It's true that sometimes we aren't sure what the defendant did. Did he fire the 
plaintiff because of race or because of bad performance? Then we have to 
inquire into motive in order to establish disparate treatment.

But there is no such ambiguity when there is a policy of disparate treatment. 
If defendant says he will hire whites but not blacks for a particular set of 
positions, or he will do opposite-sex weddings but not same-sex weddings, 
disparate treatment is established and his reasons for this unequal policy are 
irrelevant to the issue of whether there is discrimination. His reasons may be 
highly relevant to whether there is a religious liberty defense.

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 Eric J Segall
Sent: Wednesday, October 12, 2016 4:05 PM
To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
Subject: Re: Hostility vs. feeling that certain people shouldn't marry each 
other

I'm not sure it is that easy Doug because often the difference between a 
disparate impact and disparate treatment case turns on the motives/intent of 
the decision-makers.

Mark, it is true that many of us feel that, in the context of the current 
debates over SSM, hostility to allowing gays the same economic and social 
benefits of marriage as heterosexuals cannot be meaningfully separated from 
hostility to gays and lesbians. After all, denied those benefits under the law, 
they have no where else to go to acquire them. That point of course is separate 
from whether such hostility has a remedy under the Constitution.

Best,

Eric

Sent from my iPhone

On Oct 12, 2016, at 3:45 PM, Laycock, H Douglas (hdl5c) 
<hd...@virginia.edu<mailto:hd...@virginia.edu>> wrote:
Eric is talking about disparate impact; Eugene was talking about disparate 
treatment.

If someone deliberately acts on the basis of sex, race, etc., motive is 
generally irrelevant. If government acts on some neutral criterion that has 
disparate impact on the basis of race, sex, etc., there is no constitutional 
violation, unless the government chose that criterion because of its impact on 
race, sex, etc.

That distinction may or may not make sense, but it is pretty clearly the law.

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> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Eric J Segall
Sent: Wednesday, October 12, 2016 3:36 PM
To: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Subject: Re: Hostility vs. feeling that certain people shouldn't marry each 
other


I am not sure I understand your Equal Protection point. There is a huge 
difference (according to the Court) between a state adopting a veterans 
preference program in the 1970's knowing 99% of the benefits will go to men and 
doing it because of hostility to women in the military. One is (was) legal one 
is not. There is a difference between a Sunday closing law motivated by a 
secular desire to have one uniform day off for everyone and having one on 
Sunday specifically so Christians will get a leg up on minority faiths with a 
Saturday Sabbath.



I agree there may differences in smoking out this kind of pernicious intent 
when we are talking about state actors as opposed to private folks but I'm not 
sure why that matters in light of the flexible, multi-faceted balancing test 
that Doug originally advocated. I think the state interest side of the ledger 
gets much stronger the closer we get to hostility against a group.



I hope this doesn't offend but the elephant in the room here (or in this 
thread) is that there are probably folks who think that pure discriminatory 
animus justified by faith is somehow different or should be treated differently 
by the law, than animus based on other factors. I think that is sustainable 
inside religious institutions but not when selling furniture, flowers, or 
widgets (again with the caveat that I am more sympathetic to free speech 
possibilities when there is an obvious  expressive component to the business).



Best,



Eric

________________________________
From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
<religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>> 
on behalf of Volokh, Eugene <vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>>
Sent: Wednesday, October 12, 2016 2:30:07 PM
To: Law & Religion issues for Law Academics
Subject: Hostility vs. feeling that certain people shouldn't marry each other

               Well, both the Equal Protection Clause jurisprudence and 
antidiscrimination law requires figuring out whether the defendant deliberately 
treated people differently based on race, sex, religion, etc.

               But I don't think we ever ask whether a private citizen's 
discriminatory actions were "at bottom" based on "hostility" or rather based on 
"no objection to [people's identity]" but rather a "feel[ing]" that people of 
certain identities shouldn't do something.  And I think we basically don't do 
that even as to government actors' imputed motives, either.  To give just one 
example, say that an employer decides not to hire women with small children for 
a particular job.  There may be no evidence at all that this is based on 
"hostility" to women or even "hostility to [women] receiving equal treatment" 
(except in the tautological sense that all decisions to treat unequally are 
based on "hostility" to equal treatment in the sense of a choice against such 
equal treatment).  It may be clear that the employer is very friendly to women 
in many contexts, but just "feel[s] they shouldn't" work outside the home when 
they have small children.  But that doesn't matter for Title VII purposes.  
Indeed, even if an employer requires women to contribute more to retirement 
funds simply because women are statistically likelier to live much longer than 
men -- with not a hint of "hostility" -- is violating Title VII.

               Now maybe both the photographer -- or wedding singer or portrait 
painter or calligrapher or press release writer -- who doesn't want to create 
material for a same-sex wedding ceremony or similar event and the one who 
objects to an interfaith event should lose under RFRA or the Free Speech 
Clause.  Maybe both should win.  But I can't see how courts can distinguish 
between them on the grounds of a perception that one's discriminatory conduct 
is motivated by "hostility" and the other's is motivated by a "feeling [that 
certain people] shouldn't get married to each other."

               Eugene


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