Eric, I agree that it is discrimination. I thought I was clear about that.
I would grant a free exercise exemption, assuming another vendor is available without undue difficulty, principally for two reasons. First, for believers like Baronelle Stutzman, a wedding is an inherently religious context, where the government's interest is weak and the religious interest is strong. And second, because the same-sex couple still gets to live their own lives and their own identities by their own deepest values. But if an exemption is denied, Stutzman does not get to do that. She must surrender her occupation or surrender her religious commitments. I don't begin to share her views, but the balance of hardships tips decidedly in her favor. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia 580 Massie Road Charlottesville, VA 22903 434-243-8546 ________________________________ From: Eric J Segall [eseg...@gsu.edu] Sent: Monday, October 10, 2016 6:09 PM To: Laycock, H Douglas (hdl5c) Cc: Law & Religion issues for Law Academics; conlawp...@lists.ucla.edu Subject: Re: Noteworthy, puzzling scholars' brief in Arlene Flowers 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<https://mail.eservices.virginia.edu/owa/redir.aspx?REF=zESHIygd7zmlkfgdaIUvM11xLKDn1z7py-OUslR5EL0mebILcfHTCAFtYWlsdG86aGRsNWNAdmlyZ2luaWEuZWR1>> 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<https://mail.eservices.virginia.edu/owa/redir.aspx?REF=sLJtWQpWvKTsSnR1pxmJPQ68REPP13Prnc_VwJDHV2cmebILcfHTCAFtYWlsdG86Y29ubGF3cHJvZi1ib3VuY2VzQGxpc3RzLnVjbGEuZWR1> [mailto:conlawprof-boun...@lists.ucla.edu<https://mail.eservices.virginia.edu/owa/redir.aspx?REF=sLJtWQpWvKTsSnR1pxmJPQ68REPP13Prnc_VwJDHV2cmebILcfHTCAFtYWlsdG86Y29ubGF3cHJvZi1ib3VuY2VzQGxpc3RzLnVjbGEuZWR1>] On Behalf Of Samuel Bagenstos Sent: Monday, October 10, 2016 5:15 PM To: John Q. Barrett <barre...@stjohns.edu<https://mail.eservices.virginia.edu/owa/redir.aspx?REF=d8lsaeEdZ4BK2eRtsL7wnt95qAqma7nsJ0LyFb1kzA8mebILcfHTCAFtYWlsdG86YmFycmV0dGpAc3Rqb2hucy5lZHU.>> Cc: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu<https://mail.eservices.virginia.edu/owa/redir.aspx?REF=_BIjchWfs954joVrDmYtQdpUfySntuATY8OxyYKvkZgmebILcfHTCAFtYWlsdG86cmVsaWdpb25sYXdAbGlzdHMudWNsYS5lZHU.>>; conlawp...@lists.ucla.edu<https://mail.eservices.virginia.edu/owa/redir.aspx?REF=dFcKBu5EdujZuee_qeykYx2BOOR8OVNXCJ-LEl5EQdUmebILcfHTCAFtYWlsdG86Y29ubGF3cHJvZkBsaXN0cy51Y2xhLmVkdQ..> 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<https://mail.eservices.virginia.edu/owa/redir.aspx?REF=HHbLJ7pMd0b4MltW7bdJ7rziS-khkhTGcoBKOSYnbZImebILcfHTCAFtYWlsdG86Q29ubGF3cHJvZkBsaXN0cy51Y2xhLmVkdQ..> 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%7C515ad73d8d5e4169895c9789dc742a70%7C0&sdata=ahk1zsoknJBCgWilQItnUna3sr2NWH9JY1AXft0VAy4%3D&reserved=0<https://mail.eservices.virginia.edu/owa/redir.aspx?REF=9LuGJ9QZBlE1XnHf4pjYqMKkbhniNVFNCscrl6Bx6Q0mebILcfHTCAFodHRwczovL25hMDEuc2FmZWxpbmtzLnByb3RlY3Rpb24ub3V0bG9vay5jb20vP3VybD1odHRwJTNBJTJGJTJGbGlzdHMudWNsYS5lZHUlMkZjZ2ktYmluJTJGbWFpbG1hbiUyRmxpc3RpbmZvJTJGY29ubGF3cHJvZiZkYXRhPTAxJTdDMDElN0Nlc2VnYWxsJTQwZ3N1LmVkdSU3QzQ2OGI4MWFkZmM4OTQxZDJlOWYzMDhkM2YxNTZhYzBkJTdDNTE1YWQ3M2Q4ZDVlNDE2OTg5NWM5Nzg5ZGM3NDJhNzAlN0MwJnNkYXRhPWFoazF6c29rbkpCQ2dXaWxRSXRuVW5hM3NyMk5XSDlKWTFBWGZ0MFZBeTQlM0QmcmVzZXJ2ZWQ9MA..> Please note that messages sent to this large list cannot be viewed as private. 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