HomeMy WebLinkAboutNon-Discrimination Public Comment from Addien 5-1-14 • Sometimes doing nothing amounts to doing something. In this case, doing nothing—r t
including sexuality and gender identity as protected classes—is actively sending a message that,
unlike other traditionally oppressed identities,these people are not worthy of full inclusion in
society. That is a harmful message to send.
o As Justice Earl Warren wrote in Brown v. Board of Education,when you target people
for different treatment based on beliefs about their uncleanliness, disgustingness,
sinfulness, or whatever,you"generate a feeling of inferiority as to their status in the
community that may affect their hearts and minds in a way unlikely to ever be undone."
i. So the substance of the argument f� or the NDO is that, as a public matter, certain
traditionally discriminated against people must not be targeted as undeserving of
protections against these kinds of harms.
ii. The substance of the arguments against the NDO are less clear to me.
1. As best I can tell,a lot of the arguments are about potential outcomes that
are undesirable to a select group of people: this will affect our business,
we will get in trouble if we don't want to hire e s ' e,we wont be able
to control who our children come into contact with in the public sphere,
etc.
a. I don't think these kinds of arguments have traditionally held up as
compelling reasons to be allowed to discriminate in the United
States.
i. "Our children wont get as good of an education if they have
to go to a racially integrated school"was not considered a
real argument against ending segregation.
iii. So it seems to be the rights argument that is now where much of the energy lies.
The NDO violates the right to free exercise of religion.
1. But again, what is the substance of this claim?To argue that a law is
affecting your free exercise of religion,you have to show how the law
requires or forbids a specific exercise, or practice.
a. Smoking peyote. Sacrificing chickens. Wearing specific religious
garments. Cutting your hair. Etc. These are practices that are
integral to the religion.
2. So what I remain uncertain about is what practices are at stake here. The
only one I can imagine is discriminating. If your religion requires you to
discriminate against LGBT people,then yes—this NDO will impact a
specific practice crucial to your religious exercise.
iv. But if that is the case,then we have to use our judgment about how to balance the
claim to a legal right to practice the part of their religion that requires
discriminating against LGBT people, versus the claim to a right against
discrimination and exclusion from public accommodations and employment.
1. And in our country we have a long tradition of recognizing that the free
exercise of religion is not limitless. We have a long tradition of
recognizing that the freedom to believe is absolute, but the freedom to act
on that belief is not, particularly when that action harms another.