At the end of his post below, Chip writes: "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."
As someone who has been guilty of focusing almost all my attention on the for-profit disputes, I agree with Chip that there needs to be more discussion of the difficult questions that arise in the non-profit context. To that end, I want to commend to list members Nelson Tebbe's excellent new article focusing on issues surrounding existing exemptions for non-profits: Religion and Marriage Equality Statutes http://ssrn.com/abstract=2579337 - Jim On Sun, Apr 5, 2015 at 7:51 AM, Ira Lupu <icl...@law.gwu.edu> wrote: > 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> 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 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.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. >
_______________________________________________ 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.
