I assume Doug was referring to Arlene's Flowers' free exercise claim under Art. I, section 11 of the Washington Constitution, which the state court has construed in Sherbert/RFRA-like fashion. Although I don't think the religious exercise claim should prevail in this commercial context, I do think that the constitutional argument is at least arguable, unlike the amicus brief's statutory construction argument.
I won't presume to speak for Doug, but I assume the free exercise argument for drawing the line at exemptions in the context of same-sex *marriages* would depend on (i) the notion, which Doug has articulated and with which I generally agree, that the *Sherbert *test, in practice, tends to be more of a balancing test than a series of "yes/no" questions; and (ii) although Washington might have a compelling interest in prohibiting discrimination in *both* contexts, the state has a much *stronger *interest in prohibiting the broader "we don't serve gays" form of discrimination, and thus the balance against the burden on free exercise tips more strongly against an exemption in that context. As I said, I think the state should win in both cases, but at least I see the basic logic of the free exercise argument for the distinction--unlike the statutory argument in the amicus brief, which would have the court hold that the refusal to sell arrangements for the marriage is not prohibited discrimination at all, regardless of religious burden, state interest, etc. On Mon, Oct 10, 2016 at 6:09 PM, Eric J Segall <eseg...@gsu.edu> wrote: > I fail to understand how "I will sell goods to gays and lesbians but I > will not sell goods to gays and lesbians for their weddings though I will > sell goods to the exact same weddings as long as gays are not involved" is > not quite serious discrimination against gays and lesbians. I might be able > to see some artistic exception on free speech grounds being possibly > applicable but the distinction Doug suggests can't be right, as Marty > persuasive argued. Discrimination can't be a matter of degree. > > Best, > > Eric > > Sent from my iPhone > > On Oct 10, 2016, at 5:44 PM, Laycock, H Douglas (hdl5c) < > hd...@virginia.edu> wrote: > > I did not sign the scholars’ brief, and it is drawing about the reaction I > expected. But nothing in the brief implies anything like the Ollie’s BBQ > analogy. > > > > The claim in the brief is that discrimination confined to one very narrow > context, an especially sensitive context with its own legal protections, > and where the motivation for discriminating is a belief about that special > context and not any broader hostility to the protected class, should be > treated differently under the discrimination laws. I agree that the > argument would have been better made under the Washington constitution. But > it does not remotely suggest the Ollie’s argument, where the discrimination > covered the bulk of the business, there was no special context with its own > legal protections, the motive was not a belief about any special context, > and the motive could not be distinguished from general hostility to the > protected class. > > > > > > Douglas Laycock > > Robert E. Scott Distinguished Professor of Law > > University of Virginia Law School > > 580 Massie Road > > Charlottesville, VA 22903 > > 434-243-8546 > > > > *From:* conlawprof-boun...@lists.ucla.edu [mailto:conlawprof-bounces@ > lists.ucla.edu <conlawprof-boun...@lists.ucla.edu>] *On Behalf Of *Samuel > Bagenstos > *Sent:* Monday, October 10, 2016 5:15 PM > *To:* John Q. Barrett <barre...@stjohns.edu> > *Cc:* Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>; > conlawp...@lists.ucla.edu > *Subject:* Re: Noteworthy, puzzling scholars' brief in Arlene Flowers > > > > *In other words, if Ollie sells BBQ to black customers at a takeout window > and refuses to serve them inside because he doesn’t believe in celebrating > indoor racial integration*/because that is against his religious beliefs, > he wins?—I think and hope not. > > > > As I'm sure you know, those were basically the facts in McClung itself. > > > > _______________________________________________ > To post, send message to conlawp...@lists.ucla.edu > To subscribe, unsubscribe, change options, or get password, see > https://na01.safelinks.protection.outlook.com/?url= > http%3A%2F%2Flists.ucla.edu%2Fcgi-bin%2Fmailman% > 2Flistinfo%2Fconlawprof&data=01%7C01%7Cesegall%40gsu.edu% > 7C468b81adfc8941d2e9f308d3f156ac0d%7C515ad73d8d5e4169895c9789dc74 > 2a70%7C0&sdata=ahk1zsoknJBCgWilQItnUna3sr2NWH9JY1AXft0VAy4%3D&reserved=0 > > Please note that messages sent to this large list cannot be viewed as > private. List members cannot be prevented from forwarding messages without > the sender's permission, though they are asked not to do so. > > > _______________________________________________ > To post, send message to conlawp...@lists.ucla.edu > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof > > Please note that messages sent to this large list cannot be viewed as > private. List members cannot be prevented from forwarding messages without > the sender's permission, though they are asked not to do so. >
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