Some of you on the list have made me think a bit more about application of
religious freedom provisions (federal or state RFRAs, for our purposes) as
defenses to suits brought by private parties. This is a key question raised by
the Arizona bill that Gov. Brewer vetoed.
At the risk of
For purposes of a state RFRA or a state constitution, I do not understand
why defenses to a private right of action for discrimination (e.g., a
merchant refused to serve me because of my race, religion, etc.; merchant
defends on religious freedom grounds) are any different from defenses to a
Chip-- do you think a RFRA applies when the defendant is not the government?
RFRA's language is explicit that cases are against the government Not
between private parties.
Language controls, and one of the reasons that the AZ variety amendments are
appearing now is to fix this aspect of the
I think that the politics of the moment, and the conversations we have been
having (including the reference to Jim Oleske's provocative article about
religious objections to inter-racial marriage compared to religious
objections to same sex marriage, *Interracial and Same-Sex Marriages:
Similar
I am going to go out on a limb here and say it is not right for businesses to discriminate based on race, gender, sexual orientation, alienage, religion, or disability.
Religious groups won in Hosannah-Tabor the right to engage in invidious discrimination against ministers (not just clergy)even
Marci, is this the language of federal RFRA on which you rely?
A person whose religious exercise has been burdened in violation of this
section may assert that violation as a claim or defense in a judicial
proceeding and obtain appropriate relief against a government.
First of all, a dismissal of
With respect to my former teacher I don't think the background right
distinction is quite as untenable as that. Many of the rights enforced in
tort are rights against the world that the court vindicates, my right to
exclude you from my property is self-enforceable by private means, such as
by
I'm not sure how easily it could be done, but we ought to try on some level
to protect the sincere religious beliefs
Because attempts to enforce by legal sanctions, acts obnoxious to go great
a proportion of Citizens, tend to enervate the laws in general, and to
slacken the bands of Society. If
You can plead anything you want. And argue anything you want. That doesn’t mean
it will be plausible under Twombley, or that it won’t draw Rule 11 sanctions.
It would help if you would stay somewhere in the neighborhood of the arguments
actually being made. If you sue your local synagogue, it
Doug's common law rule point is one reason I raised the trespass issue and
suggested a background law distinction.
If the state creates private property rights, even by way of ancient common law
or customary law, then a judicial action for an injunction or damages for
trespass could be subject
The new RFRAs, like the one in Missouri, includes a line that states that it
applies even if the government is not a party. So I guess, at the least, we
have
an admission that the previous language of the RFRAs did not include every
dispute?
Marci
Marci A. Hamilton
Paul R. Verkuil Chair
Of course not, Marci. New language can be used to clear up ambiguities or to
make sure that hostile or indifferent bureaucrats or courts actually apply the
statute as originally intended (and as it would be interpreted but for
hostility or indifference to legislative purpose).
That's not to
I'm very pleased that my former (and highly able) student Kevin Chen is now
participating in the list discussion. He wasn't shy about disagreeing with
me in class, and his intellectual temperament has remained the same. For
now, I intend to wait for other answers (if any appear) to the bigotry
I share Chip’s concerns about Mark’s attempt to exempt trespass suits
categorically from the scope of RFRAs, but Doug’s comments below made me think
that perhaps Mark’s approach might try to draw some support from Flagg Brothers
v. Brooks, 436 U.S. 149 (1978).
David B. Cruz
Professor of Law
Are RFRA (federal) and RLUIPA enacted under the 14th Amendment or under the
Commerce Clause powers of Congress. I had understood them to be under the 14th
Amendment, in which case Congress can ONLY reach states and they cannot apply
to private conduct. And, as we know, RFRA (federal), cannot
I'm stumped by Mark's response. The courts have held that RFRA and RLUIPA are
only good against the government. Due to its language and the state action
doctrine generally.
Are you saying that those cases don't exist, or are all uniformly wrongly
decided? The state language indicates
Chip,
I think your post about bigotry v. sincere religious beliefs does raise core
issues in a thoughtful way and I intend to respond. But other commitments may
delay my doing so for a while. I don't want you to think that your post doesn't
merit a response - it does - or that other list
I don't pretend to have definitive answers to the questions that Chip Lupu and
Kevin Chen are discussing. But I think the proper resolution of this debate
calls for sensitive judgments depending as much on history and prudence as on
logic and prior precedent. In my view, the history of the
I also do not have any answers - especially on the underlying issue. But let me
make two points about the bigotry vs. sincere religious belief question.
1) Does it change the argument any if one operates from the assumption
that racism, despite our best efforts, continues to be tolerated
Professor Chen's response seems a bit over the top. The government is not,
after all, interested in closing businesses. It is interested in making sure
that businesses which are licensed by the government and are open to the public
serve the entire public and that business owners do not act on
Sent from my BlackBerry 10
I get that religious people do not want to be discriminated against. Indeed,
they have lots of protections in the laws already protecting them from
discrimination in employment, public accomodations, and so on. And they have
lots of special treatment in the form of exemptions from laws that
Although Steve's post could be dismissed as filled with overstatements, unfair
characterizations, demonization of dissenting voices, and setting up strawmen
to easily knock down, let me take his points at face value and use them as a
starting point for a conversation that might lower the
With regard to exclusions and sincere religious belief, dare I point out that
Orthodox Judaism is full of such exclusions, especially based on gender and
marital status. The ultra-Orthodox in Israel are basically insisting on
segregated buses lest males be corrupted by a female presence (part
Greg Sisk's post re: how to think about the wedding photographer is just
the compelled speech argument one more time. In the case of a
photographer, a First A claim of compelled speech is plausible, though not
entirely persuasive. In the case of a baker, florist, wine vendor, or
caterer, the
I would also add that Greg Sisk’s syllogism only works if (1) you are also
willing to allow photographers, florists, caterers, bakers, etc. to refuse to
work at mixed-race weddings, or (2) you conclude that refusal to participate in
same-sex wedding ceremonies is somehow more worthy of
As Chip notes, there are profound difficulties in trying to use law as a
instrument to sort the sincere objectors from the bigots and phobes. And
until recently, our consistent approach to antidiscrimination laws and
religious accommodations implicitly recognized what Chip ultimately
concludes
What kind of principled basis are you looking for? It can be readily
observed that good and reasonable men and women find a principled reason
from a place of deep conviction, so respecting that seems to be principled
in turn. But even if we assume that as a matter of general principles that
it is
Let me try to respond to Chip's post. He asks two basic questions. (1) Why
should we be any more willing to accommodate religious objectors to same-sex
marriage than we are willing to accommodate religious objectors to inter-racial
marriages. (Or more broadly why accommodate discrimination
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