I would be far more likely to believe a “a policy telling me I must harm a child by not respecting their personal pronouns violates the free exercise of my religion to love and respect all people” than “a policy that requires me to respect a child’s pronouns violates my religion, which requires me to be an asshole to children.”
I believe it’s the reasonable accommodation test; if the bakery is large enough and SSM cakes represent a small enough part of their business that it doesn’t really inconvenience the employer to not assign those particular cakes to this particular guy, then they shouldn’t be able to fire him.
In your hypothetical, I would argue that that policy is unconstitutional to the degree that it compels speech. IOW, the district can’t say “You must refer to this child as male”. But it CAN say “You can’t refer to this child as female, but you don’t have to refer to them as male; you are free to use any sort of circumlocution you like if you prefer to avoid using gender pronouns at all.” There are arguably other reasons why such a policy might be unconstitutional, but IMO such wording would resolve any First Amendment concerns".
Interesting question–I disagree. It seems super crystal clear to me that plenty of mainstream historical religions have required people to be tremendous assholes to other people, and it also seems clear to me that the first amendment doesn’t just protect religious liberty when the devout aren’t being raging douchebags. (There are of course mainstream religious beliefs that lead to people treating one another with kindness and respect, but those beliefs aren’t really implicated here). A teacher who says “Jesus said I should treat these kids like garbage” would be part of a centuries-long tradition of Christians saying similar things, in complete sincerity.
That’s the main reason why I’m not pleased with religious-liberty carveouts for laws. People shouldn’t be free to be dillwads just because God told them to be dillwads.
Also, my impression is that the Court didn’t actually rule that bakers can refuse to make SSM cakes, they came up with a technicality that allowed them to resolve that particular case, without having to make a ruling on the underlying Constitutional issue.
While true, “Being an asshole” is not reasonably specific enough to be an act motivated by religion. A religiously motivated act is something a reasonable person would interpret as being specifically motivated by an article of religion faith or practice. A Christian going to church, a Sikh man wearing a turban, or a Jew sporting a yarmulke are definitively acting out of religious belief.
I am unaware of any religion with a rule about what names you’re allowed to call someone by. It’s on its face a preposterous claim, since everyone, religious or not, is forever calling people by names you won’t find on their birth certificate. Hell, NO ONE who knows me at all, not even my mother, calls me Richard.
The problem is that once you posit divine supernatural entities undetectable by science who give people orders through visions and textbooks, it’s difficult to figure out exactly which orders are reasonable and which are not.
Someone tells me that God forbids them from eating pork, and someone else tells me that God forbids them from saluting a flag, and someone else tells me that God forbids them from fighting in a war, and someone else tells me that God forbids them from working on Sunday, and someone else tells me that God forbids them from calling people by pronouns different from the ones they were assigned at birth, and someone else tells me that God forbids them from wearing pants, and someone else tells me that GOd forbids them from going out in public without a sacred undergarment, and someone else tells me that God forbids them from calling a child assigned-female-at-birth by a name associated in their culture with males.
It’s inefficient in the extreme for me to go through that list of claims and figure out which ones are preposterous and which are reasonable, which are parts of “definitive” religions and which are not. I can’t think of any basis for drawing such a distinction.
It’s far more efficient to say, “Act the way you want as long as you’re not being a dirtbag to other people, but if you’re acting like a dirtbag, there’s no God-excuse to make it okay.”
“God tells me you don’t have authority over me. I’ll do what I like.” That’s the next (il)logical step, you know.
It is really not hard to tell if those are actually religiously motivated. You don’t have to believe in God yourself to know Jews and Muslims aren’t supposed to eat pork. I am sure there are many cases that are hard to tell, but “I won’t call you by a certain name” just isn’t one of them and everyone knows it. At some point common sense has to reign.
“Common sense” is rarely either. If your rule for distinguishing between real and fake religious motivations is "everyone knows it, " I think that points to the fundamental problem with establishing such a test in the first place.
I suggest you misunderstand that case and refer you to Hamlet’s post #253 and Ultravire’s post #254. The substantial question was not in fact decided and I recommend you watch 303 Creative LLC v. Elenis, which was put on the docket last month.
~Max
I suggest that you either misunderstand that case, or what I said, if you think that your post contributed anything of any value or use to the discussion.
Warning issued for Hamlet:
After much discussion among the staff I am issuing you a warning.
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It is important to remember not to argue moderation, even obliquely.
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Describing someone’s post or argument as a hissy fit is really pushing it on its own but “and you somehow you are confused as to why you perceive hostility to your ‘arguments’? is clearly attacking the poster again.
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The All Better comment is close to mocking the moderation. Not really acceptable. We all agree on this one from what I can see.
Now you’ve been a good poster and not normally a problematic poster. So I am actually being lenient with the warning. The thumbing your nose at the modnote is often a 3 day suspension. Please just let this go. It seems to be over something that could have and should have been handled in the Pit.
Great post (the one from two weeks ago) — thoughtful and informative.
Looking forward to your being back on that track,
It’s been over 50 years (class of 71) since I completed high school but I recall numerous teachers particularly in high school referring to students by their last names to get around name “preferences”.
In any event, if you refuse a direct order from your employer and the order isn’t unlawful or injurious to your health and safety, it’s likely to stand, IMHO.
In 1971 your school was worried about gender identity? I find that to be unbelievable. I’m not personally accusing you of lying, but I can’t imagine that any school or any place in the country cared about that in 1971.
As I look at this issue, I think the conservatives on the Court, especially Alito, are guilty of what we typically argue about the Warren Court: they are results oriented in this area. I support the free exercise of religion and I think it is largely under attack, both in society and especially on this board.
But as a previous poster said, I cannot get a job bartending in a strip club and then demand that due to my religious beliefs there be no alcohol or nudity in the workplace. Likewise, if I get a job teaching and the modern trend or rule in society is to refer to students by their preferred and/or declared gender, then that is part of the job I was hired to do. We can (or at least we could prior to the board rule change) debate the merits of that school policy, but once the policy is decided, then even thinking as I do, an employee has the choice to either comply or quit, much like the bartender in the strip club.
We vote for school board members and entrust them with policy decisions. If they enact policies we don’t like, we can vote in new members at the next election. But the trouble with current precedent is that it would give everyone a veto power over democratic decisions by a simple declaration that their religious beliefs demand a contrary result. Even a hardcore Catholic like Scalia recognized this in the Smith decision.
The thread was about calling students any name they wish. I was only commenting on ‘preferred names’. Elizabeth, vs Liz, vs Beth, and so on. And there were two or three “Elizabeths” per class. So she got called “Jones”.
I’m not Mallard, but in 1971 it was standard practice in the UK to call kids (especially boys) by their surnames - this avoids all the ‘preferences’ and uncertainties such as ‘Harry’ for Henry or Harold, ‘Larry’ for Lawrence or Laurence, and so on.
There are echoes of this ancient practice in the Harry Potter books.
In 1971 name preferences were more about the kid wanting to be called Bubba rather than Bill and some instructors being opposed to nicknames.
Plus it avoids the confusion that arises when about 90% of your students have one of the same seven first names David, Paul, Andrew, Mark, John, Michael and Stephen. 
Seriously, I bet pretty much every teacher in a UK boys’ school in 1971 had at least three cases of first-name duplication in each of his classes. Surnames were doubtless way less duplicated than given names.
Reminds me of the year when my debate team had 3 Kristins, a Kristen, a Kirsten and a Christine.
Unless I know the kid well, every student gets called by their last name. This is a good thing, because if I tried to pronounce the first name of a boy in my 5th period class, I’d be committing a hate crime. He’s Chinese-Hawaiian and his first name is like 23 letters long. Luckily his parents provided a nickname for teachers to use.