Bananaistan wrote:I think the point is more to do with private, non-governmental religious organisations claiming that they have "compelling practical purposes" for discriminating rather than any government. The convent example seems to be a basic enough in that it would ofc be permissible to bar entry to men on the basis that it is a women's only organisation. The problem arises beyond that though. Where do compelling practical purposes end and just exactly what shelter to religious beliefs allowing discrimination does that phrase allow?
Well, all I can ask is: what practical result can you achieve by treating one class differently from another? The example in CoCR is an obvious case of an overwhelming practical advantage yielded specifically and exclusively by means of differential treatment. There'll be statistics showing that women who have been assaulted, whose first psychological and medical help comes from exclusively female professionals, have better or faster positive outcomes than women in similar situations who see primarily male professionals; or if there is no such difference, then it could be shown that it does no substantive harm to male professionals to allow women to freely choose to see exclusively female professionals. In other words, the measure of whether a particular discriminatory practice fits under the compelling practical purpose exception
is a measure - you can observe the results and determine that there's a quantifiable advantage to certain practices which, out of context, sound discriminatory; and if you can't show such an advantage then it's straight up discrimination and CoCR prohibits it.
Let's take the issue at hand - same sex marriage. Magic magnetic genitals notwithstanding, there's no quantifiable social good that comes from prohibiting a couple of the same gender from having the same rights in law as a couple of different genders. That is, there's no advantage that can be measured, and thus no
practical purpose, let alone a compelling one. The state may have a practical interest in not compelling
individual churches to
perform them (this would be the only conceivable place where religious liberty enters the equation), but there exists no such purpose for the state to prohibit them.
TL;DR - the key word there is
practical - claiming that a voice from the sky told your president not to let the gays have domestic bliss doesn't cut it.
Something about this argument strikes me as just a bit glib, however. What am I overlooking?