.

    Yeah, this is why I hate it when people refer to stuff as “Orwellian” without actually specifying what aspect of Orwell’s dystopias is now occurring in real life. It always seems to turn out that it’s not actually very Orwellian at all.

    Intent goes to a state of mnd. hate crimes in contrast are about punishing a system of belief within that mind, and are therefore similar to Orwell’s enforcement of ideological correctness.

    Its akin to adding 10 years to a vandalism charge if the vandal was motivated by animal liberation ideology. Not exactly a thoughtcrime, I agree, but not quite the same as punishing for premeditation either.

    I don’t think you understand how prosecution for hate crimes works. If you killed a black man, the prosecution would not be allowed to go rooting through your personal history in order to find somewhere you’d said 20 years ago that you didn’t like black people. The intent to hurt a black person for being black would have to be manifested in the crime itself.

    It sounds like you are opposed to the federal law’s definitions of terrorism:

    (1) the term “international terrorism” means activities that—
    (A) involve violent acts or acts dangerous to human life that are a violation of the criminal laws of the United States or of any State, or that would be a criminal violation if committed within the jurisdiction of the United States or of any State;
    (B) appear to be intended—
    (i) to intimidate or coerce a civilian population;
    (ii) to influence the policy of a government by intimidation or coercion; or
    (iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping; and
    (C) occur primarily outside the territorial jurisdiction of the United States, or transcend national boundaries in terms of the means by which they are accomplished, the persons they appear intended to intimidate or coerce, or the locale in which their perpetrators operate or seek asylum;

    [...]

    (5) the term “domestic terrorism” means activities that—
    (A) involve acts dangerous to human life that are a violation of the criminal laws of the United States or of any State;
    (B) appear to be intended—
    (i) to intimidate or coerce a civilian population;
    (ii) to influence the policy of a government by intimidation or coercion; or
    (iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping; and
    (C) occur primarily within the territorial jurisdiction of the United States.

    As you can see, putting a crime into the category of “terrorism,” which tremendously increases the punishment one can receive, is based on the apparent intent of the criminal. If you deface a synagogue and leave a swastika spray painted on the windows, your intent appears to be to intimidate Jews. If you simply deface it because you’re a thug and there’s no indication that you defaced the synagogue because it’s a synagogue, because it is where Jews meet to engage in religious rites, then it would be difficult to prosecute you for a hate crime.

    To go back to your Pace U example, if the student had been angry at his Muslim roommate and grabbed a handful of the roommate’s books and thrown them in the toilet, then the Koran would have been insignificant because it would not indicate an attempt to intimidate the roommate for being Muslim.