Re: Wedding photographers as creators of art
I did not know that; thank you. Mea culpa. ** Paul Finkelman, Ph.D. Senior Fellow Penn Program on Democracy, Citizenship, and Constitutionalism University of Pennsylvania and Scholar-in-Residence National Constitution Center Philadelphia, Pennsylvania 518-439-7296 (w) 518-605-0296 (c) paul.finkel...@yahoo.com www.paulfinkelman.com From: Scarberry, Mark mark.scarbe...@pepperdine.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Sunday, February 15, 2015 2:18 AM Subject: Wedding photographers as creators of art In response to Paul: Elaine Huguenin's cert petition says that artistic expression pervades her work. She also says that her work is expressive photojournalism that tells a story. More later, perhaps, but I couldn't leave your claim unanswered that she didn't claim to be an artist. She engages in creative artistic expression. She does not run a photobooth. She is not an auto mechanic. She does not sell product. She creates artistic expression that tells a story. It is profoundly illiberal to require someone to engage in expression contrary to conscience, and even worse to require them to create a state-mandated message that tells a story they do not wish to tell. Mark Mark S. ScarberryPepperdine University School of Law Sent from my Verizon Wireless 4G LTE Smartphone Original message From: Paul Finkelman Date:02/14/2015 6:43 PM (GMT-08:00) To: Law Religion issues for Law Academics Subject: Re: Can someone be legally obligated to have sex with people she's unwilling to have sex with? Mark: I think there might be a difference, in terms of commercial activity between the artistic photographer, who shoots and sells photos and the commercial photographer who advertises that he does weddings, confirmations, family portraits etc. One is essentially an artist, who sometimes takes a commission. I agree with you that an artists can refuse a commission, just like we can refuse to write a book when a publisher asks us to. But, if our business is open to all, then it has to be open to all. The person photographs people is no different than an auto mechanic or a dentist. The other has an open business that anyone can walk in off the street and use. Similarly, while we can decline to write a book, if our class is open to all students, we cannot refuse to let some in on the grounds that we oppose their beliefs, faith, color, life style etc. And, if you can discriminate on the basis of gender then you presumably can for race or religion. None of the people who have refused to sell their product to gay people are arguing they are artists. They are business owners who sell to the general public. Except when they don't like the general public! And, if you rent out your theater or lecture hall, you do it for all comers if that is your business. To take your hypo further, Mark. If you have a photography studio and you are an animal rights person, can you refuse to photograph the two hunters who come in to get their pictures taken in their hunting clothes? And if some state requires a photo for a fishing or hunting license, can that person refuse to take the picture? We can spin hypos all day. We are trained to that. The bottom line is this: do we allow businesses to discriminate on the basis of race, gender, or religion? If we do, then we might as well repeal the 1964 Civil Rights Act, and allow private discrimination across the board; no more black people in your restaurant or gays or Catholics of Jews or Mormons or Evangelicals, or whoever you don't like. Is that where you want to go? ** Paul Finkelman, Ph.D. Senior Fellow Penn Program on Democracy, Citizenship, and Constitutionalism University of Pennsylvania and Scholar-in-Residence National Constitution Center Philadelphia, Pennsylvania 518-439-7296 (w) 518-605-0296 (c) paul.finkel...@yahoo.com www.paulfinkelman.com ___ 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.
Re: Wedding photographers as creators of art
Not all bases of discrimination are the same and not all businesses are the same. Discrimination based on the target’s immutable characteristics (race, national origin, gender, sexual orientation, etc.) is not the same as one based on a difference in beliefs — political, religious, moral. A business that sells ordinary goods is not the same as a business that sells personal services. And within the services industry, an artistic endeavor such as photography is not the same as a car mechanic. When, if ever should these real differences matter? There will inevitably be line drawing with lines that some lines drawn that some find indefensible and that are distinguishing between closely similar and difficult cases. That is true in every area of law I have come across. Sometimes the lines get drawn on a very inarticulate “all the circumstances” basis with essentially no guiding principle. That is, I submit, the nature of society and the law’s attempts to regulate it. Take a wedding cake. There is a difference between a phoned-in order to a bakery for a “generic” three layer wedding cake and one special ordered by a same-sex couple wanting some special features because it is for a same-sex wedding. Does it matter whether the bakery is a commercial bakery or that the baker is just someone doing it on the side as a sometimes-business? I think all of those sorts of things matter in deciding whether to allow the discrimination. I think the wedding cake for the same sex marriage is easy — while I acknowledge there is some art to making a cake, for the most part it is a matter of selecting the cake from pictures — “I want one like that”. But for me the photographer is different. Maybe because I take pictures — and every now and again try to take artful ones. And they are psychologically different than party snapshots, though even those take more creativity than the standard facebook fare if one wants a decent picture, i.e., one that is well composed, exposed, etc. So I would draw two lines — one based on creativity and one based on intimacy (Eugene’s prostitute) and allow discirmination more broadly in those settings. But I would not allow the photography factories (Sears, school and sport team photographers, etc.) the same right to refuse — they are more like the mechanic or bakery. Nor would I allow a pharmacist to refuse to dispense legal contraceptive drugs or devices. Nor would I allow an insurer or company to refuse to cover such devices and drugs. But a surgeon or nurse performing an abortion — I would give them the religious exception. I think RFRAs that allow such broad based discrimination based on any sincere belief go to far. But for me the line-drawing is neither obvious nor easy — they are uncomfortable, close questions.s Steve -- Prof. Steven D. Jamar Howard University School of Law vox: 202-806-8017 fax: 202-806-8567 http://sdjlaw.org ___ 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.
RE: Wedding photographers as creators of art
To add to this discussion from an IP perspective, it is worth noting that photography presents a particularly interesting study of the application of copyright's requirement of originality. Although photography was included in the copyright statute as protectable subject matter as early as 1865, the Supeme Court did not have occasion to consider the scope of protection for photographs until 1884 in Burrow-Giles Lithographic Co. v. Sarony. Ultimately, the court found the photograph at issue to satisfy the originality requirement based on the extent of the photographer's particular contributions of desired expression. It was a very narrow holding that left future courts with little guidance. Today, contemporary methods of photography such as surveillance cameras and satellite images take this problem to a new level. In applying copyright's originality requirement, some courts have held that unless a photograph is actively staged and therefore does more than simply duplicate that which already exists, it is lacking in sufficient originality to satisfy the statute (see Bridgeman Art Library, Ltd v. Corel Corp). And when the subject matter consists of nature, this issue is especially relevant (see Dyer v. Napier, involving a photograph of a mother mountain lyon perched on a rock with a kitten in her mouth enjoying a thin layer of copyright protection due to the photographer's staging and other artistic choices). With respect to moral rights protection under the Visual Artists Rights Act (VARA), which affords only certain visual art protection, the statute protects only photography for exhibition purposes only. There has been litigation on this one point, despite the fact that overall, VARA has not produced substantial amounts of caselaw (see Lilly v. Stout, 384 F. Supp. 83 (D.D.C. 2005). Roberta Rosenthal Kwall Raymond P. Niro Professor Founding Director, DePaul University College of Law Center for Intellectual Property Law Information Technology Author of The Myth of the Cultural Jew: Culture and Law in Jewish Tradition http://amzn.to/15f7bLH You can view my papers on the Social Science Research Network (SSRN) at the following URL: http://ssrn.com/author=345249 From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Steven Jamar [stevenja...@gmail.com] Sent: Sunday, February 15, 2015 6:41 AM To: Law Religion Law List Subject: Re: Wedding photographers as creators of art Not all bases of discrimination are the same and not all businesses are the same. Discrimination based on the target’s immutable characteristics (race, national origin, gender, sexual orientation, etc.) is not the same as one based on a difference in beliefs — political, religious, moral. A business that sells ordinary goods is not the same as a business that sells personal services. And within the services industry, an artistic endeavor such as photography is not the same as a car mechanic. When, if ever should these real differences matter? There will inevitably be line drawing with lines that some lines drawn that some find indefensible and that are distinguishing between closely similar and difficult cases. That is true in every area of law I have come across. Sometimes the lines get drawn on a very inarticulate “all the circumstances” basis with essentially no guiding principle. That is, I submit, the nature of society and the law’s attempts to regulate it. Take a wedding cake. There is a difference between a phoned-in order to a bakery for a “generic” three layer wedding cake and one special ordered by a same-sex couple wanting some special features because it is for a same-sex wedding. Does it matter whether the bakery is a commercial bakery or that the baker is just someone doing it on the side as a sometimes-business? I think all of those sorts of things matter in deciding whether to allow the discrimination. I think the wedding cake for the same sex marriage is easy — while I acknowledge there is some art to making a cake, for the most part it is a matter of selecting the cake from pictures — “I want one like that”. But for me the photographer is different. Maybe because I take pictures — and every now and again try to take artful ones. And they are psychologically different than party snapshots, though even those take more creativity than the standard facebook fare if one wants a decent picture, i.e., one that is well composed, exposed, etc. So I would draw two lines — one based on creativity and one based on intimacy (Eugene’s prostitute) and allow discirmination more broadly in those settings. But I would not allow the photography factories (Sears, school and sport team photographers, etc.) the same right to refuse — they are more like the mechanic or bakery. Nor would I allow a pharmacist to refuse to dispense legal contraceptive drugs or devices. Nor would I allow an
Re: Wedding photographers as creators of art
Mark: would you defend her position if she refused to photograph an integrated marriage? Or Hindu wedding? Does she have an absolute right to refuse to work for people on the bases of race, religion, or gender? ** Paul Finkelman, Ph.D. Senior Fellow Penn Program on Democracy, Citizenship, and Constitutionalism University of Pennsylvania and Scholar-in-Residence National Constitution Center Philadelphia, Pennsylvania 518-439-7296 (w) 518-605-0296 (c) paul.finkel...@yahoo.com www.paulfinkelman.com From: Scarberry, Mark mark.scarbe...@pepperdine.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Sunday, February 15, 2015 2:18 AM Subject: Wedding photographers as creators of art In response to Paul: Elaine Huguenin's cert petition says that artistic expression pervades her work. She also says that her work is expressive photojournalism that tells a story. More later, perhaps, but I couldn't leave your claim unanswered that she didn't claim to be an artist. She engages in creative artistic expression. She does not run a photobooth. She is not an auto mechanic. She does not sell product. She creates artistic expression that tells a story. It is profoundly illiberal to require someone to engage in expression contrary to conscience, and even worse to require them to create a state-mandated message that tells a story they do not wish to tell. Mark Mark S. ScarberryPepperdine University School of Law Sent from my Verizon Wireless 4G LTE Smartphone Original message From: Paul Finkelman Date:02/14/2015 6:43 PM (GMT-08:00) To: Law Religion issues for Law Academics Subject: Re: Can someone be legally obligated to have sex with people she's unwilling to have sex with? Mark: I think there might be a difference, in terms of commercial activity between the artistic photographer, who shoots and sells photos and the commercial photographer who advertises that he does weddings, confirmations, family portraits etc. One is essentially an artist, who sometimes takes a commission. I agree with you that an artists can refuse a commission, just like we can refuse to write a book when a publisher asks us to. But, if our business is open to all, then it has to be open to all. The person photographs people is no different than an auto mechanic or a dentist. The other has an open business that anyone can walk in off the street and use. Similarly, while we can decline to write a book, if our class is open to all students, we cannot refuse to let some in on the grounds that we oppose their beliefs, faith, color, life style etc. And, if you can discriminate on the basis of gender then you presumably can for race or religion. None of the people who have refused to sell their product to gay people are arguing they are artists. They are business owners who sell to the general public. Except when they don't like the general public! And, if you rent out your theater or lecture hall, you do it for all comers if that is your business. To take your hypo further, Mark. If you have a photography studio and you are an animal rights person, can you refuse to photograph the two hunters who come in to get their pictures taken in their hunting clothes? And if some state requires a photo for a fishing or hunting license, can that person refuse to take the picture? We can spin hypos all day. We are trained to that. The bottom line is this: do we allow businesses to discriminate on the basis of race, gender, or religion? If we do, then we might as well repeal the 1964 Civil Rights Act, and allow private discrimination across the board; no more black people in your restaurant or gays or Catholics of Jews or Mormons or Evangelicals, or whoever you don't like. Is that where you want to go? ** Paul Finkelman, Ph.D. Senior Fellow Penn Program on Democracy, Citizenship, and Constitutionalism University of Pennsylvania and Scholar-in-Residence National Constitution Center Philadelphia, Pennsylvania 518-439-7296 (w) 518-605-0296 (c) paul.finkel...@yahoo.com www.paulfinkelman.com ___ 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
Re: The racist prostitute hypothetical
Then we simply postulate that the objection is stated, sincerely, to be on the objector's religious beliefs. No race, no mere cosmetics, but a deeply held religious belief on the nature of culture/nation. On Sat, Feb 14, 2015 at 11:12 PM, Brad Pardee bp51...@windstream.net wrote: In the absence of some factor not listed here, I don't see a religious freedom issue here. Brad *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *K Chen *Sent:* Saturday, February 14, 2015 8:51 PM *To:* Law Religion issues for Law Academics *Subject:* RE: The racist prostitute hypothetical Brad you said: The problem with comparing a same sex wedding with an interracial wedding is that the color of a person's skin is no different than the color of a person's hair or the color of a person's eyes. I don't think anybody would say that the difference in genders is a strictly cosmetic distinction. What about, instead of an interracial wedding, the baker/florist/etc. is objecting to two whites, one an immigrant from, say, South Africa and the other a multigenerational American? Sent on my mobile device. Please Excuse my brevity and typographic errors. ___ 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.
RE: The racist prostitute hypothetical
I don’t think we have to postulate this, or focus on highly out-of-the-mainstream religious groups. As I understand it, many a devout Jew will approve, on religious grounds, of a wedding between an irreligious ethnic Jew like me and another Jew, without any extra work that I would have to do to get more devout – but will disapprove of an equally irreligious person who isn’t ethnically Jewish marrying a Jew, at least unless the non-Jew goes through a long and cumbersome conversion process. If the devout Jew doesn’t want to participate in the wedding, whether by officiating, photographing, or catering, that would therefore constitute discrimination based on ethnicity, generally treated by American law the same as race discrimination. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of K Chen Sent: Sunday, February 15, 2015 7:53 AM To: Law Religion issues for Law Academics Subject: Re: The racist prostitute hypothetical Then we simply postulate that the objection is stated, sincerely, to be on the objector's religious beliefs. No race, no mere cosmetics, but a deeply held religious belief on the nature of culture/nation. On Sat, Feb 14, 2015 at 11:12 PM, Brad Pardee bp51...@windstream.netmailto:bp51...@windstream.net wrote: In the absence of some factor not listed here, I don't see a religious freedom issue here. Brad From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of K Chen Sent: Saturday, February 14, 2015 8:51 PM To: Law Religion issues for Law Academics Subject: RE: The racist prostitute hypothetical Brad you said: The problem with comparing a same sex wedding with an interracial wedding is that the color of a person's skin is no different than the color of a person's hair or the color of a person's eyes. I don't think anybody would say that the difference in genders is a strictly cosmetic distinction. What about, instead of an interracial wedding, the baker/florist/etc. is objecting to two whites, one an immigrant from, say, South Africa and the other a multigenerational American? Sent on my mobile device. Please Excuse my brevity and typographic errors. ___ To post, send message to Religionlaw@lists.ucla.edumailto: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.
Re: The racist prostitute hypothetical
I was trying to avoid the problematic separation of religious and ethnic identities involved with Judaism in particular. In reality of course religion, language, national origin, race and ethnicity all get marvelously complex. Out of curiosity, for those who are of the opinion that anti-discrimination law should/does apply to the baker, the florist and the for profit minister, would it change your opinion if that person, engaged in a for-profit business open to the public, is objecting to providing that commercial service to their own child or other social acquaintance? Should I have the right to, say, force an racist former teacher who moonlights as a wedding minster to perform at my wedding (or face civil liability for not), or my baker mother-in-law-to-be to decorate me a lovely cake? On Sun, Feb 15, 2015 at 11:48 AM, Volokh, Eugene vol...@law.ucla.edu wrote: I don’t think we have to postulate this, or focus on highly out-of-the-mainstream religious groups. As I understand it, many a devout Jew will approve, on religious grounds, of a wedding between an irreligious ethnic Jew like me and another Jew, without any extra work that I would have to do to get more devout – but will disapprove of an equally irreligious person who isn’t ethnically Jewish marrying a Jew, at least unless the non-Jew goes through a long and cumbersome conversion process. If the devout Jew doesn’t want to participate in the wedding, whether by officiating, photographing, or catering, that would therefore constitute discrimination based on ethnicity, generally treated by American law the same as race discrimination. Eugene *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *K Chen *Sent:* Sunday, February 15, 2015 7:53 AM *To:* Law Religion issues for Law Academics *Subject:* Re: The racist prostitute hypothetical Then we simply postulate that the objection is stated, sincerely, to be on the objector's religious beliefs. No race, no mere cosmetics, but a deeply held religious belief on the nature of culture/nation. On Sat, Feb 14, 2015 at 11:12 PM, Brad Pardee bp51...@windstream.net wrote: In the absence of some factor not listed here, I don't see a religious freedom issue here. Brad *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *K Chen *Sent:* Saturday, February 14, 2015 8:51 PM *To:* Law Religion issues for Law Academics *Subject:* RE: The racist prostitute hypothetical Brad you said: The problem with comparing a same sex wedding with an interracial wedding is that the color of a person's skin is no different than the color of a person's hair or the color of a person's eyes. I don't think anybody would say that the difference in genders is a strictly cosmetic distinction. What about, instead of an interracial wedding, the baker/florist/etc. is objecting to two whites, one an immigrant from, say, South Africa and the other a multigenerational American? Sent on my mobile device. Please Excuse my brevity and typographic errors. ___ 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. ___ 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.
Re: The racist prostitute hypothetical
Brad writes of free speech doctrine: [T]he court isn't determining if a person's words are mistaken . . . when they say that free speech doesn't cover slander or libel. we have long held that actual malice requires material falsity *Air Wisconsin Airlines Corp. v. Hoeper*, 134 S. Ct. 852, 861, 187 L. Ed. 2d 744 *reh'g denied,* 134 S. Ct. 1575, 188 L. Ed. 2d 582 (2014) http://ssrn.com/author=357864 On Sun, Feb 15, 2015 at 3:37 PM, Brad Pardee bp51...@windstream.net wrote: It's not about the Court saying that beliefs are mistaken, insubstantial, plausible, logical, or comprehensible. It's about the Court determining what is covered by the free exercise clause and what is not. Again, to parallel the free speech guarantees, the court isn't determining if a person's words are mistaken, insubstantial, plausible, logical, or comprehensible when they say that free speech doesn't cover slander or libel. That was the value of the Sherbert test because it established a way to determine what exercise of religion is protected and what exercise of religion is not, without making a determination on the merits of of the religious beliefs that are the basis of the exercise in question. In my opinion, the reason why I think Employment Division v Smith ranks right up with Dred Scott v Sandford among the worst decisions the Supreme Court has ever issued. *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *James Oleske *Sent:* Saturday, February 14, 2015 10:25 PM *To:* Law Religion issues for Law Academics *Subject:* Re: The racist prostitute hypothetical Brad writes: [T]he fact that people have wrongly tried [to] make religious freedom claims doesn't mean we disregard all religious freedom claims. We ought to be able to distinguish between the two. Although Brad thinks the law ought to be able to distinguish between wrong and correct religious freedom claims, we can all agree that this view is flatly inconsistent with Supreme Court precedent, correct? [I]t is not for us to say that their religious beliefs are mistaken or insubstantial. Instead, our 'narrow function . . . in this context is to determine' whether the line drawn reflects 'an honest conviction.' Repeatedly and in many different contexts, we have warned that courts must not presume to determine . . . the plausibility of a religious claim. [R]eligious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection - Jim On Sat, Feb 14, 2015 at 8:03 PM, Brad Pardee bp51...@windstream.net wrote: I'ts not an all or nothing. The fact that the freedom of speech does not protect slander and libel doesn't mean we disregard every other freedom of speech claim. We are able to distinguish between the two. Similarly, the fact that people have wrongly tried make religious freedom claims doesn't mean we disregard all religious freedom claims. We ought to be able to distinguish between the two. The difference between same sex relationships and interracial relationships seems like one of those distinctions. The difference between people of different races is not the same between the difference between genders. That's why, for instance, the Negro Leagues in baseball have gone by the wayside and yet nobody is saying that the players of the WNBA should just try to make the teams in the NBA. *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Hillel Y. Levin *Sent:* Saturday, February 14, 2015 8:48 PM *To:* Law Religion issues for Law Academics *Subject:* Re: The racist prostitute hypothetical Brad: The distinction you see between same-sex relationships and interracial relationships makes sense to *you*. It surely does not make sense to someone who opposes interracial marriages on religious grounds. ___ 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. ___ To
Re: The racist prostitute hypothetical
Sorry -- I hit send accidentally before finishing my message below. Here's the omitted paragraph: What is clear from comparing the Court's free speech and free exercise doctrines is that government *can* regulate false speech (with limits); it *cannot* regulate false religious beliefs. As a result, Brad's effort to distinguish between what he believes to be a true religious objection to same-sex marriage and a false religious objection to interracial marriage is a non-starter under Supreme Court doctrine. Does anyone other than Brad disagree with this? On Sun, Feb 15, 2015 at 4:09 PM, James Oleske jole...@lclark.edu wrote: Brad writes of free speech doctrine: [T]he court isn't determining if a person's words are mistaken . . . when they say that free speech doesn't cover slander or libel. we have long held that actual malice requires material falsity *Air Wisconsin Airlines Corp. v. Hoeper*, 134 S. Ct. 852, 861, 187 L. Ed. 2d 744 *reh'g denied,* 134 S. Ct. 1575, 188 L. Ed. 2d 582 (2014) http://ssrn.com/author=357864 On Sun, Feb 15, 2015 at 3:37 PM, Brad Pardee bp51...@windstream.net wrote: It's not about the Court saying that beliefs are mistaken, insubstantial, plausible, logical, or comprehensible. It's about the Court determining what is covered by the free exercise clause and what is not. Again, to parallel the free speech guarantees, the court isn't determining if a person's words are mistaken, insubstantial, plausible, logical, or comprehensible when they say that free speech doesn't cover slander or libel. That was the value of the Sherbert test because it established a way to determine what exercise of religion is protected and what exercise of religion is not, without making a determination on the merits of of the religious beliefs that are the basis of the exercise in question. In my opinion, the reason why I think Employment Division v Smith ranks right up with Dred Scott v Sandford among the worst decisions the Supreme Court has ever issued. *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *James Oleske *Sent:* Saturday, February 14, 2015 10:25 PM *To:* Law Religion issues for Law Academics *Subject:* Re: The racist prostitute hypothetical Brad writes: [T]he fact that people have wrongly tried [to] make religious freedom claims doesn't mean we disregard all religious freedom claims. We ought to be able to distinguish between the two. Although Brad thinks the law ought to be able to distinguish between wrong and correct religious freedom claims, we can all agree that this view is flatly inconsistent with Supreme Court precedent, correct? [I]t is not for us to say that their religious beliefs are mistaken or insubstantial. Instead, our 'narrow function . . . in this context is to determine' whether the line drawn reflects 'an honest conviction.' Repeatedly and in many different contexts, we have warned that courts must not presume to determine . . . the plausibility of a religious claim. [R]eligious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection - Jim On Sat, Feb 14, 2015 at 8:03 PM, Brad Pardee bp51...@windstream.net wrote: I'ts not an all or nothing. The fact that the freedom of speech does not protect slander and libel doesn't mean we disregard every other freedom of speech claim. We are able to distinguish between the two. Similarly, the fact that people have wrongly tried make religious freedom claims doesn't mean we disregard all religious freedom claims. We ought to be able to distinguish between the two. The difference between same sex relationships and interracial relationships seems like one of those distinctions. The difference between people of different races is not the same between the difference between genders. That's why, for instance, the Negro Leagues in baseball have gone by the wayside and yet nobody is saying that the players of the WNBA should just try to make the teams in the NBA. *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Hillel Y. Levin *Sent:* Saturday, February 14, 2015 8:48 PM *To:* Law Religion issues for Law Academics *Subject:* Re: The racist prostitute hypothetical Brad: The distinction you see between same-sex relationships and interracial relationships makes sense to *you*. It surely does not make sense to someone who opposes interracial marriages on religious grounds. ___ 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
Wedding photographers and freelance writers
Alan: What do you thank about freelance writers? Say that someone generally takes freelance gigs to write a wide range of press releases, technical manuals, and pretty much anything else that comes in the door. Along comes the Church of Scientology, asking the person to write a press release for their latest event. Say that the press release is not “commercial speech,” but fully protected religious advocacy. It’s just that this writer doesn’t want to create this sort of advocacy, for a religion that he views as evil and corrupt. He says no, and the Scientologists sue him for religious discrimination. I would think that he should a First Amendment right not to be compelled to write religious advocacy that he doesn’t want to write. Am I mistaken on that? As to some of the other analogies, I don’t think they quite work. Some involve commercial speech, which is treated differently, compare Pittsburgh Press. The closest examples involve lawyers and doctors, but those are treated differently, for complicated reasons having to do with tradition and with the professionals’ monopoly, to the point that I don’t think they should be much of a precedent for other speakers. One piece of evidence: Lawyers have historically been required to defend criminal defendants, for free and regardless of their preferences – not just by antidiscrimination law, but by ad hoc court orders. Surely if a government agency just ordered a freelance writer to write a press release for some worthy organization, on the grounds that they really needed the services, we’d agree that this is unconstitutional compelled speech compulsion, right? If so, then I think this shows that (rightly or wrongly) lawyer-client speech and doctor-client speech is broadly subject to much more compulsion than freelance writing, photography, etc. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Alan E Brownstein Sent: Sunday, February 15, 2015 2:16 PM To: Law Religion issues for Law Academics Subject: Re: Wedding photographers as creators of art I think Steve's focus on the difficulty of drawing distinctions in this area is helpful, but it also demonstrates the potential range of autonomy and/or expressive exemptions from civil rights laws. Let's put prostitution aside for the moment since it involves a form of intimacy that is so personal that commercializing it commonly results in criminal sanctions. I think ministers practicing their religion are also a unique constitutional category. But it is a very large step to move from these two special circumstances to the general idea that jobs and services with a personal autonomy or creative expressive dimension should be exempt from civil rights laws. lots of jobs and services can be characterized as intimate or personal. Legitimate massage therapists and physical therapists, barbers and hair stylists, doctors and nurses, psychotherapists and child care providers, home care providers for the elderly or similar care provided in assisted living facilities -- just to name a few. The list of jobs and services with an expressive and creative dimension is much larger. Defined broadly, speech covers persuasive and informative expression as well as artistic expression. But what is the limit here? Are sales and advertising services exempt from anti-discrimination laws? (And if you don't think sales involves both personal expression and creativity you never saw my Uncle George talk to neighborhood customers in the family hardware and housewares store in the Bronx.) Laws is an expressive business. A lot of the practice of medicine involves talking and listening often about very personal problems -- and being an effective family physician involves creative problem solving and the effective communication of information. Architecture is expressive and creative. So is teaching. (Most of us recognize that we are performers in the classroom to some extent.) Again, the list could go on. Generally speaking, in a liberal society, we allow discrimination in employment and the provision of services with regard to all of these activities almost without limit. We pass anti-discrimination laws because we think that for these certain limited categories -- such as race, religion, gender, sexual orientation -- the conventional liberal system doesn't work right and produces unacceptable results. That is obviously a constraint on autonomy and creative choice. But it is a constraint we accept if we are serious about anti-discrimination principles. So the question for me isn't whether these is a personal autonomy or creative expressive dimension to services like those provided by Elane Photography. It is, putting religion aside, whether there is some good reason to treat creative, expressive, personal wedding photographers differently than
RE: The racist prostitute hypothetical
If a person is going into a bakery and buying a cake off the shelf without the baker doing anything, that's one thing. But they wouldn't have to talk to the baker for that. It's by talking to the baker, asking for a cake to be specifically created or designed for this specific occasion that is problematic. That's the point where you are asking the baker to become a participant in the preparation of the event that their faith requires that they not participate in. From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Finkelman, Paul Sent: Saturday, February 14, 2015 9:59 PM To: Law Religion issues for Law Academics Subject: RE: The racist prostitute hypothetical Brad: Tell me why is the wedding cake which I pick up at your bakery and take to my wedding any different than the rental tux I pick up, the flowers I bring to the wedding, or the limo I rent. Or, if I buy the car for the wedding party, how is the cake any different than the car I bought at the dealer. Can the liquor store refuse to sell me wine for the wedding reception? Or for the ceremony itself? If the parties take communion before the ceremony, can the liquor store owner refused to sell wine? * Paul Finkelman Senior Fellow Penn Program on Democracy, Citizenship, and Constitutionalism University of Pennsylvania and Scholar-in-Residence National Constitution Center Philadelphia, Pennsylvania 518-439-7296 (p) 518-605-0296 (c) paul.finkel...@albanylaw.edu www.paulfinkelman.com http://www.paulfinkelman.com/ * _ From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Brad Pardee [bp51...@windstream.net] Sent: Saturday, February 14, 2015 7:41 PM To: 'Law Religion issues for Law Academics' Subject: RE: The racist prostitute hypothetical Let me clearer. There is a difference between saying you won't serve certain people and saying you won't be a participant in a certain event. A wedding cake is part and parcel of the event, same as providing the floral settings and taking the photographs, although I realize don't agree with that. That's why the baker, florist, or photographer should have the freedom to choose not to be a part of events that their faith forbids them to take part in. If the condition of their remaining in business is that they abandon the tenets of their faith, then they don't have any religious freedom that has any meaning. The problem with comparing a same sex wedding with an interracial wedding is that the color of a person's skin is no different than the color of a person's hair or the color of a person's eyes. I don't think anybody would say that the difference in genders is a strictly cosmetic distinction. Brad From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of James Oleske Sent: Saturday, February 14, 2015 11:27 AM To: Law Religion issues for Law Academics Subject: Re: The racist prostitute hypothetical Refusing to bake a wedding cake for [interracial] couples is about not taking part in a specific event. Refusing to bake bread for someone who is [black] is about not serving a specific type of person. Two very different things. Brad -- with those bracketed alterations, do you stick with what I perceive to be your view that the baker should have a right to refuse to bake the wedding cake? If not, I would suggest that bakers making wedding cakes for the general public do not fall within the intimate sphere of privacy that Eugene is trying to identify with his hypothetical. Like Eugene, I think for-profit ministers and freelance writers present more difficult cases, though I disagree with him that most wedding photographer situations present difficult cases. - Jim ___ 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.
Re: Wedding photographers and freelance writers
I was about to send this post when Eugene's came in. To some degree it makes similar points. And it makes some points that are similar to Steve's helpful post. With regard to whether there should be a creative expression exception to antidiscrimination laws, as Alan frames the issue: Of course another way of looking at this is the extent to which there should be exceptions made to the very strong 1st Am protection against compelled speech, outside the area of commercial speech. We are willing to force people to engage in war and kill others in order to protect our nation. Why not then require people to swear loyalty to the nation? On a slightly different note, we all know that the complainants in Elane Photography did not really have their hearts set on having Elaine Huguenin take their photos. Who would really want someone to take celebratory photographs of an event that the photographer thought deeply wrong? No. This was an effort to engage in public education (or private re-education) by requiring Huguenin to bow down or go out of business. Does anyone think there weren't other photographers the complainants could have gone to? So if this is really about inculcating a point of view -- and delegitimizing another -- doesn't the state have a very strong interest in inculcating patriotism and in delegitimizing pacifism? So much for Barnette. However creative they may be, salespersons (including Alan's Uncle George) who are trying to persuade customers to buy a product are engaged in commercial speech, or something like it: they are in effect proposing a commercial transaction. Artists (including wedding photographers) are not. We all know that speech is not commercial speech just because the speaker is paid. Mark Mark S. Scarberry Pepperdine University School of Law Sent from my iPad On Feb 15, 2015, at 3:08 PM, Volokh, Eugene vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote: Alan: What do you thank about freelance writers? Say that someone generally takes freelance gigs to write a wide range of press releases, technical manuals, and pretty much anything else that comes in the door. Along comes the Church of Scientology, asking the person to write a press release for their latest event. Say that the press release is not “commercial speech,” but fully protected religious advocacy. It’s just that this writer doesn’t want to create this sort of advocacy, for a religion that he views as evil and corrupt. He says no, and the Scientologists sue him for religious discrimination. I would think that he should a First Amendment right not to be compelled to write religious advocacy that he doesn’t want to write. Am I mistaken on that? As to some of the other analogies, I don’t think they quite work. Some involve commercial speech, which is treated differently, compare Pittsburgh Press. The closest examples involve lawyers and doctors, but those are treated differently, for complicated reasons having to do with tradition and with the professionals’ monopoly, to the point that I don’t think they should be much of a precedent for other speakers. One piece of evidence: Lawyers have historically been required to defend criminal defendants, for free and regardless of their preferences – not just by antidiscrimination law, but by ad hoc court orders. Surely if a government agency just ordered a freelance writer to write a press release for some worthy organization, on the grounds that they really needed the services, we’d agree that this is unconstitutional compelled speech compulsion, right? If so, then I think this shows that (rightly or wrongly) lawyer-client speech and doctor-client speech is broadly subject to much more compulsion than freelance writing, photography, etc. Eugene From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Alan E Brownstein Sent: Sunday, February 15, 2015 2:16 PM To: Law Religion issues for Law Academics Subject: Re: Wedding photographers as creators of art I think Steve's focus on the difficulty of drawing distinctions in this area is helpful, but it also demonstrates the potential range of autonomy and/or expressive exemptions from civil rights laws. Let's put prostitution aside for the moment since it involves a form of intimacy that is so personal that commercializing it commonly results in criminal sanctions. I think ministers practicing their religion are also a unique constitutional category. But it is a very large step to move from these two special circumstances to the general idea that jobs and services with a personal autonomy or creative expressive dimension should be exempt from civil rights laws. lots of jobs and services can be characterized as intimate or personal. Legitimate massage therapists and physical therapists, barbers and hair
RE: The racist prostitute hypothetical
It's not about the Court saying that beliefs are mistaken, insubstantial, plausible, logical, or comprehensible. It's about the Court determining what is covered by the free exercise clause and what is not. Again, to parallel the free speech guarantees, the court isn't determining if a person's words are mistaken, insubstantial, plausible, logical, or comprehensible when they say that free speech doesn't cover slander or libel. That was the value of the Sherbert test because it established a way to determine what exercise of religion is protected and what exercise of religion is not, without making a determination on the merits of of the religious beliefs that are the basis of the exercise in question. In my opinion, the reason why I think Employment Division v Smith ranks right up with Dred Scott v Sandford among the worst decisions the Supreme Court has ever issued. From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of James Oleske Sent: Saturday, February 14, 2015 10:25 PM To: Law Religion issues for Law Academics Subject: Re: The racist prostitute hypothetical Brad writes: [T]he fact that people have wrongly tried [to] make religious freedom claims doesn't mean we disregard all religious freedom claims. We ought to be able to distinguish between the two. Although Brad thinks the law ought to be able to distinguish between wrong and correct religious freedom claims, we can all agree that this view is flatly inconsistent with Supreme Court precedent, correct? [I]t is not for us to say that their religious beliefs are mistaken or insubstantial. Instead, our 'narrow function . . . in this context is to determine' whether the line drawn reflects 'an honest conviction.' Repeatedly and in many different contexts, we have warned that courts must not presume to determine . . . the plausibility of a religious claim. [R]eligious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection - Jim On Sat, Feb 14, 2015 at 8:03 PM, Brad Pardee bp51...@windstream.net wrote: I'ts not an all or nothing. The fact that the freedom of speech does not protect slander and libel doesn't mean we disregard every other freedom of speech claim. We are able to distinguish between the two. Similarly, the fact that people have wrongly tried make religious freedom claims doesn't mean we disregard all religious freedom claims. We ought to be able to distinguish between the two. The difference between same sex relationships and interracial relationships seems like one of those distinctions. The difference between people of different races is not the same between the difference between genders. That's why, for instance, the Negro Leagues in baseball have gone by the wayside and yet nobody is saying that the players of the WNBA should just try to make the teams in the NBA. From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Hillel Y. Levin Sent: Saturday, February 14, 2015 8:48 PM To: Law Religion issues for Law Academics Subject: Re: The racist prostitute hypothetical Brad: The distinction you see between same-sex relationships and interracial relationships makes sense to you. It surely does not make sense to someone who opposes interracial marriages on religious grounds. ___ 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.
Re: Wedding photographers as creators of art
I think Steve's focus on the difficulty of drawing distinctions in this area is helpful, but it also demonstrates the potential range of autonomy and/or expressive exemptions from civil rights laws. Let's put prostitution aside for the moment since it involves a form of intimacy that is so personal that commercializing it commonly results in criminal sanctions. I think ministers practicing their religion are also a unique constitutional category. But it is a very large step to move from these two special circumstances to the general idea that jobs and services with a personal autonomy or creative expressive dimension should be exempt from civil rights laws. lots of jobs and services can be characterized as intimate or personal. Legitimate massage therapists and physical therapists, barbers and hair stylists, doctors and nurses, psychotherapists and child care providers, home care providers for the elderly or similar care provided in assisted living facilities -- just to name a few. The list of jobs and services with an expressive and creative dimension is much larger. Defined broadly, speech covers persuasive and informative expression as well as artistic expression. But what is the limit here? Are sales and advertising services exempt from anti-discrimination laws? (And if you don't think sales involves both personal expression and creativity you never saw my Uncle George talk to neighborhood customers in the family hardware and housewares store in the Bronx.) Laws is an expressive business. A lot of the practice of medicine involves talking and listening often about very personal problems -- and being an effective family physician involves creative problem solving and the effective communication of information. Architecture is expressive and creative. So is teaching. (Most of us recognize that we are performers in the classroom to some extent.) Again, the list could go on. Generally speaking, in a liberal society, we allow discrimination in employment and the provision of services with regard to all of these activities almost without limit. We pass anti-discrimination laws because we think that for these certain limited categories -- such as race, religion, gender, sexual orientation -- the conventional liberal system doesn't work right and produces unacceptable results. That is obviously a constraint on autonomy and creative choice. But it is a constraint we accept if we are serious about anti-discrimination principles. So the question for me isn't whether these is a personal autonomy or creative expressive dimension to services like those provided by Elane Photography. It is, putting religion aside, whether there is some good reason to treat creative, expressive, personal wedding photographers differently than all of the jobs and services I described above and many more. Or are we willing to accept this large an exemption from civil rights laws (again leaving religion aside) on generic personal autonomy and expressive and creative freedom grounds. Alan From: religionlaw-boun...@lists.ucla.edu religionlaw-boun...@lists.ucla.edu on behalf of Steven Jamar stevenja...@gmail.com Sent: Sunday, February 15, 2015 4:41 AM To: Law Religion Law List Subject: Re: Wedding photographers as creators of art Not all bases of discrimination are the same and not all businesses are the same. Discrimination based on the target’s immutable characteristics (race, national origin, gender, sexual orientation, etc.) is not the same as one based on a difference in beliefs — political, religious, moral. A business that sells ordinary goods is not the same as a business that sells personal services. And within the services industry, an artistic endeavor such as photography is not the same as a car mechanic. When, if ever should these real differences matter? There will inevitably be line drawing with lines that some lines drawn that some find indefensible and that are distinguishing between closely similar and difficult cases. That is true in every area of law I have come across. Sometimes the lines get drawn on a very inarticulate “all the circumstances” basis with essentially no guiding principle. That is, I submit, the nature of society and the law’s attempts to regulate it. Take a wedding cake. There is a difference between a phoned-in order to a bakery for a “generic” three layer wedding cake and one special ordered by a same-sex couple wanting some special features because it is for a same-sex wedding. Does it matter whether the bakery is a commercial bakery or that the baker is just someone doing it on the side as a sometimes-business? I think all of those sorts of things matter in deciding whether to allow the discrimination. I think the wedding cake for the same sex marriage is easy — while I acknowledge there is some art to making a cake, for the most part it is a matter of selecting the cake from
RE: The racist prostitute hypothetical
Dear All: This goes back in time a bit, but I have had a busy weekend and wanted to respond to those who wondered why I think the racist prostitute should be subject to anti-discrimination laws. One feature of several rights is that we do not allow people to commodify them, or at least commodify them in certain ways. So while people have the right to vote, and may choose when exercising the right to vote may vote only for persons of color (or white persons), we do not allow persons to sell their right to vote. We think the reason people ought to have a right to vote is justified by the same principle that supports forbidding the right to sell the vote. Consider sex. One reason we think persons have a right to certain sexual relationships is that we think government should not ban intimate relationships. One reason many people think prostitution should be banned is that intimacy is not the sort of good that should be bought and sold. But now imagine we live in a world in which people have no problem commodifying sex. The best reason for thinking this is that they do not regard commercial sex as intimate behavior. They regard sex as more akin to back rubs, and or ice cream, but of which are subject to anti-discrimination rights. But if people do not think commercial sex is intimate behavior than the main reason why we allow discrimination has been rejected. In short, my claim is that if sex is just business, then sex is not intimate, and only intimate relationships and actions should enjoy immunity for anti-discrimination rules. MAG ___ 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.
Re: The racist prostitute hypothetical
Mark, Do I take you to mean that not only do you not distinguish between services once they have been placed into the stream of commerce, you do not distinguish between services and goods? -K On Sun, Feb 15, 2015 at 8:26 PM, Graber, Mark mgra...@law.umaryland.edu wrote: Dear All: This goes back in time a bit, but I have had a busy weekend and wanted to respond to those who wondered why I think the racist prostitute should be subject to anti-discrimination laws. One feature of several rights is that we do not allow people to commodify them, or at least commodify them in certain ways. So while people have the right to vote, and may choose when exercising the right to vote may vote only for persons of color (or white persons), we do not allow persons to sell their right to vote. We think the reason people ought to have a right to vote is justified by the same principle that supports forbidding the right to sell the vote. Consider sex. One reason we think persons have a right to certain sexual relationships is that we think government should not ban intimate relationships. One reason many people think prostitution should be banned is that intimacy is not the sort of good that should be bought and sold. But now imagine we live in a world in which people have no problem commodifying sex. The best reason for thinking this is that they do not regard commercial sex as intimate behavior. They regard sex as more akin to back rubs, and or ice cream, but of which are subject to anti-discrimination rights. But if people do not think commercial sex is intimate behavior than the main reason why we allow discrimination has been rejected. In short, my claim is that if sex is just business, then sex is not intimate, and only intimate relationships and actions should enjoy immunity for anti-discrimination rules. MAG ___ 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.
Re: The racist prostitute hypothetical
... thanks for that. It's an interesting distinction. Sent from my iPad On Feb 15, 2015, at 8:26 PM, Graber, Mark mgra...@law.umaryland.edu wrote: Dear All: This goes back in time a bit, but I have had a busy weekend and wanted to respond to those who wondered why I think the racist prostitute should be subject to anti-discrimination laws. One feature of several rights is that we do not allow people to commodify them, or at least commodify them in certain ways. So while people have the right to vote, and may choose when exercising the right to vote may vote only for persons of color (or white persons), we do not allow persons to sell their right to vote. We think the reason people ought to have a right to vote is justified by the same principle that supports forbidding the right to sell the vote. Consider sex. One reason we think persons have a right to certain sexual relationships is that we think government should not ban intimate relationships. One reason many people think prostitution should be banned is that intimacy is not the sort of good that should be bought and sold. But now imagine we live in a world in which people have no problem commodifying sex. The best reason for thinking this is that they do not regard commercial sex as intimate behavior. They regard sex as more akin to back rubs, and or ice cream, but of which are subject to anti-discrimination rights. But if people do not think commercial sex is intimate behavior than the main reason why we allow discrimination has been rejected. In short, my claim is that if sex is just business, then sex is not intimate, and only intimate relationships and actions should enjoy immunity for anti-discrimination rules. MAG ___ 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.
Re: Wedding photographers and freelance writers
I agree with Eugene that the free lance writer who doesn't want to work on an advocacy piece is one of the strongest cases for an expressive exemption. But what if we are not talking about an advocacy piece. May a small company that does technical writing exclusively reject a female client who wants it to describe a product manufactured by women and used exclusively by women? (I don't think technical writing would be considered commercial speech.) What about architects who discriminate against religious clients? (Again leaving religion exercise accommodations out of the analysis.) Or is a fashion designer engaged in a sufficiently expressive activity so that she could refuse to hire African-American models because that would distort the message her designs were intended to communicate? What about talent agencies? May a talent agency that will photograph clients for portfolios as part of their overall service refuse to accept gay and lesbian clients because they do not want their artistic photographs to glorify an immoral lifestyle.And does this expressive exemption extend to association and hiring. Can a small firm of free lance writers refuse to hire a Scientologist or a woman because they believe these individuals will necessarily bring an undesired perspective to the firm's work? Even eliminating law and medicine and any kind of arguably commercial speech activity from the class of potential exemptions (which Eugene I think appropriately excludes from his expressive exemptions category), I still think there are a lot of hard cases. I'm not sure why a wedding photographer falls within the exemption category and other services do not. (By the way, I assume we are discussing constitutionally required exemptions and not discretionary legislative accommodations which is another question.) Alan On Feb 15, 2015, at 3:08 PM, Volokh, Eugene vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote: Alan: What do you thank about freelance writers? Say that someone generally takes freelance gigs to write a wide range of press releases, technical manuals, and pretty much anything else that comes in the door. Along comes the Church of Scientology, asking the person to write a press release for their latest event. Say that the press release is not “commercial speech,” but fully protected religious advocacy. It’s just that this writer doesn’t want to create this sort of advocacy, for a religion that he views as evil and corrupt. He says no, and the Scientologists sue him for religious discrimination. I would think that he should a First Amendment right not to be compelled to write religious advocacy that he doesn’t want to write. Am I mistaken on that? As to some of the other analogies, I don’t think they quite work. Some involve commercial speech, which is treated differently, compare Pittsburgh Press. The closest examples involve lawyers and doctors, but those are treated differently, for complicated reasons having to do with tradition and with the professionals’ monopoly, to the point that I don’t think they should be much of a precedent for other speakers. One piece of evidence: Lawyers have historically been required to defend criminal defendants, for free and regardless of their preferences – not just by antidiscrimination law, but by ad hoc court orders. Surely if a government agency just ordered a freelance writer to write a press release for some worthy organization, on the grounds that they really needed the services, we’d agree that this is unconstitutional compelled speech compulsion, right? If so, then I think this shows that (rightly or wrongly) lawyer-client speech and doctor-client speech is broadly subject to much more compulsion than freelance writing, photography, etc. Eugene From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Alan E Brownstein Sent: Sunday, February 15, 2015 2:16 PM To: Law Religion issues for Law Academics Subject: Re: Wedding photographers as creators of art I think Steve's focus on the difficulty of drawing distinctions in this area is helpful, but it also demonstrates the potential range of autonomy and/or expressive exemptions from civil rights laws. Let's put prostitution aside for the moment since it involves a form of intimacy that is so personal that commercializing it commonly results in criminal sanctions. I think ministers practicing their religion are also a unique constitutional category. But it is a very large step to move from these two special circumstances to the general idea that jobs and services with a personal autonomy or creative expressive dimension should be exempt from civil rights laws. lots of jobs and services can be characterized as intimate or personal. Legitimate massage therapists and physical therapists, barbers and
RE: The racist prostitute hypothetical
You are misunderstanding me. I'm not saying saying that there ar e true religious objections and false religious objections. I'm saying that, just as there is speech that is protected as free speech and there is speech that is not protected, there are religious objections that are (or once were) protected and there are religious objections that are not protected (think human sacrifice as an extreme example that I think we would all agree is not and never has been protected). The Sherbert rule was useful in distinguishing between them. After Employment Division v Smith dispensed with the Sherbert rule and any meaningful free exercise protection, we wind up in a situations such as where we have no idea what the Court will consider protected and what it will not. Transforming a guarantee of free exercise into a mere anti-discrimination law undermines the very principle of religious freedom. Instead, any time anyone says that a certain law, neutral on its face, places a significant burden on their free exercise, it can (and often is) dismissed with People supported slavery and opposed interracial marriage the same way. That's not free exercise under any definition that has any meaning. From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of James Oleske Sent: Sunday, February 15, 2015 6:20 PM To: Law Religion issues for Law Academics Subject: Re: The racist prostitute hypothetical Sorry -- I hit send accidentally before finishing my message below. Here's the omitted paragraph: What is clear from comparing the Court's free speech and free exercise doctrines is that government can regulate false speech (with limits); it cannot regulate false religious beliefs. As a result, Brad's effort to distinguish between what he believes to be a true religious objection to same-sex marriage and a false religious objection to interracial marriage is a non-starter under Supreme Court doctrine. Does anyone other than Brad disagree with this? On Sun, Feb 15, 2015 at 4:09 PM, James Oleske jole...@lclark.edu wrote: Brad writes of free speech doctrine: [T]he court isn't determining if a person's words are mistaken . . . when they say that free speech doesn't cover slander or libel. we have long held that actual malice requires material falsity Air Wisconsin Airlines Corp. v. Hoeper, 134 S. Ct. 852, 861, 187 L. Ed. 2d 744 reh'g denied, 134 S. Ct. 1575, 188 L. Ed. 2d 582 (2014) On Sun, Feb 15, 2015 at 3:37 PM, Brad Pardee bp51...@windstream.net wrote: It's not about the Court saying that beliefs are mistaken, insubstantial, plausible, logical, or comprehensible. It's about the Court determining what is covered by the free exercise clause and what is not. Again, to parallel the free speech guarantees, the court isn't determining if a person's words are mistaken, insubstantial, plausible, logical, or comprehensible when they say that free speech doesn't cover slander or libel. That was the value of the Sherbert test because it established a way to determine what exercise of religion is protected and what exercise of religion is not, without making a determination on the merits of of the religious beliefs that are the basis of the exercise in question. In my opinion, the reason why I think Employment Division v Smith ranks right up with Dred Scott v Sandford among the worst decisions the Supreme Court has ever issued. From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of James Oleske Sent: Saturday, February 14, 2015 10:25 PM To: Law Religion issues for Law Academics Subject: Re: The racist prostitute hypothetical Brad writes: [T]he fact that people have wrongly tried [to] make religious freedom claims doesn't mean we disregard all religious freedom claims. We ought to be able to distinguish between the two. Although Brad thinks the law ought to be able to distinguish between wrong and correct religious freedom claims, we can all agree that this view is flatly inconsistent with Supreme Court precedent, correct? [I]t is not for us to say that their religious beliefs are mistaken or insubstantial. Instead, our 'narrow function . . . in this context is to determine' whether the line drawn reflects 'an honest conviction.' Repeatedly and in many different contexts, we have warned that courts must not presume to determine . . . the plausibility of a religious claim. [R]eligious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection - Jim On Sat, Feb 14, 2015 at 8:03 PM, Brad Pardee bp51...@windstream.net wrote: I'ts not an all or nothing. The fact that the freedom of speech does not protect slander and libel doesn't mean we disregard every other freedom of speech claim. We are able to distinguish between the two. Similarly, the fact that people have wrongly tried make
Re: The racist prostitute hypothetical
Got it -- you are making an argument that the state has a compelling interest in prohibiting discrimination against interracial couples in the commercial marketplace, but does not have a compelling interest in prohibiting discrimination against same-sex couples in the commercial marketplace. Although that is not an argument with which I'd agree on the merits (I'd find a compelling interest in both cases), it is indeed an argument that can be made in states that either follow Sherbert under their state constitution or have a RFRA. And it is an argument that could be made under the federal RFRA in the event that business owners seek exemptions from a future federal LGBT rights law. What confused me was the reference to people wrongly making religious liberty claims and the attempted analogy to the treatment of libel and slander under free speech law -- which involves judging the falsity of speech, not the strength of government interests. - Jim On Sun, Feb 15, 2015 at 6:39 PM, Brad Pardee bp51...@windstream.net wrote: You are misunderstanding me. I'm not saying saying that there ar e true religious objections and false religious objections. I'm saying that, just as there is speech that is protected as free speech and there is speech that is not protected, there are religious objections that are (or once were) protected and there are religious objections that are not protected (think human sacrifice as an extreme example that I think we would all agree is not and never has been protected). The Sherbert rule was useful in distinguishing between them. After Employment Division v Smith dispensed with the Sherbert rule and any meaningful free exercise protection, we wind up in a situations such as where we have no idea what the Court will consider protected and what it will not. Transforming a guarantee of free exercise into a mere anti-discrimination law undermines the very principle of religious freedom. Instead, any time anyone says that a certain law, neutral on its face, places a significant burden on their free exercise, it can (and often is) dismissed with People supported slavery and opposed interracial marriage the same way. That's not free exercise under any definition that has any meaning. *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *James Oleske *Sent:* Sunday, February 15, 2015 6:20 PM *To:* Law Religion issues for Law Academics *Subject:* Re: The racist prostitute hypothetical Sorry -- I hit send accidentally before finishing my message below. Here's the omitted paragraph: What is clear from comparing the Court's free speech and free exercise doctrines is that government *can* regulate false speech (with limits); it *cannot* regulate false religious beliefs. As a result, Brad's effort to distinguish between what he believes to be a true religious objection to same-sex marriage and a false religious objection to interracial marriage is a non-starter under Supreme Court doctrine. Does anyone other than Brad disagree with this? On Sun, Feb 15, 2015 at 4:09 PM, James Oleske jole...@lclark.edu wrote: Brad writes of free speech doctrine: [T]he court isn't determining if a person's words are mistaken . . . when they say that free speech doesn't cover slander or libel. we have long held that actual malice requires material falsity *Air Wisconsin Airlines Corp. v. Hoeper*, 134 S. Ct. 852, 861, 187 L. Ed. 2d 744 *reh'g denied,* 134 S. Ct. 1575, 188 L. Ed. 2d 582 (2014) On Sun, Feb 15, 2015 at 3:37 PM, Brad Pardee bp51...@windstream.net wrote: It's not about the Court saying that beliefs are mistaken, insubstantial, plausible, logical, or comprehensible. It's about the Court determining what is covered by the free exercise clause and what is not. Again, to parallel the free speech guarantees, the court isn't determining if a person's words are mistaken, insubstantial, plausible, logical, or comprehensible when they say that free speech doesn't cover slander or libel. That was the value of the Sherbert test because it established a way to determine what exercise of religion is protected and what exercise of religion is not, without making a determination on the merits of of the religious beliefs that are the basis of the exercise in question. In my opinion, the reason why I think Employment Division v Smith ranks right up with Dred Scott v Sandford among the worst decisions the Supreme Court has ever issued. *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *James Oleske *Sent:* Saturday, February 14, 2015 10:25 PM *To:* Law Religion issues for Law Academics *Subject:* Re: The racist prostitute hypothetical Brad writes: [T]he fact that people have wrongly tried [to] make religious freedom claims doesn't mean we disregard all religious freedom claims. We ought to be able to distinguish between
RE: The racist prostitute hypothetical
The question isn't so much of whether the behavior is emotionally intimate, but whether it is sufficiently physically (or intellectually) intimate or personal that a person ought to have a right to choose her partners for such behavior. There are prostitutes legally working in Nevada, and of course illegally working throughout the country. They might not view their professional sex as emotionally intimate. But I would think that many of them value greatly their right to decide whom to allow into their bodies -- and that, if they do value it greatly, that is a right that the law must respect. However blasé prostitutes might be about sex with the clients choose, I see no justification for denying them the right to so choose. Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Graber, Mark Sent: Sunday, February 15, 2015 5:27 PM To: Law Religion issues for Law Academics Subject: RE: The racist prostitute hypothetical Dear All: This goes back in time a bit, but I have had a busy weekend and wanted to respond to those who wondered why I think the racist prostitute should be subject to anti-discrimination laws. One feature of several rights is that we do not allow people to commodify them, or at least commodify them in certain ways. So while people have the right to vote, and may choose when exercising the right to vote may vote only for persons of color (or white persons), we do not allow persons to sell their right to vote. We think the reason people ought to have a right to vote is justified by the same principle that supports forbidding the right to sell the vote. Consider sex. One reason we think persons have a right to certain sexual relationships is that we think government should not ban intimate relationships. One reason many people think prostitution should be banned is that intimacy is not the sort of good that should be bought and sold. But now imagine we live in a world in which people have no problem commodifying sex. The best reason for thinking this is that they do not regard commercial sex as intimate behavior. They regard sex as more akin to back rubs, and or ice cream, but of which are subject to anti-discrimination rights. But if people do not think commercial sex is intimate behavior than the main reason why we allow discrimination has been rejected. In short, my claim is that if sex is just business, then sex is not intimate, and only intimate relationships and actions should enjoy immunity for anti-discrimination rules. MAG ___ 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.
RE: Wedding photographers and freelance writers
1. Say that a solo technical writer is asked to do technical writing describing the proper use of abortion pills, which are indeed used exclusively by women. I would think that the technical writer should have every right to refuse to write that, especially if he thinks (reasonably) that even a non-advocacy piece describing such use implicitly endorses the propriety of such use. Likewise if a technical writer refuses to write a manual for proper use of Scientology “e-meters.” (It’s hard for me to imagine why a technical writer might reject a job based on the sex of the client or of product manufacturers, so I’m focusing on a person’s refusing a commission to produce expression because he disapproves of the content of the expression, just as Elaine Huguenin rejected the wedding photography based on the fact that it depicted a same-sex wedding and not based on the fact that a particular photographed person was lesbian, and just as Hands On Originals rejected a T-shirt printing job based on the fact that it contained a Lexington Pride Festival message.) 2. Architecture and dress (setting aside messages on the dress) are, rightly or wrongly, generally not seen as inherently expressive for First Amendment purposes. That’s why the government can require demanding licensing regimes for architects but not for writers, and why the courts have not viewed dress codes as implicating the First Amendment based on restrictions on certain garments. 3. One way, I think, to tell whether the First Amendment protects against compelling someone to create something is to ask whether it would protect against restricting the person from creating something. If the city wanted to allow only one bakery in town, it could do so (see the Slaughterhouse Cases); likewise if it wanted to have a taxi-like medallion system for bakeries, just to protect incumbent businesses. Likewise, as I noted, a state can require hard-to-get licenses for architects. But I don’t think a city can set up a legally enforced monopoly or oligopoly for freelance writers, photographers, painters, or singers. 4. Even a First-Amendment-protected business generally doesn’t have a right to refuse to hire someone simply because it “believe[s] these individuals will necessarily bring an undesired perspective to the firm’s work.” See Associated Press v. NLRB. But I do think that a business would have a First Amendment right to, say, refuse to write any press releases for Scientologists, and not allow anyone who works for the business to take such assignments in his capacity as an employee of the business. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Alan E Brownstein Sent: Sunday, February 15, 2015 6:28 PM To: Law Religion issues for Law Academics Subject: Re: Wedding photographers and freelance writers I agree with Eugene that the free lance writer who doesn't want to work on an advocacy piece is one of the strongest cases for an expressive exemption. But what if we are not talking about an advocacy piece. May a small company that does technical writing exclusively reject a female client who wants it to describe a product manufactured by women and used exclusively by women? (I don't think technical writing would be considered commercial speech.) What about architects who discriminate against religious clients? (Again leaving religion exercise accommodations out of the analysis.) Or is a fashion designer engaged in a sufficiently expressive activity so that she could refuse to hire African-American models because that would distort the message her designs were intended to communicate? What about talent agencies? May a talent agency that will photograph clients for portfolios as part of their overall service refuse to accept gay and lesbian clients because they do not want their artistic photographs to glorify an immoral lifestyle.And does this expressive exemption extend to association and hiring. Can a small firm of free lance writers refuse to hire a Scientologist or a woman because they believe these individuals will necessarily bring an undesired perspective to the firm's work? Even eliminating law and medicine and any kind of arguably commercial speech activity from the class of potential exemptions (which Eugene I think appropriately excludes from his expressive exemptions category), I still think there are a lot of hard cases. I'm not sure why a wedding photographer falls within the exemption category and other services do not. (By the way, I assume we are discussing constitutionally required exemptions and not discretionary legislative accommodations which is another question.) Alan On Feb 15, 2015, at 3:08 PM, Volokh, Eugene vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote: Alan: What do you thank about freelance writers? Say that someone generally takes freelance
