Thanks much, Doug. I'm definitely not an expert on state treatment of local
government law, and certainly not on the specific issue of whether
Louisiana law typically treats "state" actors as including municipal actors
for statutory purposes. If it doesn't, the results would indeed be strange
-- businesses that refused marriage-related services to interracial or
interfaith couples would be shielded from proceedings brought by the
Louisiana Commission on Human Rights under state antidiscrimination law,
but businesses that refused marriage-related services to same-sex couples
would not be shielded from proceedings brought by the Shreveport Human
Relations Commission. I think it's fair to say that the sponsor did not
intend that result.
Perhaps, as the sponsor said today, he doesn't intend for the bill to apply
to business transactions at all, but if that's the case, I'm not sure what
perceived conflict the bill is intended to resolve.
- Jim
On Wed, Apr 8, 2015 at 7:50 PM, Douglas Laycock <dlayc...@virginia.edu>
wrote:
> A reporter told me that the sponsor was insisting that the bill has
> nothing to do with suits by private citizens. Only actions by government.
>
> Louisiana has no sexual orientation nondiscrimination law, but the
> reporter said the New Orleans and Shreveport do. The bill says nothing
> about local government, and it is not obvious (as it would be in a federal
> bill) that restrictions on the state include restrictions on local
> government. My impression is that state legislation usually spells that out.
>
> It's a very strange bill -- narrow in some ways and overbroad in others.
>
> On Wed, 8 Apr 2015 19:27:06 -0700
> James Oleske <jole...@lclark.edu> wrote:
> >Apologies to my fellow list members -- I dashed off the message below
> >quickly before heading to class without a sufficiently close read of the
> >statutory language. The "benefits" clause of the"adverse action" provision
> >in the Louisiana bill is limited to penalties for actions taken or not
> >taken with respect to *employee* benefits, not customer services, and the
> >sponsor has indicated he will be removing the employee-benefits clause.
> >With the employee-benefits provision removed, the relevant language of the
> >Louisiana bill reads:
> >
> >"Notwithstanding any other law to the contrary, this state shall not take
> >any adverse action against a person, wholly or partially, on the basis
> that
> >such person acts in accordance with a religious belief or moral conviction
> >about the institution of marriage.... [A]n adverse action means any action
> >taken by this state to do any of the following .... Otherwise discriminate
> >against or disadvantage such person.... The term "person" means a natural
> >or juridical person as defined in Civil 19 Code Article 24, and includes
> >any such person regardless of religious affiliation or lack thereof, and
> >regardless of for-profit or nonprofit status."
> >
> >The language would still seem to shield a business that refused to provide
> >marriage-related services for religious reasons from *state* proceedings
> >against it under antidiscrimination laws (which would constitute the state
> >disadvantaging the business for acting in accordance with religious
> >beliefs), but it is less clear whether it would shield a business from
> >being subject to a *private* suit for such a refusal (does a court issuing
> >a monetary judgment in a private suit constitute the "state" taking
> >"adverse action" to "disadvantage" for purposes of the bill?).
> >
> >Meanwhile, the New Orleans Convention Bureau came out against the bill
> >today, and the radio host who interviewed the sponsor reported that senior
> >members of the legislature, including those sympathetic to the bill, were
> >concerned that it would jeopardize difficult budget discussions during the
> >short two-month session. So perhaps the debate won't proceed as far as it
> >seemed it might after the Governor's earlier endorsement.
> >
> >- Jim
> >
> >
> >On Wed, Apr 8, 2015 at 4:08 PM, James Oleske <jole...@lclark.edu> wrote:
> >
> >> In a radio interview moments ago, the sponsor of the Louisiana bill
> stated
> >> that the bill "doesn't have anything to do with the provision of goods
> and
> >> services" and "doesn't have any application at all to private business
> >> transactions." This is contrary to how the Catholic Bishops have
> described
> >> the benefits of the federal version of the bill ("business owners as
> well
> >> as churches would be protected"), and contrary to how legal scholars
> have
> >> described the Louisiana bill so far.
> >>
> >> Here is the relevant language in the bill:
> >>
> >> "Notwithstanding any other law to the contrary, this state shall not
> take
> >> any adverse action against a person, wholly or partially, on the basis
> that
> >> such person acts in accordance with a religious belief or moral
> conviction
> >> about the institution of marriage.... [A]n adverse action means any
> action
> >> taken by this state to do any of the following ... cause any tax,
> penalty,
> >> or payment to be assessed against, such person or such person's
> employees
> >> with respect to any benefit provided or not provided by such person to
> such
> >> person's employees, wholly or partially on the basis that the benefit is
> >> provided or not provided on account of a religious belief or moral
> >> conviction .... Otherwise discriminate against or disadvantage such
> >> person.... The term "person" means a natural or juridical person as
> defined
> >> in Civil 19 Code Article 24, and includes any such person regardless of
> >> religious affiliation or 20 lack thereof, and regardless of for-profit
> or
> >> nonprofit status."
> >>
> >> This language would seem to prohibit either an administrative agency or
> a
> >> court from awarding a penalty or civil payment against, or otherwise
> >> disadvantaging, a for-profit business (or one of its employees) because
> it
> >> refuses to provide marriage-related services contrary to existing local
> or
> >> future state laws prohibiting LGBT discrimination (in a case involving a
> >> same-sex couple) or existing local and state laws prohibiting race
> >> discrimination and religious discrimination (in cases involving
> interracial
> >> or interfaith couples).
> >>
> >> Am I reading that language wrong? If I am, does anyone know what problem
> >> this bill is trying to solve (the interview was not illuminating on that
> >> point)?
> >>
> >> - Jim
> >>
> >> On Mon, Apr 6, 2015 at 8:37 PM, James Oleske <jole...@lclark.edu>
> wrote:
> >>
> >>> Gov. Jindal's office announced today that he will support newly
> proposed
> >>> legislation in Louisiana that would give businesses the right to
> refuse to
> >>> provide marriage-related services and benefits for religious reasons
> (see
> >>> my message below for more details and background on the proposal).
> >>> Meanwhile, the sponsor of the bill has indicated that he might modify
> it so
> >>> it does not apply to employee benefit programs.
> >>>
> >>>
> >>>
> http://www.nola.com/politics/index.ssf/2015/04/bobby_jindal_will_support_loui.html
> >>>
> >>>
> http://www.nola.com/politics/index.ssf/2015/04/religious_freedom_bill_altered.html
> >>>
> >>> At this point, I'm not sure a bill like this would be politically
> >>> feasible in any state outside the context of a tradeoff (e.g.,
> exemption
> >>> included in new law prohibiting sexual-orientation discrimination in
> the
> >>> marketplace), but if it is, Louisiana would seem to be one of the most
> >>> promising venues for supporters. Gov. Jindal will be very motivated to
> make
> >>> it happen given his target demographic in the Presidential primary, and
> >>> according to at least one recent poll, the state has the ninth lowest
> >>> support of same-sex marriage in the nation.
> >>>
> >>> It will be interesting to see if the NFL takes a stand on the bill
> >>> (Louisiana has hosted 10 Super Bowls).
> >>>
> >>> - Jim
> >>>
> >>> On Sun, Apr 5, 2015 at 11:55 AM, James Oleske <jole...@lclark.edu>
> wrote:
> >>>
> >>> When asked about the Indiana RFRA on Meet the Press today, Gov. Jindal
> >>>> said the following:
> >>>>
> >>>> Let's remember what this debate was originally all about. This is
> about
> >>>> business owners that don't wanna have to choose between their
> Christian
> >>>> faith, their sincerely held religious beliefs, and being able to
> operate
> >>>> their businesses. Now, what they don't want is the government to
> force them
> >>>> to participate in wedding ceremonies that contradict their beliefs.
> >>>>
> >>>>
> >>>>
> http://www.nola.com/politics/index.ssf/2015/04/bobby_jindal_religious_freedom.html
> >>>>
> >>>> Longtime advocates of RFRAs would understandably object to this
> >>>> characterization as ignoring all the many less-controversial religious
> >>>> liberty claims that originally motivated the push for RFRAs, but in
> terms
> >>>> of the political impetus for the new state RFRAs, Gov. Jindal is
> >>>> undoubtedly correct as to what the debate is "all about."
> >>>>
> >>>> Accordingly, it seems appropriate that the coming debate in Louisiana
> >>>> won't be about a new RFRA or new RFRA amendment (like those
> considered in
> >>>> Indiana and Arizona) that would leave the answer to the wedding vendor
> >>>> cases unclear and subject to future judicial balancing. Rather, the
> coming
> >>>> debate in Louisiana will be over proposed legislation (introduced
> Friday)
> >>>> that would clearly give businesses the right to refuse
> marriage-related
> >>>> services and benefits to same-sex couples.
> >>>>
> >>>> Bill:
> >>>>
> http://www.nola.com/politics/index.ssf/2015/04/louisiana_religious_freedom_bi.html
> >>>> Story about the Bill (in which Doug is quoted):
> >>>>
> http://www.nola.com/politics/index.ssf/2015/04/religious_freedom_fight_headed.html
> >>>>
> >>>> The Louisiana bill would, in Steve's words below, have the "benefits
> of
> >>>> clarity," but it would likely "cut too broadly" even for many who
> support
> >>>> carve-outs from antidiscrimination laws in the same-sex marriage
> context,
> >>>> as the language of the proposal would allow vendors to refuse service
> to
> >>>> interracial couples, interfaith couples, couples involving divorced
> >>>> individuals, or any other type of couple to which there is a religious
> >>>> objection.
> >>>>
> >>>> The legislation closely mirrors the proposed Marriage and Religious
> >>>> Freedom Act that was introduced in the last Congress and was
> sponsored by
> >>>> 103 Representatives and 17 Senators. It is also similar to an
> exemption
> >>>> proposal first offered by a group of law professors in 2009, although
> that
> >>>> group subsequently modified its proposal to limit it to small
> businesses
> >>>> and include a hardship exemption that would require services to be
> provided
> >>>> when no other business was available to provide them. The group has
> also
> >>>> suggested that states could make a race exception to the religious
> >>>> exemption if they are concerned about the exemption allowing
> discrimination
> >>>> against interracial couples. (The Louisiana proposal, like its federal
> >>>> counterpart, begins with the following finding: "Leading legal
> scholars
> >>>> concur that conflicts between religious liberty and changing ideas
> about
> >>>> the institution of marriage are very real, rapidly increasing, and
> should
> >>>> be addressed by legislation.") (note: the federal version explicitly
> says
> >>>> "same-sex marriage" in this finding, rather than "changing ideas
> about the
> >>>> institution of marriage").
> >>>>
> >>>> I have argued that exemptions designed to allow businesses to refuse
> >>>> services and benefits to same-sex couples, such as the exemption
> proposed
> >>>> in Louisiana (and previously, in Oklahoma, Oregon, Washington,
> Minnesota,
> >>>> Kansas, South Dakota, Tennessee, and the U.S. Congress), would be
> >>>> vulnerable to challenge under the Equal Protection Clause. Others have
> >>>> argued that they would be vulnerable to Establishment Clause
> challenge. I
> >>>> suspect both arguments, however, would be strongly disputed by
> proponents
> >>>> of the exemptions.
> >>>>
> >>>> - Jim
> >>>>
> >>>>
> >>
>
> Douglas Laycock
> Robert E. Scott Distinguished Professor of Law
> University of Virginia Law School
> 580 Massie Road
> Charlottesville, VA 22903
> 434-243-8546
> _______________________________________________
> To post, send message to Religionlaw@lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see
> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
>
> Please note that messages sent to this large list cannot be viewed as
> private. Anyone can subscribe to the list and read messages that are
> posted; people can read the Web archives; and list members can (rightly or
> wrongly) forward the messages to others.
>
_______________________________________________
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
Please note that messages sent to this large list cannot be viewed as private.
Anyone can subscribe to the list and read messages that are posted; people can
read the Web archives; and list members can (rightly or wrongly) forward the
messages to others.
