Point taken about business with six or ten or some other small number of
employees.
If the Oregon ballot initiative had not been withdrawn, there would have been
political talk about Hilton Hotels not doing gay wedding receptions, and how
the law would protect that. That sort of problem is a non-issue; no large
business with diverse ownership could be expected to act in such a way.
The statutory language that a group of us have proposed would protect
businesses in which “services . . . are primarily performed by an owner,” or
that have five or fewer employees. Any precise limit is arbitrary; there is no
good reason for five employees instead of ten employees. If we erred, it was
obviously on the low side, and even so, the proposal has gone nowhere in blue
states.
While the precise limit is arbitrary, the reason for focusing on very small
businesses is principled. We are trying to capture businesses that are personal
extensions of the owner, in which the owner feels morally responsible for
everything that goes on in the business, and outside observers can understand
that. No doubt some owners feel morally responsible for everything that goes on
in their business no matter how large the business grows, but it is hard to
verify that. And just as we can accommodate the religious needs of an employee
by assigning the task to a different employee, so the owner with many employees
can assign a task to some of them and remove himself from participation. And of
course, as a business grows in size, the government’s claim of compelling
interest grows proportionately.
Hobby Lobby is a special case in my view, because the religiously prohibited
act must necessarily take place at corporate headquarters as a decision for the
entire business. This is not something that can be delegated to a clerk or a
store manager in an individual store somewhere; this is a decision the owners
must make themselves.
I have a brief due next week and will likely not respond to further comments.
Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA 22903
434-243-8546
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of James Oleske
Sent: Tuesday, May 13, 2014 1:22 PM
To: Law & Religion issues for Law Academics
Subject: Size Limits on Businesses That Can Obtain Religious Exemptions (was
"Oregon Ballot Title: Religious Exemptions & Same-Sex Couples")
I agree that the lack of a size limit in the (now-abandoned) Oregon initiative
would have made the measure a tough sell politically, but I'm not sure I agree
that including a size limit would be "irrelevant in practice."
The size limit in the current version of the academic proposal for
marriage-facilitation exemptions is 5 employees (or 5 units for landlords).
Including that limit in exemption legislation would appear to exclude one of
the wedding vendors most frequently invoked by exemption proponents, Arlene's
Flowers in Washington State, which had grown to 10 employees by 2010. That same
size limit might also preclude an exemption for another frequently discussed
vendor, the Gortz Haus in Iowa, which according to at least one business
database is classified as having between 10-19 employees. Can a size limit that
would exclude businesses like Arlene's Flowers and the Gortz Haus (or bakeries
that grow to 6 employees, or landlords that rent 6 units, or employers ranging
from 6 employees to the size of Hobby Lobby that don't want to provide spousal
health benefits to same-sex couples) really be deemed irrelevant in practice
given the live cases involving such businesses?
As for whether the lack of a size limit in the Oregon initiative represents
overreaching in principle, it's worth noting that (1) the original version of
the academic proposal did not include a size limit on businesses eligible for
exemptions, (2) the currently proposed federal "Marriage and Religious Freedom
Act" -- which is supported by the Catholic Bishops and the Southern Baptists,
and has over 100 co-sponsors, including former Senate Judiciary Committee
Chairman Orrin Hatch -- does not include a size limit on businesses eligible
for exemptions, and (3) academic supporters of Hobby Lobby have argued that
size limits on exemptions for businesses are akin to historic religious
persecution.
Of course, one could conclude (as do I) that all of these proposals and
arguments represent overreaching by seeking a novel extension of religious
exemptions into the for-profit commercial realm. Or one could conclude (as do
others) that all of these proposals and arguments represent reasonable efforts
to protect religious liberty in the commercial realm without arbitrary size
limits. But it's not clear to me how the lack of size limits in the Oregon
proposal can be distinguished on principle from the other proposals and
arguments against size limits.
- Jim
On Fri, May 9, 2014 at 3:12 PM, Douglas Laycock <dlayc...@virginia.edu
<mailto:dlayc...@virginia.edu> > wrote:
No size limit on the businesses to be exempted, and no exception for local
monopolies, is stupid politics, and I think, wrong in principle. The lack of a
size limit is also irrelevant in practice, because large businesses wouldn’t be
claiming these exemptions even if they were available. But lack of a size limit
is likely to be devastating on the political front. This would probably be a
tough sell in Oregon even if it were more sensibly drafted. As it is, I can’t
believe it has much of a chance.
It’s not always clear whether the worst enemies of religious liberty are the
secular activists who oppose it and minimize it, or the religious activists
who are forever over reaching and making fat targets of themselves.
Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA 22903
434-243-8546 <tel:434-243-8546>
From: religionlaw-boun...@lists.ucla.edu
<mailto:religionlaw-boun...@lists.ucla.edu>
[mailto:religionlaw-boun...@lists.ucla.edu
<mailto:religionlaw-boun...@lists.ucla.edu> ] On Behalf Of James Oleske
Sent: Friday, May 09, 2014 5:51 PM
To: Law & Religion issues for Law Academics
Subject: Oregon Ballot Title: Religious Exemptions & Same-Sex Couples
Yesterday, the Oregon Supreme Court certified the ballot title for a proposed
citizen initiative that would provide religious exemptions from
anti-discrimination laws to business owners who decline to provide certain
services to same-sex couples. The title that will appear on the November ballot
if proponents of the initiative gather the requisite number of signatures by
early July is as follows:
***
"Religious belief" exceptions to anti-discrimination laws for refusing
services, other, for same-sex ceremonies, "arrangements"
Result of "Yes" Vote: "Yes" vote creates "religious belief" exceptions to anti
discrimination laws for refusals to provide services/facilities/goods for
same-sex marriage/partnership ceremonies, and their "arrangements"
Result of "No" Vote: "No" vote rejects "religious belief" exceptions to anti
discrimination laws for refusals regarding same-sex ceremonies, "arrangements";
retains exemptions for churches/religious institutions, constitutional
protections.
Summary: Current laws prohibit discrimination based on sexual orientation in
public accommodations (businesses offering services/facilities/goods),
employment, housing; contain certain exemptions for churches/religious
institutions. State/federal constitutions protect free exercise of religion.
Measure creates “religious belief” exceptions to anti-discrimination laws for
refusing services/facilities/goods/other, for same-sex ceremonies,
arrangements. Prohibits administrative enforcement, penalties, civil actions
against “person” (defined as including individuals, corporations, other
business entities) acting in nongovernmental capacity, for refusing to
“celebrate, participate in, facilitate, or support” any same-sex marriage,
civil union, domestic partnership ceremony or its arrangements, if doing so
violates the person’s “deeply held religious beliefs.” “Deeply held religious
beliefs”; “participate”; “facilitate”; “support”; “ceremony or its
arrangements”; “nongovernmental” undefined. Measure to be construed broadly for
protection of religious exercise.
***
Unlike the Arizona law that garnered so much attention earlier this year, the
Oregon initiative is not a RFRA expansion (there is no state RFRA here), but
rather, an exemption proposal explicitly directed at services for same-sex
couples. Some of the language in the initiative borrows from the leading
academic proposal for religious exemptions to same-sex marriage laws, but there
are significant differences. Most notably, the Oregon initiative is not limited
to small businesses and it's operative language only allows refusals of service
to same-sex couples (the operative language of the academic proposal would
allow refusals of service to all religiously opposed marriages, although
proponents have suggested that legislatures could exempt interracial marriages
from the exemption).
I have argued elsewhere (http://papers.ssrn.com/abstract=2400100) that the
academic exemption proposal would be vulnerable to equal protection challenge
if enacted by a state, and presumably the facial discrimination in the Oregon
initiative would only increase the odds of an equal protection challenge. Of
course, that prospect will only materialize if (1) the proponents of the
exemption measure decide to move forward despite receiving a ballot title they
view as unfavorable and (2) the voters pass the measure.
Text of Oregon Exemption Initiative:
https://www.oregonfamilycouncil.org/2013/11/21/protect-religous-freedom-initiative/
Oregonian Story on Supreme Court Decision, with Link to Ballot Title:
http://www.oregonlive.com/mapes/index.ssf/2014/05/gay_marriage_court_settles_bal.html#incart_m-rpt-1
Academic Exemption Proposal:
Robin Fretwell Wilson, The Calculus of Accommodation: Contraception, Abortion,
Same-
Sex Marriage, and Other Clashes Between Religion and the State, 53 B.C. L. REV.
1417,
1512-13 (2012) (providing text of the proposal) &
http://mirrorofjustice.blogs.com/mirrorofjustice/2009/08/memosletters-on-religious-liberty-and-samesex-marriage.html
(collecting letters in support of the proposal)
- Jim
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