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View Diary: Employment Non-Discrimination Act continues to lose support over broad religious exemption (73 comments)

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  •  I don't understand why it's a "sweeping (9+ / 0-)

    religious exemption."  

    If it's limited to religiously-affiliated entities, then you're talking about entities like Catholic Charities, which were given the ability to opt out of the ACA by the Administration.  Entities like Hobby Lobby are not "religiously affiliated" under EDNA.  

    And really, fighting for religiously-affiliated entities to be forced to hire people that openly violate the fundamental religious views that the entity stands for makes no sense.  Catholic Charities, for example, will still be full of stuff saying how evil and sinful homosexual activity is.  What happens when someone who is gay works in that environment?  Apparently he/she will have to be surrounded by stuff all day saying he/she is sinful and condemned to eternal damnation.  Or will he/she sue a religious entity for expressing its religious views on the grounds that those religious views constitute a hostile work environment?  How do you resolve the conflict between the constitutional right of free exercise under the First Amendment with the employment mandate of a statute like EDNA?  

    •  If you don't think there are plenty of gay (14+ / 0-)

      people who work for the Roman Catholic Church, you're really living under a rock.

      As far as the Constitution is concerned, I think what the conflict is is between those who see religion as a matter of personal conscience and those who see religion as a matter of evangelization, i.e., shoving their sense of morality down our throats. I see the Hobby Lobby decision and the religious exemptions in ENDA as something close to State sponsorship of Evangelical Christianity and the Roman Catholic Church.

      SPES MEA IN DEO EST.

      by commonmass on Wed Jul 09, 2014 at 09:21:44 AM PDT

      [ Parent ]

      •  My point is that (7+ / 0-)

        religiously-affiliated organizations like Catholic Charities are not the same as an entity like Hobby Lobby.  I see them as different -- as did the dissenters in Hobby Lobby.  

        I don't think that recognizing that a religious-affiliated organization has a First Amendment right to operate in accordance with its religious belief is a state-sponsorship of that religious belief.  

        Do you think that Catholic Charities has a First Amendment Right to operate in the world at large in accordance with Catholic Church teachings? Or do you that the Free Exercise clause applies only to what goes on within the church itself?  

        •  Stoning adulterers? (2+ / 0-)
          Recommended by:
          allie4fairness, allergywoman

          That, in its essence, is fascism--ownership of government by an individual, by a group, or by any other controlling private power. -- Franklin D. Roosevelt --

          by enhydra lutris on Wed Jul 09, 2014 at 11:01:55 AM PDT

          [ Parent ]

          •  Absurd. That's PHYSICAL injury to another. (7+ / 0-)

            And even under a restrictive law like RFRA, the government has a compelling interest in preventing people from being PHYSICALLY hurt by others, and laws preventing PHYSICAL assault on others is the "least restrictive way to prevent that.

            Where there's no physical or financial injury to another, does the Free Exercise Clause apply outside of the church walls?  

            Here's the clearest example I can think of .  Does a lay person who's certified to perform civil marriages have the First Amendment right to decline a job because he's Catholic and one of the couple is divorced?  What about if he's fundamentalist Christian and it's a same-sex couple? There's no physical or financial harm to the couple.  Does his First Amendment right apply?  

            •  So, it appears that you don't: (4+ / 0-)
              Do you think that Catholic Charities has a First Amendment Right to operate in the world at large in accordance with Catholic Church teachings?
              In any situation where doing so would result in physical harm. Financial and psychological harm, however, are ok, I take it?
              What about if he's fundamentalist Christian and it's a same-sex couple? There's no physical or financial harm to the couple.
              Financial harm exists in such a case.

              Don't get me wrong, I know that the first amendment  protects some hate based speech and behavior, I'm just curious as to how far that can be taken and how far people think it should be taken.

              That, in its essence, is fascism--ownership of government by an individual, by a group, or by any other controlling private power. -- Franklin D. Roosevelt --

              by enhydra lutris on Wed Jul 09, 2014 at 11:44:58 AM PDT

              [ Parent ]

              •  No that does not involve financial harm (4+ / 0-)

                If one person can't perform my marriage ceremony, that's no financial harm to me. None whatsoever.  Unless I live in a town so small there's only one person who performs weddings, and if he says no, as a practical matter I can't get married. But if I can go to somebody else, I  have suffered no financial harm.  

                You have to have evidence of financial harm, as the Supreme Court did when it upheld the Civil Rights Act of 1964 in the Heart of Atlanta Motel case. There was evidence before Congress that segregation as a practical matter meant that African Americans could not travel to many places, and that is what justified the Civil Rights Act:

                While the Act as adopted carried no congressional findings the record of its passage through each house is replete with evidence of the burdens that discrimination by race or color places upon interstate commerce. See Hearings before Senate Committee on Commerce on S. 1732, 88th Cong., 1st Sess.; S. Rep. No. 872, supra; Hearings before Senate Committee on the Judiciary on S. 1731, 88th Cong., 1st Sess.; Hearings before House Subcommittee No. 5 of the Committee on the Judiciary on miscellaneous proposals regarding Civil Rights, 88th Cong., 1st Sess., ser. 4; H. R. Rep. No. 914, supra. This testimony included the fact that our people have become increasingly mobile with millions of people of all races traveling from State to State; that Negroes in particular have been the subject of discrimination in transient accommodations, having to travel great distances [379 U.S. 241, 253]   to secure the same; that often they have been unable to obtain accommodations and have had to call upon friends to put them up overnight, S. Rep. No. 872, supra, at 14-22; and that these conditions had become so acute as to require the listing of available lodging for Negroes in a special guidebook which was itself "dramatic testimony to the difficulties" Negroes encounter in travel. Senate Commerce Committee Hearings, supra, at 692-694. These exclusionary practices were found to be nationwide, the Under Secretary of Commerce testifying that there is "no question that this discrimination in the North still exists to a large degree" and in the West and Midwest as well. Id., at 735, 744. This testimony indicated a qualitative as well as quantitative effect on interstate travel by Negroes. The former was the obvious impairment of the Negro traveler's pleasure and convenience that resulted when he continually was uncertain of finding lodging. As for the latter, there was evidence that this uncertainty stemming from racial discrimination had the effect of discouraging travel on the part of a substantial portion of the Negro community. Id., at 744. This was the conclusion not only of the Under Secretary of Commerce but also of the Administrator of the Federal Aviation Agency who wrote the Chairman of the Senate Commerce Committee that it was his "belief that air commerce is adversely affected by the denial to a substantial segment of the traveling public of adequate and desegregated public accommodations." Id., at 12-13. We shall not burden this opinion with further details since the voluminous testimony presents overwhelming evidence that discrimination by hotels and motels impedes interstate travel.
                Unless you have that kind of evidence that my hypothetical couples have such a difficulty in finding anyone to perform their marriages that as a practical matter they can't get married, there's no financial harm.  

                And NONE of us is entitled, in any way, shape, or form, to be free from speech, or religious beliefs, we find offensive.  I think the Westboro Baptist Church engages is some of the most offensive speech, and has some of the most offensive religious beliefs, I can imagine.  Yet I am a vehement supporter of their right, on places like public sidewalks, to express those beliefs.  And I would be a staunch supporter of the notion that, if that "Church" hired someone to answer their phones when people called, they don't have to hire someone who openly violates their "religious" beliefs, no matter how offensive I find those "religious" beliefs.  

                The First Amendment protects both speech and religious beliefs that others find very offensive.  Speech and religious beliefs that are universally popular - like the Christian notion that you should "love your neighbor as yourself" don't need protection.  

                •  Thank you for the irrelevant digression. (5+ / 0-)

                  If you have to travel a significant distance to get married, get a prescription filled or a medical procedure performed because of some hate based refusal to serve you, then you have suffered financial harm. That is a fact.

                  Whether it is sufficient financial harm for the current court ot hold in your favor could only be determined by adjudication, though I assume that they would work mightily to work against you, even if the failure to provide your medication made you ill and necessitated additional medical costs.

                  I never suggested that anybody should be free from exposure to offensive speech, so why bring that up?

                  That, in its essence, is fascism--ownership of government by an individual, by a group, or by any other controlling private power. -- Franklin D. Roosevelt --

                  by enhydra lutris on Wed Jul 09, 2014 at 01:02:02 PM PDT

                  [ Parent ]

                  •  That's just silly. (4+ / 0-)
                    Recommended by:
                    ilostanickel, Pi Li, johnny wurster, VClib

                    of course there's no financial harm.  People turn down work all the time -- if someone won't provide me a product or service, but someone else will, there's not financial harm.

                    If my hypothetical guy who performs weddings says, "You know what?  I just don't like you much, and I think I'd rather go to the beach that day, so I won't do your wedding," have I suffered financial harm?  Can I sue him for my financial harm?  Of course not.  That's just silly.  As long as there's someone else available to me, there's no financial harm to me.  Same goes with buying a product.  If Walgreen's says, "we don't carry that prescription, you'll have to go to Rite Aid" have I suffered financial harm?  Of course not. The law doesn't view having to go to an other provider as some kind of financial harm to you.  Even if you have a right to a service or product, you have no "entitlement" to have a particular provider give you the service or product you want.  Everyone has the right to a lawyer in a criminal case.  But no one has the right to make ME act as their lawyer in their case.  If I turn them down, they go to another lawyer.  That's commerce.  That's not, and never has been, considered harm.  

                    Now, if you have EVIDENCE -- like the EVIDENCE in the Heart of Atlanta case -- that so many people won't provide the service or product that you effectively can't get it AT ALL, THEN you might have a point.  But as that Supreme Court case shows, you have to have EVIDENCE showing that's the case.  

                    •  Who says that there is somebody else (3+ / 0-)

                      available, and how many miles away? If you have to drive 70 miles to get a prescription filled or marriage performed, you have suffered somewhere around $280/x where x is your mpg.

                      Why do you keep shouting EVIDENCE and wandering off into irrelevant digressions? You are happy to assert on a purely theoretical basis that no financial harm is done in a case you carefully craft to make the chances minimal, when it is not at all a necessary truth. If you have to travel a significant distance to get a prescription filled, surgery performed or wedding performed because of a refusal of service you have suffered financial harm.  That is an undeniable fact. Period.

                      If you can stipulate that we are only dealing with a wedding, I can stipulate that you have to travel 200 miles to find a non-bigot to actually hook you up. You actually accidently admitted that I am right earlier by qualifying one of your statements as to lack of harm by acknowledging that there must be an alternate provider somewhere.

                      Now, how about more long-winded diatribes and citations about evidence, since you obviously think that we are in the adjudication phase whenever I speak as opposed to the pure theory and hot-wind phase when you do.

                      OK, I present here my gas receipts and signed refusals from 74 bigots who refuse to serve me, who, according to public records are the only folks licensed to perform the ceremony (or operation or fill the script) within a 50 mile radius.  Your turn, where is your evidence that there is somebody nearby willing to do it who is legally authorized but unknown to the local officials in charge of keeping track of such matters?

                      That, in its essence, is fascism--ownership of government by an individual, by a group, or by any other controlling private power. -- Franklin D. Roosevelt --

                      by enhydra lutris on Wed Jul 09, 2014 at 03:14:22 PM PDT

                      [ Parent ]

                •  Regarding marriage... (5+ / 0-)

                  ...one can always get married in a civil ceremony at the county courthouse.  

                  And while I think that pastors, priests, etc should be free to determine who they'll perform marriages for, I don't consider that the same freedom should apply to the government employees who perform the civil ceremony at the court house.  My feeling is that if their conscience prevents them from doing the job, they need to find a different job.

                  If Democrats proclaim the the Earth is round and Republicans insist it is flat, we will shortly see a column in the Washington Post claiming the the earth is really a semi-circle.

                  by TexasTom on Wed Jul 09, 2014 at 02:15:42 PM PDT

                  [ Parent ]

                  •  That's how I feel about wingnut pharmacists who... (2+ / 0-)
                    Recommended by:
                    congenitalefty, kfunk937

                    That's how I feel about wingnut pharmacists who are licensed by the state to fill prescriptions from doctors-if they won't do it then they should lose their license and find a new job where the demands of their imaginary cloud being don't interfere with the well being of others. Do what you're licensed to do and what a doctor tells you, I don't care if there's another pharmacy around the fucking block.

            •  Your freedom of religion (2+ / 0-)
              Recommended by:
              jefecuatro, Tonedevil

              People who do business with people outside their faith have some economic clout.
              As far as I am concerned their freedom of religion ends where their employees' freedoms and their customers' freedoms begin.
              Actually the Hobby Lobby was decided on the Religious Freedom Restoration Act, not on the free exercise clause of the First Amendment. We can hope that Justice Kennedy can be persuaded.
              Note that the Civil Rights of 1964 banned religious discrimination. Rep. John Ashbrook (R-OH) tried to exclude protection for atheists but failed. So a Protestant may not discriminate against Catholics. The same should go for the gay question.

              Censorship is rogue government.

              by scott5js on Wed Jul 09, 2014 at 02:41:47 PM PDT

              [ Parent ]

        •  Post-HobbyLobby, the ARE the same, legally. (1+ / 0-)
          Recommended by:
          Throw The Bums Out

          Whether you SEE them as different (like the rest of us) is totally irrelevant legally at this point.

          Even a single lamp dispels the darkness. --Gandhi

          by My Philosophy on Wed Jul 09, 2014 at 01:40:39 PM PDT

          [ Parent ]

          •  My P - post Hobby Lobby they are NOT the same (0+ / 0-)

            I didn't agree with the Hobby Lobby decision but there are different statutory issues and constitutional issues at play. From a legal perspective they aren't the same.

            "let's talk about that" uid 92953

            by VClib on Wed Jul 09, 2014 at 05:10:11 PM PDT

            [ Parent ]

        •  When they underbid other social work organizations (6+ / 0-)

          to provide health and human services to clients of all faiths ... "NO" ... they should not have a right to hire and fire as if they were choosing who to ordain and who to excommunicate.

          Now .. the fact is it is traditional for Churches to offer secular social services to the broader community because of the Evangelical opportunities created by needy and unadvocated people coming to the House of Worship to receive food, shelter or medical care.

          It used to be, Churches paid for these evangelical opportunities from their own resources ... but as state and local governments began taking over "care for the poor" as a civic function, churches began keeping their fingers in the public pie by subsidizing diverting funds from their overtly Missionary programs to these purportedly secular ones ...

          It's helpful to the Church and cheaper for the State
           ...

          That they may make The Unfortunate pass under a Crucifix to get a meal or a kind word is one thing.

          That they reserve the right to discriminate against Social Workers, Teachers, Administrators and Janitors alike on terms that would illegal if practiced by a secular corporation ...

          That should have been stopped years ago.

          •  Exactly. In my humble view, any church or other (1+ / 0-)
            Recommended by:
            ColoTim

            religious institution that accepts one penny of taxpayer funding must NOT be allowed to discriminate regardless of whether that discrimination rests in doctrine or not.

            If the government CANNOT pay for a legal medical procedure called abortion, it most certainly cannot pay for broad-based discrimination. (And for that matter even if the government could pay for that legal medical procedure, discrimination shouldn't be allowed if if a religious institution accepts a penny of tax dollars.)

            If the church does not receive even one cent of federal or state or city dollars, then they have the right to discriminate regardless of how shitty that is.

            The only hawk I like is the kind that has feathers. My birding blogs: http://thisskysings.wordpress.com/ and canyonbirds.net

            by cany on Wed Jul 09, 2014 at 02:28:29 PM PDT

            [ Parent ]

        •  If you discriminate no federal money. Simple.n/t (2+ / 0-)
          Recommended by:
          orestes1963, kfunk937
      •  The law has to be based on the concept of live and (1+ / 0-)
        Recommended by:
        ColoTim

        let live.  Everyone has to have the right to exercise free speech and the freedom to worship and assemble as one wishes so long as that does not do harm to others.  Exemptions for religious grounds grant the right to impose a religious or other belief on others, as in the Hobby Lobby case.

        Putting the fun back in dysfunctional.

        by hawkseye on Wed Jul 09, 2014 at 01:57:46 PM PDT

        [ Parent ]

      •  Should glbt's be preists? (0+ / 0-)

        Or clergy in any other religiously conservative body? Shouldn't they get out of the business, even out of the denomination?

        Censorship is rogue government.

        by scott5js on Wed Jul 09, 2014 at 02:28:38 PM PDT

        [ Parent ]

    •  Hobby Lobby Wasn't Religiously Affiliated (8+ / 0-)

      ....under the ACA either.  I think that's the whole point.

      Under Title VII of the Civil Rights Act, organizations whose purpose is primarily religious (like Catholic Charities) are "allowed" to discriminate in hiring--which is to say they are allowed to "prefer" candidates that belong to the same religion the organization supports.  I am not sure if organizations actively use this exception to discriminate based on sexual orientation, because you can still be gay and catholic (though I have no idea on earth why you'd choose to be).

    •  Hobby Lobby is, now, (5+ / 0-)

      "religiously affiliated", as are all close corps and any other corp that writes an affiliation to BAAL or anything else into its bylaws.

      That, in its essence, is fascism--ownership of government by an individual, by a group, or by any other controlling private power. -- Franklin D. Roosevelt --

      by enhydra lutris on Wed Jul 09, 2014 at 11:00:49 AM PDT

      [ Parent ]

      •  Is that legally the case? (1+ / 0-)
        Recommended by:
        enhydra lutris

        Is exercise of religion in the case of a closely (and even non-closely) held corporation the SAME as a religious institution?

        The only hawk I like is the kind that has feathers. My birding blogs: http://thisskysings.wordpress.com/ and canyonbirds.net

        by cany on Wed Jul 09, 2014 at 02:31:05 PM PDT

        [ Parent ]

        •  Under the curent court, more likely than (1+ / 0-)
          Recommended by:
          orestes1963

          not, especially if they tweak their bylaws. Remember, we cannot define or delimit "religion".

          That, in its essence, is fascism--ownership of government by an individual, by a group, or by any other controlling private power. -- Franklin D. Roosevelt --

          by enhydra lutris on Wed Jul 09, 2014 at 02:59:41 PM PDT

          [ Parent ]

          •  But in the case of HL, their primary purpose is (0+ / 0-)

            operation as a business for profit. Churches don't share that primary purpose. Right?

            The only hawk I like is the kind that has feathers. My birding blogs: http://thisskysings.wordpress.com/ and canyonbirds.net

            by cany on Wed Jul 09, 2014 at 07:17:04 PM PDT

            [ Parent ]

            •  Actually, most of them do, but don't say (1+ / 0-)
              Recommended by:
              kfunk937

              as much. However, I don't think it is necessary to be a church, just religiously affiliated.

              "Our purpose is to sell merchandise in a godly manner while promoting god and his values to all of our customers ... ." would probably get one in the door.

              That, in its essence, is fascism--ownership of government by an individual, by a group, or by any other controlling private power. -- Franklin D. Roosevelt --

              by enhydra lutris on Wed Jul 09, 2014 at 07:19:30 PM PDT

              [ Parent ]

            •  The issue is not churches, (2+ / 0-)
              Recommended by:
              kfunk937, cany

              but service agencies run by churches.  The fist amendment protects churches, but not, for example, Catholic Charities.  Or, if a church has a hall that it rents to the public, the hall rental is not a church activity (unless it only rents for religious events).  It is a fair inference from the Hobby Lobby decision that these activities would be (wrongly) protected as well.  

        •  cany, no it's not. (1+ / 0-)
          Recommended by:
          coffeetalk

          "let's talk about that" uid 92953

          by VClib on Wed Jul 09, 2014 at 05:13:09 PM PDT

          [ Parent ]

          •  Well, that's what I thought. That is why this (1+ / 0-)
            Recommended by:
            VClib

            didn't make sense to me.

            Thanks.

            The only hawk I like is the kind that has feathers. My birding blogs: http://thisskysings.wordpress.com/ and canyonbirds.net

            by cany on Wed Jul 09, 2014 at 07:15:30 PM PDT

            [ Parent ]

    •  You are right. The exemption is limited (1+ / 0-)
      Recommended by:
      VClib

      And Hobby Lobby has no impact on it. The decision very clearly states that you can not use it as precedent to challenge anti-discrimination laws.

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