Mitch Berman's good question asks in general terms about how much "solicitude" Fred's claim deserves. But we cannot answer intelligently unless we know the forum and the grounds advanced for Fred. Is he asking the state legislature to exempt religious objectors from public accommodations law? Is he raising a compelled speech claim? A religious freedom claim under a RFRA, or a state constitution? I would give his claim no solicitude in any of these contexts, for reasons I have spelled out at length on this listserv and in law reviews. But I can imagine that others might well react differently depending on the legal context.
On Tue, Oct 11, 2016 at 2:45 PM, Mitchell Berman <mitch...@law.upenn.edu> wrote: > For what it’s worth, I’d like to add another generally liberal, pluralist > voice in support of Doug and David. > > > > I don’t have a strong view regarding precisely what the doctrine should be > to govern cases of this sort, largely because I believe that the adequacy > of available alternatives will be a critical factor, and I am open to the > possibility that, due to difficulties of case-by-case inquiry into such > questions, the law (statutory or judge-made) should adopt prophylactic > rules. That acknowledged, as a matter of political morality, I also > believe that folks on my side of the aisle are often insufficiently > sensitive to interests of the Shlomo Cohens and Barronelle Stutzmans of our > nation. > > > > Take this case: in a large city, an observant Jewish photographer or dj, > Fred, declines to work at an interfaith marriage between a Jew and a > Gentile. Fred is happy to take on any other work for Jews or Gentiles, or > for both together. But he objects to being complicit in a > venture—interfaith marriage—that he deems wrongful or religiously > proscribed. > > > > Marty, Eric: how much solicitude is Fred due? (And if you choose to > answer, I ask that you do so without analogizing to interracial marriage; > that’s not my case.) > > > > Mitch Berman > > > > > > *From:* conlawprof-boun...@lists.ucla.edu [mailto:conlawprof-bounces@ > lists.ucla.edu] *On Behalf Of *David Bernstein > *Sent:* Tuesday, October 11, 2016 10:00 AM > *To:* Marty Lederman <lederman.ma...@gmail.com>; conlawp...@lists.ucla.edu; > Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu> > *Subject:* Re: Noteworthy, puzzling scholars' brief in Arlene Flowers > > > > Unlike Marty, I not only don't find the argument in question shocking, I > thin it's right. I blogged about this at Volokh a couple of years ago, > drawing the analogy to a caterer who serves Jewish customers, but refuses > to cater brises. Unusually, the comments section to the post is also mostly > worthwhile. http://volokh.com/2013/12/14/refusing-provide- > commercial-services-circumcision-discrimination-jews/ > <https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fvolokh.com%2F2013%2F12%2F14%2Frefusing-provide-commercial-services-circumcision-discrimination-jews%2F&data=01%7C01%7Cmitchberman%40law.upenn.edu%7C13d4c5bc6dad441c0d4008d3f1dee56b%7C6cf568beb84a4e319df6359907586b27%7C1&sdata=xFPIZvkJedJKDTBaANgKqcsIaseHFYpKhhyuaqMcRWs%3D&reserved=0>. > Another hypothetical that could arise is an Orthodox Jewish baker who > serves all customers. > > > > > Is Refusing to Provide Commercial Services for a Circumcision > Discrimination against Jews? > > by *David Bernstein* > <https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fvolokh.com%2Fauthor%2Fdavidb%2F&data=01%7C01%7Cmitchberman%40law.upenn.edu%7C13d4c5bc6dad441c0d4008d3f1dee56b%7C6cf568beb84a4e319df6359907586b27%7C1&sdata=w6tJ5wXLE3ShHI5NRzGMgOhooyu4HI3kR8XAiqlItQw%3D&reserved=0> > on December 14, 2013 12:46 pm in *You Can't Say That!* > <https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fvolokh.com%2Fcategory%2Fyou-cant-say-that%2F&data=01%7C01%7Cmitchberman%40law.upenn.edu%7C13d4c5bc6dad441c0d4008d3f1dee56b%7C6cf568beb84a4e319df6359907586b27%7C1&sdata=3OoPtrJs2Z8ecuN1XrNHCfCL8sn7Y1qcrDDJbQyLNt0%3D&reserved=0> > > Here’s the hypothetical: Shlomo Cohen has been blessed with a son, but he > lives in San Francisco, where there is a vocal anti-circumcision movement. > He emails his neighbor, a photographer, and asks him if he would photograph > his son’s bris. The photographer responds, “Shlomo, no offense, but I think > circumcision amounts to genital mutilation, and I can’t participate in > that.” Next, he approaches his local organic/vegeterian caterer about > catering the bris. The caterer says, “you know Shlomo, I’ve done brises in > the past, but I’ve been reading some of the literature put out by the > anti-circumcision people, and I think circumcisions cause unnecessary pain > to baby boys. So I don’t do brises anymore.” > > Shlomo files a complaint with San Francisco’s human rights commission, > claiming that the photographer and the caterer are engaging in > discrimination against him based on his Jewish ethnicity and religion. > There is no evidence that either person turns down or otherwise mistreats > Jewish clients or potential clients, and both deny they do so. Should > Shlomo win his case? > > To me, the answer is no, and pretty obviously so. Neither defending is > discriminating against Shlomo because he’s Jewish, they are discriminating > against him (if that’s what you want to call it) because they disagree with > his particular actions. Indeed, I’d say they are no discriminating against > Shlomo at all, they are discriminating against potential clients who want > them to help celebrate something that violates their strongly held personal > beliefs. > > So, am I right? And if so, is there any sensible legal distinction that > can be drawn between my hypothetical and the cases in the news in which a > photographer and a baker were held to have discriminated against gays > because they declined to provide commercial services on moral grounds for > gay weddings, but apparently otherwise did not discriminate against gay > customers? > > > > > > > > > > David E. Bernstein > > Foundation Professor > > Antonin Scalia Law School, George Mason Unversity > > > > Website > <https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Ffaculty.law.gmu.edu%2Fdbernste%2F&data=01%7C01%7Cmitchberman%40law.upenn.edu%7C13d4c5bc6dad441c0d4008d3f1dee56b%7C6cf568beb84a4e319df6359907586b27%7C1&sdata=OicjkmD5kZuz8ikuDtFL6C8n5%2FmBLaOCmaZVILKKyYs%3D&reserved=0> > > > > <https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fwww.facebook.com%2Fdavidebernstein&data=01%7C01%7Cmitchberman%40law.upenn.edu%7C13d4c5bc6dad441c0d4008d3f1dee56b%7C6cf568beb84a4e319df6359907586b27%7C1&sdata=%2BRDQJidygeBValZ0EXX4bpGWvE5W7M8TZ6jRL88AmuI%3D&reserved=0> > > <https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Ftwitter.com%2FProfDBernstein&data=01%7C01%7Cmitchberman%40law.upenn.edu%7C13d4c5bc6dad441c0d4008d3f1dee56b%7C6cf568beb84a4e319df6359907586b27%7C1&sdata=0IcEM7GKt%2B3xb5DnvNEwwKU%2BWc9NGCRX296mDThxIs8%3D&reserved=0> > > <https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fwww.amazon.com%2FDavid-E.-Bernstein%2Fe%2FB001K7PO08%2Fref%3Dsr_ntt_srch_lnk_1%3Fqid%3D1423704290%26sr%3D8-1&data=01%7C01%7Cmitchberman%40law.upenn.edu%7C13d4c5bc6dad441c0d4008d3f1dee56b%7C6cf568beb84a4e319df6359907586b27%7C1&sdata=ymQkjVTVDcUgMTUcQTfGhhsvSTcKEVg3LmdpJ0TIU%2FE%3D&reserved=0> > > Get a signature like this: *Click here!* > <https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fws-promos.appspot.com%2Fr%3Frdata%3DeyJydXJsIjogImh0dHA6Ly93d3cud2lzZXN0YW1wLmNvbS9lbWFpbC1pbnN0YWxsP3dzX25jaWQ9NjcyMjk0MDA4JnV0bV9zb3VyY2U9ZXh0ZW5zaW9uJnV0bV9tZWRpdW09ZW1haWwmdXRtX2NhbXBhaWduPXByb21vXzU3MzI1Njg1NDg3Njk3OTIiLCAiZSI6ICI1NzMyNTY4NTQ4NzY5NzkyIn0%3D%26u%3D639777535415037&data=01%7C01%7Cmitchberman%40law.upenn.edu%7C13d4c5bc6dad441c0d4008d3f1dee56b%7C6cf568beb84a4e319df6359907586b27%7C1&sdata=co19sn5cIbwbkM9rvKNKdWuubGGtjSbrrxTRdWWnHMQ%3D&reserved=0> > ------------------------------ > > *From:* conlawprof-boun...@lists.ucla.edu <conlawprof-bounces@lists. > ucla.edu> on behalf of Marty Lederman <lederman.ma...@gmail.com> > *Sent:* Monday, October 10, 2016 10:40:23 AM > *To:* conlawp...@lists.ucla.edu; Law & Religion issues for Law Academics > *Subject:* Noteworthy, puzzling scholars' brief in Arlene Flowers > > > > Some of you may be familiar with the *Washington v. Arlene's Flowers* > case, which will be argued in the Washington Supreme Court next month. > Barronelle Stutzman and her husband are the owners of Arlene’s Flowers, > Inc., a closely held for-profit corporation. Over the course of nine > years, Stutzman regularly sold floral arrangements to Robert Ingersoll, > knowing that he was gay. When Ingersoll asked Stutzman to sell him flower > arrangements for his wedding to Curt Freed, however, she refused to provide > them, even if they were prepared by others in her shop, because doing so, > she claimed, would "constitute a demonstration of [her] approval for the > wedding," whereas in fact she has religious objections to same-sex > marriages. (She agreed to provide the raw materials for the > arrangements--the flowers and such--but not to have her shop do the > arranging.) > > > > The Washington Attorney General sued Arlene's Flowers, seeking an > injunction against such discrimination in the future. (Ingersoll and Freed > also sued, seeking nominal damages for the costs they incurred when > Stutzman refused to serve them.) The principal basis for the suit is a > claim of discrimination on the basis of sexual orientation, prohibited by > the Washington Law Against Discrimination (WLAD), RCW 49.60.215, which > provides that "It shall be an unfair practice for any person or the > person's agent or employee to commit an act which *directly or indirectly* > results in *any* distinction, restriction, or discrimination, . . . or > the refusing or withholding from any person the admission, patronage, > *custom*, presence, frequenting, dwelling, staying, or lodging in any > place of public resort, accommodation, assemblage, or amusement." The > forms of prohibited discrimination are listed in RCW 49.60.030: "The right > to be free from discrimination because of race, creed, color, national > origin, sex, honorably discharged veteran or military status, *sexual > orientation*, or the presence of any sensory, mental, or physical > disability or the use of a trained dog guide or service animal by a person > with a disability is recognized as and declared to be a civil right. This > right shall include, but not be limited to: . . . (b) The right *to the > full enjoyment *of any of the accommodations, advantages, facilities, or > privileges of any place of public resort, accommodation, assemblage, or > amusement." > > > > Stutzman defended on both statutory and state and federal constitutional > (Free Speech and Free Exercise) grounds; but the lower court ruled > <https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fagportal-s3bucket.s3.amazonaws.com%2Fuploadedfiles%2FHome%2FNews%2FPress_Releases%2F2015%2FArlene%2527s%2520Flowers%2520summary%2520judgment.pdf&data=01%7C01%7Cmitchberman%40law.upenn.edu%7C13d4c5bc6dad441c0d4008d3f1dee56b%7C6cf568beb84a4e319df6359907586b27%7C1&sdata=vwBpopgDbYDhszeFSGxEpKHOrHtkcpBuEsW0ij1hVjo%3D&reserved=0> > in favor of the Attorney General. The appeal from that decision is now > before the Washington Supreme Court, which will hear arguments in about > five weeks. > > > > A couple of weeks ago, a group of 27 scholars, some of whom are on these > listservs, filed an amicus brief > <https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fmirrorofjustice.blogs.com%2Ffiles%2Fsmith-brief.pdf&data=01%7C01%7Cmitchberman%40law.upenn.edu%7C13d4c5bc6dad441c0d4008d3f1dee56b%7C6cf568beb84a4e319df6359907586b27%7C1&sdata=gyD86DBVKtOYjHwUJkYnkYr3It7tmNRHpm3jtxviZDk%3D&reserved=0> > on > behalf of Arlene's Flowers. (According to Rick Garnett, it was written by > Steve Smith, although he is not listed as counsel.) That brief does not > make a constitutional argument at all. Instead, it argues (as I read it) > that the Court should construe the Washington antidiscrimination statute so > as not to include Stutzman's refusal as prohibited discriminatory conduct > in the first place. > > > > The theory of the brief, such as it is, is that Stutzman must not have > been engaged in discrimination on the basis of sexual orientation, since > she was willing to make arrangements for Ingersoll--a man who she knew was > gay--for purposes *other than *his marriage. The lower court erred, > according to the brief, "[i]n erroneously treating the religious conviction > Stutzman does have as equivalent to a different and more troublesome > objection that she does not have." She doesn't discriminate against gays > and lesbians -- "only" against same-sex marriage. > > > > I, for one, find this argument to be rather alarming, and, best I can > tell, indefensible. > > > > As the Washington AG writes in his brief (responding to a similar argument > that Stutzman offered), "discrimination is discrimination, whether it is > complete or partial. An employer cannot say: 'I hire women, but because of > my religious belief that women should be subservient to men, I will not > hire women to supervise men.' Similarly, it is irrelevant whether > Defendants generally serve gay and lesbian customers; their refusal to > serve the weddings of gay and lesbian customers is still prohibited > discrimination." > > > > That's obviously right, isn't it? The cases demonstrating it are legion. > Bob Jones University, for example, surely discriminated on the basis of > race by prohibiting students from interracial dating, even though it > admitted black students. Would anyone have argued with a straight face > that the university did not discriminate on the basis of race, and that it > was error to treat BJU's rule "as equivalent to a different and more > troublesome objection that it does not have [i.e., to exclude black > students altogether]"? And I'm hardly an expert on Washington state law, > but there's every indication that its statutes also reflect this idea--see, > e.g., the bolded passages quoted above, including the reference to "full > enjoyment." > > > > To be sure, it would be even worse if Stutzman categorically refused to > serve gays and lesbians; her refusal "only" in the context of a same-sex > marriage thus is not *as *problematic and disturbing as such a > categorical "Gays not served here" policy would be. But, understandably, > Washington law, like the analogous laws of the federal government and > virtually every state, has made it unlawful to engage in both categorical > *and* selective discriminatory refusals to serve. There is no reason > (none that the brief offers, anyway) to think that the Washington > legislature did not mean to proscribe discrimination in cases where the > commercial proprietor "hates the sin but loves the sinner." > > > > The amicus brief's only response to this, far as I can tell, is to argue > (pp. 8-9) that Arlene's Flowers is not discriminating on the basis of > sexual orientation because Stutzman would also refuse to sell flower > arrangements for a marriage between, e.g., two heterosexual men, and she > *would > *sell arrangements to, e.g., a gay man and a lesbian who were marrying > one another. > > > > I hope I don't need to explain why this argument is, and ought to be, dead > in the water. I'll add only this: Paul Clement offhandedly offered the > same argument as to DOMA in his brief > <https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fsblog.s3.amazonaws.com%2Fwp-content%2Fuploads%2F2013%2F01%2FBLAG-merits-brief-1-22-131.pdf&data=01%7C01%7Cmitchberman%40law.upenn.edu%7C13d4c5bc6dad441c0d4008d3f1dee56b%7C6cf568beb84a4e319df6359907586b27%7C1&sdata=4wU5X0shUmyDgLpajQPlt97JN2vv5lZtEWAXndkWlR4%3D&reserved=0> > for BLAG in *Windsor *("A marriage between a man and a woman would fall > within DOMA’s definition even if one or both spouses were homosexual. > Similarly, the marriage of two men would fall outside the definition even > if both were heterosexual."); but at least he had the good sense to bury it > in a footnote and otherwise not rely upon it. Not surprisingly, not a > single Justice in *Windsor *considered this virtually buried "argument" > even worth discussing. > > > > Likewise, Kentucky ran the argument in its brief > <https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fsblog.s3.amazonaws.com%2Fwp-content%2Fuploads%2F2015%2F03%2F14-574_-bs.pdf&data=01%7C01%7Cmitchberman%40law.upenn.edu%7C13d4c5bc6dad441c0d4008d3f1dee56b%7C6cf568beb84a4e319df6359907586b27%7C1&sdata=JFDggAW%2BXlwLZz9vkHYVqsRbr0YABO8F15NVWASkYos%3D&reserved=0> > in > the *Obergefell *set of cases (see p. 26) just a *bit * more aggressively > than Clement did--promoting it to a single textual paragraph. Again, no > Justices thought it worthy of discussion; the majority, however, implicitly > rejected it out of hand when it wrote: > > > > This dynamic also applies to same-sex marriage. It is > > now clear that the challenged laws burden the liberty of > > same-sex couples, and it must be further acknowledged > > that *they abridge central precepts of equality.* Here the > > marriage laws enforced by the respondents *are in essence* > > *unequal*: same-sex couples are denied all the benefits > > afforded to opposite-sex couples and are barred from exercising > > a fundamental right. Especially against a long > > history of disapproval of their relationships, this denial to > > same-sex couples of the right to marry works a grave and > > continuing harm. *The imposition of this disability on gays* > > *and lesbians serves to disrespect and subordinate them*. > > And the Equal Protection Clause, like the Due Process > > Clause, prohibits this unjustified infringement of the > > fundamental right to marry. > > > > The scholars' amicus brief in *Arlene's Flowers *does not even contend > with these fairly important precedents. Nor does it even discuss the > statutory language of the Washington law, or its purpose, history, or > judicial construction. It's hard to imagine the amici think their > statutory construction argument will find favor with any of the Justices of > the Washington Supreme Court. Reading the Washington law to cover this > case is not "stretching" or "distension [sic]" of the statute, as the brief > argues: It's standard-issue fare. > > > > So what explains the brief? Is there more to be said for it than what > I've described? > > > > _______________________________________________ > 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. > -- Ira C. Lupu F. Elwood & Eleanor Davis Professor of Law, Emeritus George Washington University Law School 2000 H St., NW Washington, DC 20052 301-928-9178 (mobile, preferred) 202-994-7053 (office) Co-author (with Professor Robert Tuttle) of "Secular Government, Religious People" ( Wm. B. Eerdmans Pub. Co., 2014)) My SSRN papers are here: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg
_______________________________________________ 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.
