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Religious Exemptions--Skeel

At a law and religion conference at Seton Hall’s law school yesterday, Rob Vischer, a law professor at St. Thomas, gave a fascinating talk that touched on the debate over religious exemptions—the question whether religiously oriented individuals and businesses should be protected from discrimination claims. This issue arose when a photo shop was sued for refusing to provide photography services at a gay wedding, and in cases challenging pharmacists’ refusal to dispense birth control or abortion pills. Vischer argues that the cases should focus less on the parties’ competing claims of conscience than on whether the declinations genuinely interfere with the plaintiffs’ access to these services (in many of these cases, they don’t). Among other things, such a shift might better protect the ability of businesses and other associations to govern themselves as they see fit. 

An obvious question with this approach is whether it would also have justified the refusal to serve blacks that characterized the Jim Crow era. Vischer acknowledged this concern, but argued that Jim Crow race practices shouldn’t be our template for thinking about the current issues. The harms in that era were much more systematic and severe than the harms claimed in the recent cases.
 
I don’t often think in terms of the consequences of social sin. But it seems to me that the way in which our country’s experience with slavery has complicated the debates on so many other issues—and has invited absolutist claims about what equality requires—is part of God’s punishment on our country for the sin of slavery.   Had it not been for slavery and the ongoing legacy of racial discrimination, the national discussion of these other issues surely would have looked quite different.
 

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Comments ( 4 )

Dear David,
That issue can also considered in the light of conflict between moral and legal (or semi-legal) obligation .Maybe in these cases we can consider the right of refusal for the ones that believe the act is unjust. Otherwise we impose the obligation of acting unjustly to one side.
Your points to the history of slavery in US was really great. it happens in many cases, the legislator may compensate the dearth of something with the surfeit of it. The moderation needs time.
Thanks again

Yes, only something as awful as slavery could justify destroying the associational freedom of Americans. Thank goodness that all Americans have been given equal civil rights however diminished the civil rights that they enjoy.

I think it is just too easy to say that slavery and the plight of African Americans is just a different class and therefore, associational rights can be just disregarded. As a society, at least from a legal perspective, we have made the distinction between the associational rights of people in their private lives and their rights as commercial operators. We allow private people to decide and discriminate in who they associate with. If we allow people to discriminate, because of their religion, against gays in the commercial world, civil rights laws that protect blacks or other minorities or women can't be justified.

And I disagree that gays aren't really harmed by allowing some commercial operators to discriminate because they can always find alternatives. That might be true in big cities such as NYC or Phili. But in places where evangelical religion is pervasive, there might not be any alternatives.