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Wednesday, June 11, 2014

On "religious freedom" for businesses as it relates to the LGBT Community

In a column on my newest blog, I ended with a brief discussion about some thoughts I had about religious freedom and businesses in regards to discrimination against members of the LGBT community (also discussed here).  What I missed when I was writing the post was that there is a case from the Supreme Court which is pretty much on point, so I wanted to discuss that briefly.

The case is Employment Division v. Smith (1990) and the decision was written (ironically enough) by Justice Scalia (joined by Justices Rehnquist, White, Stevens, and Kennedy) with a concurring opinion written by Justice O'Connor (joined in part by Justices Blackmun, Brennan, and Marshall) and a dissenting opinion written by Justice Blackmun (joined by Justices Brennan and Marshall).  The majority opinion said "[w]e have never held that an individual's religious beliefs [494 U.S. 872, 879] excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate."  To quote a portion of the decision:

                       It is a permissible reading of the [free exercise clause] say that
                       if prohibiting the exercise of religion is not the object of the [law]
                       but merely the incidental effect of a generally applicable and
                       otherwise valid provision, the First Amendment has not been
                       offended....To make an individual's obligation to obey such a law
                       contingent upon the law's coincidence with his religious beliefs,
                       except where the State's interest is "compelling" - permitting him, by
                       virtue of his beliefs, "to become a law unto himself," contradicts both
                       constitutional tradition and common sense. To adopt a true
                       "compelling interest" requirement for laws that affect religious
                       practice would lead towards anarchy.

The Court also said

                       The "compelling government interest" requirement seems benign,
                       because it is familiar from other fields. But using it as the standard
                       that must be met before the government may accord different
                       treatment on the basis of race, see, e.g., Palmore v. Sidoti, or before
                       the government may regulate the content of speech, see, e.g., Sable
                       Communications of California v. FCC, is not remotely comparable
                       to using it for the purpose asserted here. What it produces in those
                       other fields -- equality of treatment, and an unrestricted flow of
                       contending speech -- are constitutional norms; what it would
                       produce here -- a private right to ignore generally applicable
                       laws -- is a constitutional anomaly.

                       …The rule respondents favor would open the prospect of
                       constitutionally required religious exemptions from civic obligations
                       of almost every conceivable kind -- ranging from compulsory military
                       service to the payment of taxes to health and safety regulation such as
                       manslaughter and child neglect laws, compulsory vaccination laws, drug
                       laws, and traffic laws; to social welfare legislation such as minimum
                       wage laws, child labor laws, animal cruelty laws, environmental
                       protection laws, and laws providing for equality of opportunity for the
                       races. [emphasis added- MV]

Put all of this together and I think the result is pretty clear.  If there is a universally applicable law in place whose purpose is permissible, then a person may not disobey the law because of religious convictions.  That would seem to make the decision rather easy.  However, there is a slight wrinkle.  In response to this case and others, Congress and some states passed Religious Freedom Restoration Acts, which "[m]andates courts use the following when considering religious liberty cases:

1.Strict scrutiny

2.Religious liberty can only be limited for a compelling government interest

3.If religious liberty is to be limited, it must be done in the least restrictive manner possible" (Courtesy of

In these cases, the discrimination may or may not be legal depending on how the state courts rule.

All things considered, I find this to be very interesting.  Thoughts?

Sunday, June 1, 2014

On the Petition Against the Fairness for All Marylanders Act

A couple of weeks ago, I received a letter and petition to sign which wanted to put the Fairness for All Marylanders Act (MD SB 212).  I am including links to the text of the letter as well as the text of the law and a summary of the law in this post.

Cover Letter=
Law Page 1=
Law Page 2=
Law Summary=

All of these documents came directly from the group organizing the petition and were in the envelope that I received.

The first thing I want to note is that the letter is chock full of lies and half truths.  The first one is what they call the bill "Maryland's Bathroom Bill." By focusing on one point of impact, they are trying to scare and confuse people.  The letter is focusing mostly on the issue of what bathroom a transgender person can use and ignores the many other things that this bill allows.  Second, the letter says that people will be able to use whatever bathroom they want "based on what sex they happen to feel they at the moment."  This is an outright lie not just spin the way the first one was.  The bill says

                        "Gender Identity" means the gender-related identity appearance,
                        expression, or behavior of a person, regardless of the person's
                        assigned sex at birth, which may be demonstrated by: (1) consistent
                        and uniform assertion of a person's gender identity; or (2) any other
                        evidence that the gender identity is sincerely held as part of the
                        person's core identity.

In other words, the bill is not about transient feelings or whims, but about a person's identity as a person.  Also, the letter confuses "sex" and "gender" which are in fact completely separate concepts.  Sex is biologically based.  Men and women have rather obvious physical differences that separate them.  Gender, on the other hand, is a societal construct based on what different societies perceive as "masculine" or "feminine".  There is nothing natural about gender.  Different societies have different roles for men or women based on the specific circumstances that they discovered themselves in.

A large part of the problem is that Americans (mainly, but not only conservative ones) are under the delusion that the Judeo-Christian beliefs that are predominant in America are in fact the natural order of things and that everyone else needs to follow what we think.  This is very much a modern day version of the "white man's burden" that was so predominant at the turn of the 20th century.  As a result, since so many Americans consider gender and sex to be interchangeable, that is the way it must be.  This is complete and utter bullshit for the reasons detailed above.  The scare tactics that the group trying to get the petitions signed are using are pathetic.  If you have to resort to tactics like these, then your case is incredibly weak.

I have no problem with spin because everyone does it all of the time.  Spin means saying things in such a way so as to present yourself or your case in the best light possible or to present something you oppose in a bad light.  I don't like it all the time, particularly in what should be something scholarly, but bald faced lying is beyond the pale.  If you want people to support or oppose something, you need to present the truth, even if it is spun a little.  I will admit to preferring unspun truth, but spun truth is still partial truth which is good enough for me.

I am also not terribly fond of the idea of voting on the basic rights that a person should have, mainly because too many people allow themselves to be led around like sheep and don't bother to learn about things for themselves, so scare tactics like the ones in this letter mislead people into voting not based on what is right but based on the last thing they heard.

I don't know if this petition has been successful or not.  If it has, I hope people reject the scare tactics employed by this group and vote to give everyone equal rights and allow them to be treated with simple human dignity.