Re: Colorado Cakeshop decision
Eugene: I am trying to figure out what would be the inappropriate use of the Deli's sandwiches? Is it feeding doctors who perform abortion? Are you arguing that the pillow case maker can refuse to sell pillow cases to members of the KKK who use them for pillows? That is, can your refuse to do business with people if you don't like them or like what they do for a living? So, if the product -- a sandwich -- is being used properly -- that is it is being eaten, then how could it possibly be used inappropriately? Or, are you that the Deli owner can refuse to sell to the clinic because the clinic does things the owner does not like? So, he won't sell to the clinic because he does not think doctors who work there should eat food? And the KKK owner of a clothing store will not sell to blacks or Jews or Catholics (and many more groups) because he does not think those people should ever be seen in public so they don't need clothing? Your widget maker simply would not compete for the military contract. No one forces him to do so. At the end of this post you migrate from illegitimate use, to illegitimate user. That is, you don't want your product being sold in a South Africa because you are opposed to the regime. So you won't sell to a 2nd party, who sells it to 3rd party, who sells it to South Africa? Assuming this is a retail business, then I am guessing you would say that a racist who believes that blacks are inferior and made to be slaves of whites, it would be ok for that person to refuse to sell retain good to blacks? It is worth noting that most southern ministers believed that in the 19th century and I have had some students tell me they have heard similar things i their churches. So, we have a racist church. Are you arguing the member of that church can refuse to seat a black at his restaurant, refuse to serve and interracial couple, or refuse to rent a room to a black? * 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.edumailto:paul.finkel...@albanylaw.edu www.paulfinkelman.comhttp://www.paulfinkelman.com/ * From: religionlaw-boun...@lists.ucla.edu religionlaw-boun...@lists.ucla.edu on behalf of Volokh, Eugene vol...@law.ucla.edu Sent: Thursday, August 13, 2015 7:51 PM To: Law Religion issues for Law Academics Subject: RE: Colorado Cakeshop decision Sure, why not? Say a grape grower refuses to sell to winemakers, or a pacifist widget maker refuses to sell to military contractors, or a restaurant refuses to deliver to abortion clinics? See Rasmussen v. Glass (Minn. Ct. App. 1993), https://scholar.google.com/scholar_case?case=648897692635049631, which holds that, even if a city ordinance banning discrimination based on “creed” required restaurants to deliver to abortion clinics, there had to be a religious exemption from such an ordinance. “Under the provisions of the Minneapolis ordinance, relator Glass [owner of the Beach Club Deli] has two choices. He can either associate with an entity that engages in conduct which he finds to be morally offensive [delivering to abortion clinics], thus compromising his conscience, or he can refuse and be found guilty of discrimination and fined.” Now these have to do with objections to sales to businesses, not sales to individuals – but I can’t see why they would be different for RFRA / state Free Exercise Clause purposes. As to how the information would be obtained, I take it that many a business wouldn’t work very hard to investigate the matter, but when it learned that its products were used by a customer in ways it disapproved of, might stop selling them to that customer. Isn’t that how many of us would act if we were businesspeople, and we learned that some of our customers were using our products in ways we strongly disapproved of? Want to buy our pillowcases? Go right ahead. Oh, wait, you’re the KKK and you want to use them for your hoods; sorry, your business isn’t welcome here. Same if you learn your customers are using your products to kill animals (if you object to that), resell them to South Africa (if you objected to that back in the 1980s), and so on. Some people take a “Hey, the product is out of our hands, none of our business” attitude, which I think is just fine. But other people care more about the behavior of their customers (and for that matter of their suppliers) – indeed, many who praise “corporate social responsibility” support that general approach. And when the business feels a religious objection in such a situation, any existing religious exemption regime would be
Re: Colorado Cakeshop decision
Sandy, that is mostly correct. I would add, however, that some states have common law rules that require businesses which choose to open their doors to the public to serve everyone, unless they have a business-related reason for excluding a customer. See, e.g., see Uston v. Resorts Intern. Hotel, Inc., 89 N.J. 163, 173 (1982). In those jurisdictions, groups subject to exclusion for irrational reasons have a claim, even if those groups do not constitute protected classes under the relevant civil rights law. If you’re interested, the classic article on this is Singer, No Right To Exclude, 90 Nw. U. L. Rev. 1283 (1996). I look at the common-law rule (citing additional cases) in the context of discrimination against LGBT people on pages 56-68 of Religion and Marriage Equality Statutes, http://ssrn.com/abstract=2579337. On Aug 14, 2015, at 10:40 AM, Levinson, Sanford V slevin...@law.utexas.edumailto:slevin...@law.utexas.edu wrote: I suppose one might argue that businesses can refuse to sell to anyone they please, in the absence of relevant public accommodations laws. So I assume we all agree that anyone covered by common carrier law could not, for example, refuse to provide service to an abortion center, regardless of religious objections. Ditto re service to members of racial or ethnic minorities, thanks to the Civil Rights Act. I assume that the baker could not refuse to sell the unembellished cupcake to an interracial couple or to a person who announced that it would be consumed at an interracial party, as against, say, a person who said it would be eaten at the Bernie Sanders or Rand Paul campaign headquarters. So the legal issue is when and where sexual orientation has become protected against discrimination. I gather the Colorado decision involves state, and not federal, law. Sandy Sent from my iPhone On Aug 14, 2015, at 9:19 AM, Nelson Tebbe nelson.te...@brooklaw.edumailto:nelson.te...@brooklaw.edu wrote: My sense is that the answer to Sandy’s question might be different if the refusals he describes were found to constitute discrimination on the basis of sexual orientation or gender identity in a jurisdiction that prohibits such discrimination in public accommodations. For example, in Elane Photography the New Mexico Supreme Court found the company’s policy of not photographing same-sex weddings to constitute discrimination on the basis of sexual orientation under the New Mexico public accommodations law. Rasmussen v. Glass is an interesting case that I hadn’t seen before, but its main holding seems to be that refusing to serve abortion clinics did not constitute prohibited discrimination under the relevant civil rights law. Although the court went on to say that even if the conduct constituted discrimination, the service providers would be entitled to religion exemption under state law, that was arguably dicta. I’m not sure which is the more orthodox approach, but under Smith the federal Constitution would not provide such an exemption from a generally applicable public accommodations law, and courts in jurisdictions with more rigorous free exercise protections might well find that a government has a compelling interest in prohibiting discrimination on a protected ground under its civil rights law. On Aug 14, 2015, at 9:03 AM, Volokh, Eugene vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote: As I understand the orthodox (with a lower-case “o”) understanding of religious exemption doctrine, religious objectors are entitled to exemptions from (at least) laws that require them to do things that they sincerely view as sinful, unless granting the exemption would necessarily substantially undermine a compelling government interest. 1. If this is so, then I don’t think that it matters whether the sin is providing materials that one sincerely believes are used in killing human beings, or providing materials that one sincerely believes are used in other sinful things. If a Muslim or Jewish supplier doesn’t want to sell products to a pork farm (I’m not sure that this is standard Muslim or Jewish doctrine, but imagine someone who takes that view), I don’t see why he should be denied an exemption that the pacifist widget maker or the anti-abortion deli owner is granted. Likewise if someone doesn’t want to sell products that would be used in a Black Mass or in a wedding of a divorced person or in a same-sex wedding. 2. The “single grocer in town” hypothetical may be relevant to the compelling government interest inquiry – maybe one could argue that the government has a compelling interest in making sure that everyone has access to food without having to drive to the next town, and therefore requiring the grocer to sell to the KKK sympathizers, or for that matter to sell food that he knows will be used at the KKK picnic. But in the much more typical town in which there are many grocers, most
RE: Colorado Cakeshop decision
I still don't quite understand. No hoasca means that the ordinary right of citizens to ingest what they please is eliminated - but RFRA says otherwise. You must serve on a jury means that the ordinary right of citizens to decide where to go and what to do with their time is eliminated - but religious exemption regimes say otherwise. What's magical about common carrier law that somehow immunizes it from religious exemption regimes, while other laws are deliberately covered by those regimes? (I set aside the possibility that common carrier law, like drug law and other laws, would often be justifiable under strict scrutiny, since I take it that isn't Sandy's argument.) As people on this list know, I'm not a religious exemption maximalist. Once upon a time, I was one of the very few First Amendment people who supported Employment Division v. Smith, though I notice that the tide has turned on that in recent years. I support state RFRAs, but precisely because they are trumpable by legislatures (which could, if they choose, carve out drug laws or common carriers or antidiscrimination law from the state RFRAs); I also would have preferred it if RFRAs had used looser standards than strict scrutiny. But if we're talking about the actual religious exemption model under RFRAs and the state constitutional religious exemption regimes, I just don't see how assumptions about what common carrier just means resolve the religious exemption analysis. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Levinson, Sanford V Sent: Friday, August 14, 2015 11:16 AM To: Law Religion issues for Law Academics Subject: RE: Colorado Cakeshop decision I suppose I'm like the naïve first-year student who begins with the assumption that common carrier just means that the ordinary right of the seller to pick and choose among customers is eliminated (at least so long as the purchaser can pay the regular price or, in the cases of innkeepers, is behaving properly). Would an English innkeeper at common law been able to say to a Catholic we don't like your kind here and turned him/her away (perhaps on Christmas Eve)? I thought the essence of common carrier law (about which I know extremely little, obviously) is that it refers to a category of businesses-inns, moving companies, telephone companies, etc.-and not to that subset of companies that can be described as monopolists. The duties we impose on monopolists rest, presumably, on a different analysis than the duties we impose on Ollie's Barbecue to stop being a bigot. sandy From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Friday, August 14, 2015 10:06 AM To: Law Religion issues for Law Academics Subject: RE: Colorado Cakeshop decision Sandy: Why exactly should we all agree that anyone covered by common carrier law could not refuse to provide service to an abortion center - or a KKK delegation or what have you? After all, we don't agree that everyone covered by drug laws couldn't get a religious exemption, or that everyone covered by the duty to serve as a juror couldn't get a religious exemption, etc. The whole point of religious exemption regimes is to give religious exemptions even to (some) people covered by generally applicable laws. Now if the common carrier is a monopolist, then one could make a good argument that denying the exemption is necessary to serve a compelling interest in making sure that everyone gets access to this service (e.g., electricity). But if the common carrier is not a monopolist - say, a taxicab driver who refuses to drive a Klansman in Klan regalia, in a situation where the Klansman can easily get a different cab - I don't see why common carrier status as such would categorically preclude application of religious exemption law. Finally, as to antidiscrimination law, I think there would be two issues: (1) If the government interest is in making sure that everyone has reasonable access to the good at issue, would granting the exemption really undermine that interest, or would there be dozens of other providers happy to take the customer's money? (2) If the government interest is in precluding every single instance of discrimination, regardless of its tangible consequences, is that interest compelling enough to overcome the religious exemption claim? Again, that was much discussed in the housing marital status discrimination religious exemption cases. Eugene From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Levinson, Sanford V Sent: Friday, August 14, 2015 10:41 AM To: Law Religion issues for Law Academics Subject:
RE: Colorado Cakeshop decision
I’m not sure I understand how Prof. Finkelman can be misunderstanding me on this. This is an argument about religious exemptions. It is not an argument about whether the law should be repealed altogether – any more than arguments about exemptions in O Centro and Smith were about whether peyote or hoasca laws should be repealed altogether. It’s not our job to figure out whether a claimant is right or wrong, reasonable or unreasonable, smart or foolish in deciding that his religion requires him to use peyote, or bars him from selling to abortion clinics, or bars him from making wedding cakes. If the claimant has a religious objection to the law, and a Sherbert/Yoder-like religious exemption regime exists, then the question is whether denying the exemption is narrowly tailored to a compelling government interest. It may well be that denying the exemption from some antidiscrimination laws is indeed narrowly tailored to such an interest, based on the arguments that I quite clearly acknowledged in my earlier posts. But one can’t just reject the argument on the grounds that “that is what a common carrier does,” just as one can’t reject the peyote/hoasca users’ claims on the grounds that “barring drugs is what drug law does.” In any event, if anyone else really does misunderstand this argument, or would like to engage that argument, I’m happy to answer them. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Paul Finkelman Sent: Friday, August 14, 2015 11:28 AM To: Law Religion issues for Law Academics Subject: Re: Colorado Cakeshop decision Because, that is what a common carrier does. Put it another way, if the common carrier can refuse to pick up people then we are back to 1963. Cabs don't have to stop for blacks because the drivers believe God made a mistake in making black people; hotels don't have to rent to blacks, or people with Jewish names, or people who look Jewish, or men with turbans, or anyone else they do not like. You raise the inappropriate argument and then say that it is not our job to figure out what is in appropriate. So, in fact, you are not interested in the inappropriate use (the pillow case for the KKK mask), but rather you are arguing that licensed businesses are free to discriminate for whatever reason they want, as long as they mask it in religious values. Is that what you are saying here? If so, they why not come out from behind the curtain and just argue for the repeal of the 1964 Civil Rights Act. That is, after all, what you are arguing for, masked in religious language. If I am misreading you, please forgive me and explain why this is a misreading of the *result* you are arguing for. ** 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.commailto:paul.finkel...@yahoo.com www.paulfinkelman.comhttp://www.paulfinkelman.com/ From: Volokh, Eugene vol...@law.ucla.edumailto:vol...@law.ucla.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Sent: Friday, August 14, 2015 11:13 AM Subject: RE: Colorado Cakeshop decision I don’t think it’s any our job to figure out the inappropriate use of the Deli’s sandwiches than it is to figure out what’s “inappropriate” about eating chicken with cream sauce. The Deli owners thought it was religiously wrong for them to let any of their products be used by anyone working at a company that, in the owners’ views, was committing mass murder. Likewise, I imagine there are religious pacifists who for religious reasons won’t sell any product (even food) to the military or military contractors, or people who wouldn’t sell any products to South African companies (or to companies that do business with South Africa), and so on. That we don’t see anything inappropriate about either the companies or the use to which the products are put is irrelevant. If they believe it is religiously wrong for them to sell anything to a company, that’s enough to get in the door under a religious exemption regime – not just my view, of course, but also that of the Minnesota Court of Appeals. Now whether these religious exemption claims should be trumped by some government interest, such as the interest in preventing discrimination based on race, or religion, or political affiliation, or business practices, is a separate matter – that goes to whether denying the exemption is necessary to serve a compelling government interest. But, as I said, I would have thought that my view was entirely orthodox. “[I]t is not for us to say that the line
RE: Colorado Cakeshop decision
Sandy: Why exactly should we all agree that anyone covered by common carrier law could not refuse to provide service to an abortion center - or a KKK delegation or what have you? After all, we don't agree that everyone covered by drug laws couldn't get a religious exemption, or that everyone covered by the duty to serve as a juror couldn't get a religious exemption, etc. The whole point of religious exemption regimes is to give religious exemptions even to (some) people covered by generally applicable laws. Now if the common carrier is a monopolist, then one could make a good argument that denying the exemption is necessary to serve a compelling interest in making sure that everyone gets access to this service (e.g., electricity). But if the common carrier is not a monopolist - say, a taxicab driver who refuses to drive a Klansman in Klan regalia, in a situation where the Klansman can easily get a different cab - I don't see why common carrier status as such would categorically preclude application of religious exemption law. Finally, as to antidiscrimination law, I think there would be two issues: (1) If the government interest is in making sure that everyone has reasonable access to the good at issue, would granting the exemption really undermine that interest, or would there be dozens of other providers happy to take the customer's money? (2) If the government interest is in precluding every single instance of discrimination, regardless of its tangible consequences, is that interest compelling enough to overcome the religious exemption claim? Again, that was much discussed in the housing marital status discrimination religious exemption cases. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Levinson, Sanford V Sent: Friday, August 14, 2015 10:41 AM To: Law Religion issues for Law Academics Subject: Re: Colorado Cakeshop decision I suppose one might argue that businesses can refuse to sell to anyone they please, in the absence of relevant public accommodations laws. So I assume we all agree that anyone covered by common carrier law could not, for example, refuse to provide service to an abortion center, regardless of religious objections. Ditto re service to members of racial or ethnic minorities, thanks to the Civil Rights Act. I assume that the baker could not refuse to sell the unembellished cupcake to an interracial couple or to a person who announced that it would be consumed at an interracial party, as against, say, a person who said it would be eaten at the Bernie Sanders or Rand Paul campaign headquarters. So the legal issue is when and where sexual orientation has become protected against discrimination. I gather the Colorado decision involves state, and not federal, law. Sandy Sent from my iPhone ___ 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: Colorado Cakeshop decision
what is magical about common carrier is that if you go into the business of being a common carrier, and you get a license from the state to operate your business, you have agreed to accept all who come forward with the fee and behave properly. So the restaurant can require shoes and shirts, but not that everyone take their hat off in the room because that is not a health safety issue. The restaurant can require you turn off your music in the restaurant but not prohibit you because you are [fill in a racial, ethnic, religious, gendered based minority]. That is what common carriers do. If you don't want to do that, then go into another business. If you deliver pizzas, you can't say, but not to your store because we don't like what you sell in that store. Don't offer to deliver pizzas and you don't have that problem. What you seem to be arguing for is a religious right to be a bigot, and essentially saying that what the segregationists lost in 1964 on race, they can win back on religion. That somehow the First Amendment must always trump everything else in the Constitution, including the 14th. Here Harlan's dissent in Plessy is worth rereading. His argument is that common carriers are regulated by the state and so there must be equal protection -- equal access -- to all. I buy my meat from a farmer. Grass fed happy cow. He is not a common carrier; he does not have a store, and he does not even have to follow USDA rules because he sells directly to customers in low enough quantities so that buying from him constitutes a club not a business. He could discriminate on the basis of whatever he wants. He is not a common carrier or a business that is involved with public accommodations. The local deli is another matter. And, again, doesn't your position -- that anyone can refuse to sell to anyone else -- simply move us back to 1963? * 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.edumailto:paul.finkel...@albanylaw.edu www.paulfinkelman.comhttp://www.paulfinkelman.com/ * From: religionlaw-boun...@lists.ucla.edu religionlaw-boun...@lists.ucla.edu on behalf of Volokh, Eugene vol...@law.ucla.edu Sent: Friday, August 14, 2015 11:27 AM To: Law Religion issues for Law Academics Subject: RE: Colorado Cakeshop decision I still don’t quite understand. “No hoasca” means that the ordinary right of citizens to ingest what they please is eliminated – but RFRA says otherwise. “You must serve on a jury” means that the ordinary right of citizens to decide where to go and what to do with their time is eliminated – but religious exemption regimes say otherwise. What’s magical about common carrier law that somehow immunizes it from religious exemption regimes, while other laws are deliberately covered by those regimes? (I set aside the possibility that common carrier law, like drug law and other laws, would often be justifiable under strict scrutiny, since I take it that isn’t Sandy’s argument.) As people on this list know, I’m not a religious exemption maximalist. Once upon a time, I was one of the very few First Amendment people who supported Employment Division v. Smith, though I notice that the tide has turned on that in recent years. I support state RFRAs, but precisely because they are trumpable by legislatures (which could, if they choose, carve out drug laws or common carriers or antidiscrimination law from the state RFRAs); I also would have preferred it if RFRAs had used looser standards than strict scrutiny. But if we’re talking about the actual religious exemption model under RFRAs and the state constitutional religious exemption regimes, I just don’t see how assumptions about what “common carrier” “just means” resolve the religious exemption analysis. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Levinson, Sanford V Sent: Friday, August 14, 2015 11:16 AM To: Law Religion issues for Law Academics Subject: RE: Colorado Cakeshop decision I suppose I’m like the naïve first-year student who begins with the assumption that “common carrier” just means that the ordinary right of the seller to pick and choose among customers is eliminated (at least so long as the purchaser can pay the regular price or, in the cases of innkeepers, is behaving properly). Would an English innkeeper at common law been able to say to a Catholic “we don’t like your kind here” and turned him/her away (perhaps on Christmas Eve)? I thought the essence of “common carrier” law (about which I know
Re: Colorado Cakeshop decision
On Aug 14, 2015, at 6:03 AM, Volokh, Eugene vol...@law.ucla.edu wrote: 2. The “single grocer in town” hypothetical may be relevant to the compelling government interest inquiry – maybe one could argue that the government has a compelling interest in making sure that everyone has access to food without having to drive to the next town, and therefore requiring the grocer to sell to the KKK sympathizers, or for that matter to sell food that he knows will be used at the KKK picnic. But in the much more typical town in which there are many grocers, most of which are quite happy to sell to anyone who has the money, denying the exemption isn’t necessary to serve the government interest. Is there legal precedence establishing this hypothetical into law? It seems to me that it may apply to the county clerk who is refusing to issue any marriage licenses or allow any assistant to issue them and instead send couples to the next county. ___ 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: Colorado Cakeshop decision
Obviously, my lament is that O'Connor's opinion did NOT replace Scalia's as the majority opinion in Smith. Sent from my iPhone On Aug 14, 2015, at 11:03 AM, Levinson, Sanford V slevin...@law.utexas.edumailto:slevin...@law.utexas.edu wrote: What Eugene’s argument does is simply reinforce my ever-stronger lament that Justice O’Connor’s opinion in Smith, which I thought was analytically terrible insofar as she simply asserted without further argument that Oregon’s law met the strict scrutiny required, had become the majority opinion and thus saved us from RFRA, a statute that I supported, but about which I now have severe doubts. Much of this is because, as Eugene eloquently emphasizes, religious arguments are not subjected to any kind of “rational analysis” at all, since they rest, ultimately, on “This is the way I feel about the world, and who are you to tell me otherwise?” sandy From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Friday, August 14, 2015 10:27 AM To: Law Religion issues for Law Academics Subject: RE: Colorado Cakeshop decision I still don’t quite understand. “No hoasca” means that the ordinary right of citizens to ingest what they please is eliminated – but RFRA says otherwise. “You must serve on a jury” means that the ordinary right of citizens to decide where to go and what to do with their time is eliminated – but religious exemption regimes say otherwise. What’s magical about common carrier law that somehow immunizes it from religious exemption regimes, while other laws are deliberately covered by those regimes? (I set aside the possibility that common carrier law, like drug law and other laws, would often be justifiable under strict scrutiny, since I take it that isn’t Sandy’s argument.) As people on this list know, I’m not a religious exemption maximalist. Once upon a time, I was one of the very few First Amendment people who supported Employment Division v. Smith, though I notice that the tide has turned on that in recent years. I support state RFRAs, but precisely because they are trumpable by legislatures (which could, if they choose, carve out drug laws or common carriers or antidiscrimination law from the state RFRAs); I also would have preferred it if RFRAs had used looser standards than strict scrutiny. But if we’re talking about the actual religious exemption model under RFRAs and the state constitutional religious exemption regimes, I just don’t see how assumptions about what “common carrier” “just means” resolve the religious exemption analysis. Eugene From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Levinson, Sanford V Sent: Friday, August 14, 2015 11:16 AM To: Law Religion issues for Law Academics Subject: RE: Colorado Cakeshop decision I suppose I’m like the naïve first-year student who begins with the assumption that “common carrier” just means that the ordinary right of the seller to pick and choose among customers is eliminated (at least so long as the purchaser can pay the regular price or, in the cases of innkeepers, is behaving properly). Would an English innkeeper at common law been able to say to a Catholic “we don’t like your kind here” and turned him/her away (perhaps on Christmas Eve)? I thought the essence of “common carrier” law (about which I know extremely little, obviously) is that it refers to a category of businesses—inns, moving companies, telephone companies, etc.—and not to that subset of companies that can be described as “monopolists.” The duties we impose on monopolists rest, presumably, on a different analysis than the duties we impose on Ollie’s Barbecue to stop being a bigot. sandy From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Friday, August 14, 2015 10:06 AM To: Law Religion issues for Law Academics Subject: RE: Colorado Cakeshop decision Sandy: Why exactly should we all agree that anyone covered by “common carrier” law could not refuse to provide service to an abortion center – or a KKK delegation or what have you? After all, we don’t agree that everyone covered by drug laws couldn’t get a religious exemption, or that everyone covered by the duty to serve as a juror couldn’t get a religious exemption, etc. The whole point of religious exemption regimes is to give religious exemptions even to (some) people covered by generally applicable laws. Now if the common carrier is a monopolist, then one could make a good argument that denying the exemption is necessary to serve a compelling interest in making sure that everyone gets access to this service (e.g.,
Re: Colorado Cakeshop decision
There is also the question of the meaning of common carrier. If we think it's particularly important for common carriers to serve all comers but then think that a business is a common carrier simply because the law currently requires it to take all comers, we're engaged in a circular argument. The only function of the term would be to evoke historical notions or feelings that it was important that certain kinds of businesses serve all comers. I've argued before that common carrier has been expanded far beyond its historical meaning -- in California the Boys Clubs organization was brought within that term by the courts and forced to become the Boys and Girls Clubs -- but it was suggested that the common carrier category was not as limited historically as I thought. (I don't recall whose work was cited for that point.) Mark Mark S. Scarberry Pepperdine University School of Law Sent from my iPad On Aug 14, 2015, at 8:29 AM, Volokh, Eugene vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote: I still don’t quite understand. “No hoasca” means that the ordinary right of citizens to ingest what they please is eliminated – but RFRA says otherwise. “You must serve on a jury” means that the ordinary right of citizens to decide where to go and what to do with their time is eliminated – but religious exemption regimes say otherwise. What’s magical about common carrier law that somehow immunizes it from religious exemption regimes, while other laws are deliberately covered by those regimes? (I set aside the possibility that common carrier law, like drug law and other laws, would often be justifiable under strict scrutiny, since I take it that isn’t Sandy’s argument.) As people on this list know, I’m not a religious exemption maximalist. Once upon a time, I was one of the very few First Amendment people who supported Employment Division v. Smith, though I notice that the tide has turned on that in recent years. I support state RFRAs, but precisely because they are trumpable by legislatures (which could, if they choose, carve out drug laws or common carriers or antidiscrimination law from the state RFRAs); I also would have preferred it if RFRAs had used looser standards than strict scrutiny. But if we’re talking about the actual religious exemption model under RFRAs and the state constitutional religious exemption regimes, I just don’t see how assumptions about what “common carrier” “just means” resolve the religious exemption analysis. Eugene From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Levinson, Sanford V Sent: Friday, August 14, 2015 11:16 AM To: Law Religion issues for Law Academics Subject: RE: Colorado Cakeshop decision I suppose I’m like the naïve first-year student who begins with the assumption that “common carrier” just means that the ordinary right of the seller to pick and choose among customers is eliminated (at least so long as the purchaser can pay the regular price or, in the cases of innkeepers, is behaving properly). Would an English innkeeper at common law been able to say to a Catholic “we don’t like your kind here” and turned him/her away (perhaps on Christmas Eve)? I thought the essence of “common carrier” law (about which I know extremely little, obviously) is that it refers to a category of businesses—inns, moving companies, telephone companies, etc.—and not to that subset of companies that can be described as “monopolists.” The duties we impose on monopolists rest, presumably, on a different analysis than the duties we impose on Ollie’s Barbecue to stop being a bigot. sandy From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Friday, August 14, 2015 10:06 AM To: Law Religion issues for Law Academics Subject: RE: Colorado Cakeshop decision Sandy: Why exactly should we all agree that anyone covered by “common carrier” law could not refuse to provide service to an abortion center – or a KKK delegation or what have you? After all, we don’t agree that everyone covered by drug laws couldn’t get a religious exemption, or that everyone covered by the duty to serve as a juror couldn’t get a religious exemption, etc. The whole point of religious exemption regimes is to give religious exemptions even to (some) people covered by generally applicable laws. Now if the common carrier is a monopolist, then one could make a good argument that denying the exemption is necessary to serve a compelling interest in making sure that everyone gets access to this service (e.g., electricity). But if the common carrier is not a monopolist – say, a taxicab driver who refuses to drive a Klansman in Klan regalia, in a situation where the Klansman can
RE: Colorado Cakeshop decision
The Massachusetts Supreme Judicial Court--hardly a reactionary body--made the distinction between small vendor refusals that do and don't harm access meaningfully, in Attorney General v. Desilets, 636 N.E.2d 233, 240 (Mass. 1994), one of the cases Eugene referred to involving small landlords and unmarried straight couples. The court denied summary judgment to the state in light of the landlord's claim under the Massachusetts constitution's free exercise provision, which is governed by the compelling interest test. Without supporting facts in the record or in legislative findings, we are unwilling to conclude that simple enactment of the prohibition against discrimination based on marital status establishes that the State has such a substantial interest in eliminating that form of housing discrimination that, on a balancing test, the substantial burden on the defendants' free exercise of religion must be disregarded. It is no doubt true that many men and women are cohabiting in the Commonwealth and that numbers have increased in the last twenty years. We have no sense, however, of the numbers of rental units that might be withheld from such people because of the religious beliefs of the owners of rental housing. Although the prohibition against discrimination based on marital status was enacted over twenty years ago (St.1973, c. 187), this is the first case of this character that has come to our attention. We have no indication, beyond the facts of this case, whether the rental housing policies of people such as the defendants can be accommodated, at least in the Turners Falls (Montague) area, without significantly impeding the availability of rental housing for people who are cohabiting or wish to cohabit. Market forces often tend to discourage owners from restricting the class of people to whom they would rent. On the other hand, discrimination of the sort challenged here may present a significant housing problem if a large percentage of units are unavailable to cohabitants. Of course, as Eugene notes, other courts have said there is a compelling interest in preventing statutorily prohibited discrimination in each and every instance, regardless of whether there are ready alternatives. - Thomas C. Berg James L. Oberstar Professor of Law and Public Policy University of St. Thomas School of Law MSL 400, 1000 LaSalle Avenue Minneapolis, MN 55403-2015 Phone: 651 962 4918 Fax: 651 962 4881 E-mail: tcb...@stthomas.eduhttps://mail.stthomas.edu/owa/redir.aspx?C=6b610058a5ad42118976395f869e05d3URL=mailto%3atcberg%40stthomas.edu SSRN: http://ssrn.com/author='261564https://mail.stthomas.edu/owa/redir.aspx?C=6b610058a5ad42118976395f869e05d3URL=http%3a%2f%2fssrn.com%2fauthor%3d'261564 Weblog: http://www.mirrorofjustice.blogs.com From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Jean Dudley [jean.dud...@gmail.com] Sent: Friday, August 14, 2015 12:07 PM To: Law Religion issues for Law Academics Subject: Re: Colorado Cakeshop decision On Aug 14, 2015, at 6:03 AM, Volokh, Eugene vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote: 2. The “single grocer in town” hypothetical may be relevant to the compelling government interest inquiry – maybe one could argue that the government has a compelling interest in making sure that everyone has access to food without having to drive to the next town, and therefore requiring the grocer to sell to the KKK sympathizers, or for that matter to sell food that he knows will be used at the KKK picnic. But in the much more typical town in which there are many grocers, most of which are quite happy to sell to anyone who has the money, denying the exemption isn’t necessary to serve the government interest. Is there legal precedence establishing this hypothetical into law? It seems to me that it may apply to the county clerk who is refusing to issue any marriage licenses or allow any assistant to issue them and instead send couples to the next county. ___ 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: Colorado Cakeshop decision
Marty makes a good but not dispositive point. In any event we have to be sure this doesn't turn into a principle that bars people who belong to a certain religion from some professions. There are analogous and very disturbing historical prohibitions, not limited to those the mention of which would trigger Godwin's Law. Mark Sent from my iPad On Aug 14, 2015, at 9:26 AM, Marty Lederman lederman.ma...@gmail.commailto:lederman.ma...@gmail.com wrote: The burden on religious exercise if you have to give up your business might be quite substantial, especially if means choosing between your religion and sacrificing many years of work, costs, good will, self-fulfillment, etc. But not if giving it up means not starting down that path in the first place because you're not willing to abide by the common-carrier rules required of such businesses. (Denial of unemployment benefits, likewise, imposes a much greater burden on poor persons than on the wealthy.) For example: Let's take two people who both really want to teach 10th grade biology. And they both have the same religious belief that it would be sinful for them to teach Darwinian evolution. State X passes a law requiring all schools (public and private) to teach Darwinian evolution in 10th Grade. One difference between the two wannabe teachers: One of them is 55 years old, and has been teaching 10th Grade Bio in a religious school for over 30 years, from an evolutionist perspective, without speaking a word of Darwin. It's the only job she's ever had, and her family depends upon her income. The other is a recent high-school graduate who had planned to study for an education degree so as to be able to fulfill his dream of teaching creationism to 10th Graders. Neither of them can henceforth teach 10th Grade without violating their religious precepts (or moving to a different state). Equal burden on their religious exercise? I think not. Not even close. ___ 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: Colorado Cakeshop decision
I appreciate Marty’s argument, but I’m not sure it quite works. The burden of giving up your business (if you want to avoid violating your religious beliefs) strikes me as quite substantial, just as is the burden of giving up your unemployment compensation (if you want to avoid violating your religious beliefs). And I don’t think the fact that “you knew the job was dangerous when you took it” changes that analysis, see Hobbie v. Unemployment Appeals Comm’n: The Appeals Commission also attempts to distinguish this case by arguing that, unlike the employees in Sherbert and Thomas, Hobbie was the agent of change and is therefore responsible for the consequences of the conflict between her job and her religious beliefs. In Sherbert and Thomas, the employees held their respective religious beliefs at the time of hire; subsequent changes in the conditions of employment made by the employer caused the conflict between work and belief. In this case, Hobbie's beliefs changed during the course of her employment, creating a conflict between job and faith that had not previously existed. The Appeals Commission contends that it is . . . unfair for an employee to adopt religious beliefs that conflict with existing employment and expect to continue the employment without compromising those beliefs and that this intentional disregard of the employer's interests . . . constitutes misconduct. Brief for Appellee Appeals Commission 20-21. In effect, the Appeals Commission asks us to single out the religious convert for different, less favorable treatment than that given an individual whose adherence to his or her faith precedes employment. We decline to do so. The First Amendment protects the free exercise rights of employees who adopt religious beliefs or convert from one faith to another after they are hired. The timing of Hobbie's conversion is immaterial to our determination that her free exercise rights have been burdened; the salient inquiry under the Free Exercise Clause is the burden involved. In Sherbert, Thomas, and the present case, the employee was forced to choose between fidelity to religious belief and continued employment; the forfeiture of unemployment benefits for choosing the former over the latter brings unlawful coercion to bear on the employee's choice. (By the way, I’m not sure on these facts whether the Colorado cake shop went into business before or after Colorado banned sexual orientation discrimination in public accommodations, but I’m happy to set that aside for purposes of the broader discussion.) Eugene Marty Lederman writes: Or to put Paul's point in a slightly different, more doctrinal light -- and one that harkens back to our landlord discussions circa 1998 [you can look it up!] -- if we're in a RFRA jurisdiction, there is far less of a substantial burden on one's religious exercise if the government sanction is merely if you're not willing to serve everyone, then you can't be a common carrier than if the government actually makes it unlawful for you to do what your religion requires (e.g., O Centro, Yoder). Of course, the burden is higher on those who developed a reliance interest on their being able to discriminate -- e.g., those who paid huge costs in terms of time and money in learning a profession, and building a business, at a time when the business was not viewed as a common carrier, or where (in this case) a prohibition on sexual-orientation discrimination was not foreseeable. But if one entered the profession when it was already a rule that you must serve all comers, or you can't discriminate on the basis of X,Y and Z, then surely the denial of a religious exemption causes far less of a burden than in O Centro-like cases. Not no burden, of course -- after all, if it's always been your dream to be a police officer, or to own a retail business in a state where such businesses have to serve all comers, then those laws do put some pressure on you to deviate from your religious beliefs. But not nearly as much. ___ 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: Colorado Cakeshop decision
The burden on religious exercise if you have to give up your business *might *be quite substantial, especially if means choosing between your religion and sacrificing many years of work, costs, good will, self-fulfillment, etc. But not if giving it up means not starting down that path in the first place because you're not willing to abide by the common-carrier rules required of such businesses. (Denial of unemployment benefits, likewise, imposes a much greater burden on poor persons than on the wealthy.) For example: Let's take two people who both *really *want to teach 10th grade biology. And they both have the same religious belief that it would be sinful for them to teach Darwinian evolution. State X passes a law requiring all schools (public and private) to teach Darwinian evolution in 10th Grade. One difference between the two wannabe teachers: One of them is 55 years old, and has been teaching 10th Grade Bio in a religious school for over 30 years, from an evolutionist perspective, without speaking a word of Darwin. It's the only job she's ever had, and her family depends upon her income. The other is a recent high-school graduate who had planned to study for an education degree so as to be able to fulfill his dream of teaching creationism to 10th Graders. Neither of them can henceforth teach 10th Grade without violating their religious precepts (or moving to a different state). Equal burden on their religious exercise? I think not. Not even close. On Fri, Aug 14, 2015 at 12:07 PM, Volokh, Eugene vol...@law.ucla.edu wrote: I appreciate Marty’s argument, but I’m not sure it quite works. The burden of giving up your business (if you want to avoid violating your religious beliefs) strikes me as quite substantial, just as is the burden of giving up your unemployment compensation (if you want to avoid violating your religious beliefs). And I don’t think the fact that “you knew the job was dangerous when you took it” changes that analysis, see *Hobbie v. Unemployment Appeals Comm’n*: The Appeals Commission also attempts to distinguish this case by arguing that, unlike the employees in *Sherbert* and *Thomas*, Hobbie was the agent of change and is therefore responsible for the consequences of the conflict between her job and her religious beliefs. In Sherbert and Thomas, the employees held their respective religious beliefs at the time of hire; subsequent changes in the conditions of employment made by the employer caused the conflict between work and belief. In this case, Hobbie's beliefs changed during the course of her employment, creating a conflict between job and faith that had not previously existed. The Appeals Commission contends that it is . . . unfair for an employee to adopt religious beliefs that conflict with existing employment and expect to continue the employment without compromising those beliefs and that this intentional disregard of the employer's interests . . . constitutes misconduct. Brief for Appellee Appeals Commission 20-21. In effect, the Appeals Commission asks us to single out the religious convert for different, less favorable treatment than that given an individual whose adherence to his or her faith precedes employment. We decline to do so. The First Amendment protects the free exercise rights of employees who adopt religious beliefs or convert from one faith to another after they are hired. The timing of Hobbie's conversion is immaterial to our determination that her free exercise rights have been burdened; the salient inquiry under the Free Exercise Clause is the burden involved. In Sherbert, Thomas, and the present case, the employee was forced to choose between fidelity to religious belief and continued employment; the forfeiture of unemployment benefits for choosing the former over the latter brings unlawful coercion to bear on the employee's choice. (By the way, I’m not sure on these facts whether the Colorado cake shop went into business before or after Colorado banned sexual orientation discrimination in public accommodations, but I’m happy to set that aside for purposes of the broader discussion.) Eugene Marty Lederman writes: Or to put Paul's point in a slightly different, more doctrinal light -- and one that harkens back to our landlord discussions circa 1998 [you can look it up!] -- if we're in a RFRA jurisdiction, there is far less of a substantial burden on one's religious exercise if the government sanction is merely if you're not willing to serve everyone, then you can't be a common carrier than if the government actually makes it unlawful for you to do what your religion requires (e.g., O Centro, Yoder). Of course, the burden is higher on those who developed a reliance interest on their being able to discriminate -- e.g., those who paid huge costs in terms of time and money in learning a profession, and building a business, at a time when the
Re: Colorado Cakeshop decision
I am not trying to obtuse here or argumentative. My point is this: if we allow a relugious exemption for common carriers, businesses of public accommodation, and businesses that are open to the public then we allow racial, ethnic, gender, reigious and other kinds of discrimination for anyone willing to say, as Bob Jones university did, that God requires me to discriminate in this way and so i am free to do so and disregard civil rights law. That seems to me to be the logical outcome of Eugene's position since he would not allow the courts to ever question religious sincerity. Sent from my T-Mobile 4G LTE device -- Original message-- From: Volokh, Eugene Date: Fri, Aug 14, 2015 10:45 AM To: Paul Finkelman;Law Religion issues for Law Academics; Cc: Subject:RE: Colorado Cakeshop decision I’m not sure I understand how Prof. Finkelman can be misunderstanding me on this. This is an argument about religious exemptions. It is not an argument about whether the law should be repealed altogether – any more than arguments about exemptions in O Centro and Smith were about whether peyote or hoasca laws should be repealed altogether. It’s not our job to figure out whether a claimant is right or wrong, reasonable or unreasonable, smart or foolish in deciding that his religion requires him to use peyote, or bars him from selling to abortion clinics, or bars him from making wedding cakes. If the claimant has a religious objection to the law, and a Sherbert/Yoder-like religious exemption regime exists, then the question is whether denying the exemption is narrowly tailored to a compelling government interest. It may well be that denying the exemption from some antidiscrimination laws is indeed narrowly tailored to such an interest, based on the arguments that I quite clearly acknowledged in my earlier posts. But one can’t just reject the argument on the grounds that “that is what a common carrier does,” just as one can’t reject the peyote/hoasca users’ claims on the grounds that “barring drugs is what drug law does.” In any event, if anyone else really does misunderstand this argument, or would like to engage that argument, I’m happy to answer them. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Paul Finkelman Sent: Friday, August 14, 2015 11:28 AM To: Law Religion issues for Law Academics Subject: Re: Colorado Cakeshop decision Because, that is what a common carrier does. Put it another way, if the common carrier can refuse to pick up people then we are back to 1963. Cabs don't have to stop for blacks because the drivers believe God made a mistake in making black people; hotels don't have to rent to blacks, or people with Jewish names, or people who look Jewish, or men with turbans, or anyone else they do not like. You raise the inappropriate argument and then say that it is not our job to figure out what is in appropriate. So, in fact, you are not interested in the inappropriate use (the pillow case for the KKK mask), but rather you are arguing that licensed businesses are free to discriminate for whatever reason they want, as long as they mask it in religious values. Is that what you are saying here? If so, they why not come out from behind the curtain and just argue for the repeal of the 1964 Civil Rights Act. That is, after all, what you are arguing for, masked in religious language. If I am misreading you, please forgive me and explain why this is a misreading of the *result* you are arguing for. ** 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.commailto:paul.finkel...@yahoo.com www.paulfinkelman.comhttp://www.paulfinkelman.com/ From: Volokh, Eugene vol...@law.ucla.edumailto:vol...@law.ucla.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Sent: Friday, August 14, 2015 11:13 AM Subject: RE: Colorado Cakeshop decision I don’t think it’s any our job to figure out the inappropriate use of the Deli’s sandwiches than it is to figure out what’s “inappropriate” about eating chicken with cream sauce. The Deli owners thought it was religiously wrong for them to let any of their products be used by anyone working at a company that, in the owners’ views, was committing mass murder. Likewise, I imagine there are religious pacifists who for religious reasons won’t sell any product (even food) to the military or military contractors, or people who wouldn’t sell any products to South African companies (or to companies that do business with South Africa), and so on. That we don’t see anything
Re: Colorado Cakeshop decision
I used the term common carrier. I think those of us who've used that term meant to say public accommodation or place of public accommodation. (I did.) Mark Mark S. Scarberry Pepperdine University School of Law Sent from my iPad On Aug 14, 2015, at 9:10 AM, Scarberry, Mark mark.scarbe...@pepperdine.edumailto:mark.scarbe...@pepperdine.edu wrote: There is also the question of the meaning of common carrier. If we think it's particularly important for common carriers to serve all comers but then think that a business is a common carrier simply because the law currently requires it to take all comers, we're engaged in a circular argument. The only function of the term would be to evoke historical notions or feelings that it was important that certain kinds of businesses serve all comers. I've argued before that common carrier has been expanded far beyond its historical meaning -- in California the Boys Clubs organization was brought within that term by the courts and forced to become the Boys and Girls Clubs -- but it was suggested that the common carrier category was not as limited historically as I thought. (I don't recall whose work was cited for that point.) Mark Mark S. Scarberry Pepperdine University School of Law Sent from my iPad On Aug 14, 2015, at 8:29 AM, Volokh, Eugene vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote: I still don’t quite understand. “No hoasca” means that the ordinary right of citizens to ingest what they please is eliminated – but RFRA says otherwise. “You must serve on a jury” means that the ordinary right of citizens to decide where to go and what to do with their time is eliminated – but religious exemption regimes say otherwise. What’s magical about common carrier law that somehow immunizes it from religious exemption regimes, while other laws are deliberately covered by those regimes? (I set aside the possibility that common carrier law, like drug law and other laws, would often be justifiable under strict scrutiny, since I take it that isn’t Sandy’s argument.) As people on this list know, I’m not a religious exemption maximalist. Once upon a time, I was one of the very few First Amendment people who supported Employment Division v. Smith, though I notice that the tide has turned on that in recent years. I support state RFRAs, but precisely because they are trumpable by legislatures (which could, if they choose, carve out drug laws or common carriers or antidiscrimination law from the state RFRAs); I also would have preferred it if RFRAs had used looser standards than strict scrutiny. But if we’re talking about the actual religious exemption model under RFRAs and the state constitutional religious exemption regimes, I just don’t see how assumptions about what “common carrier” “just means” resolve the religious exemption analysis. Eugene From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Levinson, Sanford V Sent: Friday, August 14, 2015 11:16 AM To: Law Religion issues for Law Academics Subject: RE: Colorado Cakeshop decision I suppose I’m like the naïve first-year student who begins with the assumption that “common carrier” just means that the ordinary right of the seller to pick and choose among customers is eliminated (at least so long as the purchaser can pay the regular price or, in the cases of innkeepers, is behaving properly). Would an English innkeeper at common law been able to say to a Catholic “we don’t like your kind here” and turned him/her away (perhaps on Christmas Eve)? I thought the essence of “common carrier” law (about which I know extremely little, obviously) is that it refers to a category of businesses—inns, moving companies, telephone companies, etc.—and not to that subset of companies that can be described as “monopolists.” The duties we impose on monopolists rest, presumably, on a different analysis than the duties we impose on Ollie’s Barbecue to stop being a bigot. sandy From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Friday, August 14, 2015 10:06 AM To: Law Religion issues for Law Academics Subject: RE: Colorado Cakeshop decision Sandy: Why exactly should we all agree that anyone covered by “common carrier” law could not refuse to provide service to an abortion center – or a KKK delegation or what have you? After all, we don’t agree that everyone covered by drug laws couldn’t get a religious exemption, or that everyone covered by the duty to serve as a juror couldn’t get a religious exemption, etc. The whole point of religious exemption regimes is to give religious exemptions even to (some) people covered by generally applicable laws. Now if the common carrier is a
Re: Colorado Cakeshop decision
Or to put Paul's point in a slightly different, more doctrinal light -- and one that harkens back to our landlord discussions circa 1998 [you can look it up!] -- if we're in a RFRA jurisdiction, there is far less of a substantial burden on one's religious exercise if the government sanction is merely if you're not willing to serve everyone, then you can't be a common carrier than if the government actually makes it unlawful for you to do what your religion requires (e.g., O Centro, Yoder). Of course, the burden is higher on those who developed a reliance interest on their being able to discriminate -- e.g., those who paid huge costs in terms of time and money in learning a profession, and building a business, at a time when the business was not viewed as a common carrier, or where (in this case) a prohibition on sexual-orientation discrimination was not foreseeable. But if one entered the profession when it was *already *a rule that you must serve all comers, or you can't discriminate on the basis of X,Y and Z, then surely the denial of a religious exemption causes far less of a burden than in O Centro-like cases. Not *no *burden, of course -- after all, if it's always been your dream to be a police officer, or to own a retail business in a state where such businesses have to serve all comers, then those laws do put *some *pressure on you to deviate from your religious beliefs. But not nearly as much. On Fri, Aug 14, 2015 at 11:40 AM, Finkelman, Paul paul.finkel...@albanylaw.edu wrote: what is magical about common carrier is that if you go into the business of being a common carrier, and you get a license from the state to operate your business, you have agreed to accept all who come forward with the fee and behave properly. So the restaurant can require shoes and shirts, but not that everyone take their hat off in the room because that is not a health safety issue. The restaurant can require you turn off your music in the restaurant but not prohibit you because you are [fill in a racial, ethnic, religious, gendered based minority]. That is what common carriers do. If you don't want to do that, then go into another business. If you deliver pizzas, you can't say, but not to your store because we don't like what you sell in that store. Don't offer to deliver pizzas and you don't have that problem. What you seem to be arguing for is a religious right to be a bigot, and essentially saying that what the segregationists lost in 1964 on race, they can win back on religion. That somehow the First Amendment must always trump everything else in the Constitution, including the 14th. Here Harlan's dissent in Plessy is worth rereading. His argument is that common carriers are regulated by the state and so there must be equal protection -- equal access -- to all. I buy my meat from a farmer. Grass fed happy cow. He is not a common carrier; he does not have a store, and he does not even have to follow USDA rules because he sells directly to customers in low enough quantities so that buying from him constitutes a club not a business. He could discriminate on the basis of whatever he wants. He is not a common carrier or a business that is involved with public accommodations. The local deli is another matter. And, again, doesn't your position -- that anyone can refuse to sell to anyone else -- simply move us back to 1963? * 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 * -- *From:* religionlaw-boun...@lists.ucla.edu religionlaw-boun...@lists.ucla.edu on behalf of Volokh, Eugene vol...@law.ucla.edu *Sent:* Friday, August 14, 2015 11:27 AM *To:* Law Religion issues for Law Academics *Subject:* RE: Colorado Cakeshop decision I still don’t quite understand. “No hoasca” means that the ordinary right of citizens to ingest what they please is eliminated – but RFRA says otherwise. “You must serve on a jury” means that the ordinary right of citizens to decide where to go and what to do with their time is eliminated – but religious exemption regimes say otherwise. What’s magical about common carrier law that somehow immunizes it from religious exemption regimes, while other laws are deliberately covered by those regimes? (I set aside the possibility that common carrier law, like drug law and other laws, would often be justifiable under strict scrutiny, since I take it that isn’t Sandy’s argument.) As people on this list know, I’m not a religious exemption maximalist. Once upon a time, I was one of the very few First
RE: Colorado Cakeshop decision
What Eugene's argument does is simply reinforce my ever-stronger lament that Justice O'Connor's opinion in Smith, which I thought was analytically terrible insofar as she simply asserted without further argument that Oregon's law met the strict scrutiny required, had become the majority opinion and thus saved us from RFRA, a statute that I supported, but about which I now have severe doubts. Much of this is because, as Eugene eloquently emphasizes, religious arguments are not subjected to any kind of rational analysis at all, since they rest, ultimately, on This is the way I feel about the world, and who are you to tell me otherwise? sandy From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Friday, August 14, 2015 10:27 AM To: Law Religion issues for Law Academics Subject: RE: Colorado Cakeshop decision I still don't quite understand. No hoasca means that the ordinary right of citizens to ingest what they please is eliminated - but RFRA says otherwise. You must serve on a jury means that the ordinary right of citizens to decide where to go and what to do with their time is eliminated - but religious exemption regimes say otherwise. What's magical about common carrier law that somehow immunizes it from religious exemption regimes, while other laws are deliberately covered by those regimes? (I set aside the possibility that common carrier law, like drug law and other laws, would often be justifiable under strict scrutiny, since I take it that isn't Sandy's argument.) As people on this list know, I'm not a religious exemption maximalist. Once upon a time, I was one of the very few First Amendment people who supported Employment Division v. Smith, though I notice that the tide has turned on that in recent years. I support state RFRAs, but precisely because they are trumpable by legislatures (which could, if they choose, carve out drug laws or common carriers or antidiscrimination law from the state RFRAs); I also would have preferred it if RFRAs had used looser standards than strict scrutiny. But if we're talking about the actual religious exemption model under RFRAs and the state constitutional religious exemption regimes, I just don't see how assumptions about what common carrier just means resolve the religious exemption analysis. Eugene From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Levinson, Sanford V Sent: Friday, August 14, 2015 11:16 AM To: Law Religion issues for Law Academics Subject: RE: Colorado Cakeshop decision I suppose I'm like the naïve first-year student who begins with the assumption that common carrier just means that the ordinary right of the seller to pick and choose among customers is eliminated (at least so long as the purchaser can pay the regular price or, in the cases of innkeepers, is behaving properly). Would an English innkeeper at common law been able to say to a Catholic we don't like your kind here and turned him/her away (perhaps on Christmas Eve)? I thought the essence of common carrier law (about which I know extremely little, obviously) is that it refers to a category of businesses-inns, moving companies, telephone companies, etc.-and not to that subset of companies that can be described as monopolists. The duties we impose on monopolists rest, presumably, on a different analysis than the duties we impose on Ollie's Barbecue to stop being a bigot. sandy From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Friday, August 14, 2015 10:06 AM To: Law Religion issues for Law Academics Subject: RE: Colorado Cakeshop decision Sandy: Why exactly should we all agree that anyone covered by common carrier law could not refuse to provide service to an abortion center - or a KKK delegation or what have you? After all, we don't agree that everyone covered by drug laws couldn't get a religious exemption, or that everyone covered by the duty to serve as a juror couldn't get a religious exemption, etc. The whole point of religious exemption regimes is to give religious exemptions even to (some) people covered by generally applicable laws. Now if the common carrier is a monopolist, then one could make a good argument that denying the exemption is necessary to serve a compelling interest in making sure that everyone gets access to this service (e.g., electricity). But if the common carrier is not a monopolist - say, a taxicab driver who refuses to drive a Klansman in Klan regalia, in a situation where the Klansman can easily get a different cab - I don't see why common carrier status as such would categorically preclude application of religious exemption law.
RE: Colorado Cakeshop decision
Many years ago , a German style restaurant in California was sued under the Unruh Act(California's public accommodation law) for excluding a neo-Nazi group which was seeking to trade on the ethnic cuisine to enhance its own legitimacy. The restaurant lost at the trial court. I offered to carry the appeal pro bono (on a forced speech theory) but the restaurant's insurance company balked at being responsible for additional attorney's fees for the plaintiff and the case settled in favor of the neo-Nazis. Someday someone will write a great article on the influence of insurance companies on the course of constitutional law. Marc D. Stern General Counsel AJC 212 891 1480 646 289 2707 (c ) 212 891 1495 (f) ste...@ajc.orgmailto:ste...@ajc.org www.ajc.orghttp://www.ajc.org/ Facebook.com/AJCGlobalhttp://www.facebook.com/AJCGlobal Twitter.com/AJCGlobalhttp://www.twitter.com/AJCGlobal [cid:image001.jpg@01D0D66C.3EA30EF0] From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Friedman, Howard M. Sent: Friday, August 14, 2015 6:21 AM To: Law Religion issues for Law Academics Subject: RE: Colorado Cakeshop decision A famous example of this many years ago involved the issue of whether Dow Chemical should stop selling napalm to the U.S. government for use in the Viet Nam War because of the terrible injuries it caused. Some shareholders attempted to stop the company from continuing to manufacture the product. Dow argued that it had a moral and political responsibility to continue to furnish it in furtherance of government policy, even though the sales were not particularly profitable. This got litigated in the context of an SEC shareholder proposal: Medical Committee for Human Rights v SEC http://openjurist.org/432/f2d/659/medical-committee-for-human-rights-v-securities-and-exchange-commission From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Jean Dudley [jean.dud...@gmail.com] Sent: Friday, August 14, 2015 12:30 AM To: Law Religion issues for Law Academics Subject: Re: Colorado Cakeshop decision There are moral/ethical dilemmas, and then there are legal ones; In the case of the KKK and selling sheets, it could be argued that a shop owner could refuse to sell sheets and pillow cases because a legal argument could be made that the act would be complicit (not sure of the terminology here) in illegal activity, namely domestic terrorism. (Yeah, yeah, peaceful protest, heritage not hate, blah, blah, blah. I call BS. The mere sight of a hooded and robed KKK member is terrifying to a significant section of American citizens. It's domestic terrorism, whether it is prosecuted or not. If it makes you feel better, how about calling it disturbing the peace?) In the case of pharmaceutical companies refusing to sell drugs for execution, it could be argued that they would be abetting in an act that is illegal where the drugs are made; if those drugs are being shipped across state lines for use in an execution of a prisoner that would not be facing the death penalty in the drug manufacturers' home state, isn't that illegal, too? This one I'll admit is a bit blurry. Then there's the restaurant that refused to provide a public service to a clinic that provides safe, legal abortions. This one is pretty clear cut to me; if they can't provide that service to all, they shouldn't be in that business. As a photographer, I've watched stock photographs being used for all sorts of things that I find morally repugnant, but alas, are legal; one case in particular sticks in my mind. A mother brought her daughter in for modeling photographs, signed a release. To her horror, her daughter's image was used by a pro-life group on a poster that read The most dangerous place for African American women is in the womb. Mother sued and lost. She'd signed the release. The photographer had sold the image to a stock photography business, who in turn told it to the Pro-life group. I've seen images of Yosemite in pseudo-scientific text books on intelligent design. Again, bought and paid for through stock agencies. That is why I donate my Yosemite images to public school teachers who promise not to use them to teach creationism or intelligent design. These are indeed legal uses of images. That is why I am not a stock photographer. On Aug 13, 2015, at 7:58 PM, Levinson, Sanford V slevin...@law.utexas.edumailto:slevin...@law.utexas.edu wrote: This is an interesting example. (And I thank Eugene for his typically thoughtful answer.) Can one distinguish between the illegitimate direct use of the product (to kill human beings) and the mere fact that the cupcake will be eaten at a wedding (or trust)? Would we be comfortable if the single grocer in town refused to sell food to someone known to sympathize with the KKK? I assume,
RE: Colorado Cakeshop decision
A famous example of this many years ago involved the issue of whether Dow Chemical should stop selling napalm to the U.S. government for use in the Viet Nam War because of the terrible injuries it caused. Some shareholders attempted to stop the company from continuing to manufacture the product. Dow argued that it had a moral and political responsibility to continue to furnish it in furtherance of government policy, even though the sales were not particularly profitable. This got litigated in the context of an SEC shareholder proposal: Medical Committee for Human Rights v SEC http://openjurist.org/432/f2d/659/medical-committee-for-human-rights-v-securities-and-exchange-commission From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Jean Dudley [jean.dud...@gmail.com] Sent: Friday, August 14, 2015 12:30 AM To: Law Religion issues for Law Academics Subject: Re: Colorado Cakeshop decision There are moral/ethical dilemmas, and then there are legal ones; In the case of the KKK and selling sheets, it could be argued that a shop owner could refuse to sell sheets and pillow cases because a legal argument could be made that the act would be complicit (not sure of the terminology here) in illegal activity, namely domestic terrorism. (Yeah, yeah, peaceful protest, heritage not hate, blah, blah, blah. I call BS. The mere sight of a hooded and robed KKK member is terrifying to a significant section of American citizens. It’s domestic terrorism, whether it is prosecuted or not. If it makes you feel better, how about calling it “disturbing the peace”?) In the case of pharmaceutical companies refusing to sell drugs for execution, it could be argued that they would be abetting in an act that is illegal where the drugs are made; if those drugs are being shipped across state lines for use in an execution of a prisoner that would not be facing the death penalty in the drug manufacturers’ home state, isn’t that illegal, too? This one I’ll admit is a bit blurry. Then there’s the restaurant that refused to provide a public service to a clinic that provides safe, legal abortions. This one is pretty clear cut to me; if they can’t provide that service to all, they shouldn’t be in that business. As a photographer, I’ve watched stock photographs being used for all sorts of things that I find morally repugnant, but alas, are legal; one case in particular sticks in my mind. A mother brought her daughter in for “modeling” photographs, signed a release. To her horror, her daughter’s image was used by a “pro-life” group on a poster that read “The most dangerous place for African American women is in the womb”. Mother sued and lost. She’d signed the release. The photographer had sold the image to a stock photography business, who in turn told it to the “Pro-life” group. I’ve seen images of Yosemite in pseudo-scientific text books on “intelligent design”. Again, bought and paid for through stock agencies. That is why I donate my Yosemite images to public school teachers who promise not to use them to teach creationism or “intelligent design”. These are indeed legal uses of images. That is why I am not a stock photographer. On Aug 13, 2015, at 7:58 PM, Levinson, Sanford V slevin...@law.utexas.edumailto:slevin...@law.utexas.edu wrote: This is an interesting example. (And I thank Eugene for his typically thoughtful answer.) Can one distinguish between the illegitimate direct use of the product (to kill human beings) and the mere fact that the cupcake will be eaten at a wedding (or trust)? Would we be comfortable if the single grocer in town refused to sell food to someone known to sympathize with the KKK? I assume, though, that the civil rights laws was prohibits discriminating on grounds of race etc., and this should hold for sexual orientation as well. Sandy Sent from my iPhone On Aug 13, 2015, at 7:25 PM, K Chen tzn...@gmail.commailto:tzn...@gmail.com wrote: The various pharmaceutical companies refusing to sell certain drugs to death penalty states come to mind. -Kevin Chen On Thu, Aug 13, 2015 at 7:51 PM, Volokh, Eugene vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote: Sure, why not? Say a grape grower refuses to sell to winemakers, or a pacifist widget maker refuses to sell to military contractors, or a restaurant refuses to deliver to abortion clinics? See Rasmussen v. Glass (Minn. Ct. App. 1993), https://scholar.google.com/scholar_case?case=648897692635049631, which holds that, even if a city ordinance banning discrimination based on “creed” required restaurants to deliver to abortion clinics, there had to be a religious exemption from such an ordinance. “Under the provisions of the Minneapolis ordinance, relator Glass [owner of the Beach Club Deli] has two choices. He can either associate with an entity that engages in conduct which he finds to be
RE: Colorado Cakeshop decision
As I understand the orthodox (with a lower-case o) understanding of religious exemption doctrine, religious objectors are entitled to exemptions from (at least) laws that require them to do things that they sincerely view as sinful, unless granting the exemption would necessarily substantially undermine a compelling government interest. 1. If this is so, then I don't think that it matters whether the sin is providing materials that one sincerely believes are used in killing human beings, or providing materials that one sincerely believes are used in other sinful things. If a Muslim or Jewish supplier doesn't want to sell products to a pork farm (I'm not sure that this is standard Muslim or Jewish doctrine, but imagine someone who takes that view), I don't see why he should be denied an exemption that the pacifist widget maker or the anti-abortion deli owner is granted. Likewise if someone doesn't want to sell products that would be used in a Black Mass or in a wedding of a divorced person or in a same-sex wedding. 2. The single grocer in town hypothetical may be relevant to the compelling government interest inquiry - maybe one could argue that the government has a compelling interest in making sure that everyone has access to food without having to drive to the next town, and therefore requiring the grocer to sell to the KKK sympathizers, or for that matter to sell food that he knows will be used at the KKK picnic. But in the much more typical town in which there are many grocers, most of which are quite happy to sell to anyone who has the money, denying the exemption isn't necessary to serve the government interest. 3. Of course, there is also the argument that there is a compelling interest in making sure that no customer is ever rejected by any provider for what one sees as improper reasons. I'm not sure I'm persuaded by this argument as a general matter, but I understand it. Still, that's a question of what compelling interests trump and when. If the issue is, is there any model that would justify refusing to sell an in embellished product--say a cupcake--to someone whose potential use--at a same sex wedding, at a tryst with one's heterosexual lover, or whatever--you disapproved of on religious grounds?, I would think that the orthodox model would eminently justify it, unless one thinks there is this sort of compelling interest in mandating equal treatment in all situations. This is also related, of course, to the 1990s litigation over landlord refusals to rent to unmarried couples, which led to different results in different states. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Levinson, Sanford V Sent: Thursday, August 13, 2015 10:58 PM To: Law Religion issues for Law Academics Subject: Re: Colorado Cakeshop decision This is an interesting example. (And I thank Eugene for his typically thoughtful answer.) Can one distinguish between the illegitimate direct use of the product (to kill human beings) and the mere fact that the cupcake will be eaten at a wedding (or trust)? Would we be comfortable if the single grocer in town refused to sell food to someone known to sympathize with the KKK? I assume, though, that the civil rights laws was prohibits discriminating on grounds of race etc., and this should hold for sexual orientation as well. Sandy Sent from my iPhone On Aug 13, 2015, at 7:25 PM, K Chen tzn...@gmail.commailto:tzn...@gmail.com wrote: The various pharmaceutical companies refusing to sell certain drugs to death penalty states come to mind. -Kevin Chen On Thu, Aug 13, 2015 at 7:51 PM, Volokh, Eugene vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote: Sure, why not? Say a grape grower refuses to sell to winemakers, or a pacifist widget maker refuses to sell to military contractors, or a restaurant refuses to deliver to abortion clinics? See Rasmussen v. Glass (Minn. Ct. App. 1993), https://scholar.google.com/scholar_case?case=648897692635049631, which holds that, even if a city ordinance banning discrimination based on creed required restaurants to deliver to abortion clinics, there had to be a religious exemption from such an ordinance. Under the provisions of the Minneapolis ordinance, relator Glass [owner of the Beach Club Deli] has two choices. He can either associate with an entity that engages in conduct which he finds to be morally offensive [delivering to abortion clinics], thus compromising his conscience, or he can refuse and be found guilty of discrimination and fined. Now these have to do with objections to sales to businesses, not sales to individuals - but I can't see why they would be different for RFRA / state Free Exercise Clause purposes. As to how the information would be obtained, I take it that many a business
