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This is not legal advice, which can only be given by an attorney admitted to practice law in your jurisdiction after hearing all of the facts and circumstances in a particular case.

Friday, January 8, 2010

Why the Claim of Religious Discrimination is the Next Big Battle in LGBT Rights

I think this is a very important issue. I am currently researching this issue in preparation for presenting at a symposium at Florida Coastal Law School in March, and writing a law review article this summer. The question in my mind, from a legal point of view, is how to respond to the argument that race and sexual orientation are not equivalent from a legal standpoint. The Supreme Court's jurisprudence does address them differently, though perhaps it shouldn't, but tell that to the Supreme Court. Also, the Court's freedom of expression and association doctrines permitted discrimination against gays in the NYC St. Patrick's Day case and the Boy Scouts case. So how does one argue persuasively that the law cannot permit discrimination against gays, when the Supreme Court has said it does in those two situations. Other than the non-legal argument of "it's not fair?", which would go nowhere in front of the Supremes.
Read the Article at HuffingtonPost

4 comments:

Judielaine said...

I'm a member of the Religious Society of Friends, a Quaker, and many of the Meetings in the liberal Yearly Meetings and many Yearly Meetings have affirmed that as a religious body we are called to honor the commitment of people in marriage without regard to the gender of the couple.

http://flgbtqc.quaker.org/marriageminutes.html

What does it say about the limits to *our* religious freedom that the marriages our Meetings take under care are not all respected by the government equally?

Jen Chapin-Smith said...

I'm also a Friend (Quaker). I believe we are discriminated against in our religion by NOT having the same-gender marriages we take under our care recognized by the government.
Of course, this is nothing new for Friends. The English government refused to recognize the marriage of RSF founders George Fox and Margaret Fell because no cleric presided over their wedding (traditional Quaker weddings do not have officiants besides the Light).
I've been reading John Boswell's "Christianity, Homosexuality and Social Tolerance." He makes a very good point that in Christian Europe historically persecution of Jews has almost always co-incided with persecution of LGBTs.
Freedom of religion must also mean freedom from religion, not only for religious minorities who don't want the requirements of the majority's religious views imposed upon them but also for atheists who are perfectly happy without any religion, thank you.
PS- I like your Facebook posts. :)

Thomas said...

Cameron Patridge, an Episcopal priest who is also FTM, had a good post touching on this issue, and he might be a good guy to speak with about this.

http://walkingwithintegrity.blogspot.com/2010/01/epiphany-trans-folks-among-us.html

Judith B said...

It may be that there will always be cases where discriminiation would be allowed. The parade is an expression of some people's points of view - they can do or include or exclude who they want, like when the KKK marches. The Boy Scouts are a private organization, can do what they want.

But when it comes to services the government provides to its citizens, then discrimination is not allowed - and right now, the government is not providing equal services to its citizens.

Just an idea - I'm not legally trained...
take care. I do find the arguments interesting tho.
-Jude