RE: Eugene's Blog Post on Liberals and Exemption Rights
Chip: I don’t take kindly to threats. Say what you want to say, or don’t. O’Brien doesn’t apply here, and no one is talking about spray painting anyone’s house. A typical definition of “self-serving” is “Serving one's own interests often in disregard of the truth or the interests of others.” http://www.merriam-webster.com/dictionary/self-serving. You should not have used that derogatory term to refer to Doug or Tom. Wedding photographers try to depict, through their artistic efforts, weddings as being beautiful events. You previously said that the photographer could be required to depict the ceremony as beautiful (and authentic, whatever that may mean). I gave that statement a generous interpretation which I could accept, to the effect that if she could, contrary to my views, be required to photograph the event, then she could not sabotage the depiction of the event, could not set out to make it seem that the parties did not care for each other, and would have to use appropriate technical skills (regular camera equipment, correcting for red-eye, etc.). Now you seem to say that the photographer must make the same effort to create beauty (whether or not successful) that the photographer would make with regard to other ceremonies. That is a demand that the photographer attempt to depict the ceremony (to the extent possible) as a beautiful thing, which violates the photographer’s right not to express the government’s view or anyone else’s view of that which is beautiful. The right to have one’s own beliefs as to the good, the true, and the beautiful – and the right to refrain from expressing anyone else’s beliefs – is a central component of freedom. Mark Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu Sent: Sunday, April 05, 2015 1:58 PM To: Law Religion issues for Law Academics Subject: Re: Eugene's Blog Post on Liberals and Exemption Rights Mark: O'Brien fits any attempt to apply free speech principles to regulation of conduct that has non-communicative elements. You can love the Lord, but you cannot spray paint that on the side of my house. You can despise inter-faith marriage, but (if you are covered by public accommodations law), you cannot refuse to serve an inter-faith couple. Of course the state cannot compel you to create beauty -- most of us are incapable of that. But if you offer to create beauty for the general public, you can be held to an obligation to do so without discrimination. I'm willing to consider taking photographers out from under that entire regime. And still, I get insulted by you? You are being the hothead. Tom and Doug have written letters to a dozen or more state legislators seeking these exemptions or seeking RFRA's -- they have political motivations. I write opposing letters, and I have political motivations. I have seen at least one such letter, which you signed, that contained a factual assertion that I strongly believe is an untruth. I called that to the attention of the signatories, but not to the list. Please don't tempt me further to make that dispute public by being intemperate with me. I hope you all take up the invitation that Jim and I have now proffered to discuss the non-profit situation. The commercial vendor context is just too loaded with polarized views and quick triggers to anger, at least for me, so I'm out of it unless you insult me further. Chip On Sun, Apr 5, 2015 at 4:21 PM, Scarberry, Mark mark.scarbe...@pepperdine.edumailto:mark.scarbe...@pepperdine.edu wrote: I am astonished and dismayed that Chip says the First Amendment allows the State to require a person to create art that depicts beauty. The authoritarian spirit arises: So what he says. Principles that get in the way of a preferred outcome must be discarded. Perhaps that is too harsh; he says that he is not *convinced* that the First Amendment does not provide protection against such compelled speech Chip's accusation that Doug's and Tom's arguments are politically self-serving does not deserve a response, and I hope will be rejected by fair-minded members of this list. Of course Chip's invocation of O'Brien would receive a very poor grade on a student's paper. Does *Chip* have a political agenda here, or is he perhaps just not thinking straight? I hope the latter is the case. Here the photographer is required by the State to express a message; that was not the case in O'Brien. Here the photographer does not refuse to obey the law in order to communicate a message; she refuses to engage in an affirmative act of communicating a State-mandated message because it violates her religious conscience to do so. If an important state interest is sufficient to justify the state in compelling speech, then we are in very deeply authoritarian trouble. The need for commitment to the security of a nation
RE: Eugene's Blog Post on Liberals and Exemption Rights
May I suggest that we return to the decorum that has more often than not characterized this list. The best conclusion I can draw from the various emails is that the issues are more difficult to many of us than they appear to others and that RFRA is the classic example of a statue drawn with some examples in mind that is now being applied to circumstances some people claim is nearly identical to the original paradigm cases and some think is quite different. 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: Eugene's Blog Post on Liberals and Exemption Rights
wrote, a typical definition of “self-serving” is “Serving one's own interests often in disregard of the truth or the interests of others.” So, yes, I accused Doug, Tom, you, and every other signatory of that letter of being self-serving. You wanted Indiana to enact the RFRA, and you wanted to pre-empt criticism that RFRA's may cause harm to others (in Hobby Lobby, an ongoing and continuing harm to many others.) And so you disregarded the truth and the interests of others. I invite others on the list to read your entire letter and make their own determinations of whether my criticism is apt. Chip On Mon, Apr 6, 2015 at 3:06 PM, Scarberry, Mark mark.scarbe...@pepperdine.edu wrote: Chip: I don’t take kindly to threats. Say what you want to say, or don’t. O’Brien doesn’t apply here, and no one is talking about spray painting anyone’s house. A typical definition of “self-serving” is “Serving one's own interests often in disregard of the truth or the interests of others.” http://www.merriam-webster.com/dictionary/self-serving. You should not have used that derogatory term to refer to Doug or Tom. Wedding photographers try to depict, through their artistic efforts, weddings as being beautiful events. You previously said that the photographer could be required to depict the ceremony as beautiful (and authentic, whatever that may mean). I gave that statement a generous interpretation which I could accept, to the effect that if she could, contrary to my views, be required to photograph the event, then she could not sabotage the depiction of the event, could not set out to make it seem that the parties did not care for each other, and would have to use appropriate technical skills (regular camera equipment, correcting for red-eye, etc.). Now you seem to say that the photographer must make the same effort to create beauty (whether or not successful) that the photographer would make with regard to other ceremonies. That is a demand that the photographer attempt to depict the ceremony (to the extent possible) as a beautiful thing, which violates the photographer’s right not to express the government’s view or anyone else’s view of that which is beautiful. The right to have one’s own beliefs as to the good, the true, and the beautiful – and the right to refrain from expressing anyone else’s beliefs – is a central component of freedom. Mark Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Ira Lupu *Sent:* Sunday, April 05, 2015 1:58 PM *To:* Law Religion issues for Law Academics *Subject:* Re: Eugene's Blog Post on Liberals and Exemption Rights Mark: O'Brien fits any attempt to apply free speech principles to regulation of conduct that has non-communicative elements. You can love the Lord, but you cannot spray paint that on the side of my house. You can despise inter-faith marriage, but (if you are covered by public accommodations law), you cannot refuse to serve an inter-faith couple. Of course the state cannot compel you to create beauty -- most of us are incapable of that. But if you offer to create beauty for the general public, you can be held to an obligation to do so without discrimination. I'm willing to consider taking photographers out from under that entire regime. And still, I get insulted by you? You are being the hothead. Tom and Doug have written letters to a dozen or more state legislators seeking these exemptions or seeking RFRA's -- they have political motivations. I write opposing letters, and I have political motivations. I have seen at least one such letter, which you signed, that contained a factual assertion that I strongly believe is an untruth. I called that to the attention of the signatories, but not to the list. Please don't tempt me further to make that dispute public by being intemperate with me. I hope you all take up the invitation that Jim and I have now proffered to discuss the non-profit situation. The commercial vendor context is just too loaded with polarized views and quick triggers to anger, at least for me, so I'm out of it unless you insult me further. Chip On Sun, Apr 5, 2015 at 4:21 PM, Scarberry, Mark mark.scarbe...@pepperdine.edu wrote: I am astonished and dismayed that Chip says the First Amendment allows the State to require a person to create art that depicts beauty. The authoritarian spirit arises: So what he says. Principles that get in the way of a preferred outcome must be discarded. Perhaps that is too harsh; he says that he is not *convinced* that the First Amendment does not provide protection against such compelled speech Chip's accusation that Doug's and Tom's arguments are politically self-serving does not deserve a response, and I hope will be rejected by fair-minded members of this list
FW: Eugene's Blog Post on Liberals and Exemption Rights
The alleged inaccuracy is a transitional issue that does not affect the basic point. And if the Court were to eventually strike down the non-profit solution, which I think quite unlikely, that would not be Hobby Lobby. That would be a decision that goes well beyond Hobby Lobby. The Third, Sixth, Seventh, and DC Circuits have rejected challenges to the non-profit solution. Has any court of appeals struck it down? And given Kennedy’s concurrence in Hobby Lobby, I think it quite unlikely that he would vote to strike it down. I assume that some of the sixteen signers of the letter supporting RFRA would also support the challenges to the non-profit solution; I have not polled them. At least one, and I think two signers, think that Hobby Lobby was wrongly decided but that we accurately described it. Speaking only for myself, I think that Hobby Lobby was rightly decided, and that the objections to the non-profit solution should be rejected, as they have been at the appellate level. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: religionlaw-boun...@lists.ucla.edu mailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu Sent: Monday, April 06, 2015 5:57 PM To: Law Religion issues for Law Academics Subject: Re: Eugene's Blog Post on Liberals and Exemption Rights Mark: I don't take kindly to insults to my legal acumen (Chip's invocation of O'Brien would receive a very poor grade on a student's paper.), or the clarity of my thinking (is he perhaps just not thinking straight?). FWIW, I note that the brief in opposition to certiorari in Elane Photography cited O'Brien, though it did not rely substantially on that case. The New Mexico Supreme Court rejected the compelled speech claim, and SCOTUS denied cert,, so the idea that my view of the case involves some Orwellian tyranny does seem a little far-fetched. Still, as I have said in many posts, reasonable scholars can differ on the compelled speech issues, and exempting photographers from public accommodations law (rather than adjudicating artistic content, case by case, for all vendors) is an idea worth considering. But, most of all, I do my best to speak and write, as a scholar, lawyer, and citizen, with honesty and integrity. Sixteen scholars, including you, Doug Laycock, Tom Berg, and many other members of this list, prepared and signed a letter to the Indiana Senate Judiciary Committee about Indiana's proposed RFRA. The full letter, dated 2/3/15 is available here: http://www.faithlafayette.org/uploads/Church/LetterSupportingReligiousFreedomRestoration.pdf . The letter, anticipating correctly that opponents of the Indiana Bill would rely on the Supreme Court's decision in Hobby Lobby as evidence that RFRA's can cause harm to employees and others, devoted several paragraphs to discussing Hobby Lobby. If Hobby Lobby had been a win-win situation (or even a win -- no loss situation) as the Court had suggested and Doug Laycock had often characterized it, religious liberty would have been protected and no one would have been harmed. But, the story of Hobby Lobby and all the other challenges to the contraceptive mandate, as applied to for-profits, is one of continuing harm to female employees and female dependents (of child-bearing age) of all employees. In these cases, the challenged coverages have not been provided to employees. In some, like Hobby Lobby, the challenged contraceptives included emergency contraceptives and IUD's (the most effective and expensive contraceptive device). In other cases, like Gilardi v. HHS (DC Cir.), the employer challenged coverage of all contraceptives. To the best of my knowledge, the employees of these challengers are without the challenged coverages. (I'm happy to be corrected if I'm wrong about any of these employers.) The Obama Administration has proposed extending the non-profit accommodation to for-profits, but has not made that policy final. When it does, RFRA challenges are likely, and RFRA challenges remain very much alive with respect to that accommodation as applied to non-profits. So thousands of women have been denied contraceptive coverage, partial or complete, by the Hobby Lobby decision and fall-out from it. There is no guarantee they will ever get that coverage, and it won't be retroactive even if they do. They are suffering continuing harm, and it may go on for a long time. Nevertheless, your letter included the following: the key to the Court’s decision was that the owners could be exempted from the regulation without affecting their female employees’ access to contraception. The Court, in other words, found a win-win solution. The owners got to follow their religious beliefs; their female employees got the contraception they needed
RE: Eugene's Blog Post on Liberals and Exemption Rights
In line with Mark's suggestion, let me apologize to Chip for using such strong language to describe what I believe is an error in his analysis. I think I adequately explained why reliance on O'Brien is, in my opinion, clearly wrong in this case. List members can reach their own conclusions. Again let me apologize for using such strong language. I continue to believe that requiring people to create art that sends a state-mandated message is more than troubling. Such a power in the state, if generalized, will eventually lead to a broader authoritarian result that few of us on this list - probably none - will like. I specifically said that Chip would not favor such an authoritarian result. With regard to the letter, I will add only a few comments to Doug's. The Supreme Court did copy the non-profit accommodation in the relevant sense, as did Justice Kennedy in his concurrence: [T]here is an existing, recognized, workable, and already-implemented framework to provide coverage. I think it was clear that the Court was requiring the administration to give the same accommodation to Hobby Lobby and the Greens. It was also clear, I think, that the administration had not yet implemented it, else there would have been no need for the Court to rule against the administration. I would have hoped that there might be more voices from those on the other side of this issue to temper the overstatements made by politicians and commentators with regard to the likely effect of a state RFRA. Mark Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Graber, Mark Sent: Monday, April 06, 2015 3:48 PM To: Law Religion issues for Law Academics Subject: RE: Eugene's Blog Post on Liberals and Exemption Rights May I suggest that we return to the decorum that has more often than not characterized this list. The best conclusion I can draw from the various emails is that the issues are more difficult to many of us than they appear to others and that RFRA is the classic example of a statue drawn with some examples in mind that is now being applied to circumstances some people claim is nearly identical to the original paradigm cases and some think is quite different. 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: FW: Eugene's Blog Post on Liberals and Exemption Rights
Thanks for that clarification, Doug. Could you please offer greater detail about why you think the courts should *reject *the RFRA objections to the nonprofit compromise? On substantial burden grounds? Compelling interest/no less restrictive alternative? On Mon, Apr 6, 2015 at 6:37 PM, Doug Laycock dlayc...@virginia.edu wrote: The alleged inaccuracy is a transitional issue that does not affect the basic point. And if the Court were to eventually strike down the non-profit solution, which I think quite unlikely, that would not be *Hobby Lobby*. That would be a decision that goes well beyond *Hobby Lobby*. The Third, Sixth, Seventh, and DC Circuits have rejected challenges to the non-profit solution. Has any court of appeals struck it down? And given Kennedy’s concurrence in *Hobby Lobby*, I think it quite unlikely that he would vote to strike it down. I assume that some of the sixteen signers of the letter supporting RFRA would also support the challenges to the non-profit solution; I have not polled them. At least one, and I think two signers, think that *Hobby Lobby* was wrongly decided but that we accurately described it. Speaking only for myself, I think that *Hobby Lobby* was rightly decided, and that the objections to the non-profit solution should be rejected, as they have been at the appellate level. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 *From:* religionlaw-boun...@lists.ucla.edu [ mailto:religionlaw-boun...@lists.ucla.edu religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Ira Lupu *Sent:* Monday, April 06, 2015 5:57 PM *To:* Law Religion issues for Law Academics *Subject:* Re: Eugene's Blog Post on Liberals and Exemption Rights Mark: I don't take kindly to insults to my legal acumen (Chip's invocation of O'Brien would receive a very poor grade on a student's paper.), or the clarity of my thinking (is he perhaps just not thinking straight?). FWIW, I note that the brief in opposition to certiorari in Elane Photography cited O'Brien, though it did not rely substantially on that case. The New Mexico Supreme Court rejected the compelled speech claim, and SCOTUS denied cert,, so the idea that my view of the case involves some Orwellian tyranny does seem a little far-fetched. Still, as I have said in many posts, reasonable scholars can differ on the compelled speech issues, and exempting photographers from public accommodations law (rather than adjudicating artistic content, case by case, for all vendors) is an idea worth considering. But, most of all, I do my best to speak and write, as a scholar, lawyer, and citizen, with honesty and integrity. Sixteen scholars, including you, Doug Laycock, Tom Berg, and many other members of this list, prepared and signed a letter to the Indiana Senate Judiciary Committee about Indiana's proposed RFRA. The full letter, dated 2/3/15 is available here: http://www.faithlafayette.org/uploads/Church/LetterSupportingReligiousFreedomRestoration.pdf . The letter, anticipating correctly that opponents of the Indiana Bill would rely on the Supreme Court's decision in Hobby Lobby as evidence that RFRA's can cause harm to employees and others, devoted several paragraphs to discussing Hobby Lobby. If Hobby Lobby had been a win-win situation (or even a win -- no loss situation) as the Court had suggested and Doug Laycock had often characterized it, religious liberty would have been protected and no one would have been harmed. But, the story of Hobby Lobby and all the other challenges to the contraceptive mandate, as applied to for-profits, is one of continuing harm to female employees and female dependents (of child-bearing age) of all employees. In these cases, the challenged coverages have not been provided to employees. In some, like Hobby Lobby, the challenged contraceptives included emergency contraceptives and IUD's (the most effective and expensive contraceptive device). In other cases, like Gilardi v. HHS (DC Cir.), the employer challenged coverage of all contraceptives. To the best of my knowledge, the employees of these challengers are without the challenged coverages. (I'm happy to be corrected if I'm wrong about any of these employers.) The Obama Administration has proposed extending the non-profit accommodation to for-profits, but has not made that policy final. When it does, RFRA challenges are likely, and RFRA challenges remain very much alive with respect to that accommodation as applied to non-profits. So thousands of women have been denied contraceptive coverage, partial or complete, by the Hobby Lobby decision and fall-out from it. There is no guarantee they will ever get that coverage, and it won't be retroactive even if they do. They are suffering continuing harm, and it may go on for a long time. Nevertheless
Re: Eugene's Blog Post on Liberals and Exemption Rights
If one treats the issue as state mandated art (in the absence of conditional funding, at least), I agree with Mark S. Am I correct in assuming that Mark's caveat doesn't apply to the wedding cake, at least if we're talking about off the rack cakes? I assume also this wouldn't apply to the caterers or tent rentals etc. And do we have to decide who is a genuine artist? Imagine a caricaturist who often draws pictures of wedding guests as amusing souvenirs. Would she be able to decline the offer of employment? If all of this intense and acrimonious discussion boils down to a few wedding photographers, I'm inclined to say that we who support same-sex marriage can afford to be magnanimous in what has clearly become our victory. But am I correct in this presumption? Sandy Sent from my iPhone On Apr 6, 2015, at 6:38 PM, Scarberry, Mark mark.scarbe...@pepperdine.edu wrote: In line with Mark's suggestion, let me apologize to Chip for using such strong language to describe what I believe is an error in his analysis. I think I adequately explained why reliance on O'Brien is, in my opinion, clearly wrong in this case. List members can reach their own conclusions. Again let me apologize for using such strong language. I continue to believe that requiring people to create art that sends a state-mandated message is more than troubling. Such a power in the state, if generalized, will eventually lead to a broader authoritarian result that few of us on this list - probably none - will like. I specifically said that Chip would not favor such an authoritarian result. With regard to the letter, I will add only a few comments to Doug's. The Supreme Court did copy the non-profit accommodation in the relevant sense, as did Justice Kennedy in his concurrence: [T]here is an existing, recognized, workable, and already-implemented framework to provide coverage. I think it was clear that the Court was requiring the administration to give the same accommodation to Hobby Lobby and the Greens. It was also clear, I think, that the administration had not yet implemented it, else there would have been no need for the Court to rule against the administration. I would have hoped that there might be more voices from those on the other side of this issue to temper the overstatements made by politicians and commentators with regard to the likely effect of a state RFRA. Mark Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Graber, Mark Sent: Monday, April 06, 2015 3:48 PM To: Law Religion issues for Law Academics Subject: RE: Eugene's Blog Post on Liberals and Exemption Rights May I suggest that we return to the decorum that has more often than not characterized this list. The best conclusion I can draw from the various emails is that the issues are more difficult to many of us than they appear to others and that RFRA is the classic example of a statue drawn with some examples in mind that is now being applied to circumstances some people claim is nearly identical to the original paradigm cases and some think is quite different. 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. ___ 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: Eugene's Blog Post on Liberals and Exemption Rights
. Such a power in the state, if generalized, will eventually lead to a broader authoritarian result that few of us on this list - probably none - will like. I specifically said that Chip would not favor such an authoritarian result. With regard to the letter, I will add only a few comments to Doug's. The Supreme Court did copy the non-profit accommodation in the relevant sense, as did Justice Kennedy in his concurrence: [T]here is an existing, recognized, workable, and already-implemented framework to provide coverage. I think it was clear that the Court was requiring the administration to give the same accommodation to Hobby Lobby and the Greens. It was also clear, I think, that the administration had not yet implemented it, else there would have been no need for the Court to rule against the administration. I would have hoped that there might be more voices from those on the other side of this issue to temper the overstatements made by politicians and commentators with regard to the likely effect of a state RFRA. Mark Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law -Original Message- From: religionlaw-boun...@lists.ucla.edu javascript:; [mailto: religionlaw-boun...@lists.ucla.edu javascript:;] On Behalf Of Graber, Mark Sent: Monday, April 06, 2015 3:48 PM To: Law Religion issues for Law Academics Subject: RE: Eugene's Blog Post on Liberals and Exemption Rights May I suggest that we return to the decorum that has more often than not characterized this list. The best conclusion I can draw from the various emails is that the issues are more difficult to many of us than they appear to others and that RFRA is the classic example of a statue drawn with some examples in mind that is now being applied to circumstances some people claim is nearly identical to the original paradigm cases and some think is quite different. MAG ___ To post, send message to Religionlaw@lists.ucla.edu javascript:; 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 javascript:; 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 javascript:; 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. -- Hillel Y. Levin Associate Professor University of Georgia School of Law 120 Herty Dr. Athens, GA 30602 (678) 641-7452 hle...@uga.edu hillelle...@gmail.com SSRN Author Page: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=466645 ___ 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: Eugene's Blog Post on Liberals and Exemption Rights
reliance on O'Brien is, in my opinion, clearly wrong in this case. List members can reach their own conclusions. Again let me apologize for using such strong language. I continue to believe that requiring people to create art that sends a state-mandated message is more than troubling. Such a power in the state, if generalized, will eventually lead to a broader authoritarian result that few of us on this list - probably none - will like. I specifically said that Chip would not favor such an authoritarian result. With regard to the letter, I will add only a few comments to Doug's. The Supreme Court did copy the non-profit accommodation in the relevant sense, as did Justice Kennedy in his concurrence: [T]here is an existing, recognized, workable, and already-implemented framework to provide coverage. I think it was clear that the Court was requiring the administration to give the same accommodation to Hobby Lobby and the Greens. It was also clear, I think, that the administration had not yet implemented it, else there would have been no need for the Court to rule against the administration. I would have hoped that there might be more voices from those on the other side of this issue to temper the overstatements made by politicians and commentators with regard to the likely effect of a state RFRA. Mark Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law -Original Message- From: religionlaw-boun...@lists.ucla.edujavascript:; [mailto:religionlaw-boun...@lists.ucla.edujavascript:;] On Behalf Of Graber, Mark Sent: Monday, April 06, 2015 3:48 PM To: Law Religion issues for Law Academics Subject: RE: Eugene's Blog Post on Liberals and Exemption Rights May I suggest that we return to the decorum that has more often than not characterized this list. The best conclusion I can draw from the various emails is that the issues are more difficult to many of us than they appear to others and that RFRA is the classic example of a statue drawn with some examples in mind that is now being applied to circumstances some people claim is nearly identical to the original paradigm cases and some think is quite different. MAG ___ To post, send message to Religionlaw@lists.ucla.edujavascript:; 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.edujavascript:; 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.edujavascript:; 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. -- Hillel Y. Levin Associate Professor University of Georgia School of Law 120 Herty Dr. Athens, GA 30602 (678) 641-7452 hle...@uga.edumailto:hle...@uga.edu hillelle...@gmail.commailto:hillelle...@gmail.com SSRN Author Page: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=466645 ___ 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
Re: FW: Eugene's Blog Post on Liberals and Exemption Rights
Fundamentally for the reason Tom Berg gave in a somewhat later post: this claim does not seek merely to exempt the religious objector, but also to prevent anyone else from delivering contraception either. I think the claim of burden is too attenuated to be substantial, but the attempt to prevent others from delivering contraception turns it into more of a clear line and not just an assessment of attenuation. And as I think Posner was the first to point out: the employer sending the notice does not trigger the insurer's obligation to provide contraception. The insurer already has that obligation, in all its plans. The employer's notice triggers only the obligation to remove contraception from the employer's plan, and to provide it outside the plan instead of inside. And I would be quite content with a holding that there is a compelling interest in having somebody provide contraception. That is quite different from a claim of compelling interest in requiring the religious objector to do it. On Mon, 6 Apr 2015 18:53:50 -0400 Marty Lederman lederman.ma...@gmail.com wrote: Thanks for that clarification, Doug. Could you please offer greater detail about why you think the courts should *reject *the RFRA objections to the nonprofit compromise? On substantial burden grounds? Compelling interest/no less restrictive alternative? On Mon, Apr 6, 2015 at 6:37 PM, Doug Laycock dlayc...@virginia.edu wrote: The alleged inaccuracy is a transitional issue that does not affect the basic point. And if the Court were to eventually strike down the non-profit solution, which I think quite unlikely, that would not be *Hobby Lobby*. That would be a decision that goes well beyond *Hobby Lobby*. The Third, Sixth, Seventh, and DC Circuits have rejected challenges to the non-profit solution. Has any court of appeals struck it down? And given Kennedy’s concurrence in *Hobby Lobby*, I think it quite unlikely that he would vote to strike it down. I assume that some of the sixteen signers of the letter supporting RFRA would also support the challenges to the non-profit solution; I have not polled them. At least one, and I think two signers, think that *Hobby Lobby* was wrongly decided but that we accurately described it. Speaking only for myself, I think that *Hobby Lobby* was rightly decided, and that the objections to the non-profit solution should be rejected, as they have been at the appellate level. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 ___ 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: FW: Eugene's Blog Post on Liberals and Exemption Rights
I accept Mark's apology. His point about RFRA critics overstating the potential downside is precisely met by commenting about how RFRA's friends tend to understate the potential harmful effects, which include encouraging discrimination as much as actually legalizing it.. We all know that it is impossible to predict, with 100% confidence, future RFRA interpretations. Or, as I told a Wa Po reporter, RFRA's are a Rorschach test, on which everyone can project their hopes and fears, and cannot be proven wrong until the courts resolve particular questions (and even the resolutions are fact-specific, so we don't learn much from RFRA judicial precedents.). A version of that shows up in this on-line story: http://www.washingtonpost.com/blogs/govbeat/wp/2015/04/06/what-everybody-missed-during-the-fight-over-religious-freedom-laws-this-year/ Doug and Tom just underline my point in their posts about the legality of the accommodation. They would both draw the line between Hobby Lobby (a RFRA violation) and Notre Dame (no violation). But somewhere 0 and 9 Justices don't agree with that line; even AMK may rule in favor of Notre Dame. The other 8 4-4) might say Hobby Lobby and Notre Dame should both win, or both lose. Perhaps no Justice would draw the line where Tom and Doug draw it. This is among the reasons why, in the Symposium that Tom references, I say religious exemptions under a generic regime, with vague standards, are a dubious enterprise. http://harvardjlg.com/wp-content/uploads/2015/01/Hobby-Lobby-and-the-Dubious-Enterprise-of-Religious-Exemptions.pdf. I also say that the Hobby Lobby principle will wither in its strength over time, the way Sherbert-Yoder-Thomas did on the path to Emp. Div. v. Smith. But who can possibly be sure about such things? So it's fine to write to legislators that a RFRA might produce bad results, though we hope it won't; or that RFRA will protect only small wedding vendors, and only then when there are adequate alternatives. Those are hedged predictions, not falsehoods about facts on the ground. On Mon, Apr 6, 2015 at 8:59 PM, Douglas Laycock dlayc...@virginia.edu wrote: Fundamentally for the reason Tom Berg gave in a somewhat later post: this claim does not seek merely to exempt the religious objector, but also to prevent anyone else from delivering contraception either. I think the claim of burden is too attenuated to be substantial, but the attempt to prevent others from delivering contraception turns it into more of a clear line and not just an assessment of attenuation. And as I think Posner was the first to point out: the employer sending the notice does not trigger the insurer's obligation to provide contraception. The insurer already has that obligation, in all its plans. The employer's notice triggers only the obligation to remove contraception from the employer's plan, and to provide it outside the plan instead of inside. And I would be quite content with a holding that there is a compelling interest in having somebody provide contraception. That is quite different from a claim of compelling interest in requiring the religious objector to do it. On Mon, 6 Apr 2015 18:53:50 -0400 Marty Lederman lederman.ma...@gmail.com wrote: Thanks for that clarification, Doug. Could you please offer greater detail about why you think the courts should *reject *the RFRA objections to the nonprofit compromise? On substantial burden grounds? Compelling interest/no less restrictive alternative? On Mon, Apr 6, 2015 at 6:37 PM, Doug Laycock dlayc...@virginia.edu wrote: The alleged inaccuracy is a transitional issue that does not affect the basic point. And if the Court were to eventually strike down the non-profit solution, which I think quite unlikely, that would not be *Hobby Lobby*. That would be a decision that goes well beyond *Hobby Lobby*. The Third, Sixth, Seventh, and DC Circuits have rejected challenges to the non-profit solution. Has any court of appeals struck it down? And given Kennedy’s concurrence in *Hobby Lobby*, I think it quite unlikely that he would vote to strike it down. I assume that some of the sixteen signers of the letter supporting RFRA would also support the challenges to the non-profit solution; I have not polled them. At least one, and I think two signers, think that *Hobby Lobby* was wrongly decided but that we accurately described it. Speaking only for myself, I think that *Hobby Lobby* was rightly decided, and that the objections to the non-profit solution should be rejected, as they have been at the appellate level. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see
Re: Eugene's Blog Post on Liberals and Exemption Rights
Mark: O'Brien fits any attempt to apply free speech principles to regulation of conduct that has non-communicative elements. You can love the Lord, but you cannot spray paint that on the side of my house. You can despise inter-faith marriage, but (if you are covered by public accommodations law), you cannot refuse to serve an inter-faith couple. Of course the state cannot compel you to create beauty -- most of us are incapable of that. But if you offer to create beauty for the general public, you can be held to an obligation to do so without discrimination. I'm willing to consider taking photographers out from under that entire regime. And still, I get insulted by you? You are being the hothead. Tom and Doug have written letters to a dozen or more state legislators seeking these exemptions or seeking RFRA's -- they have political motivations. I write opposing letters, and I have political motivations. I have seen at least one such letter, which you signed, that contained a factual assertion that I strongly believe is an untruth. I called that to the attention of the signatories, but not to the list. Please don't tempt me further to make that dispute public by being intemperate with me. I hope you all take up the invitation that Jim and I have now proffered to discuss the non-profit situation. The commercial vendor context is just too loaded with polarized views and quick triggers to anger, at least for me, so I'm out of it unless you insult me further. Chip On Sun, Apr 5, 2015 at 4:21 PM, Scarberry, Mark mark.scarbe...@pepperdine.edu wrote: I am astonished and dismayed that Chip says the First Amendment allows the State to require a person to create art that depicts beauty. The authoritarian spirit arises: So what he says. Principles that get in the way of a preferred outcome must be discarded. Perhaps that is too harsh; he says that he is not *convinced* that the First Amendment does not provide protection against such compelled speech Chip's accusation that Doug's and Tom's arguments are politically self-serving does not deserve a response, and I hope will be rejected by fair-minded members of this list. Of course Chip's invocation of O'Brien would receive a very poor grade on a student's paper. Does *Chip* have a political agenda here, or is he perhaps just not thinking straight? I hope the latter is the case. Here the photographer is required by the State to express a message; that was not the case in O'Brien. Here the photographer does not refuse to obey the law in order to communicate a message; she refuses to engage in an affirmative act of communicating a State-mandated message because it violates her religious conscience to do so. If an important state interest is sufficient to justify the state in compelling speech, then we are in very deeply authoritarian trouble. The need for commitment to the security of a nation is certainly an important state interest. Perhaps, then, film-makers can be required to create films celebrating the State, portraying the nation as just and good, and portraying its enemies as evil; Oceania and Eurasia. Should I be comforted that Chip finds regulation of the content of films and newspapers to be much more troubling than regulation of food presentations? Perhaps authoritarians who regulate media content in the future (fairness doctrine?) will be troubled when they do so, but freedom of expression must not stand in the way of accomplishing the State's goals. Mark Mark S. Scarberry Pepperdine University School of Law Sent from my iPad On Apr 5, 2015, at 9:38 AM, Doug Laycock dlayc...@virginia.edu wrote: Chip says: “(Cf. the doctors who refuse to provide infertility treatments to lesbian couples; those are real cases, not scare hypotheticals.)” Well, they’re real cases in the sense that at least one has been litigated. It remains the case that the religious objector has never won such a case, even when the treatment was offered by a different doc in the same medical practice. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 *From:* religionlaw-boun...@lists.ucla.edu [ mailto:religionlaw-boun...@lists.ucla.edu religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Ira Lupu *Sent:* Sunday, April 05, 2015 10:51 AM *To:* Law Religion issues for Law Academics *Subject:* Re: Eugene's Blog Post on Liberals and Exemption Rights Mark and I agree on fewer legal premises than he thinks. Yes, the wedding photographer creates art. And I'm sure that the best wedding caterers, planners, florists, and bakers also have artistic elements in their work. So what? Davey O'Brien created political theater when he burned his draft card; his actions could be regulated because they threatened legitimate state interests (in an orderly selective service system), independent
Re: Eugene's Blog Post on Liberals and Exemption Rights
comers doesn't raise compelled speech issues. He has much less need to express his political and social views in the restaurant to avoid becoming the state's mouthpiece, because he isn't being required to say anything that would appear to be his own speech. (He could be required to post a sign saying that the state requires all customers to be served, without respect to race etc., but that would identify the message as coming from the state.) Nor is Ollie required to be involved personally in the intimate lives of his customers, the way a wedding photographer (or wedding planner) ordinarily is with the couple. That raises separate free exercise issues in the wedding photography case for a photographer who believes it is wrong (as a matter of conventional religion or its equivalent per the Seeger case) to facilitate a same-sex marriage. And perhaps it creates a hybrid rights situation per Smith. Of course it's also easier for the state to tell whether Ollie burns the food or includes noxious ingredients than it is for the state to determine whether a photographer has sufficiently expressed the state's (or the clients') views as to beauty and truth. That implicates not only practical concerns but also the degree of vagueness of the law and the degree of discretion given to officials who would police the photographer's use of her First Amendment rights. Mark Mark S. Scarberry Pepperdine University School of Law Sent from my iPad On Apr 1, 2015, at 6:03 PM, Ira Lupu icl...@law.gwu.edu wrote: No, I don't think that's OK. But that's a real compelled speech problem, where the student must first utter the Pledge. The wedding vendors do not have to say anything approving about the marriage, or affirm its validity in the eyes of the state or God. They do have to provide goods and services; in the photographer's case, the services include making the wedding look authentic and beautiful, not ugly or false. So the compelled speech concern seems much weaker to me than in Barnette. On Wed, Apr 1, 2015 at 8:53 PM, Scarberry, Mark mark.scarbe...@pepperdine.edu wrote: Apart from the other points with which I disagree: Wow, Chip. You really think it’s OK to make the student recite the Pledge, as long as the student is permitted at the end to say “I don’t mean it”? Can I be required to burn a pinch of incense to the emperor as long as I am permitted afterwards to say that the emperor isn’t really a god? Mark Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Ira Lupu *Sent:* Wednesday, April 01, 2015 5:32 PM *To:* Law Religion issues for Law Academics *Subject:* Re: Eugene's Blog Post on Liberals and Exemption Rights If the compelled speech argument is constitutionally sufficient, permission to post a disclaiming sign may solve the problem. (It would be like letting a student say aloud I don't mean it after forcing her to recite the Pledge of Allegiance.) [snip] ___ 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. -- Ira C. Lupu F. Elwood Eleanor Davis Professor of Law, Emeritus George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 Co-author (with Professor Robert Tuttle) of Secular Government, Religious People ( Wm. B. Eerdmans Pub. Co., 2014)) My SSRN papers are here: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Eugene's Blog Post on Liberals and Exemption Rights
Chip says: “(Cf. the doctors who refuse to provide infertility treatments to lesbian couples; those are real cases, not scare hypotheticals.)” Well, they’re real cases in the sense that at least one has been litigated. It remains the case that the religious objector has never won such a case, even when the treatment was offered by a different doc in the same medical practice. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu Sent: Sunday, April 05, 2015 10:51 AM To: Law Religion issues for Law Academics Subject: Re: Eugene's Blog Post on Liberals and Exemption Rights Mark and I agree on fewer legal premises than he thinks. Yes, the wedding photographer creates art. And I'm sure that the best wedding caterers, planners, florists, and bakers also have artistic elements in their work. So what? Davey O'Brien created political theater when he burned his draft card; his actions could be regulated because they threatened legitimate state interests (in an orderly selective service system), independent of their communicative content. I think the concept of hybrid rights is made up hooey. I don't draw lines based on art vs. non-art. I might draw lines, for free speech purposes, based on the communicative character of the business covered by public accommodations law. Regulating the content of newspapers and films seems much more troubling than regulating the content of food presentations in restaurants. So I am tempted, but only a little, by Jim Oleske's suggestion on this list that certain predominantly communicative trades -- photographer, videographer, free lance writer -- be removed from the coverage of public accommodations law entirely. I am not at all convinced that the First A doctrines of compelled speech require this, but I can see how First A expressive values support this move, if the coverage is narrow. I strongly disfavor covering these or any other trades with public accommodations laws while simultaneously granting exemptions to religious objectors, either explicitly or through a RFRA balancing test. The assurances that Tom Berg and Doug Laycock give, that the only successful RFRA defenses to discrimination will be in same sex wedding cases, are politically self-serving, totally unreliable, and objectionable on their own terms. If weddings get special treatment, then anniversary parties, children's birthdays, etc. may follow. (Cf. the doctors who refuse to provide infertility treatments to lesbian couples; those are real cases, not scare hypotheticals.) And who among us knows when other religious exemptions will be sought and gained -- re: Muslims, Jews, Hispanics, immigrants from certain places, etc.? Today's intense culture war will fade, and tomorrow will bring a new one. The hardest questions for me, and I don't see a whole lot of discussion on the list about these, are the exemptions for religiously affiliated non-profits. Are they all ministries, to be left unregulated? When government funded? When government licensed? These are not merely speculative questions -- see the Indiana RFRA fix, and see http://www.irfalliance.org/hidden-restriction-on-faith-based-organizations-in-vawa-reauthorization/ . On Thu, Apr 2, 2015 at 2:04 PM, Scarberry, Mark mark.scarbe...@pepperdine.edu mailto:mark.scarbe...@pepperdine.edu wrote: Let's see what Chip and I seem to agree on, and then I'll express my strong disagreement on one point. We seem to agree that the wedding photographer creates art. It is hard to see how visual portrayals of an event can convey a message of beauty and authenticity and not be called art. Indeed it would seem to be celebratory art, as I've been saying all along, if it deals with beauty and authenticity. We seem to agree that the wedding photographer (if she can be required to photograph the same sex ceremony) cannot (as a colleague put it off list) sabotage the photography, by intentionally portraying the ceremony as ugly or false (in the sense that the two persons are insincere or that the ceremony doesn't have whatever legal effect the law provides). I suppose I'd go further and say that the photographer has to use the same high-quality equipment that she normally would use, has to take photos from the normal angles, and has to fix red-eye problems and similar problems before sending the proofs to the clients for their selection. I can't agree that the photographer can be required to create visual works that portray the ceremony as beautiful (or authentic, if that means posing the couple so as to bring out their sincere commitment to each other). The state may be able to require her to photograph the ceremony, but it can't require
Re: Eugene's Blog Post on Liberals and Exemption Rights
The benefits of clarity in regulation are that it obviates the need for litigation and it allows for compromise among disparate and often competing interests as well as allowing for compromise of competing values. If a law specifically exempts a well-defined business or entity, then the very real costs of litigation to enforce rights either by the person excluded or by the business seeking to exclude are avoided. If a law specifically draws a line and includes specific examples or a limited exclusive list, then to that extent people can understand and predict results without resorting to expensive litigation and broad-brush misinterpretation (willful or otherwise). A law exempting from public accommodation laws cake bakers, photographers/videographers, and florists would be clear (in many cases at least), but would cut too broadly — allowing race discrimination, gender discrimination, religious discrimination, and so on. If the carve-out were only for one type of discrimination — sexual orientation — and only for that would the public accommodation law not apply, again one might have relative clarity and compromise, but, of course, at a social justice cost for some but with some accommodation of some who wish to discriminate on that basis. Enter religious freedom acts (nothing restorative about them, is there, so they should be RFAs, not RFRAs). Now it is all up in the air. A broad exemption is enacted with no clarity, no predictability, and endless opportunity for mischief from both sides and endless possibilities for interpretation. And all the comcomitant social costs and litigation costs. The state RFA approach allows the public accommodation to discriminate on the basis of sexual orientation and puts the burden on the victim to sue — which is time consuming and taxing financially, socially, and emotionally. And it then puts the business owner to having to defend the action on a fact-specific, individual-specific basis of convincing a judge and jury that the actions were justified by a religious exercise being substantially burdened. Well, Hobby Lobby made this easy — just claim complicity with evil as your burden and you’re home. Then the burden shifts to the victim — and not the state — to show the compelling state interest and least restrictive alternative. So would now the state need to be impleded as a necessary party for complete adjudication? Or would it intervene? The Indiana sort of RFA carve-out is fraught with problems that a specific provision is not. If the desire is to discriminate against someone on the basis of their sexual orientation in some businesses, carve out those businesses. Most will not discriminate either because they don’t feel the desire to do so or because they see little point in excluding 10% of their possible business clients. It takes religion out of the equation. But to some, this paints too broadly and so some who migh accept some carve out push it back to religiously-based motivations — but that creates all the problems noted above. In the end, this is another manifestation of the fight between liberty as license and equality as inclusion. Equality and liberty can often be mutually supportive at least for some — requiring non-discrimination in employment on the basis of race is premised on equality — but makes the historically excluded group more included and thus able to exercise liberty more — they have more options, more choices, more liberty. But a cost of any such regulation is a reduction in choice and liberty for some. Same is true for zoning ordinances, environmental regulations, OSHA, and so much more — they all limit the liberty of the person who must comply with them. Hence the concept of “ordered liberty.” Liberty does not equal license. And never has. The fact that many people dislike the change wrought by the Reconstruction Amendments to bring equality into the constitution at some cost to liberty to discriminate against historically excluded and marginalized groups does not invalidate the dramatic change those amendments brought about. Including those who are LGBT favors the equality principle and gives them more liberty. But it does cost some liberty to those who would continue to exclude them — for any reason, including religious beliefs. Do you favor equality as inclusion or liberty as license? Or some compromise, uncomfortable as they can be, between the two? As I argued about 20 years ago, we should recognize the legitimacy of the restrictions on religious exercise as well as the legitimacy of claims premised on religious exercise and reach principled compromises whenever possible. And when that doesn’t work — sometimes the principles are not sufficient to reach a principled compromise, unless the principle itself is compromise between two first-order concepts like liberty and equality, then simple pragmatism should rule. But such is not the world we
Re: Eugene's Blog Post on Liberals and Exemption Rights
When asked about the Indiana RFRA on Meet the Press today, Gov. Jindal said the following: Let's remember what this debate was originally all about. This is about business owners that don't wanna have to choose between their Christian faith, their sincerely held religious beliefs, and being able to operate their businesses. Now, what they don't want is the government to force them to participate in wedding ceremonies that contradict their beliefs. http://www.nola.com/politics/index.ssf/2015/04/bobby_jindal_religious_freedom.html Longtime advocates of RFRAs would understandably object to this characterization as ignoring all the many less-controversial religious liberty claims that originally motivated the push for RFRAs, but in terms of the political impetus for the new state RFRAs, Gov. Jindal is undoubtedly correct as to what the debate is all about. Accordingly, it seems appropriate that the coming debate in Louisiana won't be about a new RFRA or new RFRA amendment (like those considered in Indiana and Arizona) that would leave the answer to the wedding vendor cases unclear and subject to future judicial balancing. Rather, the coming debate in Louisiana will be over proposed legislation (introduced Friday) that would clearly give businesses the right to refuse marriage-related services and benefits to same-sex couples. Bill: http://www.nola.com/politics/index.ssf/2015/04/louisiana_religious_freedom_bi.html Story about the Bill (in which Doug is quoted): http://www.nola.com/politics/index.ssf/2015/04/religious_freedom_fight_headed.html The Louisiana bill would, in Steve's words below, have the benefits of clarity, but it would likely cut too broadly even for many who support carve-outs from antidiscrimination laws in the same-sex marriage context, as the language of the proposal would allow vendors to refuse service to interracial couples, interfaith couples, couples involving divorced individuals, or any other type of couple to which there is a religious objection. The legislation closely mirrors the proposed Marriage and Religious Freedom Act that was introduced in the last Congress and was sponsored by 103 Representatives and 17 Senators. It is also similar to an exemption proposal first offered by a group of law professors in 2009, although that group subsequently modified its proposal to limit it to small businesses and include a hardship exemption that would require services to be provided when no other business was available to provide them. The group has also suggested that states could make a race exception to the religious exemption if they are concerned about the exemption allowing discrimination against interracial couples. (The Louisiana proposal, like its federal counterpart, begins with the following finding: Leading legal scholars concur that conflicts between religious liberty and changing ideas about the institution of marriage are very real, rapidly increasing, and should be addressed by legislation.) (note: the federal version explicitly says same-sex marriage in this finding, rather than changing ideas about the institution of marriage). I have argued that exemptions designed to allow businesses to refuse services and benefits to same-sex couples, such as the exemption proposed in Louisiana (and previously, in Oklahoma, Oregon, Washington, Minnesota, Kansas, South Dakota, Tennessee, and the U.S. Congress), would be vulnerable to challenge under the Equal Protection Clause. Others have argued that they would be vulnerable to Establishment Clause challenge. I suspect both arguments, however, would be strongly disputed by proponents of the exemptions. - Jim On Sun, Apr 5, 2015 at 10:45 AM, Steven Jamar stevenja...@gmail.com wrote: The benefits of clarity in regulation are that it obviates the need for litigation and it allows for compromise among disparate and often competing interests as well as allowing for compromise of competing values. If a law specifically exempts a well-defined business or entity, then the very real costs of litigation to enforce rights either by the person excluded or by the business seeking to exclude are avoided. If a law specifically draws a line and includes specific examples or a limited exclusive list, then to that extent people can understand and predict results without resorting to expensive litigation and broad-brush misinterpretation (willful or otherwise). A law exempting from public accommodation laws cake bakers, photographers/videographers, and florists would be clear (in many cases at least), but would cut too broadly — allowing race discrimination, gender discrimination, religious discrimination, and so on. If the carve-out were only for one type of discrimination — sexual orientation — and only for that would the public accommodation law not apply, again one might have relative clarity and compromise, but, of course, at a social justice cost for some but with some accommodation of some who wish to discriminate
Re: Eugene's Blog Post on Liberals and Exemption Rights
And who among us knows when other religious exemptions will be sought and gained -- re: Muslims, Jews, Hispanics, immigrants from certain places, etc.? Today's intense culture war will fade, and tomorrow will bring a new one. Well yeah. That's a fine argument going the other way too. *Today* RFRA is a fight between a conservative religiosocial movement that is simultaneously powerful and waning, simultaneously honored and roundly hated versus a band of sympathetic minorities and their comfortably righteous allies. *Today *the conservative religiosocial movement is in favor of a vision of religious liberty that serves their momentary reactionary goals. *Today* limited-use public forums are used by locally powerful religions to spray religious patina on the state. *Today* the vagaries and impossibilities in religious liberty law cast a shadow that favors discrimination. But the law isn't (just) about today any more than appellate decisions are (just) about the case in front of them. *Tomorrow* that limited-use public forum will allow a Muslim student to speak the pledge of allegiance in Arabic and the day after that a dozen more Muslim students will do the same. (Already nearly happened in upstate new york) *Tomorrow* it will be the Quaker failing to resist the draft under a RFRA claim and the day after that it will be that Quaker on national TV making a passionate case for pacifism in a country convinced that war is the only option. *Tomorrow* it will be the social issue we're all blinkered on and can't possibly anticipate, and a lone unpopular voice offending and protecting us all. Or maybe it won't, but it's the only shot we've got. Power will always find a way to take advantage of any system. Power will always make things unequal. Power will always discard simple pragmatism for maximizing first-order principles. No conceivable system of laws will rescue a morally acceptable number of minorities from the tyranny of the majority, because the morally acceptable number is zero. History has proved that RFRA was a ticking time bomb, but history is also rife with repeated examples of other ticking time bomb enactments with no clarity, no predictability, and endless opportunity for mischief from both sides and endless possibilities for interpretation being the only thing that held things together. Say, The Bill of Rights for example. The Fourteenth Amendment. The ICC. Probably how most of us have to keep the peace at the dinner table. On some level, we're just going to have to accept this too shall pass and leave tools so someone, somewhere will be able to make things better. And that's a fight as much about tea-reading as it is noble first-order principles. Kevin Chen On Sun, Apr 5, 2015 at 1:45 PM, Steven Jamar stevenja...@gmail.com wrote: The benefits of clarity in regulation are that it obviates the need for litigation and it allows for compromise among disparate and often competing interests as well as allowing for compromise of competing values. If a law specifically exempts a well-defined business or entity, then the very real costs of litigation to enforce rights either by the person excluded or by the business seeking to exclude are avoided. If a law specifically draws a line and includes specific examples or a limited exclusive list, then to that extent people can understand and predict results without resorting to expensive litigation and broad-brush misinterpretation (willful or otherwise). A law exempting from public accommodation laws cake bakers, photographers/videographers, and florists would be clear (in many cases at least), but would cut too broadly — allowing race discrimination, gender discrimination, religious discrimination, and so on. If the carve-out were only for one type of discrimination — sexual orientation — and only for that would the public accommodation law not apply, again one might have relative clarity and compromise, but, of course, at a social justice cost for some but with some accommodation of some who wish to discriminate on that basis. Enter religious freedom acts (nothing restorative about them, is there, so they should be RFAs, not RFRAs). Now it is all up in the air. A broad exemption is enacted with no clarity, no predictability, and endless opportunity for mischief from both sides and endless possibilities for interpretation. And all the comcomitant social costs and litigation costs. The state RFA approach allows the public accommodation to discriminate on the basis of sexual orientation and puts the burden on the victim to sue — which is time consuming and taxing financially, socially, and emotionally. And it then puts the business owner to having to defend the action on a fact-specific, individual-specific basis of convincing a judge and jury that the actions were justified by a religious exercise being substantially burdened. Well, Hobby Lobby made this easy — just claim complicity with evil as your burden and
Re: Eugene's Blog Post on Liberals and Exemption Rights
I am astonished and dismayed that Chip says the First Amendment allows the State to require a person to create art that depicts beauty. The authoritarian spirit arises: So what he says. Principles that get in the way of a preferred outcome must be discarded. Perhaps that is too harsh; he says that he is not *convinced* that the First Amendment does not provide protection against such compelled speech Chip's accusation that Doug's and Tom's arguments are politically self-serving does not deserve a response, and I hope will be rejected by fair-minded members of this list. Of course Chip's invocation of O'Brien would receive a very poor grade on a student's paper. Does *Chip* have a political agenda here, or is he perhaps just not thinking straight? I hope the latter is the case. Here the photographer is required by the State to express a message; that was not the case in O'Brien. Here the photographer does not refuse to obey the law in order to communicate a message; she refuses to engage in an affirmative act of communicating a State-mandated message because it violates her religious conscience to do so. If an important state interest is sufficient to justify the state in compelling speech, then we are in very deeply authoritarian trouble. The need for commitment to the security of a nation is certainly an important state interest. Perhaps, then, film-makers can be required to create films celebrating the State, portraying the nation as just and good, and portraying its enemies as evil; Oceania and Eurasia. Should I be comforted that Chip finds regulation of the content of films and newspapers to be much more troubling than regulation of food presentations? Perhaps authoritarians who regulate media content in the future (fairness doctrine?) will be troubled when they do so, but freedom of expression must not stand in the way of accomplishing the State's goals. Mark Mark S. Scarberry Pepperdine University School of Law Sent from my iPad On Apr 5, 2015, at 9:38 AM, Doug Laycock dlayc...@virginia.edumailto:dlayc...@virginia.edu wrote: Chip says: “(Cf. the doctors who refuse to provide infertility treatments to lesbian couples; those are real cases, not scare hypotheticals.)” Well, they’re real cases in the sense that at least one has been litigated. It remains the case that the religious objector has never won such a case, even when the treatment was offered by a different doc in the same medical practice. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu Sent: Sunday, April 05, 2015 10:51 AM To: Law Religion issues for Law Academics Subject: Re: Eugene's Blog Post on Liberals and Exemption Rights Mark and I agree on fewer legal premises than he thinks. Yes, the wedding photographer creates art. And I'm sure that the best wedding caterers, planners, florists, and bakers also have artistic elements in their work. So what? Davey O'Brien created political theater when he burned his draft card; his actions could be regulated because they threatened legitimate state interests (in an orderly selective service system), independent of their communicative content. I think the concept of hybrid rights is made up hooey. I don't draw lines based on art vs. non-art. I might draw lines, for free speech purposes, based on the communicative character of the business covered by public accommodations law. Regulating the content of newspapers and films seems much more troubling than regulating the content of food presentations in restaurants. So I am tempted, but only a little, by Jim Oleske's suggestion on this list that certain predominantly communicative trades -- photographer, videographer, free lance writer -- be removed from the coverage of public accommodations law entirely. I am not at all convinced that the First A doctrines of compelled speech require this, but I can see how First A expressive values support this move, if the coverage is narrow. I strongly disfavor covering these or any other trades with public accommodations laws while simultaneously granting exemptions to religious objectors, either explicitly or through a RFRA balancing test. The assurances that Tom Berg and Doug Laycock give, that the only successful RFRA defenses to discrimination will be in same sex wedding cases, are politically self-serving, totally unreliable, and objectionable on their own terms. If weddings get special treatment, then anniversary parties, children's birthdays, etc. may follow. (Cf. the doctors who refuse to provide infertility treatments to lesbian couples; those are real cases, not scare hypotheticals.) And who among us knows when other religious exemptions will be sought and gained -- re
Signing off for a while -- RE: Eugene's Blog Post on Liberals and Exemption Rights
I have a lot to do, what with the holidays and my day job, so I’ll be signing off for a while. I’ll keep one eye on any further posts in case Chip responds to mine (see below), though of course no one has any obligation to respond to anyone else’s post. May the holidays be meaningful, for those of you who are celebrating Passover or Easter (or both); of course, for many Christians tonight is not so joyous. It is particularly somber in light of the murder of almost 150 Christian students in Kenya by Al-Shabaab – murdered specifically because they were Christians. Sometimes I think we strain at gnats, and don’t much notice the camel in much of the rest of the world (Syria, Iraq, and many other places), where there is wholesale violent persecution of Christians and some people of other faiths, like the Yazidi and Bahai, because of their beliefs. Mark Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law From: Scarberry, Mark Sent: Thursday, April 02, 2015 11:04 AM To: Law Religion issues for Law Academics Subject: Re: Eugene's Blog Post on Liberals and Exemption Rights Let's see what Chip and I seem to agree on, and then I'll express my strong disagreement on one point. We seem to agree that the wedding photographer creates art. It is hard to see how visual portrayals of an event can convey a message of beauty and authenticity and not be called art. Indeed it would seem to be celebratory art, as I've been saying all along, if it deals with beauty and authenticity. We seem to agree that the wedding photographer (if she can be required to photograph the same sex ceremony) cannot (as a colleague put it off list) sabotage the photography, by intentionally portraying the ceremony as ugly or false (in the sense that the two persons are insincere or that the ceremony doesn't have whatever legal effect the law provides). I suppose I'd go further and say that the photographer has to use the same high-quality equipment that she normally would use, has to take photos from the normal angles, and has to fix red-eye problems and similar problems before sending the proofs to the clients for their selection. I can't agree that the photographer can be required to create visual works that portray the ceremony as beautiful (or authentic, if that means posing the couple so as to bring out their sincere commitment to each other). The state may be able to require her to photograph the ceremony, but it can't require her to express the view that the ceremony is beautiful. The state has no business deciding what is beautiful or requiring people to create expressive works that carry a message of beauty, any more than it can require people to express the view that the state is good and the laws just. The state may not prescribe orthodoxy as to the beautiful, the true, or the good; any other view takes us a step on the road to tyranny (or, in the extreme, to totalitarianism) which Chip obviously would not endorse). With regard to Ollie's Barbecue, we may disagree about the ways in which Ollie may express his political and social views, but surely he can't intentionally spoil the food, just as the photographer can't intentionally spoil the photos. A key difference for other purposes is that Ollie is not in the business of creating expressive works; the requirement that he sell food of the same quality to all comers doesn't raise compelled speech issues. He has much less need to express his political and social views in the restaurant to avoid becoming the state's mouthpiece, because he isn't being required to say anything that would appear to be his own speech. (He could be required to post a sign saying that the state requires all customers to be served, without respect to race etc., but that would identify the message as coming from the state.) Nor is Ollie required to be involved personally in the intimate lives of his customers, the way a wedding photographer (or wedding planner) ordinarily is with the couple. That raises separate free exercise issues in the wedding photography case for a photographer who believes it is wrong (as a matter of conventional religion or its equivalent per the Seeger case) to facilitate a same-sex marriage. And perhaps it creates a hybrid rights situation per Smith. Of course it's also easier for the state to tell whether Ollie burns the food or includes noxious ingredients than it is for the state to determine whether a photographer has sufficiently expressed the state's (or the clients') views as to beauty and truth. That implicates not only practical concerns but also the degree of vagueness of the law and the degree of discretion given to officials who would police the photographer's use of her First Amendment rights. Mark Mark S. Scarberry Pepperdine University School of Law Sent from my iPad On Apr 1, 2015, at 6:03 PM, Ira Lupu icl...@law.gwu.edumailto:icl...@law.gwu.edu wrote: No, I don't think that's OK
Re: Eugene's Blog Post on Liberals and Exemption Rights
with other citizens’ religious observance deserves respect. Standing alone, it would often be dispositive. Where we disagree, I think, is that in religious exemption cases I see two principles here that deserve our respect. The one I just quoted above and the principle that the majority and government should not prohibit or burden another citizen's religious observance. I think, you can tell me if I'm wrong, that you would agree that this principle standing alone also deserves respect. If there is no harm to third parties, you would support religious exemptions. Then the question becomes what do we do when these two principles are in conflict with each other. I don't think either trumps the other all of the time. I think as the harm to third parties increases, the principle that citizens should not have to bear the costs associated with the other citizen's religious observance outweighs the religious liberty principle. I understand you to be saying that the religious liberty principle is always trumped in these cases without regard to the magnitude of the costs involved. There are a lot of religious accommodations that result in third parties incurring some cost. A RLUIPA land use accommodation might result in some neighboring homeowner, business or farmer incurring some diminution of value in their property. A public university accommodation shifting move-in day so that it doesn't fall on the Jewish High Holy days may require a shift in the academic calendar that inconveniences the travel plans of specific faculty, students and their families. A court accommodating the religious obligations of a religious attorney or witness may delay or otherwise increase the cost of litigation. A law banning male circumcision exempts Jewish families from its requirements. Does the existence of harm to third parties in these situations and others require the invalidation of all of these accommodations without regard to the magnitude of the harm borne by third parties? Alan -- *From:* religionlaw-boun...@lists.ucla.edu religionlaw-boun...@lists.ucla.edu on behalf of Nelson Tebbe nelson.te...@brooklaw.edu *Sent:* Wednesday, April 1, 2015 1:38 PM *To:* Law Religion issues for Law Academics *Subject:* Re: Eugene's Blog Post on Liberals and Exemption Rights Alan, I can’t speak for others who have been defending a principle against burden-shifting to third parties, but I do not believe it prohibits religion accommodations that result in costs to the government or to the public. Rather, the principle prohibits government accommodations that shift meaningful costs from religious citizens to other identifiable private citizens. And the reason for this is easy to articulate and deeply rooted — private citizens should not have to bear the costs associated with other citizens’ religious observance. On Apr 1, 2015, at 4:07 PM, Alan E Brownstein aebrownst...@ucdavis.edu wrote: The problem I have with Jim's argument, if I understand him correctly, is that it seems to suggest that no religious exemption can be accepted if it causes any harm to a third party. (I'm not sure if Jim includes the general public or the public fisc in third party.) I think many liberals believe (or at least they used to believe) that rights are expensive political goods. We protect them even if we have to incur some cost or harm to third parties or the public in order to do so. Of course, that leaves open the difficult question of determining when the price for protecting a right is too high. (And when we are talking about the right to discriminate in employment or public accommodations, leaving religious institutions aside, the price is almost always too high.) But I see no historical consensus that we only protect freedom of speech or religious liberty when the cost of doing so is zero. That certainly wasn't the understanding of freedom of speech that Justice Brandeis defended in his famous dissents on which contemporary free speech doctrine is based. Indeed, the argument that we should only accept zero cost religious accommodations is not only inconsistent with the way we generally understand rights, it seems inconsistent with the way we evaluate government regulations generally. It is one thing to argue that we should reject a religious exemption when the harm or cost of granting it is too high. That position is consistent with the general cost benefit analysis we use to discuss any government decision. But why should we only accept zero cost religious accommodations? We routinely allow government to enact laws that result in some costs, burdens, and harms to third parties or the general public that serve a variety of purposes. Alan ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin
Re: Eugene's Blog Post on Liberals and Exemption Rights
of Hobby Lobby continue to be harmed right now. And as a matter of theory, finally, prominent scholars continue to deny that the principle exists and has legal status, under either free exercise or nonestablishment, despite the fact that the case law in both areas is lopsided in favor of the principle. But again my basic answer is yes, I am open to that approach. On Apr 1, 2015, at 5:46 PM, Alan E Brownstein aebrownst...@ucdavis.edu wrote: I appreciate your point, Nelson. And I think the principle that private citizens should not have to bear the costs associated with other citizens’ religious observance deserves respect. Standing alone, it would often be dispositive. Where we disagree, I think, is that in religious exemption cases I see two principles here that deserve our respect. The one I just quoted above and the principle that the majority and government should not prohibit or burden another citizen's religious observance. I think, you can tell me if I'm wrong, that you would agree that this principle standing alone also deserves respect. If there is no harm to third parties, you would support religious exemptions. Then the question becomes what do we do when these two principles are in conflict with each other. I don't think either trumps the other all of the time. I think as the harm to third parties increases, the principle that citizens should not have to bear the costs associated with the other citizen's religious observance outweighs the religious liberty principle. I understand you to be saying that the religious liberty principle is always trumped in these cases without regard to the magnitude of the costs involved. There are a lot of religious accommodations that result in third parties incurring some cost. A RLUIPA land use accommodation might result in some neighboring homeowner, business or farmer incurring some diminution of value in their property. A public university accommodation shifting move-in day so that it doesn't fall on the Jewish High Holy days may require a shift in the academic calendar that inconveniences the travel plans of specific faculty, students and their families. A court accommodating the religious obligations of a religious attorney or witness may delay or otherwise increase the cost of litigation. A law banning male circumcision exempts Jewish families from its requirements. Does the existence of harm to third parties in these situations and others require the invalidation of all of these accommodations without regard to the magnitude of the harm borne by third parties? Alan From: religionlaw-boun...@lists.ucla.edu religionlaw-boun...@lists.ucla.edu on behalf of Nelson Tebbe nelson.te...@brooklaw.edu Sent: Wednesday, April 1, 2015 1:38 PM To: Law Religion issues for Law Academics Subject: Re: Eugene's Blog Post on Liberals and Exemption Rights Alan, I can’t speak for others who have been defending a principle against burden-shifting to third parties, but I do not believe it prohibits religion accommodations that result in costs to the government or to the public. Rather, the principle prohibits government accommodations that shift meaningful costs from religious citizens to other identifiable private citizens. And the reason for this is easy to articulate and deeply rooted — private citizens should not have to bear the costs associated with other citizens’ religious observance. On Apr 1, 2015, at 4:07 PM, Alan E Brownstein aebrownst...@ucdavis.edu wrote: The problem I have with Jim's argument, if I understand him correctly, is that it seems to suggest that no religious exemption can be accepted if it causes any harm to a third party. (I'm not sure if Jim includes the general public or the public fisc in third party.) I think many liberals believe (or at least they used to believe) that rights are expensive political goods. We protect them even if we have to incur some cost or harm to third parties or the public in order to do so. Of course, that leaves open the difficult question of determining when the price for protecting a right is too high. (And when we are talking about the right to discriminate in employment or public accommodations, leaving religious institutions aside, the price is almost always too high.) But I see no historical consensus that we only protect freedom of speech or religious liberty when the cost of doing so is zero. That certainly wasn't the understanding of freedom of speech that Justice Brandeis defended in his famous dissents on which contemporary free speech doctrine is based. Indeed, the argument that we should only accept zero cost religious accommodations is not only inconsistent with the way we generally understand rights, it seems inconsistent with the way we evaluate government regulations generally. It is one thing to argue that we should reject a religious exemption when
Re: Eugene's Blog Post on Liberals and Exemption Rights
...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu Sent: Wednesday, April 01, 2015 5:32 PM To: Law Religion issues for Law Academics Subject: Re: Eugene's Blog Post on Liberals and Exemption Rights If the compelled speech argument is constitutionally sufficient, permission to post a disclaiming sign may solve the problem. (It would be like letting a student say aloud I don't mean it after forcing her to recite the Pledge of Allegiance.) [snip] ___ 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: Eugene's Blog Post on Liberals and Exemption Rights
Micah, nobody I know who is resisting the third party Establishment Clause theory that you, Nelson, and others have created based on “the general form” of a constitutional limit on religious accommodation. RFRA incorporates the general form of such a limit. Marc From: Micah Schwartzman mj...@virginia.edumailto:mj...@virginia.edu Reply-To: Law Religion issues for Law Academics religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Date: Thursday, April 2, 2015 at 1:40 PM To: Law Religion issues for Law Academics religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Subject: Re: Eugene's Blog Post on Liberals and Exemption Rights Rick, In Hobby Lobby, the majority says: It is certainly true that in applying RFRA “courts must take adequate account of the burdens a requested accommodation may impose on nonbeneficiaries.” Cutter v. Wilkinson, 544 U. S. 709http://www.law.cornell.edu/supremecourt//text/544/709, 720 (2005) (applying RLUIPA). That sentence quoted from Cutter relies on Caldor. These are both Establishment Clauses cases articulating a limit on permissive accommodations. We can argue about the scope of that limit, but as Nelson said earlier, it is surprising to see such resistance to even the general form of it. Micah On Apr 2, 2015, at 10:33 AM, Rick Garnett rgarn...@nd.edumailto:rgarn...@nd.edu wrote: Dear Nelson, I don't see that the Hobby Lobby Court reaffirmed the principle against burden-shifting in religion accommodations or that Justice Kennedy made it central to his vote if by principle here you mean the argument -- which, of course, you and several others have very ably developed and expounded -- that the Establishment Clause rules out (all?) legislative accommodations that involve or impose third-party costs (on specific, identifiable third parties). (I ask about all because my recollection is that you have said that the accommodation at issue in Amos was / is permissible.) Justice Ginsburg notes in a footnote that the government’s license to grant religion-based exemptions from generally applicable laws is constrained by the Establishment Clause but, it seems to me, she did not rely on this point in her dissent, which seemed to me to be more about RFRA's particular elements. Justice Kennedy says, in his penultimate paragraph, [y]et neither may that same exercise unduly restrict other persons, such as employees, in protecting their own interests, interests the law deems compelling[,] but he seems to be doing so in the context of applying what he and the Court call RFRA's stringent test and not necessarily to be invoking an Establishment Clause constraint. And, Justice Alito does not mention the Establishment Clause at all. I also continue to think -- although the conversation about the rule you and other leading scholars propose is very important -- that it is not quite the case that the case law in both areas is lopsided in favor of the principle -- again, if the principle is the fairly strong Establishment Clause constraint you all have proposed -- but . . . disagreement among colleagues helps make life interesting and I guess we just understand Caldor and Cutter differently. Marc DeGirolami's discussion (here: http://mirrorofjustice.blogs.com/mirrorofjustice/2013/12/exemptions-from-the-mandate-do-not-violate-the-establishment-clause.html) and Eugene Volokh's (here: http://volokh.com/2013/12/04/3b-granting-exemption-employer-mandate-violate-establishment-clause/) were, for me, helpful. With respect to your (and others') Establishment Clause argument, I do have a quick question. (I am sorry if I am forgetting an answer that you have already presented in your scholarship!) Do you think we should think of the no-burden-shifting rule as applying, in a sense, only *after* we have identified whatever limits on government regulation the First Amendment might require (e.g., the ministerial exception), and as applying only as a constraint on discretionary accommodations, or should we think of the rule as kicking in earlier, and as helping to fix the point where the First Amendment rights of, say, Hosanna-Tabor school end? Or does it not matter? Again, please feel free just to refer me to something else. All the best, Rick Richard W. Garnett Professor of Law and Concurrent Professor of Political Science Director, Program on Church, State Society Notre Dame Law School P.O. Box 780 Notre Dame, Indiana 46556-0780 574-631-6981 (w) 574-276-2252 (cell) rgarn...@nd.edumailto:rgarn...@nd.edu To download my scholarly papers, please visit my SSRN pagehttp://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=342235 Blogs: Prawfsblawghttp://prawfsblawg.blogs.com/ Mirror of Justicehttp://mirrorofjustice.blogs.com/ Twitter: @RickGarnetthttps://twitter.com/RickGarnett On Wed, Apr 1, 2015 at 7:07 PM, Nelson Tebbe nelson.te...@brooklaw.edumailto:nelson.te...@brooklaw.edu wrote: Thanks, Alan. Speaking again only
Re: Eugene's Blog Post on Liberals and Exemption Rights
I think the compelled speech issues, re: communicative work like photography, are interesting and sometimes difficult. I address those in an article I will post later this month. All I want to say now is that religious motivation is irrelevant to the compelled speech argument. (See W Va Bd of Educ v. Barnette.) But Mark also say If [harm] depends on the message sent by the refusal, then we have an interesting viewpoint discrimination issue. If, in 1965, Ollie's BBQ had put up a sign in the window that read Federal law says we must serve all, so we will, but n-s are not sincerely welcome, then he would have violated the Public Accommodations title of the Civil Rights Act (he would not have provided full and equal enjoyment of his restaurant without discrimination on the basis of race.) Does Mark or anyone on this list really think that presents a serious First Amendment problem? Ollie can write letters to Congress, and to the newspapers, and put signs on his lawn, all railing against the oppressive Civil Rights Act, but he cannot communicate that directly to customers on his business premises. If it were otherwise, the Act would be gutted entirely. I think that no Justice who has served in the last 50 years would take such a First A claim seriously. On Wed, Apr 1, 2015 at 6:53 PM, Scarberry, Mark mark.scarbe...@pepperdine.edu wrote: I also think the florist and baker examples are weaker for the religious claimant, especially where the flowers and cakes are generic. But what if custom floral arrangements involve artistic choices by the florist? What if the cake is (as some are) a truly creative work of art? And do only high-end bakers get protection from violation of conscience? What if the florist or baker is asked to include particular words or other expressive content in the arrangement or the cake? (This from someone who argued against licensing requirements for sellers of flowers – protectionist provisions for florists who fear grocery stores’ selling of flowers – on the basis that flower arranging is a kind of art that the government has no right to license, other than for health purposes.) What if the custom florist decides to include a lot of black roses in the arrangements? Or just puts the flowers together without using any creativity (so that they look like flowers you would get through 1-800-Flowers)? Can the florist be required to enter into the contract to provide flowers and then be required to follow some sort of industry standard of artistry in arranging the flowers? In the photography example, if the photographer must photograph a ceremony that he or she believes wrong, may the photographer refuse to use the creative skills that would ordinarily be used? (E.g., posing the couple in a particular way, using filters to get a romantic look, telling them to kiss for the photograph, etc.) I suppose that goes with my view that wedding photography is creation of celebratory art, and the First Amendment compelled speech cases prohibit the government from requiring the photographer to create art. On the harm question, of course there is a matter of baseline. Do I harm you by not photographing your ceremony? Or do I benefit you by doing it? If that depends on the message sent by the refusal, then we have an interesting viewpoint discrimination issue. Mark Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Levinson, Sanford V *Sent:* Wednesday, April 01, 2015 3:18 PM *To:* Law Religion issues for Law Academics *Subject:* Re: Eugene's Blog Post on Liberals and Exemption Rights I think Prof. Chen is substantially correct, but I believe, more than ever, that it's the kind of problem that can ( and should) be handled outside legal constraints. Why would I want to hire a wedding photographer who so clearly won't view the day as affirmatively special? Ditto the band? But I really can't work up much sympathy for the florist or baker. They should be treated under the general rubric of public accommodations and the Civil Rights Act of 1964. I'm sure there were florists and bakers who objected to mixes-race marriages and could cite the purported curse on Ham. It really doesn't (and shouldn't) matter. Sandy Sent from my iPhone On Apr 1, 2015, at 4:56 PM, K Chen tzn...@gmail.com wrote: As someone putting a wedding together, I can't explain the lack of sympathy for the wedding photographer as anything but thinking that their work is essentially interchangeable. It is not, unfortunately, and it is priced accordingly. Every single photographer of them seems to take their business very, very personally. More to the point, it is a personal, professional service which is by its nature selective compared to the harm done by impersonal corporations excluding goods and services when they otherwise
Re: Eugene's Blog Post on Liberals and Exemption Rights
If the compelled speech argument is constitutionally sufficient, permission to post a disclaiming sign may solve the problem. (It would be like letting a student say aloud I don't mean it after forcing her to recite the Pledge of Allegiance.) If the compelled speech argument is NOT constitutionally sufficient, I think the photographers have no First A right to put up such a sign, though of course the NM legislature could permissibly accommodate the religious objection by permitting a vendor to post such a sign. Away from the business site (on line or physical), the photographer of course is free to express her views on same sex marriage. On Wed, Apr 1, 2015 at 7:37 PM, Scarberry, Mark mark.scarbe...@pepperdine.edu wrote: I don’t have time right now to respond in a substantial way to Chip’s post. Let me just quote this language from the New Mexico Supreme Court’s decision in Elane Photography: “Businesses that choose to be public accommodations must comply with the NMHRA, although such businesses retain their First Amendment rights to express their religious or political beliefs. They may, for example, post a disclaimer on their website or in their studio advertising that they oppose same-sex marriage but that they comply with applicable antidiscrimination laws.” That’s not quite the same as saying that gay couples aren’t welcome, but it’s pretty close. Is the NM court right that the photographers have a 1st Am right to do so? On the question whether religious liberty claims have anything to do with the compelled speech issue, if we believe that the “hybrid rights” part of Smith means anything, it might apply in this kind of case so that the combination of the claims to constitutional protection might create some synergy. Mark Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Ira Lupu *Sent:* Wednesday, April 01, 2015 4:22 PM *To:* Law Religion issues for Law Academics *Subject:* Re: Eugene's Blog Post on Liberals and Exemption Rights I think the compelled speech issues, re: communicative work like photography, are interesting and sometimes difficult. I address those in an article I will post later this month. All I want to say now is that religious motivation is irrelevant to the compelled speech argument. (See W Va Bd of Educ v. Barnette.) But Mark also say If [harm] depends on the message sent by the refusal, then we have an interesting viewpoint discrimination issue. If, in 1965, Ollie's BBQ had put up a sign in the window that read Federal law says we must serve all, so we will, but n-s are not sincerely welcome, then he would have violated the Public Accommodations title of the Civil Rights Act (he would not have provided full and equal enjoyment of his restaurant without discrimination on the basis of race.) Does Mark or anyone on this list really think that presents a serious First Amendment problem? Ollie can write letters to Congress, and to the newspapers, and put signs on his lawn, all railing against the oppressive Civil Rights Act, but he cannot communicate that directly to customers on his business premises. If it were otherwise, the Act would be gutted entirely. I think that no Justice who has served in the last 50 years would take such a First A claim seriously. On Wed, Apr 1, 2015 at 6:53 PM, Scarberry, Mark mark.scarbe...@pepperdine.edu wrote: I also think the florist and baker examples are weaker for the religious claimant, especially where the flowers and cakes are generic. But what if custom floral arrangements involve artistic choices by the florist? What if the cake is (as some are) a truly creative work of art? And do only high-end bakers get protection from violation of conscience? What if the florist or baker is asked to include particular words or other expressive content in the arrangement or the cake? (This from someone who argued against licensing requirements for sellers of flowers – protectionist provisions for florists who fear grocery stores’ selling of flowers – on the basis that flower arranging is a kind of art that the government has no right to license, other than for health purposes.) What if the custom florist decides to include a lot of black roses in the arrangements? Or just puts the flowers together without using any creativity (so that they look like flowers you would get through 1-800-Flowers)? Can the florist be required to enter into the contract to provide flowers and then be required to follow some sort of industry standard of artistry in arranging the flowers? In the photography example, if the photographer must photograph a ceremony that he or she believes wrong, may the photographer refuse to use the creative skills that would ordinarily be used? (E.g., posing the couple in a particular way, using
Re: Eugene's Blog Post on Liberals and Exemption Rights
No, I don't think that's OK. But that's a real compelled speech problem, where the student must first utter the Pledge. The wedding vendors do not have to say anything approving about the marriage, or affirm its validity in the eyes of the state or God. They do have to provide goods and services; in the photographer's case, the services include making the wedding look authentic and beautiful, not ugly or false. So the compelled speech concern seems much weaker to me than in Barnette. On Wed, Apr 1, 2015 at 8:53 PM, Scarberry, Mark mark.scarbe...@pepperdine.edu wrote: Apart from the other points with which I disagree: Wow, Chip. You really think it’s OK to make the student recite the Pledge, as long as the student is permitted at the end to say “I don’t mean it”? Can I be required to burn a pinch of incense to the emperor as long as I am permitted afterwards to say that the emperor isn’t really a god? Mark Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Ira Lupu *Sent:* Wednesday, April 01, 2015 5:32 PM *To:* Law Religion issues for Law Academics *Subject:* Re: Eugene's Blog Post on Liberals and Exemption Rights If the compelled speech argument is constitutionally sufficient, permission to post a disclaiming sign may solve the problem. (It would be like letting a student say aloud I don't mean it after forcing her to recite the Pledge of Allegiance.) If the compelled speech argument is NOT constitutionally sufficient, I think the photographers have no First A right to put up such a sign, though of course the NM legislature could permissibly accommodate the religious objection by permitting a vendor to post such a sign. Away from the business site (on line or physical), the photographer of course is free to express her views on same sex marriage. On Wed, Apr 1, 2015 at 7:37 PM, Scarberry, Mark mark.scarbe...@pepperdine.edu wrote: I don’t have time right now to respond in a substantial way to Chip’s post. Let me just quote this language from the New Mexico Supreme Court’s decision in Elane Photography: “Businesses that choose to be public accommodations must comply with the NMHRA, although such businesses retain their First Amendment rights to express their religious or political beliefs. They may, for example, post a disclaimer on their website or in their studio advertising that they oppose same-sex marriage but that they comply with applicable antidiscrimination laws.” That’s not quite the same as saying that gay couples aren’t welcome, but it’s pretty close. Is the NM court right that the photographers have a 1st Am right to do so? On the question whether religious liberty claims have anything to do with the compelled speech issue, if we believe that the “hybrid rights” part of Smith means anything, it might apply in this kind of case so that the combination of the claims to constitutional protection might create some synergy. Mark Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Ira Lupu *Sent:* Wednesday, April 01, 2015 4:22 PM *To:* Law Religion issues for Law Academics *Subject:* Re: Eugene's Blog Post on Liberals and Exemption Rights I think the compelled speech issues, re: communicative work like photography, are interesting and sometimes difficult. I address those in an article I will post later this month. All I want to say now is that religious motivation is irrelevant to the compelled speech argument. (See W Va Bd of Educ v. Barnette.) But Mark also say If [harm] depends on the message sent by the refusal, then we have an interesting viewpoint discrimination issue. If, in 1965, Ollie's BBQ had put up a sign in the window that read Federal law says we must serve all, so we will, but n-s are not sincerely welcome, then he would have violated the Public Accommodations title of the Civil Rights Act (he would not have provided full and equal enjoyment of his restaurant without discrimination on the basis of race.) Does Mark or anyone on this list really think that presents a serious First Amendment problem? Ollie can write letters to Congress, and to the newspapers, and put signs on his lawn, all railing against the oppressive Civil Rights Act, but he cannot communicate that directly to customers on his business premises. If it were otherwise, the Act would be gutted entirely. I think that no Justice who has served in the last 50 years would take such a First A claim seriously. On Wed, Apr 1, 2015 at 6:53 PM, Scarberry, Mark mark.scarbe...@pepperdine.edu wrote: I also think the florist and baker examples are weaker for the religious claimant, especially where the flowers and cakes
Re: Eugene's Blog Post on Liberals and Exemption Rights
Thanks, Alan. Speaking again only for myself, I am open to some balancing, not only as to this particular principle (against burden shifting to third parties) but also as a general methodology, as you know. But the conversation is not yet at that point. Right now, the main debate is over whether the principle even exists in constitutional law, and what its most basic applications might be, not over its contours. As a matter of doctrine, the Hobby Lobby Court reaffirmed the principle against burden-shifting in religion accommodations, and Justice Kennedy made it central to his vote, but there is some troubling language in the opinion (see, e.g., footnote 37 and the sharp division between RFRA and pre-Smith cases). As a matter of application, the Hobby Lobby Court did not make its ruling contingent on the absence of harm to third parties. And in fact employees of Hobby Lobby continue to be harmed right now. And as a matter of theory, finally, prominent scholars continue to deny that the principle exists and has legal status, under either free exercise or nonestablishment, despite the fact that the case law in both areas is lopsided in favor of the principle. But again my basic answer is yes, I am open to that approach. On Apr 1, 2015, at 5:46 PM, Alan E Brownstein aebrownst...@ucdavis.edumailto:aebrownst...@ucdavis.edu wrote: I appreciate your point, Nelson. And I think the principle that private citizens should not have to bear the costs associated with other citizens’ religious observance deserves respect. Standing alone, it would often be dispositive. Where we disagree, I think, is that in religious exemption cases I see two principles here that deserve our respect. The one I just quoted above and the principle that the majority and government should not prohibit or burden another citizen's religious observance. I think, you can tell me if I'm wrong, that you would agree that this principle standing alone also deserves respect. If there is no harm to third parties, you would support religious exemptions. Then the question becomes what do we do when these two principles are in conflict with each other. I don't think either trumps the other all of the time. I think as the harm to third parties increases, the principle that citizens should not have to bear the costs associated with the other citizen's religious observance outweighs the religious liberty principle. I understand you to be saying that the religious liberty principle is always trumped in these cases without regard to the magnitude of the costs involved. There are a lot of religious accommodations that result in third parties incurring some cost. A RLUIPA land use accommodation might result in some neighboring homeowner, business or farmer incurring some diminution of value in their property. A public university accommodation shifting move-in day so that it doesn't fall on the Jewish High Holy days may require a shift in the academic calendar that inconveniences the travel plans of specific faculty, students and their families. A court accommodating the religious obligations of a religious attorney or witness may delay or otherwise increase the cost of litigation. A law banning male circumcision exempts Jewish families from its requirements. Does the existence of harm to third parties in these situations and others require the invalidation of all of these accommodations without regard to the magnitude of the harm borne by third parties? Alan From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu on behalf of Nelson Tebbe nelson.te...@brooklaw.edumailto:nelson.te...@brooklaw.edu Sent: Wednesday, April 1, 2015 1:38 PM To: Law Religion issues for Law Academics Subject: Re: Eugene's Blog Post on Liberals and Exemption Rights Alan, I can’t speak for others who have been defending a principle against burden-shifting to third parties, but I do not believe it prohibits religion accommodations that result in costs to the government or to the public. Rather, the principle prohibits government accommodations that shift meaningful costs from religious citizens to other identifiable private citizens. And the reason for this is easy to articulate and deeply rooted — private citizens should not have to bear the costs associated with other citizens’ religious observance. On Apr 1, 2015, at 4:07 PM, Alan E Brownstein aebrownst...@ucdavis.edumailto:aebrownst...@ucdavis.edu wrote: The problem I have with Jim's argument, if I understand him correctly, is that it seems to suggest that no religious exemption can be accepted if it causes any harm to a third party. (I'm not sure if Jim includes the general public or the public fisc in third party.) I think many liberals believe (or at least they used to believe) that rights are expensive political goods. We
Re: Eugene's Blog Post on Liberals and Exemption Rights
state.” http://www.brookings.edu/research/papers/2010/06/23-kagan-rogers 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 James Oleske Sent: Wednesday, April 01, 2015 2:25 PM To: Law Religion issues for Law Academics Subject: Eugene's Blog Post on Liberals and Exemption Rights Eugene has a new post up on Volokh Conspiracy entitled, Many liberals’ (sensible) retreat from the old Justice Brennan/ACLU position on religious exemptions. The piece is lengthy, and I recommend folks read it in full, but I want to take issue with the following assertion at the heart of Eugene's analysis: Yes, religious objectors can use these RFRAs to try to get exemptions from antidiscrimination laws. But religious objectors could have done the same under the Sherbert-era Free Exercise Clause that the ACLU had long championed. http://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/04/01/many-liberals-sensible-retreat-from-the-old-justice-brennanaclu-position-on-religious-exemptions/ Insofar as we're talking about discrimination in the commercial marketplace, which is the context generating almost all of the liberal concerns about exemptions today, I have to disagree with Eugene's characterization of the law in the Sherbert era. Indeed, I make precisely the opposite argument at length in Part II of the following piece: http://harvardlawreview.org/2015/01/the-born-again-champion-of-conscience/ (The Real Issue: The Unprecedented Expansion of Exemption Rights into the Commercial Realm). Nowhere in his post does Eugene acknowledge either United States v. Lee, which is the only Sherbert-era case in which the Court explicitly addressed the issue of commercial exemptions, or Piggie Park, where the Court dismissed a commercial businesses' claim for an exemption from an antidiscrimination law as patently frivolous. Instead, Eugene refers to Justice Brennan's pre-Sherbert dissenting opinion in Crown. Whatever Justice Brennan's views in 1961, it is difficult to understand how they are a better representation of the Sherbert-era law than the following explicit statement of the Court in Lee, which was joined by Justice Brennan (as was Piggie Park): When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity. Granting an exemption from social security taxes to an employer operates to impose the employer's religious faith on the employees. Accordingly, I don't think the ACLU's current position can be accurately described as a retreat from their support of Sherbert-era exemption rights. As Eugene notes in his post, the ACLU still opposes Smith and supports exemption rights outside the commercial context. As I note in my piece, this is also true of Americans United and the Brennan Center. The strong opposition of those organizations to extending exemption rights into the for-profit commercial realm has sometimes been misread as a reversal of their position on exemption rights in general (indeed, I myself have made that mistake in the past), but as I detail in the piece cited above, an examination of the full record shows that [l]iberals who opposed Smith in 1990 and supported RFRA in 1993 — including liberal organizations, professors, and politicians — largely continue to support religious exemptions for individuals, while opposing the extension of such exemptions to commercial businesses. - Jim ___ 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.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.edumailto:Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo
RE: Eugene's Blog Post on Liberals and Exemption Rights
Sandy: I appreciate your point, but should it be relevant that Title II of the Civil Rights Act of 1964 actually covered a comparatively narrow set of places of public accommodation, and (as best I can tell) didn't apply to retail establishments or service providers such as florists or bakers? Many state laws are broader, to be sure, but if the appeal is to the seminal nature of the federal Civil Rights Act, I'm not sure how far that appeal would take us as to these sorts of businesses. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Levinson, Sanford V Sent: Wednesday, April 01, 2015 3:18 PM To: Law Religion issues for Law Academics Subject: Re: Eugene's Blog Post on Liberals and Exemption Rights I think Prof. Chen is substantially correct, but I believe, more than ever, that it's the kind of problem that can ( and should) be handled outside legal constraints. Why would I want to hire a wedding photographer who so clearly won't view the day as affirmatively special? Ditto the band? But I really can't work up much sympathy for the florist or baker. They should be treated under the general rubric of public accommodations and the Civil Rights Act of 1964. I'm sure there were florists and bakers who objected to mixes-race marriages and could cite the purported curse on Ham. It really doesn't (and shouldn't) matter. Sandy ___ 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: Eugene's Blog Post on Liberals and Exemption Rights
. The harm of being denied service by a consumer (or laborer) because of their beliefs has a societal harm, if any, nearly indistinguishable to being denied for any other reason. Some services should fall in between. I'm not convinced for the florist and the and the baker, but I'm sympathetic to the photographer, the doctor, the lawyer (ethical obligations notwithstanding) , the political consultant, the ghost writer... I don't know how far that gets liberals of course, but it is a difference beyond mere size and corporate form. Kevin Chen On Wed, Apr 1, 2015 at 2:51 PM, Gaubatz, Derek dgaub...@imb.orgmailto:dgaub...@imb.org wrote: “[l]iberals who opposed Smith in 1990 and supported RFRA in 1993 — including liberal organizations, professors, and politicians — largely continue to support religious exemptions for individuals, while opposing the extension of such exemptions to commercial businesses. I’m not sure I’m seeing the principled distinction. Do not many individuals depend for their livelihood on commercial businesses? Why do liberals see the conscience of individuals like Sherbert or Thomas worthy of protection, but the conscience of an individual photographer, florist, baker, or bed and breakfast owner less worthy of protection?Justice Kagan, at least back in 1996 when she was in the Clinton White House, appeared to recognize that the consciences of individuals operating small commercial businesses was worthy of protection under a RFRA regime. Commenting on the short shrift given to the claim of a Evelyn Smith who, for religious reasons, did not want to rent one of her units to a co-habitating couple, Kagan noted that the court’s reasoning was “outrageous.” She wrote that it was “almost as if a court were to hold that a state law does not impose a substantial burden on religion because the complainant is free to move to another state.” http://www.brookings.edu/research/papers/2010/06/23-kagan-rogers 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 James Oleske Sent: Wednesday, April 01, 2015 2:25 PM To: Law Religion issues for Law Academics Subject: Eugene's Blog Post on Liberals and Exemption Rights Eugene has a new post up on Volokh Conspiracy entitled, Many liberals’ (sensible) retreat from the old Justice Brennan/ACLU position on religious exemptions. The piece is lengthy, and I recommend folks read it in full, but I want to take issue with the following assertion at the heart of Eugene's analysis: Yes, religious objectors can use these RFRAs to try to get exemptions from antidiscrimination laws. But religious objectors could have done the same under the Sherbert-era Free Exercise Clause that the ACLU had long championed. http://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/04/01/many-liberals-sensible-retreat-from-the-old-justice-brennanaclu-position-on-religious-exemptions/ Insofar as we're talking about discrimination in the commercial marketplace, which is the context generating almost all of the liberal concerns about exemptions today, I have to disagree with Eugene's characterization of the law in the Sherbert era. Indeed, I make precisely the opposite argument at length in Part II of the following piece: http://harvardlawreview.org/2015/01/the-born-again-champion-of-conscience/ (The Real Issue: The Unprecedented Expansion of Exemption Rights into the Commercial Realm). Nowhere in his post does Eugene acknowledge either United States v. Lee, which is the only Sherbert-era case in which the Court explicitly addressed the issue of commercial exemptions, or Piggie Park, where the Court dismissed a commercial businesses' claim for an exemption from an antidiscrimination law as patently frivolous. Instead, Eugene refers to Justice Brennan's pre-Sherbert dissenting opinion in Crown. Whatever Justice Brennan's views in 1961, it is difficult to understand how they are a better representation of the Sherbert-era law than the following explicit statement of the Court in Lee, which was joined by Justice Brennan (as was Piggie Park): When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity. Granting an exemption from social security taxes to an employer operates to impose the employer's religious faith on the employees. Accordingly, I don't think the ACLU's current position can be accurately described as a retreat from their support of Sherbert-era exemption rights. As Eugene notes in his post, the ACLU still opposes Smith and supports exemption rights outside the commercial context. As I note in my piece, this is also true of Americans United and the Brennan Center. The strong
RE: Eugene's Blog Post on Liberals and Exemption Rights
I don’t have time right now to respond in a substantial way to Chip’s post. Let me just quote this language from the New Mexico Supreme Court’s decision in Elane Photography: “Businesses that choose to be public accommodations must comply with the NMHRA, although such businesses retain their First Amendment rights to express their religious or political beliefs. They may, for example, post a disclaimer on their website or in their studio advertising that they oppose same-sex marriage but that they comply with applicable antidiscrimination laws.” That’s not quite the same as saying that gay couples aren’t welcome, but it’s pretty close. Is the NM court right that the photographers have a 1st Am right to do so? On the question whether religious liberty claims have anything to do with the compelled speech issue, if we believe that the “hybrid rights” part of Smith means anything, it might apply in this kind of case so that the combination of the claims to constitutional protection might create some synergy. Mark Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu Sent: Wednesday, April 01, 2015 4:22 PM To: Law Religion issues for Law Academics Subject: Re: Eugene's Blog Post on Liberals and Exemption Rights I think the compelled speech issues, re: communicative work like photography, are interesting and sometimes difficult. I address those in an article I will post later this month. All I want to say now is that religious motivation is irrelevant to the compelled speech argument. (See W Va Bd of Educ v. Barnette.) But Mark also say If [harm] depends on the message sent by the refusal, then we have an interesting viewpoint discrimination issue. If, in 1965, Ollie's BBQ had put up a sign in the window that read Federal law says we must serve all, so we will, but n-s are not sincerely welcome, then he would have violated the Public Accommodations title of the Civil Rights Act (he would not have provided full and equal enjoyment of his restaurant without discrimination on the basis of race.) Does Mark or anyone on this list really think that presents a serious First Amendment problem? Ollie can write letters to Congress, and to the newspapers, and put signs on his lawn, all railing against the oppressive Civil Rights Act, but he cannot communicate that directly to customers on his business premises. If it were otherwise, the Act would be gutted entirely. I think that no Justice who has served in the last 50 years would take such a First A claim seriously. On Wed, Apr 1, 2015 at 6:53 PM, Scarberry, Mark mark.scarbe...@pepperdine.edumailto:mark.scarbe...@pepperdine.edu wrote: I also think the florist and baker examples are weaker for the religious claimant, especially where the flowers and cakes are generic. But what if custom floral arrangements involve artistic choices by the florist? What if the cake is (as some are) a truly creative work of art? And do only high-end bakers get protection from violation of conscience? What if the florist or baker is asked to include particular words or other expressive content in the arrangement or the cake? (This from someone who argued against licensing requirements for sellers of flowers – protectionist provisions for florists who fear grocery stores’ selling of flowers – on the basis that flower arranging is a kind of art that the government has no right to license, other than for health purposes.) What if the custom florist decides to include a lot of black roses in the arrangements? Or just puts the flowers together without using any creativity (so that they look like flowers you would get through 1-800-Flowers)? Can the florist be required to enter into the contract to provide flowers and then be required to follow some sort of industry standard of artistry in arranging the flowers? In the photography example, if the photographer must photograph a ceremony that he or she believes wrong, may the photographer refuse to use the creative skills that would ordinarily be used? (E.g., posing the couple in a particular way, using filters to get a romantic look, telling them to kiss for the photograph, etc.) I suppose that goes with my view that wedding photography is creation of celebratory art, and the First Amendment compelled speech cases prohibit the government from requiring the photographer to create art. On the harm question, of course there is a matter of baseline. Do I harm you by not photographing your ceremony? Or do I benefit you by doing it? If that depends on the message sent by the refusal, then we have an interesting viewpoint discrimination issue. Mark Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options
Re: Eugene's Blog Post on Liberals and Exemption Rights
Chip, Thanks for the explanation, which is helpful. But I want to push a little farther on this concept of dignitary injury. You state that the dignitary injury is more serious because it has wounded the couple with this disrespect. But how far can that argument really go? Are you saying that public non-discrimination laws not only require the provisions of goods and services to all comers, but also require that those services be provided in a way that will be viewed as respectful of the particular beliefs of the customers? If that is the case, does the photographer who has the Piss Christ photograph by Andres Serrano hanging on the wall of their shop (i.e. a photograph which very clearly singles out Christians for disrespect and dignitary injury) also run afoul of public non-discrimination laws even if the photographer is otherwise willing to perform photography services for Christians? Or use the same example but substitute in the cover of the Charlie Hebdo magazine depicting the Prophet Muhammad? Mark pointed it out in several of his later posts, but I'm troubled about how this concept of dignitary injury logically plays out and whether your argument essentially means that anyone involved in businesses which provide public services are required to check their free speech and opinions at the door. There are, after all, many categories of things that a business owner could say which would be gravely disrespectful and injure the dignity of customers (e.g. My are you fat. You are so ugly I can't stand to look at you etc.). The marketplace (particularly in this age of social media) would quickly penalize such disrespect in an economic manner, but I had never viewed it as within the purview of non-discrimination laws to protect citizens from speech that they found disrespectful. I welcome your thoughts. Will Will Esser Charlotte, North Carolina From: Ira Lupu icl...@law.gwu.edu To: Will Esser willes...@yahoo.com; Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Wednesday, April 1, 2015 6:35 PM Subject: Re: Eugene's Blog Post on Liberals and Exemption Rights Thanks for the question, Will. If the kosher butcher gets that exemption, he will sell pork to no one. He never has and never will carry pork in his shop. He also does not sell soda, cars, or wedding cakes. If you want that stuff, you must go elsewhere. Is that a cost to third parties?'' No more than that imposed by any (that is, every) other merchant who sells less than everything. Compare that to a discriminatory refusal to sell. Baker A does sell wedding cakes, but not to same sex couples. Two injuries -- material and dignitary. The material injury is the lost opportunity to buy a cake at the quality and price offered by that baker. Maybe you can do as well or better elsewhere, nearby, or maybe not. The dignitary injury is more serious -- the couple is seeking goods to celebrate one of the most important and special days of their lives. And the baker says, in effect, I do not respect your marriage as a marriage. In my belief system, it is not a marriage at all, because you are of the same sex. (The baker might also think or say that in his view the relationship is disordered, or an abomination, and/or against God's plan, but let's assume he says nothing like that all.) The baker has wounded the couple with this disrespect, and done so in regard to a day that has significant meaning in their lives. Those are the focused, third party harms in the refusal to sell goods or services to some that you sell to others, especially (though not only) for a wedding reception. On Wed, Apr 1, 2015 at 4:38 PM, Will Esser willes...@yahoo.com wrote: Chip, Can you expound on your argument that wedding vendor exemptions from public accommodations laws allow material and dignitary injury to potential customers and that liberals only oppose exemptions that impinge on the welfare of third parties? It seems that both sides agree that the kosher butcher deserves a religious exemption, and yet granting that exemption imposes some cost on third parties (i.e. anyone who wishes to purchase pork must go elsewhere, which could involve multiple trips to different butchers, or may mean spending more time and money to go to a butcher further away). So it's not really that there is no cost to third parties, but perhaps simply a cost which society is more ready to accept (i.e. Go buy your pork somewhere else.) As I understood the third-party harm argument in Hobby Lobby, the argument was that without insurance coverage, female Hobby Lobby employees would be unable to afford coverage of the particular, objectionable contraceptives and therefore the third party harm was equivalent to total lack of access. Given modern changes in societal perspectives, I have not heard the same argument about a total lack of access when it comes to wedding vendors for same-sex
Re: Eugene's Blog Post on Liberals and Exemption Rights
Sandy: the florist who refuses to sell a bouquet for use at a same-sex marriage, who is necessarily condoning the presumptively sinful conduct? I assume you meant to say that the florist would necessarily condone the presumptively sinful conduct if she *did* sell the bouquet to the same-sex couple. If so -- really?! I would think that such a sale would *not* reasonably be viewed as condoning the same-sex marriage even in the absence of an antidiscrimination law requirement . . . and certainly not if it were done solely in order to comply with such a law. On Wed, Apr 1, 2015 at 5:17 PM, Levinson, Sanford V slevin...@law.utexas.edu wrote: Non-Jews are under no obligation not to eat pork (or adhere to almost all of the other 612 mitzvot). So there is no stigma attached to any non-Jew who wants to buy a ham at a kosher butchery. That can't be said with regard to the florist who refuses to sell a bouquet for use at a same-sex marriage, who is necessarily condoning the presumptively sinful conduct. Ironically or not, the only person a Jewish butcher might be upset with is another Jew. This underscores the fact that very few Jewish laws are universal. This is not true of most purported Christian precepts (beginning with the widely shared view among many a Evangelicals that I'm damned for failure to accept the teaching of John 3:16 (which I know by heart having memorized it some 65 years ago in order to earn a Bible certificate from the state of North Carolina). Sandy Sent from my iPhone On Apr 1, 2015, at 3:44 PM, Will Esser willes...@yahoo.com wrote: Chip, Can you expound on your argument that wedding vendor exemptions from public accommodations laws allow material and dignitary injury to potential customers and that liberals only oppose exemptions that impinge on the welfare of third parties? It seems that both sides agree that the kosher butcher deserves a religious exemption, and yet granting that exemption imposes *some* cost on third parties (i.e. anyone who wishes to purchase pork must go elsewhere, which could involve multiple trips to different butchers, or may mean spending more time and money to go to a butcher further away). So it's not really that there is * no* cost to third parties, but perhaps simply a cost which society is more ready to accept (i.e. Go buy your pork somewhere else.) As I understood the third-party harm argument in Hobby Lobby, the argument was that without insurance coverage, female Hobby Lobby employees would be unable to afford coverage of the particular, objectionable contraceptives and therefore the third party harm was equivalent to total lack of access. Given modern changes in societal perspectives, I have not heard the same argument about a total lack of access when it comes to wedding vendors for same-sex wedding ceremonies. Under the assumption the goods and services are otherwise generally available in the marketplace (i.e. there are plenty of wedding photographers, bakers, etc. who would be happy for the business of same-sex weddings), what is the distinguishing factor which causes material and dignitary injury in the wedding vendor exemptions scenario but not in the kosher butcher example? In both, the customers want a service which they can get in the marketplace (although perhaps not from the exact person or place they want it). And in both, the reason for not providing the service is the same (i.e. violation of a sincerely held religious belief). Thanks in advance for clarification. Will Will Esser Charlotte, North Carolina -- *From:* James Oleske jole...@lclark.edu *To:* Law Religion issues for Law Academics religionlaw@lists.ucla.edu *Sent:* Wednesday, April 1, 2015 3:22 PM *Subject:* Re: Eugene's Blog Post on Liberals and Exemption Rights The butcher example Chip gives is why I suggested last spring that the Court might want to read the Lee language not as an absolute rule, but rather, a strong presumption against exemptions in the commercial realm that can be overcome in the very rare case where the basis for the presumption (a third-party harm) does not exist. Alas, the Court instead simply discarded the Lee language wholesale by saying RFRA went further than the pre-Smith law. - Jim On Wed, Apr 1, 2015 at 12:09 PM, Ira Lupu icl...@law.gwu.edu wrote: I do not think most liberals oppose exemptions for businesses per se -- imagine a law that compelled a butcher to carry products in conflict with religious dietary laws to which the butcher and his customers subscribe. Liberals oppose exemptions that impinge on the welfare of third parties -- Hobby Lobby (those female employees still do not have contraceptive coverage) or wedding vendor exemptions from public accommodations laws (those exemptions allow material and dignitary injury to potential customers). U.S. v. Lee involved injury to other family members of Amish
Re: Eugene's Blog Post on Liberals and Exemption Rights
one of her units to a co-habitating couple, Kagan noted that the court’s reasoning was “outrageous.” She wrote that it was “almost as if a court were to hold that a state law does not impose a substantial burden on religion because the complainant is free to move to another state.” http://www.brookings.edu/research/papers/2010/06/23-kagan-rogers 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 James Oleske Sent: Wednesday, April 01, 2015 2:25 PM To: Law Religion issues for Law Academics Subject: Eugene's Blog Post on Liberals and Exemption Rights Eugene has a new post up on Volokh Conspiracy entitled, Many liberals’ (sensible) retreat from the old Justice Brennan/ACLU position on religious exemptions. The piece is lengthy, and I recommend folks read it in full, but I want to take issue with the following assertion at the heart of Eugene's analysis: Yes, religious objectors can use these RFRAs to try to get exemptions from antidiscrimination laws. But religious objectors could have done the same under the Sherbert-era Free Exercise Clause that the ACLU had long championed. http://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/04/01/many-liberals-sensible-retreat-from-the-old-justice-brennanaclu-position-on-religious-exemptions/ Insofar as we're talking about discrimination in the commercial marketplace, which is the context generating almost all of the liberal concerns about exemptions today, I have to disagree with Eugene's characterization of the law in the Sherbert era. Indeed, I make precisely the opposite argument at length in Part II of the following piece: http://harvardlawreview.org/2015/01/the-born-again-champion-of-conscience/ (The Real Issue: The Unprecedented Expansion of Exemption Rights into the Commercial Realm). Nowhere in his post does Eugene acknowledge either United States v. Lee, which is the only Sherbert-era case in which the Court explicitly addressed the issue of commercial exemptions, or Piggie Park, where the Court dismissed a commercial businesses' claim for an exemption from an antidiscrimination law as patently frivolous. Instead, Eugene refers to Justice Brennan's pre-Sherbert dissenting opinion in Crown. Whatever Justice Brennan's views in 1961, it is difficult to understand how they are a better representation of the Sherbert-era law than the following explicit statement of the Court in Lee, which was joined by Justice Brennan (as was Piggie Park): When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity. Granting an exemption from social security taxes to an employer operates to impose the employer's religious faith on the employees. Accordingly, I don't think the ACLU's current position can be accurately described as a retreat from their support of Sherbert-era exemption rights. As Eugene notes in his post, the ACLU still opposes Smith and supports exemption rights outside the commercial context. As I note in my piece, this is also true of Americans United and the Brennan Center. The strong opposition of those organizations to extending exemption rights into the for-profit commercial realm has sometimes been misread as a reversal of their position on exemption rights in general (indeed, I myself have made that mistake in the past), but as I detail in the piece cited above, an examination of the full record shows that [l]iberals who opposed Smith in 1990 and supported RFRA in 1993 — including liberal organizations, professors, and politicians — largely continue to support religious exemptions for individuals, while opposing the extension of such exemptions to commercial businesses. - Jim ___ 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.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
Re: Eugene's Blog Post on Liberals and Exemption Rights
distinction. Do not many individuals depend for their livelihood on commercial businesses? Why do liberals see the conscience of individuals like Sherbert or Thomas worthy of protection, but the conscience of an individual photographer, florist, baker, or bed and breakfast owner less worthy of protection?Justice Kagan, at least back in 1996 when she was in the Clinton White House, appeared to recognize that the consciences of individuals operating small commercial businesses was worthy of protection under a RFRA regime. Commenting on the short shrift given to the claim of a Evelyn Smith who, for religious reasons, did not want to rent one of her units to a co-habitating couple, Kagan noted that the court’s reasoning was “outrageous.” She wrote that it was “almost as if a court were to hold that a state law does not impose a substantial burden on religion because the complainant is free to move to another state.” http://www.brookings.edu/research/papers/2010/06/23-kagan-rogers *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *James Oleske *Sent:* Wednesday, April 01, 2015 2:25 PM *To:* Law Religion issues for Law Academics *Subject:* Eugene's Blog Post on Liberals and Exemption Rights Eugene has a new post up on Volokh Conspiracy entitled, Many liberals’ (sensible) retreat from the old Justice Brennan/ACLU position on religious exemptions. The piece is lengthy, and I recommend folks read it in full, but I want to take issue with the following assertion at the heart of Eugene's analysis: Yes, religious objectors can use these RFRAs to try to get exemptions from antidiscrimination laws. But religious objectors could have done the same under the Sherbert-era Free Exercise Clause that the ACLU had long championed. http://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/04/01/many-liberals-sensible-retreat-from-the-old-justice-brennanaclu-position-on-religious-exemptions/ Insofar as we're talking about discrimination in the commercial marketplace, which is the context generating almost all of the liberal concerns about exemptions today, I have to disagree with Eugene's characterization of the law in the Sherbert era. Indeed, I make precisely the opposite argument at length in Part II of the following piece: http://harvardlawreview.org/2015/01/the-born-again-champion-of-conscience/ (The Real Issue: The Unprecedented Expansion of Exemption Rights into the Commercial Realm). Nowhere in his post does Eugene acknowledge either United States v. Lee, which is the only Sherbert-era case in which the Court explicitly addressed the issue of commercial exemptions, or Piggie Park, where the Court dismissed a commercial businesses' claim for an exemption from an antidiscrimination law as patently frivolous. Instead, Eugene refers to Justice Brennan's pre-Sherbert dissenting opinion in Crown. Whatever Justice Brennan's views in 1961, it is difficult to understand how they are a better representation of the Sherbert-era law than the following explicit statement of the Court in Lee, which was joined by Justice Brennan (as was Piggie Park): When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity. Granting an exemption from social security taxes to an employer operates to impose the employer's religious faith on the employees. Accordingly, I don't think the ACLU's current position can be accurately described as a retreat from their support of Sherbert-era exemption rights. As Eugene notes in his post, the ACLU still opposes Smith and supports exemption rights outside the commercial context. As I note in my piece, this is also true of Americans United and the Brennan Center. The strong opposition of those organizations to extending exemption rights into the for-profit commercial realm has sometimes been misread as a reversal of their position on exemption rights in general (indeed, I myself have made that mistake in the past), but as I detail in the piece cited above, an examination of the full record shows that [l]iberals who opposed *Smith* in 1990 and supported RFRA in 1993 — including liberal organizations, professors, and politicians — largely continue to support religious exemptions for individuals, while opposing the extension of such exemptions to commercial businesses. - 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
RE: Eugene's Blog Post on Liberals and Exemption Rights
Apart from the other points with which I disagree: Wow, Chip. You really think it’s OK to make the student recite the Pledge, as long as the student is permitted at the end to say “I don’t mean it”? Can I be required to burn a pinch of incense to the emperor as long as I am permitted afterwards to say that the emperor isn’t really a god? Mark Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu Sent: Wednesday, April 01, 2015 5:32 PM To: Law Religion issues for Law Academics Subject: Re: Eugene's Blog Post on Liberals and Exemption Rights If the compelled speech argument is constitutionally sufficient, permission to post a disclaiming sign may solve the problem. (It would be like letting a student say aloud I don't mean it after forcing her to recite the Pledge of Allegiance.) If the compelled speech argument is NOT constitutionally sufficient, I think the photographers have no First A right to put up such a sign, though of course the NM legislature could permissibly accommodate the religious objection by permitting a vendor to post such a sign. Away from the business site (on line or physical), the photographer of course is free to express her views on same sex marriage. On Wed, Apr 1, 2015 at 7:37 PM, Scarberry, Mark mark.scarbe...@pepperdine.edumailto:mark.scarbe...@pepperdine.edu wrote: I don’t have time right now to respond in a substantial way to Chip’s post. Let me just quote this language from the New Mexico Supreme Court’s decision in Elane Photography: “Businesses that choose to be public accommodations must comply with the NMHRA, although such businesses retain their First Amendment rights to express their religious or political beliefs. They may, for example, post a disclaimer on their website or in their studio advertising that they oppose same-sex marriage but that they comply with applicable antidiscrimination laws.” That’s not quite the same as saying that gay couples aren’t welcome, but it’s pretty close. Is the NM court right that the photographers have a 1st Am right to do so? On the question whether religious liberty claims have anything to do with the compelled speech issue, if we believe that the “hybrid rights” part of Smith means anything, it might apply in this kind of case so that the combination of the claims to constitutional protection might create some synergy. Mark Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law 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 Ira Lupu Sent: Wednesday, April 01, 2015 4:22 PM To: Law Religion issues for Law Academics Subject: Re: Eugene's Blog Post on Liberals and Exemption Rights I think the compelled speech issues, re: communicative work like photography, are interesting and sometimes difficult. I address those in an article I will post later this month. All I want to say now is that religious motivation is irrelevant to the compelled speech argument. (See W Va Bd of Educ v. Barnette.) But Mark also say If [harm] depends on the message sent by the refusal, then we have an interesting viewpoint discrimination issue. If, in 1965, Ollie's BBQ had put up a sign in the window that read Federal law says we must serve all, so we will, but n-s are not sincerely welcome, then he would have violated the Public Accommodations title of the Civil Rights Act (he would not have provided full and equal enjoyment of his restaurant without discrimination on the basis of race.) Does Mark or anyone on this list really think that presents a serious First Amendment problem? Ollie can write letters to Congress, and to the newspapers, and put signs on his lawn, all railing against the oppressive Civil Rights Act, but he cannot communicate that directly to customers on his business premises. If it were otherwise, the Act would be gutted entirely. I think that no Justice who has served in the last 50 years would take such a First A claim seriously. On Wed, Apr 1, 2015 at 6:53 PM, Scarberry, Mark mark.scarbe...@pepperdine.edumailto:mark.scarbe...@pepperdine.edu wrote: I also think the florist and baker examples are weaker for the religious claimant, especially where the flowers and cakes are generic. But what if custom floral arrangements involve artistic choices by the florist? What if the cake is (as some are) a truly creative work of art? And do only high-end bakers get protection from violation of conscience? What if the florist or baker is asked to include particular words or other expressive content in the arrangement or the cake? (This from someone who argued against licensing requirements for sellers of flowers – protectionist provisions for florists who fear grocery stores’ selling of flowers
Re: Eugene's Blog Post on Liberals and Exemption Rights
, but the conscience of an individual photographer, florist, baker, or bed and breakfast owner less worthy of protection?Justice Kagan, at least back in 1996 when she was in the Clinton White House, appeared to recognize that the consciences of individuals operating small commercial businesses was worthy of protection under a RFRA regime. Commenting on the short shrift given to the claim of a Evelyn Smith who, for religious reasons, did not want to rent one of her units to a co-habitating couple, Kagan noted that the court’s reasoning was “outrageous.” She wrote that it was “almost as if a court were to hold that a state law does not impose a substantial burden on religion because the complainant is free to move to another state.” http://www.brookings.edu/research/papers/2010/06/23-kagan-rogers *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *James Oleske *Sent:* Wednesday, April 01, 2015 2:25 PM *To:* Law Religion issues for Law Academics *Subject:* Eugene's Blog Post on Liberals and Exemption Rights Eugene has a new post up on Volokh Conspiracy entitled, Many liberals’ (sensible) retreat from the old Justice Brennan/ACLU position on religious exemptions. The piece is lengthy, and I recommend folks read it in full, but I want to take issue with the following assertion at the heart of Eugene's analysis: Yes, religious objectors can use these RFRAs to try to get exemptions from antidiscrimination laws. But religious objectors could have done the same under the Sherbert-era Free Exercise Clause that the ACLU had long championed. http://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/04/01/many-liberals-sensible-retreat-from-the-old-justice-brennanaclu-position-on-religious-exemptions/ Insofar as we're talking about discrimination in the commercial marketplace, which is the context generating almost all of the liberal concerns about exemptions today, I have to disagree with Eugene's characterization of the law in the Sherbert era. Indeed, I make precisely the opposite argument at length in Part II of the following piece: http://harvardlawreview.org/2015/01/the-born-again-champion-of-conscience/ (The Real Issue: The Unprecedented Expansion of Exemption Rights into the Commercial Realm). Nowhere in his post does Eugene acknowledge either United States v. Lee, which is the only Sherbert-era case in which the Court explicitly addressed the issue of commercial exemptions, or Piggie Park, where the Court dismissed a commercial businesses' claim for an exemption from an antidiscrimination law as patently frivolous. Instead, Eugene refers to Justice Brennan's pre-Sherbert dissenting opinion in Crown. Whatever Justice Brennan's views in 1961, it is difficult to understand how they are a better representation of the Sherbert-era law than the following explicit statement of the Court in Lee, which was joined by Justice Brennan (as was Piggie Park): When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity. Granting an exemption from social security taxes to an employer operates to impose the employer's religious faith on the employees. Accordingly, I don't think the ACLU's current position can be accurately described as a retreat from their support of Sherbert-era exemption rights. As Eugene notes in his post, the ACLU still opposes Smith and supports exemption rights outside the commercial context. As I note in my piece, this is also true of Americans United and the Brennan Center. The strong opposition of those organizations to extending exemption rights into the for-profit commercial realm has sometimes been misread as a reversal of their position on exemption rights in general (indeed, I myself have made that mistake in the past), but as I detail in the piece cited above, an examination of the full record shows that [l]iberals who opposed *Smith* in 1990 and supported RFRA in 1993 — including liberal organizations, professors, and politicians — largely continue to support religious exemptions for individuals, while opposing the extension of such exemptions to commercial businesses. - 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. ___ To post, send message to Religionlaw
Re: Eugene's Blog Post on Liberals and Exemption Rights
*Subject:* Eugene's Blog Post on Liberals and Exemption Rights Eugene has a new post up on Volokh Conspiracy entitled, Many liberals’ (sensible) retreat from the old Justice Brennan/ACLU position on religious exemptions. The piece is lengthy, and I recommend folks read it in full, but I want to take issue with the following assertion at the heart of Eugene's analysis: Yes, religious objectors can use these RFRAs to try to get exemptions from antidiscrimination laws. But religious objectors could have done the same under the Sherbert-era Free Exercise Clause that the ACLU had long championed. http://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/04/01/many-liberals-sensible-retreat-from-the-old-justice-brennanaclu-position-on-religious-exemptions/ Insofar as we're talking about discrimination in the commercial marketplace, which is the context generating almost all of the liberal concerns about exemptions today, I have to disagree with Eugene's characterization of the law in the Sherbert era. Indeed, I make precisely the opposite argument at length in Part II of the following piece: http://harvardlawreview.org/2015/01/the-born-again-champion-of-conscience/ (The Real Issue: The Unprecedented Expansion of Exemption Rights into the Commercial Realm). Nowhere in his post does Eugene acknowledge either United States v. Lee, which is the only Sherbert-era case in which the Court explicitly addressed the issue of commercial exemptions, or Piggie Park, where the Court dismissed a commercial businesses' claim for an exemption from an antidiscrimination law as patently frivolous. Instead, Eugene refers to Justice Brennan's pre-Sherbert dissenting opinion in Crown. Whatever Justice Brennan's views in 1961, it is difficult to understand how they are a better representation of the Sherbert-era law than the following explicit statement of the Court in Lee, which was joined by Justice Brennan (as was Piggie Park): When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity. Granting an exemption from social security taxes to an employer operates to impose the employer's religious faith on the employees. Accordingly, I don't think the ACLU's current position can be accurately described as a retreat from their support of Sherbert-era exemption rights. As Eugene notes in his post, the ACLU still opposes Smith and supports exemption rights outside the commercial context. As I note in my piece, this is also true of Americans United and the Brennan Center. The strong opposition of those organizations to extending exemption rights into the for-profit commercial realm has sometimes been misread as a reversal of their position on exemption rights in general (indeed, I myself have made that mistake in the past), but as I detail in the piece cited above, an examination of the full record shows that [l]iberals who opposed *Smith* in 1990 and supported RFRA in 1993 — including liberal organizations, professors, and politicians — largely continue to support religious exemptions for individuals, while opposing the extension of such exemptions to commercial businesses. - 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. ___ 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
Eugene's Blog Post on Liberals and Exemption Rights
Eugene has a new post up on Volokh Conspiracy entitled, Many liberals’ (sensible) retreat from the old Justice Brennan/ACLU position on religious exemptions. The piece is lengthy, and I recommend folks read it in full, but I want to take issue with the following assertion at the heart of Eugene's analysis: Yes, religious objectors can use these RFRAs to try to get exemptions from antidiscrimination laws. But religious objectors could have done the same under the Sherbert-era Free Exercise Clause that the ACLU had long championed. http://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/04/01/many-liberals-sensible-retreat-from-the-old-justice-brennanaclu-position-on-religious-exemptions/ Insofar as we're talking about discrimination in the commercial marketplace, which is the context generating almost all of the liberal concerns about exemptions today, I have to disagree with Eugene's characterization of the law in the Sherbert era. Indeed, I make precisely the opposite argument at length in Part II of the following piece: http://harvardlawreview.org/2015/01/the-born-again-champion-of-conscience/ (The Real Issue: The Unprecedented Expansion of Exemption Rights into the Commercial Realm). Nowhere in his post does Eugene acknowledge either United States v. Lee, which is the only Sherbert-era case in which the Court explicitly addressed the issue of commercial exemptions, or Piggie Park, where the Court dismissed a commercial businesses' claim for an exemption from an antidiscrimination law as patently frivolous. Instead, Eugene refers to Justice Brennan's pre-Sherbert dissenting opinion in Crown. Whatever Justice Brennan's views in 1961, it is difficult to understand how they are a better representation of the Sherbert-era law than the following explicit statement of the Court in Lee, which was joined by Justice Brennan (as was Piggie Park): When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity. Granting an exemption from social security taxes to an employer operates to impose the employer's religious faith on the employees. Accordingly, I don't think the ACLU's current position can be accurately described as a retreat from their support of Sherbert-era exemption rights. As Eugene notes in his post, the ACLU still opposes Smith and supports exemption rights outside the commercial context. As I note in my piece, this is also true of Americans United and the Brennan Center. The strong opposition of those organizations to extending exemption rights into the for-profit commercial realm has sometimes been misread as a reversal of their position on exemption rights in general (indeed, I myself have made that mistake in the past), but as I detail in the piece cited above, an examination of the full record shows that [l]iberals who opposed *Smith* in 1990 and supported RFRA in 1993 — including liberal organizations, professors, and politicians — largely continue to support religious exemptions for individuals, while opposing the extension of such exemptions to commercial businesses. - 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: Eugene's Blog Post on Liberals and Exemption Rights
“[l]iberals who opposed Smith in 1990 and supported RFRA in 1993 — including liberal organizations, professors, and politicians — largely continue to support religious exemptions for individuals, while opposing the extension of such exemptions to commercial businesses. I’m not sure I’m seeing the principled distinction. Do not many individuals depend for their livelihood on commercial businesses? Why do liberals see the conscience of individuals like Sherbert or Thomas worthy of protection, but the conscience of an individual photographer, florist, baker, or bed and breakfast owner less worthy of protection?Justice Kagan, at least back in 1996 when she was in the Clinton White House, appeared to recognize that the consciences of individuals operating small commercial businesses was worthy of protection under a RFRA regime. Commenting on the short shrift given to the claim of a Evelyn Smith who, for religious reasons, did not want to rent one of her units to a co-habitating couple, Kagan noted that the court’s reasoning was “outrageous.” She wrote that it was “almost as if a court were to hold that a state law does not impose a substantial burden on religion because the complainant is free to move to another state.” http://www.brookings.edu/research/papers/2010/06/23-kagan-rogers From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of James Oleske Sent: Wednesday, April 01, 2015 2:25 PM To: Law Religion issues for Law Academics Subject: Eugene's Blog Post on Liberals and Exemption Rights Eugene has a new post up on Volokh Conspiracy entitled, Many liberals’ (sensible) retreat from the old Justice Brennan/ACLU position on religious exemptions. The piece is lengthy, and I recommend folks read it in full, but I want to take issue with the following assertion at the heart of Eugene's analysis: Yes, religious objectors can use these RFRAs to try to get exemptions from antidiscrimination laws. But religious objectors could have done the same under the Sherbert-era Free Exercise Clause that the ACLU had long championed. http://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/04/01/many-liberals-sensible-retreat-from-the-old-justice-brennanaclu-position-on-religious-exemptions/ Insofar as we're talking about discrimination in the commercial marketplace, which is the context generating almost all of the liberal concerns about exemptions today, I have to disagree with Eugene's characterization of the law in the Sherbert era. Indeed, I make precisely the opposite argument at length in Part II of the following piece: http://harvardlawreview.org/2015/01/the-born-again-champion-of-conscience/ (The Real Issue: The Unprecedented Expansion of Exemption Rights into the Commercial Realm). Nowhere in his post does Eugene acknowledge either United States v. Lee, which is the only Sherbert-era case in which the Court explicitly addressed the issue of commercial exemptions, or Piggie Park, where the Court dismissed a commercial businesses' claim for an exemption from an antidiscrimination law as patently frivolous. Instead, Eugene refers to Justice Brennan's pre-Sherbert dissenting opinion in Crown. Whatever Justice Brennan's views in 1961, it is difficult to understand how they are a better representation of the Sherbert-era law than the following explicit statement of the Court in Lee, which was joined by Justice Brennan (as was Piggie Park): When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity. Granting an exemption from social security taxes to an employer operates to impose the employer's religious faith on the employees. Accordingly, I don't think the ACLU's current position can be accurately described as a retreat from their support of Sherbert-era exemption rights. As Eugene notes in his post, the ACLU still opposes Smith and supports exemption rights outside the commercial context. As I note in my piece, this is also true of Americans United and the Brennan Center. The strong opposition of those organizations to extending exemption rights into the for-profit commercial realm has sometimes been misread as a reversal of their position on exemption rights in general (indeed, I myself have made that mistake in the past), but as I detail in the piece cited above, an examination of the full record shows that [l]iberals who opposed Smith in 1990 and supported RFRA in 1993 — including liberal organizations, professors, and politicians — largely continue to support religious exemptions for individuals, while opposing the extension of such exemptions to commercial businesses. - Jim ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe
Re: Eugene's Blog Post on Liberals and Exemption Rights
Beyond the question of commerce/non-commerce, there is a broader distinction between accommodations that harm others and accommodations that do not. This distinction was reflected in the Supreme Court’s opinions in United States v. Lee (among other pre-Smith cases), Cutter v. Wilkinson (upholding RLUIPA against Establishment Clause challenge), and in Justice Ginsburg’s dissent in Hobby Lobby and concurrence in Holt v. Hobbs. Quite apart from Hobby Lobby’s status as a for-profit corporation, we (Americans United) opposed the Hobby Lobby exemption because it had the effect of stripping otherwise available healthcare coverage from employees’ compensation. We would have opposed that exemption even if the company was not a for-profit corporation – there were innocent third parties who were losing an important part of their employment compensation as a result of the exemption. There are some accommodations (a prisoner who wants to wear a beard, an individual who wants to use peyote (or wine, for that matter) as part of a religious ceremony, etc. etc.) that do not harm third parties. There are others (withholding healthcare from others, exemptions from antidiscrimination law) that harm third parties directly. That distinction was respected in the pre-Smith cases and highlighted again in Cutter, but it has come under attack in recent rounds of RFRA litigation. On Apr 1, 2015, at 2:51 PM, Gaubatz, Derek dgaub...@imb.orgmailto:dgaub...@imb.org wrote: “[l]iberals who opposed Smith in 1990 and supported RFRA in 1993 — including liberal organizations, professors, and politicians — largely continue to support religious exemptions for individuals, while opposing the extension of such exemptions to commercial businesses. I’m not sure I’m seeing the principled distinction. Do not many individuals depend for their livelihood on commercial businesses? Why do liberals see the conscience of individuals like Sherbert or Thomas worthy of protection, but the conscience of an individual photographer, florist, baker, or bed and breakfast owner less worthy of protection?Justice Kagan, at least back in 1996 when she was in the Clinton White House, appeared to recognize that the consciences of individuals operating small commercial businesses was worthy of protection under a RFRA regime. Commenting on the short shrift given to the claim of a Evelyn Smith who, for religious reasons, did not want to rent one of her units to a co-habitating couple, Kagan noted that the court’s reasoning was “outrageous.” She wrote that it was “almost as if a court were to hold that a state law does not impose a substantial burden on religion because the complainant is free to move to another state.” http://www.brookings.edu/research/papers/2010/06/23-kagan-rogers From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of James Oleske Sent: Wednesday, April 01, 2015 2:25 PM To: Law Religion issues for Law Academics Subject: Eugene's Blog Post on Liberals and Exemption Rights Eugene has a new post up on Volokh Conspiracy entitled, Many liberals’ (sensible) retreat from the old Justice Brennan/ACLU position on religious exemptions. The piece is lengthy, and I recommend folks read it in full, but I want to take issue with the following assertion at the heart of Eugene's analysis: Yes, religious objectors can use these RFRAs to try to get exemptions from antidiscrimination laws. But religious objectors could have done the same under the Sherbert-era Free Exercise Clause that the ACLU had long championed. http://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/04/01/many-liberals-sensible-retreat-from-the-old-justice-brennanaclu-position-on-religious-exemptions/ Insofar as we're talking about discrimination in the commercial marketplace, which is the context generating almost all of the liberal concerns about exemptions today, I have to disagree with Eugene's characterization of the law in the Sherbert era. Indeed, I make precisely the opposite argument at length in Part II of the following piece:http://harvardlawreview.org/2015/01/the-born-again-champion-of-conscience/ (The Real Issue: The Unprecedented Expansion of Exemption Rights into the Commercial Realm). Nowhere in his post does Eugene acknowledge either United States v. Lee, which is the only Sherbert-era case in which the Court explicitly addressed the issue of commercial exemptions, or Piggie Park, where the Court dismissed a commercial businesses' claim for an exemption from an antidiscrimination law as patently frivolous. Instead, Eugene refers to Justice Brennan's pre-Sherbert dissenting opinion in Crown. Whatever Justice Brennan's views in 1961, it is difficult to understand how they are a better representation of the Sherbert-era law than the following explicit statement of the Court in Lee, which was joined by Justice Brennan
Re: Eugene's Blog Post on Liberals and Exemption Rights
I discuss this question -- which is about the merits of the Sherbert-era distinction between commercial and non-commercial, not the existence of the distinction -- in another recent piece: There was very good reason, however, for the earlier consensus that owners of for-profit businesses must comply with secular laws regardless of their religious beliefs. In the commercial context, religious exemptions will almost always impose burdens on third parties, whether employees, customers, or business competitors. As a result, such exemptions implicate a rule “with a long history in libertarian thought”— that rights are limited by the need for “prevention of tangible harm to specifiable others without their consent.” Even in its pre-*Smith *jurisprudence, which held that exemptions from generally applicable laws were sometimes required, the Supreme Court gave force to this limitation, refusing to exempt an employer from the Social Security system because doing so would “operate[] to impose the employer’s religious faith on the employees.” In so reasoning, the Court was acting in accord with the general principle espoused by Justice Jackson four decades earlier that the “limitations which of necessity bound religious freedom . . . begin to operate whenever activities begin to collide with liberties of others or of the public.” Or as Justice Ginsburg has put it more recently, “with respect to free exercise claims no less than free speech claims, ‘your right to swing your arms ends just where the other man’s nose begins.’” http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2400100 (pp. 39-40) As I discuss in footnote 149 of the same piece, the Court has long made a similar commercial/non-commercial distinction in its free association jurisprudence. - Jim On Wed, Apr 1, 2015 at 11:51 AM, Gaubatz, Derek dgaub...@imb.org wrote: “[l]iberals who opposed *Smith* in 1990 and supported RFRA in 1993 — including liberal organizations, professors, and politicians — largely continue to support religious exemptions for individuals, while opposing the extension of such exemptions to commercial businesses. I’m not sure I’m seeing the principled distinction. Do not many individuals depend for their livelihood on commercial businesses? Why do liberals see the conscience of individuals like Sherbert or Thomas worthy of protection, but the conscience of an individual photographer, florist, baker, or bed and breakfast owner less worthy of protection?Justice Kagan, at least back in 1996 when she was in the Clinton White House, appeared to recognize that the consciences of individuals operating small commercial businesses was worthy of protection under a RFRA regime. Commenting on the short shrift given to the claim of a Evelyn Smith who, for religious reasons, did not want to rent one of her units to a co-habitating couple, Kagan noted that the court’s reasoning was “outrageous.” She wrote that it was “almost as if a court were to hold that a state law does not impose a substantial burden on religion because the complainant is free to move to another state.” http://www.brookings.edu/research/papers/2010/06/23-kagan-rogers *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *James Oleske *Sent:* Wednesday, April 01, 2015 2:25 PM *To:* Law Religion issues for Law Academics *Subject:* Eugene's Blog Post on Liberals and Exemption Rights Eugene has a new post up on Volokh Conspiracy entitled, Many liberals’ (sensible) retreat from the old Justice Brennan/ACLU position on religious exemptions. The piece is lengthy, and I recommend folks read it in full, but I want to take issue with the following assertion at the heart of Eugene's analysis: Yes, religious objectors can use these RFRAs to try to get exemptions from antidiscrimination laws. But religious objectors could have done the same under the Sherbert-era Free Exercise Clause that the ACLU had long championed. http://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/04/01/many-liberals-sensible-retreat-from-the-old-justice-brennanaclu-position-on-religious-exemptions/ Insofar as we're talking about discrimination in the commercial marketplace, which is the context generating almost all of the liberal concerns about exemptions today, I have to disagree with Eugene's characterization of the law in the Sherbert era. Indeed, I make precisely the opposite argument at length in Part II of the following piece: http://harvardlawreview.org/2015/01/the-born-again-champion-of-conscience/ (The Real Issue: The Unprecedented Expansion of Exemption Rights into the Commercial Realm). Nowhere in his post does Eugene acknowledge either United States v. Lee, which is the only Sherbert-era case in which the Court explicitly addressed the issue of commercial exemptions, or Piggie Park, where the Court dismissed a commercial businesses' claim for an exemption from
Re: Eugene's Blog Post on Liberals and Exemption Rights
The butcher example Chip gives is why I suggested last spring that the Court might want to read the Lee language not as an absolute rule, but rather, a strong presumption against exemptions in the commercial realm that can be overcome in the very rare case where the basis for the presumption (a third-party harm) does not exist. Alas, the Court instead simply discarded the Lee language wholesale by saying RFRA went further than the pre-Smith law. - Jim On Wed, Apr 1, 2015 at 12:09 PM, Ira Lupu icl...@law.gwu.edu wrote: I do not think most liberals oppose exemptions for businesses per se -- imagine a law that compelled a butcher to carry products in conflict with religious dietary laws to which the butcher and his customers subscribe. Liberals oppose exemptions that impinge on the welfare of third parties -- Hobby Lobby (those female employees still do not have contraceptive coverage) or wedding vendor exemptions from public accommodations laws (those exemptions allow material and dignitary injury to potential customers). U.S. v. Lee involved injury to other family members of Amish employees, as well as others in the social insurance pool. On Wed, Apr 1, 2015 at 2:51 PM, Gaubatz, Derek dgaub...@imb.org wrote: “[l]iberals who opposed *Smith* in 1990 and supported RFRA in 1993 — including liberal organizations, professors, and politicians — largely continue to support religious exemptions for individuals, while opposing the extension of such exemptions to commercial businesses. I’m not sure I’m seeing the principled distinction. Do not many individuals depend for their livelihood on commercial businesses? Why do liberals see the conscience of individuals like Sherbert or Thomas worthy of protection, but the conscience of an individual photographer, florist, baker, or bed and breakfast owner less worthy of protection?Justice Kagan, at least back in 1996 when she was in the Clinton White House, appeared to recognize that the consciences of individuals operating small commercial businesses was worthy of protection under a RFRA regime. Commenting on the short shrift given to the claim of a Evelyn Smith who, for religious reasons, did not want to rent one of her units to a co-habitating couple, Kagan noted that the court’s reasoning was “outrageous.” She wrote that it was “almost as if a court were to hold that a state law does not impose a substantial burden on religion because the complainant is free to move to another state.” http://www.brookings.edu/research/papers/2010/06/23-kagan-rogers *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *James Oleske *Sent:* Wednesday, April 01, 2015 2:25 PM *To:* Law Religion issues for Law Academics *Subject:* Eugene's Blog Post on Liberals and Exemption Rights Eugene has a new post up on Volokh Conspiracy entitled, Many liberals’ (sensible) retreat from the old Justice Brennan/ACLU position on religious exemptions. The piece is lengthy, and I recommend folks read it in full, but I want to take issue with the following assertion at the heart of Eugene's analysis: Yes, religious objectors can use these RFRAs to try to get exemptions from antidiscrimination laws. But religious objectors could have done the same under the Sherbert-era Free Exercise Clause that the ACLU had long championed. http://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/04/01/many-liberals-sensible-retreat-from-the-old-justice-brennanaclu-position-on-religious-exemptions/ Insofar as we're talking about discrimination in the commercial marketplace, which is the context generating almost all of the liberal concerns about exemptions today, I have to disagree with Eugene's characterization of the law in the Sherbert era. Indeed, I make precisely the opposite argument at length in Part II of the following piece: http://harvardlawreview.org/2015/01/the-born-again-champion-of-conscience/ (The Real Issue: The Unprecedented Expansion of Exemption Rights into the Commercial Realm). Nowhere in his post does Eugene acknowledge either United States v. Lee, which is the only Sherbert-era case in which the Court explicitly addressed the issue of commercial exemptions, or Piggie Park, where the Court dismissed a commercial businesses' claim for an exemption from an antidiscrimination law as patently frivolous. Instead, Eugene refers to Justice Brennan's pre-Sherbert dissenting opinion in Crown. Whatever Justice Brennan's views in 1961, it is difficult to understand how they are a better representation of the Sherbert-era law than the following explicit statement of the Court in Lee, which was joined by Justice Brennan (as was Piggie Park): When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes
Re: Eugene's Blog Post on Liberals and Exemption Rights
I appreciate your point, Nelson. And I think the principle that private citizens should not have to bear the costs associated with other citizens’ religious observance deserves respect. Standing alone, it would often be dispositive. Where we disagree, I think, is that in religious exemption cases I see two principles here that deserve our respect. The one I just quoted above and the principle that the majority and government should not prohibit or burden another citizen's religious observance. I think, you can tell me if I'm wrong, that you would agree that this principle standing alone also deserves respect. If there is no harm to third parties, you would support religious exemptions. Then the question becomes what do we do when these two principles are in conflict with each other. I don't think either trumps the other all of the time. I think as the harm to third parties increases, the principle that citizens should not have to bear the costs associated with the other citizen's religious observance outweighs the religious liberty principle. I understand you to be saying that the religious liberty principle is always trumped in these cases without regard to the magnitude of the costs involved. There are a lot of religious accommodations that result in third parties incurring some cost. A RLUIPA land use accommodation might result in some neighboring homeowner, business or farmer incurring some diminution of value in their property. A public university accommodation shifting move-in day so that it doesn't fall on the Jewish High Holy days may require a shift in the academic calendar that inconveniences the travel plans of specific faculty, students and their families. A court accommodating the religious obligations of a religious attorney or witness may delay or otherwise increase the cost of litigation. A law banning male circumcision exempts Jewish families from its requirements. Does the existence of harm to third parties in these situations and others require the invalidation of all of these accommodations without regard to the magnitude of the harm borne by third parties? Alan From: religionlaw-boun...@lists.ucla.edu religionlaw-boun...@lists.ucla.edu on behalf of Nelson Tebbe nelson.te...@brooklaw.edu Sent: Wednesday, April 1, 2015 1:38 PM To: Law Religion issues for Law Academics Subject: Re: Eugene's Blog Post on Liberals and Exemption Rights Alan, I can’t speak for others who have been defending a principle against burden-shifting to third parties, but I do not believe it prohibits religion accommodations that result in costs to the government or to the public. Rather, the principle prohibits government accommodations that shift meaningful costs from religious citizens to other identifiable private citizens. And the reason for this is easy to articulate and deeply rooted — private citizens should not have to bear the costs associated with other citizens’ religious observance. On Apr 1, 2015, at 4:07 PM, Alan E Brownstein aebrownst...@ucdavis.edumailto:aebrownst...@ucdavis.edu wrote: The problem I have with Jim's argument, if I understand him correctly, is that it seems to suggest that no religious exemption can be accepted if it causes any harm to a third party. (I'm not sure if Jim includes the general public or the public fisc in third party.) I think many liberals believe (or at least they used to believe) that rights are expensive political goods. We protect them even if we have to incur some cost or harm to third parties or the public in order to do so. Of course, that leaves open the difficult question of determining when the price for protecting a right is too high. (And when we are talking about the right to discriminate in employment or public accommodations, leaving religious institutions aside, the price is almost always too high.) But I see no historical consensus that we only protect freedom of speech or religious liberty when the cost of doing so is zero. That certainly wasn't the understanding of freedom of speech that Justice Brandeis defended in his famous dissents on which contemporary free speech doctrine is based. Indeed, the argument that we should only accept zero cost religious accommodations is not only inconsistent with the way we generally understand rights, it seems inconsistent with the way we evaluate government regulations generally. It is one thing to argue that we should reject a religious exemption when the harm or cost of granting it is too high. That position is consistent with the general cost benefit analysis we use to discuss any government decision. But why should we only accept zero cost religious accommodations? We routinely allow government to enact laws that result in some costs, burdens, and harms to third parties or the general public that serve a variety of purposes. Alan ___ To post, send message
Re: Eugene's Blog Post on Liberals and Exemption Rights
As someone putting a wedding together, I can't explain the lack of sympathy for the wedding photographer as anything but thinking that their work is essentially interchangeable. It is not, unfortunately, and it is priced accordingly. Every single photographer of them seems to take their business very, very personally. More to the point, it is a personal, professional service which is by its nature selective compared to the harm done by impersonal corporations excluding goods and services when they otherwise serve the public. A principled difference can be drawn between accommodating personal, inherently selective commercial businesses and businesses that are open to the public at large. The vast majority of commercial transactions are from businesses who sell to the public, or their business community, on a non-discriminatory basis. When such a business denies goods or services to a class of person, that is an inherently political act. Such a businesses is not just refusing the do business with an individual or class, they are making an attempt to exclude them from *the definition of the public itself. *They are thus doing harm to both individual and society by imposing their will on what constitutes the political community. This harm grows geometrically with each exclusionary actor. Individual consumers on the other hand, are inherently selective. If you need one loaf of bread this week, you will patronize precisely one baker this week. If you need a salary, you will work one, maybe two jobs. The harm of being denied service by a consumer (or laborer) because of their beliefs has a societal harm, if any, nearly indistinguishable to being denied for any other reason. Some services should fall in between. I'm not convinced for the florist and the and the baker, but I'm sympathetic to the photographer, the doctor, the lawyer (ethical obligations notwithstanding) , the political consultant, the ghost writer... I don't know how far that gets liberals of course, but it *is* a difference beyond mere size and corporate form. Kevin Chen On Wed, Apr 1, 2015 at 2:51 PM, Gaubatz, Derek dgaub...@imb.org wrote: “[l]iberals who opposed *Smith* in 1990 and supported RFRA in 1993 — including liberal organizations, professors, and politicians — largely continue to support religious exemptions for individuals, while opposing the extension of such exemptions to commercial businesses. I’m not sure I’m seeing the principled distinction. Do not many individuals depend for their livelihood on commercial businesses? Why do liberals see the conscience of individuals like Sherbert or Thomas worthy of protection, but the conscience of an individual photographer, florist, baker, or bed and breakfast owner less worthy of protection?Justice Kagan, at least back in 1996 when she was in the Clinton White House, appeared to recognize that the consciences of individuals operating small commercial businesses was worthy of protection under a RFRA regime. Commenting on the short shrift given to the claim of a Evelyn Smith who, for religious reasons, did not want to rent one of her units to a co-habitating couple, Kagan noted that the court’s reasoning was “outrageous.” She wrote that it was “almost as if a court were to hold that a state law does not impose a substantial burden on religion because the complainant is free to move to another state.” http://www.brookings.edu/research/papers/2010/06/23-kagan-rogers *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *James Oleske *Sent:* Wednesday, April 01, 2015 2:25 PM *To:* Law Religion issues for Law Academics *Subject:* Eugene's Blog Post on Liberals and Exemption Rights Eugene has a new post up on Volokh Conspiracy entitled, Many liberals’ (sensible) retreat from the old Justice Brennan/ACLU position on religious exemptions. The piece is lengthy, and I recommend folks read it in full, but I want to take issue with the following assertion at the heart of Eugene's analysis: Yes, religious objectors can use these RFRAs to try to get exemptions from antidiscrimination laws. But religious objectors could have done the same under the Sherbert-era Free Exercise Clause that the ACLU had long championed. http://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/04/01/many-liberals-sensible-retreat-from-the-old-justice-brennanaclu-position-on-religious-exemptions/ Insofar as we're talking about discrimination in the commercial marketplace, which is the context generating almost all of the liberal concerns about exemptions today, I have to disagree with Eugene's characterization of the law in the Sherbert era. Indeed, I make precisely the opposite argument at length in Part II of the following piece: http://harvardlawreview.org/2015/01/the-born-again-champion-of-conscience/ (The Real Issue: The Unprecedented Expansion of Exemption Rights into the Commercial Realm
Re: Eugene's Blog Post on Liberals and Exemption Rights
private citizens should not have to bear the costs associated with other citizens’ religious observance. Except they do. When my co-workers take time off work to observe religious restrictions, everyone else's work increases. Sometimes noticeably. And trying to sort between meaningful costs and *de minimis* costs is going to be tricky. The difference might be drawn between third parties being forced to subsidize a religious belief (I cannot eat ham, so you all have to chip in for a steak sandwich) and merely being asked to bear with it. Kevin Chen On Wed, Apr 1, 2015 at 4:38 PM, Nelson Tebbe nelson.te...@brooklaw.edu wrote: Alan, I can’t speak for others who have been defending a principle against burden-shifting to third parties, but I do not believe it prohibits religion accommodations that result in costs to the government or to the public. Rather, the principle prohibits government accommodations that shift meaningful costs from religious citizens to other identifiable private citizens. And the reason for this is easy to articulate and deeply rooted — private citizens should not have to bear the costs associated with other citizens’ religious observance. On Apr 1, 2015, at 4:07 PM, Alan E Brownstein aebrownst...@ucdavis.edu wrote: The problem I have with Jim's argument, if I understand him correctly, is that it seems to suggest that no religious exemption can be accepted if it causes any harm to a third party. (I'm not sure if Jim includes the general public or the public fisc in third party.) I think many liberals believe (or at least they used to believe) that rights are expensive political goods. We protect them even if we have to incur some cost or harm to third parties or the public in order to do so. Of course, that leaves open the difficult question of determining when the price for protecting a right is too high. (And when we are talking about the right to discriminate in employment or public accommodations, leaving religious institutions aside, the price is almost always too high.) But I see no historical consensus that we only protect freedom of speech or religious liberty when the cost of doing so is zero. That certainly wasn't the understanding of freedom of speech that Justice Brandeis defended in his famous dissents on which contemporary free speech doctrine is based. Indeed, the argument that we should only accept zero cost religious accommodations is not only inconsistent with the way we generally understand rights, it seems inconsistent with the way we evaluate government regulations generally. It is one thing to argue that we should reject a religious exemption when the harm or cost of granting it is too high. That position is consistent with the general cost benefit analysis we use to discuss any government decision. But why should we only accept zero cost religious accommodations? We routinely allow government to enact laws that result in some costs, burdens, and harms to third parties or the general public that serve a variety of purposes. Alan -- *From:* religionlaw-boun...@lists.ucla.edu religionlaw-boun...@lists.ucla.edu on behalf of James Oleske jole...@lclark.edu *Sent:* Wednesday, April 1, 2015 12:22 PM *To:* Law Religion issues for Law Academics *Subject:* Re: Eugene's Blog Post on Liberals and Exemption Rights The butcher example Chip gives is why I suggested last spring that the Court might want to read the Lee language not as an absolute rule, but rather, a strong presumption against exemptions in the commercial realm that can be overcome in the very rare case where the basis for the presumption (a third-party harm) does not exist. Alas, the Court instead simply discarded the Lee language wholesale by saying RFRA went further than the pre-Smith law. - Jim On Wed, Apr 1, 2015 at 12:09 PM, Ira Lupu icl...@law.gwu.edu wrote: I do not think most liberals oppose exemptions for businesses per se -- imagine a law that compelled a butcher to carry products in conflict with religious dietary laws to which the butcher and his customers subscribe. Liberals oppose exemptions that impinge on the welfare of third parties -- Hobby Lobby (those female employees still do not have contraceptive coverage) or wedding vendor exemptions from public accommodations laws (those exemptions allow material and dignitary injury to potential customers). U.S. v. Lee involved injury to other family members of Amish employees, as well as others in the social insurance pool. ___ 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
Re: Eugene's Blog Post on Liberals and Exemption Rights
I think Prof. Chen is substantially correct, but I believe, more than ever, that it's the kind of problem that can ( and should) be handled outside legal constraints. Why would I want to hire a wedding photographer who so clearly won't view the day as affirmatively special? Ditto the band? But I really can't work up much sympathy for the florist or baker. They should be treated under the general rubric of public accommodations and the Civil Rights Act of 1964. I'm sure there were florists and bakers who objected to mixes-race marriages and could cite the purported curse on Ham. It really doesn't (and shouldn't) matter. Sandy Sent from my iPhone On Apr 1, 2015, at 4:56 PM, K Chen tzn...@gmail.commailto:tzn...@gmail.com wrote: As someone putting a wedding together, I can't explain the lack of sympathy for the wedding photographer as anything but thinking that their work is essentially interchangeable. It is not, unfortunately, and it is priced accordingly. Every single photographer of them seems to take their business very, very personally. More to the point, it is a personal, professional service which is by its nature selective compared to the harm done by impersonal corporations excluding goods and services when they otherwise serve the public. A principled difference can be drawn between accommodating personal, inherently selective commercial businesses and businesses that are open to the public at large. The vast majority of commercial transactions are from businesses who sell to the public, or their business community, on a non-discriminatory basis. When such a business denies goods or services to a class of person, that is an inherently political act. Such a businesses is not just refusing the do business with an individual or class, they are making an attempt to exclude them from the definition of the public itself. They are thus doing harm to both individual and society by imposing their will on what constitutes the political community. This harm grows geometrically with each exclusionary actor. Individual consumers on the other hand, are inherently selective. If you need one loaf of bread this week, you will patronize precisely one baker this week. If you need a salary, you will work one, maybe two jobs. The harm of being denied service by a consumer (or laborer) because of their beliefs has a societal harm, if any, nearly indistinguishable to being denied for any other reason. Some services should fall in between. I'm not convinced for the florist and the and the baker, but I'm sympathetic to the photographer, the doctor, the lawyer (ethical obligations notwithstanding) , the political consultant, the ghost writer... I don't know how far that gets liberals of course, but it is a difference beyond mere size and corporate form. Kevin Chen On Wed, Apr 1, 2015 at 2:51 PM, Gaubatz, Derek dgaub...@imb.orgmailto:dgaub...@imb.org wrote: “[l]iberals who opposed Smith in 1990 and supported RFRA in 1993 — including liberal organizations, professors, and politicians — largely continue to support religious exemptions for individuals, while opposing the extension of such exemptions to commercial businesses. I’m not sure I’m seeing the principled distinction. Do not many individuals depend for their livelihood on commercial businesses? Why do liberals see the conscience of individuals like Sherbert or Thomas worthy of protection, but the conscience of an individual photographer, florist, baker, or bed and breakfast owner less worthy of protection?Justice Kagan, at least back in 1996 when she was in the Clinton White House, appeared to recognize that the consciences of individuals operating small commercial businesses was worthy of protection under a RFRA regime. Commenting on the short shrift given to the claim of a Evelyn Smith who, for religious reasons, did not want to rent one of her units to a co-habitating couple, Kagan noted that the court’s reasoning was “outrageous.” She wrote that it was “almost as if a court were to hold that a state law does not impose a substantial burden on religion because the complainant is free to move to another state.” http://www.brookings.edu/research/papers/2010/06/23-kagan-rogers 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 James Oleske Sent: Wednesday, April 01, 2015 2:25 PM To: Law Religion issues for Law Academics Subject: Eugene's Blog Post on Liberals and Exemption Rights Eugene has a new post up on Volokh Conspiracy entitled, Many liberals’ (sensible) retreat from the old Justice Brennan/ACLU position on religious exemptions. The piece is lengthy, and I recommend folks read it in full, but I want to take issue with the following assertion at the heart of Eugene's analysis: Yes, religious objectors can use these RFRAs to try to get exemptions from
Re: Eugene's Blog Post on Liberals and Exemption Rights
Non-Jews are under no obligation not to eat pork (or adhere to almost all of the other 612 mitzvot). So there is no stigma attached to any non-Jew who wants to buy a ham at a kosher butchery. That can't be said with regard to the florist who refuses to sell a bouquet for use at a same-sex marriage, who is necessarily condoning the presumptively sinful conduct. Ironically or not, the only person a Jewish butcher might be upset with is another Jew. This underscores the fact that very few Jewish laws are universal. This is not true of most purported Christian precepts (beginning with the widely shared view among many a Evangelicals that I'm damned for failure to accept the teaching of John 3:16 (which I know by heart having memorized it some 65 years ago in order to earn a Bible certificate from the state of North Carolina). Sandy Sent from my iPhone On Apr 1, 2015, at 3:44 PM, Will Esser willes...@yahoo.commailto:willes...@yahoo.com wrote: Chip, Can you expound on your argument that wedding vendor exemptions from public accommodations laws allow material and dignitary injury to potential customers and that liberals only oppose exemptions that impinge on the welfare of third parties? It seems that both sides agree that the kosher butcher deserves a religious exemption, and yet granting that exemption imposes some cost on third parties (i.e. anyone who wishes to purchase pork must go elsewhere, which could involve multiple trips to different butchers, or may mean spending more time and money to go to a butcher further away). So it's not really that there is no cost to third parties, but perhaps simply a cost which society is more ready to accept (i.e. Go buy your pork somewhere else.) As I understood the third-party harm argument in Hobby Lobby, the argument was that without insurance coverage, female Hobby Lobby employees would be unable to afford coverage of the particular, objectionable contraceptives and therefore the third party harm was equivalent to total lack of access. Given modern changes in societal perspectives, I have not heard the same argument about a total lack of access when it comes to wedding vendors for same-sex wedding ceremonies. Under the assumption the goods and services are otherwise generally available in the marketplace (i.e. there are plenty of wedding photographers, bakers, etc. who would be happy for the business of same-sex weddings), what is the distinguishing factor which causes material and dignitary injury in the wedding vendor exemptions scenario but not in the kosher butcher example? In both, the customers want a service which they can get in the marketplace (although perhaps not from the exact person or place they want it). And in both, the reason for not providing the service is the same (i.e. violation of a sincerely held religious belief). Thanks in advance for clarification. Will Will Esser Charlotte, North Carolina From: James Oleske jole...@lclark.edumailto:jole...@lclark.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Sent: Wednesday, April 1, 2015 3:22 PM Subject: Re: Eugene's Blog Post on Liberals and Exemption Rights The butcher example Chip gives is why I suggested last spring that the Court might want to read the Lee language not as an absolute rule, but rather, a strong presumption against exemptions in the commercial realm that can be overcome in the very rare case where the basis for the presumption (a third-party harm) does not exist. Alas, the Court instead simply discarded the Lee language wholesale by saying RFRA went further than the pre-Smith law. - Jim On Wed, Apr 1, 2015 at 12:09 PM, Ira Lupu icl...@law.gwu.edumailto:icl...@law.gwu.edu wrote: I do not think most liberals oppose exemptions for businesses per se -- imagine a law that compelled a butcher to carry products in conflict with religious dietary laws to which the butcher and his customers subscribe. Liberals oppose exemptions that impinge on the welfare of third parties -- Hobby Lobby (those female employees still do not have contraceptive coverage) or wedding vendor exemptions from public accommodations laws (those exemptions allow material and dignitary injury to potential customers). U.S. v. Lee involved injury to other family members of Amish employees, as well as others in the social insurance pool. On Wed, Apr 1, 2015 at 2:51 PM, Gaubatz, Derek dgaub...@imb.orgmailto:dgaub...@imb.org wrote: “[l]iberals who opposed Smith in 1990 and supported RFRA in 1993 — including liberal organizations, professors, and politicians — largely continue to support religious exemptions for individuals, while opposing the extension of such exemptions to commercial businesses. I’m not sure I’m seeing the principled distinction. Do not many individuals depend for their livelihood on commercial businesses? Why do liberals see
Re: Eugene's Blog Post on Liberals and Exemption Rights
The problem I have with Jim's argument, if I understand him correctly, is that it seems to suggest that no religious exemption can be accepted if it causes any harm to a third party. (I'm not sure if Jim includes the general public or the public fisc in third party.) I think many liberals believe (or at least they used to believe) that rights are expensive political goods. We protect them even if we have to incur some cost or harm to third parties or the public in order to do so. Of course, that leaves open the difficult question of determining when the price for protecting a right is too high. (And when we are talking about the right to discriminate in employment or public accommodations, leaving religious institutions aside, the price is almost always too high.) But I see no historical consensus that we only protect freedom of speech or religious liberty when the cost of doing so is zero. That certainly wasn't the understanding of freedom of speech that Justice Brandeis defended in his famous dissents on which contemporary free speech doctrine is based. Indeed, the argument that we should only accept zero cost religious accommodations is not only inconsistent with the way we generally understand rights, it seems inconsistent with the way we evaluate government regulations generally. It is one thing to argue that we should reject a religious exemption when the harm or cost of granting it is too high. That position is consistent with the general cost benefit analysis we use to discuss any government decision. But why should we only accept zero cost religious accommodations? We routinely allow government to enact laws that result in some costs, burdens, and harms to third parties or the general public that serve a variety of purposes. Alan From: religionlaw-boun...@lists.ucla.edu religionlaw-boun...@lists.ucla.edu on behalf of James Oleske jole...@lclark.edu Sent: Wednesday, April 1, 2015 12:22 PM To: Law Religion issues for Law Academics Subject: Re: Eugene's Blog Post on Liberals and Exemption Rights The butcher example Chip gives is why I suggested last spring that the Court might want to read the Lee language not as an absolute rule, but rather, a strong presumption against exemptions in the commercial realm that can be overcome in the very rare case where the basis for the presumption (a third-party harm) does not exist. Alas, the Court instead simply discarded the Lee language wholesale by saying RFRA went further than the pre-Smith law. - Jim On Wed, Apr 1, 2015 at 12:09 PM, Ira Lupu icl...@law.gwu.edumailto:icl...@law.gwu.edu wrote: I do not think most liberals oppose exemptions for businesses per se -- imagine a law that compelled a butcher to carry products in conflict with religious dietary laws to which the butcher and his customers subscribe. Liberals oppose exemptions that impinge on the welfare of third parties -- Hobby Lobby (those female employees still do not have contraceptive coverage) or wedding vendor exemptions from public accommodations laws (those exemptions allow material and dignitary injury to potential customers). U.S. v. Lee involved injury to other family members of Amish employees, as well as others in the social insurance pool. ___ 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: Eugene's Blog Post on Liberals and Exemption Rights
Alan, I can’t speak for others who have been defending a principle against burden-shifting to third parties, but I do not believe it prohibits religion accommodations that result in costs to the government or to the public. Rather, the principle prohibits government accommodations that shift meaningful costs from religious citizens to other identifiable private citizens. And the reason for this is easy to articulate and deeply rooted — private citizens should not have to bear the costs associated with other citizens’ religious observance. On Apr 1, 2015, at 4:07 PM, Alan E Brownstein aebrownst...@ucdavis.edumailto:aebrownst...@ucdavis.edu wrote: The problem I have with Jim's argument, if I understand him correctly, is that it seems to suggest that no religious exemption can be accepted if it causes any harm to a third party. (I'm not sure if Jim includes the general public or the public fisc in third party.) I think many liberals believe (or at least they used to believe) that rights are expensive political goods. We protect them even if we have to incur some cost or harm to third parties or the public in order to do so. Of course, that leaves open the difficult question of determining when the price for protecting a right is too high. (And when we are talking about the right to discriminate in employment or public accommodations, leaving religious institutions aside, the price is almost always too high.) But I see no historical consensus that we only protect freedom of speech or religious liberty when the cost of doing so is zero. That certainly wasn't the understanding of freedom of speech that Justice Brandeis defended in his famous dissents on which contemporary free speech doctrine is based. Indeed, the argument that we should only accept zero cost religious accommodations is not only inconsistent with the way we generally understand rights, it seems inconsistent with the way we evaluate government regulations generally. It is one thing to argue that we should reject a religious exemption when the harm or cost of granting it is too high. That position is consistent with the general cost benefit analysis we use to discuss any government decision. But why should we only accept zero cost religious accommodations? We routinely allow government to enact laws that result in some costs, burdens, and harms to third parties or the general public that serve a variety of purposes. Alan From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu on behalf of James Oleske jole...@lclark.edumailto:jole...@lclark.edu Sent: Wednesday, April 1, 2015 12:22 PM To: Law Religion issues for Law Academics Subject: Re: Eugene's Blog Post on Liberals and Exemption Rights The butcher example Chip gives is why I suggested last spring that the Court might want to read the Lee language not as an absolute rule, but rather, a strong presumption against exemptions in the commercial realm that can be overcome in the very rare case where the basis for the presumption (a third-party harm) does not exist. Alas, the Court instead simply discarded the Lee language wholesale by saying RFRA went further than the pre-Smith law. - Jim On Wed, Apr 1, 2015 at 12:09 PM, Ira Lupu icl...@law.gwu.edumailto:icl...@law.gwu.edu wrote: I do not think most liberals oppose exemptions for businesses per se -- imagine a law that compelled a butcher to carry products in conflict with religious dietary laws to which the butcher and his customers subscribe. Liberals oppose exemptions that impinge on the welfare of third parties -- Hobby Lobby (those female employees still do not have contraceptive coverage) or wedding vendor exemptions from public accommodations laws (those exemptions allow material and dignitary injury to potential customers). U.S. v. Lee involved injury to other family members of Amish employees, as well as others in the social insurance pool. ___ 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
Re: Eugene's Blog Post on Liberals and Exemption Rights
Chip, Can you expound on your argument that wedding vendor exemptions from public accommodations laws allow material and dignitary injury to potential customers and that liberals only oppose exemptions that impinge on the welfare of third parties? It seems that both sides agree that the kosher butcher deserves a religious exemption, and yet granting that exemption imposes some cost on third parties (i.e. anyone who wishes to purchase pork must go elsewhere, which could involve multiple trips to different butchers, or may mean spending more time and money to go to a butcher further away). So it's not really that there is no cost to third parties, but perhaps simply a cost which society is more ready to accept (i.e. Go buy your pork somewhere else.) As I understood the third-party harm argument in Hobby Lobby, the argument was that without insurance coverage, female Hobby Lobby employees would be unable to afford coverage of the particular, objectionable contraceptives and therefore the third party harm was equivalent to total lack of access. Given modern changes in societal perspectives, I have not heard the same argument about a total lack of access when it comes to wedding vendors for same-sex wedding ceremonies. Under the assumption the goods and services are otherwise generally available in the marketplace (i.e. there are plenty of wedding photographers, bakers, etc. who would be happy for the business of same-sex weddings), what is the distinguishing factor which causes material and dignitary injury in the wedding vendor exemptions scenario but not in the kosher butcher example? In both, the customers want a service which they can get in the marketplace (although perhaps not from the exact person or place they want it). And in both, the reason for not providing the service is the same (i.e. violation of a sincerely held religious belief). Thanks in advance for clarification. Will Will Esser Charlotte, North Carolina From: James Oleske jole...@lclark.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Wednesday, April 1, 2015 3:22 PM Subject: Re: Eugene's Blog Post on Liberals and Exemption Rights The butcher example Chip gives is why I suggested last spring that the Court might want to read the Lee language not as an absolute rule, but rather, a strong presumption against exemptions in the commercial realm that can be overcome in the very rare case where the basis for the presumption (a third-party harm) does not exist. Alas, the Court instead simply discarded the Lee language wholesale by saying RFRA went further than the pre-Smith law. - Jim On Wed, Apr 1, 2015 at 12:09 PM, Ira Lupu icl...@law.gwu.edu wrote: I do not think most liberals oppose exemptions for businesses per se -- imagine a law that compelled a butcher to carry products in conflict with religious dietary laws to which the butcher and his customers subscribe. Liberals oppose exemptions that impinge on the welfare of third parties -- Hobby Lobby (those female employees still do not have contraceptive coverage) or wedding vendor exemptions from public accommodations laws (those exemptions allow material and dignitary injury to potential customers). U.S. v. Lee involved injury to other family members of Amish employees, as well as others in the social insurance pool. On Wed, Apr 1, 2015 at 2:51 PM, Gaubatz, Derek dgaub...@imb.org wrote: “[l]iberals who opposedSmith in 1990 and supported RFRA in 1993 — including liberal organizations, professors, and politicians — largely continue to support religious exemptions for individuals, while opposing the extension of such exemptions to commercial businesses. I’m not sure I’m seeing the principled distinction. Do not many individuals depend for their livelihood on commercial businesses? Why do liberals see the conscience of individuals like Sherbert or Thomas worthy of protection, but the conscience of an individual photographer, florist, baker, or bed and breakfast owner less worthy of protection? Justice Kagan, at least back in 1996 when she was in the Clinton White House, appeared to recognize that the consciences of individuals operating small commercial businesses was worthy of protection under a RFRA regime. Commenting on the short shrift given to the claim of a Evelyn Smith who, for religious reasons, did not want to rent one of her units to a co-habitating couple, Kagan noted that the court’s reasoning was “outrageous.” She wrote that it was “almost as if a court were to hold that a state law does not impose a substantial burden on religion because the complainant is free to move to another state.” http://www.brookings.edu/research/papers/2010/06/23-kagan-rogers From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu]On Behalf Of James Oleske Sent: Wednesday, April 01, 2015 2:25 PM To: Law Religion issues for Law Academics
Re: Eugene's Blog Post on Liberals and Exemption Rights
Following up on Alan and Nelson's discussion of third-party burdens, I think it might be helpful to identify two separate legal issues that are impacted by such burdens: 1. The issue of whether a party has a right to a religious exemption in a given case. 2. The issue of whether a discretionary legislative decision to grant an exemption in a given situation violates the Establishment Clause. I only meant to be addressing Issue #1, and I think the Sherbert-era decisions are best read as not requiring exemptions as a matter of right when such exemptions would burden identifiable third parties. And I think the Lee language is best explained as a recognition that exemptions for commercial businesses will almost always impose burdens on third parties, whether employees, customers, or business competitors. I don't think, however, that burdens shouldered by the government or the public at large qualified as a third-party burdens under the Sherbert-era decisions, as evidenced by the exemption required in Sherbert itself. As for Issue #2, my view of the Establishment Clause limitations on exemptions is not as robust as Nelson's, and I think legislatures can likely require burdens on third parties that go beyond the burdens that the Sherbert-era Court would have imposed in granting exemptions as a matter of right. - Jim On Wed, Apr 1, 2015 at 2:46 PM, Alan E Brownstein aebrownst...@ucdavis.edu wrote: I appreciate your point, Nelson. And I think the principle that private citizens should not have to bear the costs associated with other citizens’ religious observance deserves respect. Standing alone, it would often be dispositive. Where we disagree, I think, is that in religious exemption cases I see two principles here that deserve our respect. The one I just quoted above and the principle that the majority and government should not prohibit or burden another citizen's religious observance. I think, you can tell me if I'm wrong, that you would agree that this principle standing alone also deserves respect. If there is no harm to third parties, you would support religious exemptions. Then the question becomes what do we do when these two principles are in conflict with each other. I don't think either trumps the other all of the time. I think as the harm to third parties increases, the principle that citizens should not have to bear the costs associated with the other citizen's religious observance outweighs the religious liberty principle. I understand you to be saying that the religious liberty principle is always trumped in these cases without regard to the magnitude of the costs involved. There are a lot of religious accommodations that result in third parties incurring some cost. A RLUIPA land use accommodation might result in some neighboring homeowner, business or farmer incurring some diminution of value in their property. A public university accommodation shifting move-in day so that it doesn't fall on the Jewish High Holy days may require a shift in the academic calendar that inconveniences the travel plans of specific faculty, students and their families. A court accommodating the religious obligations of a religious attorney or witness may delay or otherwise increase the cost of litigation. A law banning male circumcision exempts Jewish families from its requirements. Does the existence of harm to third parties in these situations and others require the invalidation of all of these accommodations without regard to the magnitude of the harm borne by third parties? Alan -- *From:* religionlaw-boun...@lists.ucla.edu religionlaw-boun...@lists.ucla.edu on behalf of Nelson Tebbe nelson.te...@brooklaw.edu *Sent:* Wednesday, April 1, 2015 1:38 PM *To:* Law Religion issues for Law Academics *Subject:* Re: Eugene's Blog Post on Liberals and Exemption Rights Alan, I can’t speak for others who have been defending a principle against burden-shifting to third parties, but I do not believe it prohibits religion accommodations that result in costs to the government or to the public. Rather, the principle prohibits government accommodations that shift meaningful costs from religious citizens to other identifiable private citizens. And the reason for this is easy to articulate and deeply rooted — private citizens should not have to bear the costs associated with other citizens’ religious observance. On Apr 1, 2015, at 4:07 PM, Alan E Brownstein aebrownst...@ucdavis.edu wrote: The problem I have with Jim's argument, if I understand him correctly, is that it seems to suggest that no religious exemption can be accepted if it causes any harm to a third party. (I'm not sure if Jim includes the general public or the public fisc in third party.) I think many liberals believe (or at least they used to believe) that rights are expensive political goods. We protect them even if we have to incur some cost or harm
Re: Eugene's Blog Post on Liberals and Exemption Rights
Thanks for the question, Will. If the kosher butcher gets that exemption, he will sell pork to no one. He never has and never will carry pork in his shop. He also does not sell soda, cars, or wedding cakes. If you want that stuff, you must go elsewhere. Is that a cost to third parties?'' No more than that imposed by any (that is, every) other merchant who sells less than everything. Compare that to a discriminatory refusal to sell. Baker A does sell wedding cakes, but not to same sex couples. Two injuries -- material and dignitary. The material injury is the lost opportunity to buy a cake at the quality and price offered by that baker. Maybe you can do as well or better elsewhere, nearby, or maybe not. The dignitary injury is more serious -- the couple is seeking goods to celebrate one of the most important and special days of their lives. And the baker says, in effect, I do not respect your marriage as a marriage. In my belief system, it is not a marriage at all, because you are of the same sex. (The baker might also think or say that in his view the relationship is disordered, or an abomination, and/or against God's plan, but let's assume he says nothing like that all.) The baker has wounded the couple with this disrespect, and done so in regard to a day that has significant meaning in their lives. Those are the focused, third party harms in the refusal to sell goods or services to some that you sell to others, especially (though not only) for a wedding reception. On Wed, Apr 1, 2015 at 4:38 PM, Will Esser willes...@yahoo.com wrote: Chip, Can you expound on your argument that wedding vendor exemptions from public accommodations laws allow material and dignitary injury to potential customers and that liberals only oppose exemptions that impinge on the welfare of third parties? It seems that both sides agree that the kosher butcher deserves a religious exemption, and yet granting that exemption imposes *some* cost on third parties (i.e. anyone who wishes to purchase pork must go elsewhere, which could involve multiple trips to different butchers, or may mean spending more time and money to go to a butcher further away). So it's not really that there is *no* cost to third parties, but perhaps simply a cost which society is more ready to accept (i.e. Go buy your pork somewhere else.) As I understood the third-party harm argument in Hobby Lobby, the argument was that without insurance coverage, female Hobby Lobby employees would be unable to afford coverage of the particular, objectionable contraceptives and therefore the third party harm was equivalent to total lack of access. Given modern changes in societal perspectives, I have not heard the same argument about a total lack of access when it comes to wedding vendors for same-sex wedding ceremonies. Under the assumption the goods and services are otherwise generally available in the marketplace (i.e. there are plenty of wedding photographers, bakers, etc. who would be happy for the business of same-sex weddings), what is the distinguishing factor which causes material and dignitary injury in the wedding vendor exemptions scenario but not in the kosher butcher example? In both, the customers want a service which they can get in the marketplace (although perhaps not from the exact person or place they want it). And in both, the reason for not providing the service is the same (i.e. violation of a sincerely held religious belief). Thanks in advance for clarification. Will Will Esser Charlotte, North Carolina -- *From:* James Oleske jole...@lclark.edu *To:* Law Religion issues for Law Academics religionlaw@lists.ucla.edu *Sent:* Wednesday, April 1, 2015 3:22 PM *Subject:* Re: Eugene's Blog Post on Liberals and Exemption Rights The butcher example Chip gives is why I suggested last spring that the Court might want to read the Lee language not as an absolute rule, but rather, a strong presumption against exemptions in the commercial realm that can be overcome in the very rare case where the basis for the presumption (a third-party harm) does not exist. Alas, the Court instead simply discarded the Lee language wholesale by saying RFRA went further than the pre-Smith law. - Jim On Wed, Apr 1, 2015 at 12:09 PM, Ira Lupu icl...@law.gwu.edu wrote: I do not think most liberals oppose exemptions for businesses per se -- imagine a law that compelled a butcher to carry products in conflict with religious dietary laws to which the butcher and his customers subscribe. Liberals oppose exemptions that impinge on the welfare of third parties -- Hobby Lobby (those female employees still do not have contraceptive coverage) or wedding vendor exemptions from public accommodations laws (those exemptions allow material and dignitary injury to potential customers). U.S. v. Lee involved injury to other family members of Amish employees, as well as others
RE: Eugene's Blog Post on Liberals and Exemption Rights
I also think the florist and baker examples are weaker for the religious claimant, especially where the flowers and cakes are generic. But what if custom floral arrangements involve artistic choices by the florist? What if the cake is (as some are) a truly creative work of art? And do only high-end bakers get protection from violation of conscience? What if the florist or baker is asked to include particular words or other expressive content in the arrangement or the cake? (This from someone who argued against licensing requirements for sellers of flowers - protectionist provisions for florists who fear grocery stores' selling of flowers - on the basis that flower arranging is a kind of art that the government has no right to license, other than for health purposes.) What if the custom florist decides to include a lot of black roses in the arrangements? Or just puts the flowers together without using any creativity (so that they look like flowers you would get through 1-800-Flowers)? Can the florist be required to enter into the contract to provide flowers and then be required to follow some sort of industry standard of artistry in arranging the flowers? In the photography example, if the photographer must photograph a ceremony that he or she believes wrong, may the photographer refuse to use the creative skills that would ordinarily be used? (E.g., posing the couple in a particular way, using filters to get a romantic look, telling them to kiss for the photograph, etc.) I suppose that goes with my view that wedding photography is creation of celebratory art, and the First Amendment compelled speech cases prohibit the government from requiring the photographer to create art. On the harm question, of course there is a matter of baseline. Do I harm you by not photographing your ceremony? Or do I benefit you by doing it? If that depends on the message sent by the refusal, then we have an interesting viewpoint discrimination issue. Mark Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Levinson, Sanford V Sent: Wednesday, April 01, 2015 3:18 PM To: Law Religion issues for Law Academics Subject: Re: Eugene's Blog Post on Liberals and Exemption Rights I think Prof. Chen is substantially correct, but I believe, more than ever, that it's the kind of problem that can ( and should) be handled outside legal constraints. Why would I want to hire a wedding photographer who so clearly won't view the day as affirmatively special? Ditto the band? But I really can't work up much sympathy for the florist or baker. They should be treated under the general rubric of public accommodations and the Civil Rights Act of 1964. I'm sure there were florists and bakers who objected to mixes-race marriages and could cite the purported curse on Ham. It really doesn't (and shouldn't) matter. Sandy Sent from my iPhone On Apr 1, 2015, at 4:56 PM, K Chen tzn...@gmail.commailto:tzn...@gmail.com wrote: As someone putting a wedding together, I can't explain the lack of sympathy for the wedding photographer as anything but thinking that their work is essentially interchangeable. It is not, unfortunately, and it is priced accordingly. Every single photographer of them seems to take their business very, very personally. More to the point, it is a personal, professional service which is by its nature selective compared to the harm done by impersonal corporations excluding goods and services when they otherwise serve the public. A principled difference can be drawn between accommodating personal, inherently selective commercial businesses and businesses that are open to the public at large. The vast majority of commercial transactions are from businesses who sell to the public, or their business community, on a non-discriminatory basis. When such a business denies goods or services to a class of person, that is an inherently political act. Such a businesses is not just refusing the do business with an individual or class, they are making an attempt to exclude them from the definition of the public itself. They are thus doing harm to both individual and society by imposing their will on what constitutes the political community. This harm grows geometrically with each exclusionary actor. Individual consumers on the other hand, are inherently selective. If you need one loaf of bread this week, you will patronize precisely one baker this week. If you need a salary, you will work one, maybe two jobs. The harm of being denied service by a consumer (or laborer) because of their beliefs has a societal harm, if any, nearly indistinguishable to being denied for any other reason. Some services should fall in between. I'm not convinced for the florist and the and the baker, but I'm sympathetic to the photographer, the doctor, the lawyer (ethical obligations notwithstanding
