Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Friday, May 13, 2011

"Odious discrimination and the religious exemption question"

This paper, by Laura Underkuffler, is worth reading (even if, in my view, misguided in some respects).  Here is the abstract:

Recently, claims have been asserted that religious exemptions should be afforded to individuals who object to providing public and commercial services to gay and lesbian individuals, as otherwise mandated by law (e.g., municipal clerks who must grant same-sex marriage licenses, or commercial vendors who are asked to serve at same-sex weddings). This article argues that just as religious exemptions of this sort are not granted for discrimination on the basis of race, religion, national origin, or gender, they should not be granted for discrimination on the basis of sexual orientation or transgender status. Discrimination on the basis of an individual's identity, biology, or other immutable characteristics has been labeled odious by our laws, whether motivated by religious beliefs or not. There is no reason why odious discrimination on the basis of sexual orientation or transgender status should be singled out for exemptions that no other civil rights permit.

It should be emphasized that Prof. Underkuffler is careful to distinguish the "odious", though religiously motivated, discrimination that she thinks should not be exempted from otherwise-applicable civil rights laws from actions of religious communities and institutions that are protected by the church-autonomy rule, the no-religious-decisions rule, etc.  It is not entirely clear, though, how broad she thinks the constitutionally required "ministerial exception" is.

https://mirrorofjustice.blogs.com/mirrorofjustice/2011/05/odious-discrimination-and-the-religious-exemption-question.html

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The thesis statement makes the erroneous claim that sexual behavior is immutable.