Re: Noteworthy, puzzling scholars' brief in Arlene Flowers

[James Oleske]

Agreed on all fronts, Marty.

I would just add this regarding the observation that Stutzman "purportedly
doesn't care about what Robert Ingersoll's sexual orientation is, or
whether he has sex with Curt Freed."

Whatever may the source of opposition to same-sex marriage in specific
cases, the available data would indicate that the vast majority of people
who oppose legalization of same-sex marriage also believe "gay and lesbian
relations" more broadly are "morally wrong." See
http://www.gallup.com/poll/1651/gay-lesbian-rights.aspx (May 2016 results
showing 37% opposition to same-sex marriage and 37% belief that gay and
lesbian relations are morally wrong).

See also Justice Scalia in Lawrence, stating that "'preserving the
traditional institution of marriage' is just a kinder way of describing the
State’s moral disapproval of same-sex couples."

There may, of course, be exceptions, just as there may be instances of
people who oppose interracial or interfaith marriage without believing in
the superiority or inferiority of particular races or religion. But if
exemptions from the civil rights laws are to be given for such individuals,
I don't think the way to do it is to interpret [racial
discrimination][religious discrimination][sexual-orientation
discrimination] as not including refusals of service to
[interracial][interfaith][same-sex] couples.

- Jim


On Wed, Oct 12, 2016 at 2:18 PM, Marty Lederman 
wrote:

> Thanks, Jim.  I'd be *very *surprised if the Washington Supreme Court
> decides otherwise.  But even apart from the absence of any prospect of
> success, what's so striking about the scholars' amicus brief is that it
> doesn't even try to contend with this Colorado decision, or with most of
> the Supreme Court and other cases cited therein -- let alone offer any
> analysis of the Washington statute at issue.  Instead, it ultimately falls
> back on the argument that Arlene's Flowers doesn't discriminate on the
> basis of sexual orientation because it would also refuse to make
> arrangements for two *heterosexual *men who chose to marry one
> another--an argument that doesn't warrant much more of a response than the
> one paragraph (para. 41) the Colorado court gives it, citing *Bray*.
>
> It's also worth noting that the basic argument in the scholars' brief is
> that this is a form of *sex *discrimination rather than *sexual
> orientation* discrimination (Stutzman purportedly doesn't care about what
> Robert Ingersoll's sexual orientation is, or whether he has sex with Curt
> Freed, but "only" about the fact that Freed is the same sex as
> Ingersoll--if Ingersoll were a woman, she'd sell him flower arrangements
> for the marriage to Freed).  But in that case, its coverage under the act
> would be even more self-evident, wouldn't it?
>
> On Wed, Oct 12, 2016 at 4:55 PM, James Oleske  wrote:
>
>> In case it's of interest, I believe the most extensive judicial
>> discussion of this issue to date comes from the Colorado Court of Appeals
>> in the Masterpiece Caskeshop case:
>> https://www.courts.state.co.us/Courts/Court_of_Appeals/Opini
>> on/2015/14CA1351-PD.pdf (pages 12-23).
>>
>> In concluding that a refusal to provide marriage-related services to a
>> same-sex couple constitutes sexual-orientation discrimination under
>> Colorado's civil rights law, the court relies on reasoning in Bob Jones,
>> CLS, Elane Photgraphy, and Obergefell (see pages 15-18 of the decision).
>>
>> The court also rejects the bakery's First Amendment compelled speech and
>> free exercise (selective-exemption theory) arguments, and those issues are
>> the subject of a cert. petition pending with the United States Supreme
>> Court (the Colorado Supreme Court denied cert in the case):
>> http://www.adfmedia.org/files/MasterpieceCertPetition.pdf
>>
>> I think it is unlikely the Court will grant cert. in the Masterpiece
>> Cakeshop case, and I think the compelled speech argument is a very
>> difficult one in light of the Chief's opinion for the Court in Rumsfeld v.
>> FAIR. But I do think the Court will eventually have to take a case to
>> resolve the outstanding questions about the contours of the free-exercise,
>> selective-exemption rule (aka the "Sherbert exception to Smith" or "how
>> much underinclusion makes a law non-generally applicable?"). Three justices
>> recently gave an indication of where they were on that issue in Stormans v.
>> Wiesman (Part III.B. of Justice Alito's dissent from the denial of cert.,
>> joined by the Chief and Justice Thomas).
>>
>> Colorado's brief in opposition to Masterpiece's petition is due on
>> November 29.
>>
>> - Jim
>>
>>
>> On Mon, Oct 10, 2016 at 7:40 AM, Marty Lederman > > wrote:
>>
>>> Some of you may be familiar with the *Washington v. Arlene's Flowers*
>>> case, which will be argued in the Washington Supreme Court next month.
>>> Barronelle Stutzman and her husband are the owners of Arlene’s Flowers,
>>> 

RE: Noteworthy, puzzling scholars' brief in Arlene Flowers

[Eric J Segall]

Ira wrote that “I have no idea how to parse such distinctions among religious 
objections to various types of marriage, and I agree that courts should not try 
to evaluate the respect that one deserves compared to the other (nor label some 
of them as prejudice and others as properly religion-based).”

I want to be clear that the distinction I think courts can make is the 
difference between “prejudice” and “not prejudice” not “prejudice” and 
“religion based.” Outside of the internal employment domains of churches, 
temples, mosques, etc., “prejudice” based on religion and “prejudice” based on 
non-religion should, in my opinion, be treated the same when impacted by 
general laws (which is why I suggested in my last post that this controversial 
position may be behind much of this discussion as it relates to religious 
exemptions).

Best,

Eric


From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Wednesday, October 12, 2016 5:21 PM
To: Law & Religion issues for Law Academics 
Subject: Re: Noteworthy, puzzling scholars' brief in Arlene Flowers

Responding to Eugene's question -- I don't have anything like a theory of how 
compelled speech arguments should work in the anti-discrimination context.  The 
most I have said in print is in a footnote to a recent article (7 Ala. Civ. 
Rts. Civ. Lib. Rev. 1, 52, n. 171).  My intuition is that those in commerce who 
make themselves generally available for all customers, and whose work tends to 
track customer preferences (e.g., the DJ who plays the songs the hosts like 
best; the photographer who takes the standard shots of marrying couple, guests, 
family, etc.) would have a very weak compelled speech claim.  Those who are 
creating different products with their own independent content (e.g., a 
motivational speech, even if tailored to a group) might well have a better 
claim, though I wonder whether those people make themselves "generally 
available."

In any event, I make no sweeping assertion about how this line of argument 
should be resolved across the universe of cases.  When Mitch Berman asked about 
"solicitude" for Fred, I took him to be asking whether Fred's religious 
opposition to inter-religious marriage was more deserving of respect than a 
commercial photographer's religious opposition to same sex marriage.  I have no 
idea how to parse such distinctions among religious objections to various types 
of marriage, and I agree that courts should not try to evaluate the respect 
that one deserves compares to the other (nor label some of them as prejudice 
and others as properly religion-based).


___
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Re: Noteworthy, puzzling scholars' brief in Arlene Flowers

[Ira Lupu]

Responding to Eugene's question -- I don't have anything like a theory of
how compelled speech arguments should work in the anti-discrimination
context.  The most I have said in print is in a footnote to a recent
article (7 Ala. Civ. Rts. Civ. Lib. Rev. 1, 52, n. 171).  My intuition is
that those in commerce who make themselves generally available for all
customers, and whose work tends to track customer preferences (e.g., the DJ
who plays the songs the hosts like best; the photographer who takes the
standard shots of marrying couple, guests, family, etc.) would have a very
weak compelled speech claim.  Those who are creating different products
with their own independent content (e.g., a motivational speech, even if
tailored to a group) might well have a better claim, though I wonder
whether those people make themselves "generally available."

In any event, I make no sweeping assertion about how this line of argument
should be resolved across the universe of cases.  When Mitch Berman asked
about "solicitude" for Fred, I took him to be asking whether Fred's
religious opposition to inter-religious marriage was more deserving of
respect than a commercial photographer's religious opposition to same sex
marriage.  I have no idea how to parse such distinctions among religious
objections to various types of marriage, and I agree that courts should not
try to evaluate the respect that one deserves compares to the other (nor
label some of them as prejudice and others as properly religion-based).

On Wed, Oct 12, 2016 at 2:56 PM, Volokh, Eugene  wrote:

>A question about Chip’s “no solicitude” position to the
> compelled speech claim for Fred the photographer or DJ:  Chip, would you
> say the same as to a singer?  A portrait painter?  A calligrapher?
>
>
>
>Antidiscrimination laws ban religious discrimination as
> well as sexual orientation discrimination.  Say a motivational speaker who
> generally speaks to pretty much any group is asked to speak to a Church of
> Scientology gathering, or a press release writer who is generally open for
> business is asked to write a press release for the Scientologists.  Would
> he have a legitimate claim not to be compelled to speak to such an
> audience, or to write such a press release?
>
>
>
>Such laws in some places also ban discrimination based on
> political affiliation.  (D.C. is one example.)  Say someone doesn’t want to
> write a press release for a candidate who belongs to a party he disapproves
> of.  Would that be enough for a compelled speech claim?  Is the line
> between creators of different kinds of speech (photographs vs. portraits
> vs. press releases vs. speeches)?  Or is it that people who
> write/speak/etc. for a living, and who take various contracts, can’t raise
> compelled speech objections in any contexts?
>
>
>
>Eugene
>
>
>
> *From:* religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-bounces@
> lists.ucla.edu] *On Behalf Of *Ira Lupu
> *Sent:* Wednesday, October 12, 2016 11:29 AM
> *To:* Mitchell Berman 
> *Cc:* David Bernstein ; Law & Religion issues for Law
> Academics ; conlawp...@lists.ucla.edu
> *Subject:* Re: Noteworthy, puzzling scholars' brief in Arlene Flowers
>
>
>
> Mitch Berman's good question asks in general terms about how much
> "solicitude" Fred's claim deserves.  But we cannot answer intelligently
> unless we know the forum and the grounds advanced for Fred.  Is he asking
> the state legislature to exempt religious objectors from public
> accommodations law?  Is he raising a compelled speech claim?  A religious
> freedom claim under a RFRA, or a state constitution?  I would give his
> claim no solicitude in any of these contexts, for reasons I have spelled
> out at length on this listserv and in law reviews.  But I can imagine that
> others might well react differently depending on the legal context.
>
> ___
> 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
301-928-9178 (mobile, preferred)
202-994-7053 (office)
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 

Re: Noteworthy, puzzling scholars' brief in Arlene Flowers

[Marty Lederman]

Thanks, Jim.  I'd be *very *surprised if the Washington Supreme Court
decides otherwise.  But even apart from the absence of any prospect of
success, what's so striking about the scholars' amicus brief is that it
doesn't even try to contend with this Colorado decision, or with most of
the Supreme Court and other cases cited therein -- let alone offer any
analysis of the Washington statute at issue.  Instead, it ultimately falls
back on the argument that Arlene's Flowers doesn't discriminate on the
basis of sexual orientation because it would also refuse to make
arrangements for two *heterosexual *men who chose to marry one another--an
argument that doesn't warrant much more of a response than the one
paragraph (para. 41) the Colorado court gives it, citing *Bray*.

It's also worth noting that the basic argument in the scholars' brief is
that this is a form of *sex *discrimination rather than *sexual
orientation* discrimination
(Stutzman purportedly doesn't care about what Robert Ingersoll's sexual
orientation is, or whether he has sex with Curt Freed, but "only" about the
fact that Freed is the same sex as Ingersoll--if Ingersoll were a woman,
she'd sell him flower arrangements for the marriage to Freed).  But in that
case, its coverage under the act would be even more self-evident, wouldn't
it?

On Wed, Oct 12, 2016 at 4:55 PM, James Oleske  wrote:

> In case it's of interest, I believe the most extensive judicial discussion
> of this issue to date comes from the Colorado Court of Appeals in the
> Masterpiece Caskeshop case:
> https://www.courts.state.co.us/Courts/Court_of_Appeals/Opini
> on/2015/14CA1351-PD.pdf (pages 12-23).
>
> In concluding that a refusal to provide marriage-related services to a
> same-sex couple constitutes sexual-orientation discrimination under
> Colorado's civil rights law, the court relies on reasoning in Bob Jones,
> CLS, Elane Photgraphy, and Obergefell (see pages 15-18 of the decision).
>
> The court also rejects the bakery's First Amendment compelled speech and
> free exercise (selective-exemption theory) arguments, and those issues are
> the subject of a cert. petition pending with the United States Supreme
> Court (the Colorado Supreme Court denied cert in the case):
> http://www.adfmedia.org/files/MasterpieceCertPetition.pdf
>
> I think it is unlikely the Court will grant cert. in the Masterpiece
> Cakeshop case, and I think the compelled speech argument is a very
> difficult one in light of the Chief's opinion for the Court in Rumsfeld v.
> FAIR. But I do think the Court will eventually have to take a case to
> resolve the outstanding questions about the contours of the free-exercise,
> selective-exemption rule (aka the "Sherbert exception to Smith" or "how
> much underinclusion makes a law non-generally applicable?"). Three justices
> recently gave an indication of where they were on that issue in Stormans v.
> Wiesman (Part III.B. of Justice Alito's dissent from the denial of cert.,
> joined by the Chief and Justice Thomas).
>
> Colorado's brief in opposition to Masterpiece's petition is due on
> November 29.
>
> - Jim
>
>
> On Mon, Oct 10, 2016 at 7:40 AM, Marty Lederman 
> wrote:
>
>> Some of you may be familiar with the *Washington v. Arlene's Flowers*
>> case, which will be argued in the Washington Supreme Court next month.
>> Barronelle Stutzman and her husband are the owners of Arlene’s Flowers,
>> Inc., a closely held for-profit corporation.  Over the course of nine
>> years, Stutzman regularly sold floral arrangements to Robert Ingersoll,
>> knowing that he was gay.  When Ingersoll asked Stutzman to sell him flower
>> arrangements for his wedding to Curt Freed, however, she refused to provide
>> them, even if they were prepared by others in her shop, because doing so,
>> she claimed, would "constitute a demonstration of [her] approval for the
>> wedding," whereas in fact she has religious objections to same-sex
>> marriages.  (She agreed to provide the raw materials for the
>> arrangements--the flowers and such--but not to have her shop do the
>> arranging.)
>>
>> The Washington Attorney General sued Arlene's Flowers, seeking an
>> injunction against such discrimination in the future.  (Ingersoll and Freed
>> also sued, seeking nominal damages for the costs they incurred when
>> Stutzman refused to serve them.)  The principal basis for the suit is a
>> claim of discrimination on the basis of sexual orientation, prohibited by
>> the Washington Law Against Discrimination (WLAD), RCW 49.60.215, which
>> provides that "It shall be an unfair practice for any person or the
>> person's agent or employee to commit an act which *directly or
>> indirectly* results in *any* distinction, restriction, or
>> discrimination, . . . or the refusing or withholding from any person the
>> admission, patronage, *custom*, presence, frequenting, dwelling,
>> staying, or lodging in any place of public resort, accommodation,
>> assemblage, 

Re: Noteworthy, puzzling scholars' brief in Arlene Flowers

[James Oleske]

In case it's of interest, I believe the most extensive judicial discussion
of this issue to date comes from the Colorado Court of Appeals in the
Masterpiece Caskeshop case:
https://www.courts.state.co.us/Courts/Court_of_Appeals/Opini
on/2015/14CA1351-PD.pdf (pages 12-23).

In concluding that a refusal to provide marriage-related services to a
same-sex couple constitutes sexual-orientation discrimination under
Colorado's civil rights law, the court relies on reasoning in Bob Jones,
CLS, Elane Photgraphy, and Obergefell (see pages 15-18 of the decision).

The court also rejects the bakery's First Amendment compelled speech and
free exercise (selective-exemption theory) arguments, and those issues are
the subject of a cert. petition pending with the United States Supreme
Court (the Colorado Supreme Court denied cert in the case):
http://www.adfmedia.org/files/MasterpieceCertPetition.pdf

I think it is unlikely the Court will grant cert. in the Masterpiece
Cakeshop case, and I think the compelled speech argument is a very
difficult one in light of the Chief's opinion for the Court in Rumsfeld v.
FAIR. But I do think the Court will eventually have to take a case to
resolve the outstanding questions about the contours of the free-exercise,
selective-exemption rule (aka the "Sherbert exception to Smith" or "how
much underinclusion makes a law non-generally applicable?"). Three justices
recently gave an indication of where they were on that issue in Stormans v.
Wiesman (Part III.B. of Justice Alito's dissent from the denial of cert.,
joined by the Chief and Justice Thomas).

Colorado's brief in opposition to Masterpiece's petition is due on November
29.

- Jim


On Mon, Oct 10, 2016 at 7:40 AM, Marty Lederman 
wrote:

> Some of you may be familiar with the *Washington v. Arlene's Flowers*
> case, which will be argued in the Washington Supreme Court next month.
> Barronelle Stutzman and her husband are the owners of Arlene’s Flowers,
> Inc., a closely held for-profit corporation.  Over the course of nine
> years, Stutzman regularly sold floral arrangements to Robert Ingersoll,
> knowing that he was gay.  When Ingersoll asked Stutzman to sell him flower
> arrangements for his wedding to Curt Freed, however, she refused to provide
> them, even if they were prepared by others in her shop, because doing so,
> she claimed, would "constitute a demonstration of [her] approval for the
> wedding," whereas in fact she has religious objections to same-sex
> marriages.  (She agreed to provide the raw materials for the
> arrangements--the flowers and such--but not to have her shop do the
> arranging.)
>
> The Washington Attorney General sued Arlene's Flowers, seeking an
> injunction against such discrimination in the future.  (Ingersoll and Freed
> also sued, seeking nominal damages for the costs they incurred when
> Stutzman refused to serve them.)  The principal basis for the suit is a
> claim of discrimination on the basis of sexual orientation, prohibited by
> the Washington Law Against Discrimination (WLAD), RCW 49.60.215, which
> provides that "It shall be an unfair practice for any person or the
> person's agent or employee to commit an act which *directly or indirectly*
> results in *any* distinction, restriction, or discrimination, . . . or
> the refusing or withholding from any person the admission, patronage,
> *custom*, presence, frequenting, dwelling, staying, or lodging in any
> place of public resort, accommodation, assemblage, or amusement."  The
> forms of prohibited discrimination are listed in RCW 49.60.030:  "The right
> to be free from discrimination because of race, creed, color, national
> origin, sex, honorably discharged veteran or military status, *sexual
> orientation*, or the presence of any sensory, mental, or physical
> disability or the use of a trained dog guide or service animal by a person
> with a disability is recognized as and declared to be a civil right. This
> right shall include, but not be limited to: . . . (b) The right *to the
> full enjoyment *of any of the accommodations, advantages, facilities, or
> privileges of any place of public resort, accommodation, assemblage, or
> amusement."
>
> Stutzman defended on both statutory and state and federal constitutional
> (Free Speech and Free Exercise) grounds; but the lower court ruled
> 
> in favor of the Attorney General.  The appeal from that decision is now
> before the Washington Supreme Court, which will hear arguments in about
> five weeks.
>
> A couple of weeks ago, a group of 27 scholars, some of whom are on these
> listservs, filed an amicus brief
>  on behalf of
> Arlene's Flowers.  (According to Rick Garnett, it was written by Steve
> Smith, although he is not listed as counsel.)  That brief does not make a
> 

RE: Hostility vs. feeling that certain people shouldn't marry each other

[Laycock, H Douglas (hdl5c)]

It's true that sometimes we aren't sure what the defendant did. Did he fire the 
plaintiff because of race or because of bad performance? Then we have to 
inquire into motive in order to establish disparate treatment.

But there is no such ambiguity when there is a policy of disparate treatment. 
If defendant says he will hire whites but not blacks for a particular set of 
positions, or he will do opposite-sex weddings but not same-sex weddings, 
disparate treatment is established and his reasons for this unequal policy are 
irrelevant to the issue of whether there is discrimination. His reasons may be 
highly relevant to whether there is a religious liberty defense.

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 Eric J Segall
Sent: Wednesday, October 12, 2016 4:05 PM
To: Law & Religion issues for Law Academics 
Subject: Re: Hostility vs. feeling that certain people shouldn't marry each 
other

I'm not sure it is that easy Doug because often the difference between a 
disparate impact and disparate treatment case turns on the motives/intent of 
the decision-makers.

Mark, it is true that many of us feel that, in the context of the current 
debates over SSM, hostility to allowing gays the same economic and social 
benefits of marriage as heterosexuals cannot be meaningfully separated from 
hostility to gays and lesbians. After all, denied those benefits under the law, 
they have no where else to go to acquire them. That point of course is separate 
from whether such hostility has a remedy under the Constitution.

Best,

Eric

Sent from my iPhone

On Oct 12, 2016, at 3:45 PM, Laycock, H Douglas (hdl5c) 
> wrote:
Eric is talking about disparate impact; Eugene was talking about disparate 
treatment.

If someone deliberately acts on the basis of sex, race, etc., motive is 
generally irrelevant. If government acts on some neutral criterion that has 
disparate impact on the basis of race, sex, etc., there is no constitutional 
violation, unless the government chose that criterion because of its impact on 
race, sex, etc.

That distinction may or may not make sense, but it is pretty clearly the law.

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 Eric J Segall
Sent: Wednesday, October 12, 2016 3:36 PM
To: Law & Religion issues for Law Academics 
>
Subject: Re: Hostility vs. feeling that certain people shouldn't marry each 
other


I am not sure I understand your Equal Protection point. There is a huge 
difference (according to the Court) between a state adopting a veterans 
preference program in the 1970's knowing 99% of the benefits will go to men and 
doing it because of hostility to women in the military. One is (was) legal one 
is not. There is a difference between a Sunday closing law motivated by a 
secular desire to have one uniform day off for everyone and having one on 
Sunday specifically so Christians will get a leg up on minority faiths with a 
Saturday Sabbath.



I agree there may differences in smoking out this kind of pernicious intent 
when we are talking about state actors as opposed to private folks but I'm not 
sure why that matters in light of the flexible, multi-faceted balancing test 
that Doug originally advocated. I think the state interest side of the ledger 
gets much stronger the closer we get to hostility against a group.



I hope this doesn't offend but the elephant in the room here (or in this 
thread) is that there are probably folks who think that pure discriminatory 
animus justified by faith is somehow different or should be treated differently 
by the law, than animus based on other factors. I think that is sustainable 
inside religious institutions but not when selling furniture, flowers, or 
widgets (again with the caveat that I am more sympathetic to free speech 
possibilities when there is an obvious  expressive component to the business).



Best,



Eric


From: 
religionlaw-boun...@lists.ucla.edu 
> 
on behalf of Volokh, Eugene >
Sent: Wednesday, October 12, 2016 2:30:07 PM
To: Law & Religion issues for Law Academics
Subject: Hostility vs. feeling that certain people shouldn't marry each other

   Well, both the Equal Protection Clause jurisprudence and 
antidiscrimination law 

Re: Hostility vs. feeling that certain people shouldn't marry each other

[Eric J Segall]

I'm not sure it is that easy Doug because often the difference between a 
disparate impact and disparate treatment case turns on the motives/intent of 
the decision-makers.

Mark, it is true that many of us feel that, in the context of the current 
debates over SSM, hostility to allowing gays the same economic and social 
benefits of marriage as heterosexuals cannot be meaningfully separated from 
hostility to gays and lesbians. After all, denied those benefits under the law, 
they have no where else to go to acquire them. That point of course is separate 
from whether such hostility has a remedy under the Constitution.

Best,

Eric

Sent from my iPhone

On Oct 12, 2016, at 3:45 PM, Laycock, H Douglas (hdl5c) 
> wrote:

Eric is talking about disparate impact; Eugene was talking about disparate 
treatment.

If someone deliberately acts on the basis of sex, race, etc., motive is 
generally irrelevant. If government acts on some neutral criterion that has 
disparate impact on the basis of race, sex, etc., there is no constitutional 
violation, unless the government chose that criterion because of its impact on 
race, sex, etc.

That distinction may or may not make sense, but it is pretty clearly the law.

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 Eric J Segall
Sent: Wednesday, October 12, 2016 3:36 PM
To: Law & Religion issues for Law Academics 
>
Subject: Re: Hostility vs. feeling that certain people shouldn't marry each 
other


I am not sure I understand your Equal Protection point. There is a huge 
difference (according to the Court) between a state adopting a veterans 
preference program in the 1970's knowing 99% of the benefits will go to men and 
doing it because of hostility to women in the military. One is (was) legal one 
is not. There is a difference between a Sunday closing law motivated by a 
secular desire to have one uniform day off for everyone and having one on 
Sunday specifically so Christians will get a leg up on minority faiths with a 
Saturday Sabbath.



I agree there may differences in smoking out this kind of pernicious intent 
when we are talking about state actors as opposed to private folks but I'm not 
sure why that matters in light of the flexible, multi-faceted balancing test 
that Doug originally advocated. I think the state interest side of the ledger 
gets much stronger the closer we get to hostility against a group.



I hope this doesn't offend but the elephant in the room here (or in this 
thread) is that there are probably folks who think that pure discriminatory 
animus justified by faith is somehow different or should be treated differently 
by the law, than animus based on other factors. I think that is sustainable 
inside religious institutions but not when selling furniture, flowers, or 
widgets (again with the caveat that I am more sympathetic to free speech 
possibilities when there is an obvious  expressive component to the business).



Best,



Eric


From: 
religionlaw-boun...@lists.ucla.edu 
> 
on behalf of Volokh, Eugene >
Sent: Wednesday, October 12, 2016 2:30:07 PM
To: Law & Religion issues for Law Academics
Subject: Hostility vs. feeling that certain people shouldn't marry each other

   Well, both the Equal Protection Clause jurisprudence and 
antidiscrimination law requires figuring out whether the defendant deliberately 
treated people differently based on race, sex, religion, etc.

   But I don’t think we ever ask whether a private citizen’s 
discriminatory actions were “at bottom” based on “hostility” or rather based on 
“no objection to [people’s identity]” but rather a “feel[ing]” that people of 
certain identities shouldn’t do something.  And I think we basically don’t do 
that even as to government actors’ imputed motives, either.  To give just one 
example, say that an employer decides not to hire women with small children for 
a particular job.  There may be no evidence at all that this is based on 
“hostility” to women or even “hostility to [women] receiving equal treatment” 
(except in the tautological sense that all decisions to treat unequally are 
based on “hostility” to equal treatment in the sense of a choice against such 
equal treatment).  It may be clear that the employer is very friendly to women 
in many contexts, but just “feel[s] they shouldn’t” work outside the home when 
they have small children.  But that doesn’t matter for Title VII purposes.  

FW: Hostility vs. feeling that certain people shouldn't marry each other

[Laycock, H Douglas (hdl5c)]

Eric is talking about disparate impact; Eugene was talking about disparate 
treatment.

If someone deliberately acts on the basis of sex, race, etc., motive is 
generally irrelevant. If government acts on some neutral criterion that has 
disparate impact on the basis of race, sex, etc., there is no constitutional 
violation, unless the government chose that criterion because of its impact on 
race, sex, etc.

That distinction may or may not make sense, but it is pretty clearly the law.

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 Eric J Segall
Sent: Wednesday, October 12, 2016 3:36 PM
To: Law & Religion issues for Law Academics 
>
Subject: Re: Hostility vs. feeling that certain people shouldn't marry each 
other


I am not sure I understand your Equal Protection point. There is a huge 
difference (according to the Court) between a state adopting a veterans 
preference program in the 1970's knowing 99% of the benefits will go to men and 
doing it because of hostility to women in the military. One is (was) legal one 
is not. There is a difference between a Sunday closing law motivated by a 
secular desire to have one uniform day off for everyone and having one on 
Sunday specifically so Christians will get a leg up on minority faiths with a 
Saturday Sabbath.



I agree there may differences in smoking out this kind of pernicious intent 
when we are talking about state actors as opposed to private folks but I'm not 
sure why that matters in light of the flexible, multi-faceted balancing test 
that Doug originally advocated. I think the state interest side of the ledger 
gets much stronger the closer we get to hostility against a group.



I hope this doesn't offend but the elephant in the room here (or in this 
thread) is that there are probably folks who think that pure discriminatory 
animus justified by faith is somehow different or should be treated differently 
by the law, than animus based on other factors. I think that is sustainable 
inside religious institutions but not when selling furniture, flowers, or 
widgets (again with the caveat that I am more sympathetic to free speech 
possibilities when there is an obvious  expressive component to the business).



Best,



Eric


From: 
religionlaw-boun...@lists.ucla.edu 
> 
on behalf of Volokh, Eugene >
Sent: Wednesday, October 12, 2016 2:30:07 PM
To: Law & Religion issues for Law Academics
Subject: Hostility vs. feeling that certain people shouldn't marry each other

   Well, both the Equal Protection Clause jurisprudence and 
antidiscrimination law requires figuring out whether the defendant deliberately 
treated people differently based on race, sex, religion, etc.

   But I don't think we ever ask whether a private citizen's 
discriminatory actions were "at bottom" based on "hostility" or rather based on 
"no objection to [people's identity]" but rather a "feel[ing]" that people of 
certain identities shouldn't do something.  And I think we basically don't do 
that even as to government actors' imputed motives, either.  To give just one 
example, say that an employer decides not to hire women with small children for 
a particular job.  There may be no evidence at all that this is based on 
"hostility" to women or even "hostility to [women] receiving equal treatment" 
(except in the tautological sense that all decisions to treat unequally are 
based on "hostility" to equal treatment in the sense of a choice against such 
equal treatment).  It may be clear that the employer is very friendly to women 
in many contexts, but just "feel[s] they shouldn't" work outside the home when 
they have small children.  But that doesn't matter for Title VII purposes.  
Indeed, even if an employer requires women to contribute more to retirement 
funds simply because women are statistically likelier to live much longer than 
men -- with not a hint of "hostility" -- is violating Title VII.

   Now maybe both the photographer -- or wedding singer or portrait 
painter or calligrapher or press release writer -- who doesn't want to create 
material for a same-sex wedding ceremony or similar event and the one who 
objects to an interfaith event should lose under RFRA or the Free Speech 
Clause.  Maybe both should win.  But I can't see how courts can distinguish 
between them on the grounds of a perception that one's discriminatory conduct 
is motivated by "hostility" and the other's is motivated by a "feeling [that 
certain people] 

Re: Hostility vs. feeling that certain people shouldn't marry each other

[Mark Scarberry]

And treatment of disapproval of same sex marriage as pernicious is counter to 
the assurances of respect in Obergefel. It treats those assurances as 
window-dressing, which I imagine many list members consider them to be.
Mark Scarberry Pepperdine University School of Law 



_
From: Volokh, Eugene 
Sent: Wednesday, October 12, 2016 11:31 AM
Subject: Hostility vs. feeling that certain people shouldn't marry each other
To: Law & Religion issues for Law Academics 




   Well, both the Equal Protection Clause jurisprudence and 
antidiscrimination law requires figuring out whether the defendant deliberately 
treated people differently based on race, sex, religion, etc.

 

   But I don’t think we ever ask whether a private citizen’s 
discriminatory actions were “at bottom” based on “hostility” or rather based on 
“no objection to [people’s identity]” but rather a “feel[ing]” that people of 
certain identities shouldn’t do something.  And I think we basically don’t do 
that even as to government actors’ imputed motives, either.  To give just one 
example, say that an employer decides not to hire women with small children for 
a particular job.  There may be no evidence at all that this is based on 
“hostility” to women or even “hostility to [women] receiving equal treatment” 
(except in the tautological sense that all decisions to treat unequally are 
based on “hostility” to equal treatment in the sense of a choice against such 
equal treatment).  It may be clear that the employer is very friendly to women 
in many contexts, but just “feel[s] they shouldn’t” work outside the home when 
they have small children.  But that doesn’t matter for Title VII purposes.  
Indeed, even if an employer requires women to contribute more to retirement 
funds simply because women are statistically likelier to live much longer than 
men -- with not a hint of “hostility” -- is violating Title VII.

 

   Now maybe both the photographer -- or wedding singer or portrait 
painter or calligrapher or press release writer -- who doesn’t want to create 
material for a same-sex wedding ceremony or similar event and the one who 
objects to an interfaith event should lose under RFRA or the Free Speech 
Clause.  Maybe both should win.  But I can’t see how courts can distinguish 
between them on the grounds of a perception that one’s discriminatory conduct 
is motivated by “hostility” and the other’s is motivated by a “feeling [that 
certain people] shouldn’t get married to each other.”

 

   Eugene

  

 

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu]On Behalf Of Eric J Segall
Sent: Wednesday, October 12, 2016 12:10 PM
To: Law & Religion issues for Law Academics 
Subject: Re: Noteworthy, puzzling scholars' brief in Arlene Flowers

 

Eugene asks tough questions but of course our entire EP jurisprudence requires 
smoking out pernicious v non-pernicious intent as does post Smith free exercise 
law and much free speech law. I'm of course willing to cede much more to the 
political process than most folks but I'm an outlier. The issue here is not 
whose theology is "accurate" or "correct" but rather hostility to a group based 
on pernicious discrimination is at play. That issue permeates constitutional 
law.

 

Best,

 

Eric

Sent from my iPhone


On Oct 12, 2016, at 12:02 PM, Volokh, Eugene  wrote:

   How exactly would courts draw the line between what is really at 
bottom of various religious practices?  Say someone says, “Jews’ objection to 
Jews marrying non-Jews stems from their viewing themselves as God’s Chosen 
People, and other people as not God’s Chosen People.”  Someone else responds, 
as I’ve heard many religious Jews say, “No, it’s not that being Chosen makes us 
better -- it’s just that God has a particular relationship with us that 
involves specific obligations.”  How are courts to tell whose understanding of 
the proper theological interpretation is right?

 

   Conversely, someone says “Objection to same-sex marriage at 
bottom is hostility to gays receiving equal treatment.”  Someone else says, 
“No, we’re not hostile to gays or to equal treatment generally; we just think 
that marriage is a special sacrament created by God for men and women.”  How 
are courts to tell whose understanding of the proper theological interpretation 
is right?

 

   Eugene

 

From:religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu]On Behalf Of Eric J Segall
Sent: Wednesday, October 12, 2016 11:44 AM
To: Law & Religion issues for Law Academics 
Cc: David Bernstein ; Mitchell Berman 
;conlawp...@lists.ucla.edu
Subject: Re: Noteworthy, puzzling scholars' brief in Arlene 

RE: Noteworthy, puzzling scholars' brief in Arlene Flowers

[Volokh, Eugene]

   On that, I don’t quite agree.  The line I would draw for when 
such mandates become speech compulsions is the same as for content-neutral 
speech restrictions.  If the government can ban an activity or grant a monopoly 
in it, it can generally compel it (again, at least when it does so without 
regard to content) without a First Amendment problem.  Can the government set 
up a monopoly (or a quasi-monopoly “medallion” system) for butchers, bakers, 
florists, or limo drivers?  Yes, because that is not generally expressive 
conduct.  Likewise, compelling people to sell flowers (even in pretty 
arrangements) or cakes (at least without writing) isn’t speech compulsion.

   But can the government limit the number of speakers, singers, 
writers, painters, or photographers in town, even if they speak for a living?  
No, I think, because those activities are expressive.  And compelling people to 
engage in such expression is also a speech compulsion.

   Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Mark Scarberry
Sent: Wednesday, October 12, 2016 3:18 PM
To: Law & Religion issues for Law Academics 
Subject: Re: Noteworthy, puzzling scholars' brief in Arlene Flowers

Outside of this context (in the context of licensing) and before these kinds of 
issues arose, I argued that flower arranging, even by a grocery store employee, 
is speech for 1st Amendment purposes, because the florist is trying to create 
something beautiful and perhaps something that will convey a message of love or 
concern to whoever might get the flowers. I still hold that position.

Mark

Mark S. Scarberry
Professor of Law
Pepperdine University School of Law



On Wed, Oct 12, 2016 at 11:58 AM -0700, "Volokh, Eugene" 
> wrote:
   A question about Chip’s “no solicitude” position to the 
compelled speech claim for Fred the photographer or DJ:  Chip, would you say 
the same as to a singer?  A portrait painter?  A calligrapher?

   Antidiscrimination laws ban religious discrimination as well as 
sexual orientation discrimination.  Say a motivational speaker who generally 
speaks to pretty much any group is asked to speak to a Church of Scientology 
gathering, or a press release writer who is generally open for business is 
asked to write a press release for the Scientologists.  Would he have a 
legitimate claim not to be compelled to speak to such an audience, or to write 
such a press release?

   Such laws in some places also ban discrimination based on 
political affiliation.  (D.C. is one example.)  Say someone doesn’t want to 
write a press release for a candidate who belongs to a party he disapproves of. 
 Would that be enough for a compelled speech claim?  Is the line between 
creators of different kinds of speech (photographs vs. portraits vs. press 
releases vs. speeches)?  Or is it that people who write/speak/etc. for a 
living, and who take various contracts, can’t raise compelled speech objections 
in any contexts?

   Eugene

From: 
religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Wednesday, October 12, 2016 11:29 AM
To: Mitchell Berman >
Cc: David Bernstein >; Law & Religion 
issues for Law Academics 
>; 
conlawp...@lists.ucla.edu
Subject: Re: Noteworthy, puzzling scholars' brief in Arlene Flowers

Mitch Berman's good question asks in general terms about how much "solicitude" 
Fred's claim deserves.  But we cannot answer intelligently unless we know the 
forum and the grounds advanced for Fred.  Is he asking the state legislature to 
exempt religious objectors from public accommodations law?  Is he raising a 
compelled speech claim?  A religious freedom claim under a RFRA, or a state 
constitution?  I would give his claim no solicitude in any of these contexts, 
for reasons I have spelled out at length on this listserv and in law reviews.  
But I can imagine that others might well react differently depending on the 
legal context.
___
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: Noteworthy, puzzling scholars' brief in Arlene Flowers

[Mark Scarberry]

Outside of this context (in the context of licensing) and before these kinds of 
issues arose, I argued that flower arranging, even by a grocery store employee, 
is speech for 1st Amendment purposes, because the florist is trying to create 
something beautiful and perhaps something that will convey a message of love or 
concern to whoever might get the flowers. I still hold that position.
Mark 
Mark S. Scarberry Professor of Law Pepperdine University School of Law 






On Wed, Oct 12, 2016 at 11:58 AM -0700, "Volokh, Eugene"  
wrote:




















   A question about Chip’s “no solicitude” position to the 
compelled speech claim for Fred the photographer or DJ:  Chip, would you say 
the same as to a singer? 
 A portrait painter?  A calligrapher?


 


   Antidiscrimination laws ban religious discrimination as well as 
sexual orientation discrimination.  Say a motivational speaker who generally 
speaks to pretty
 much any group is asked to speak to a Church of Scientology gathering, or a 
press release writer who is generally open for business is asked to write a 
press release for the Scientologists.  Would he have a legitimate claim not to 
be compelled to speak to
 such an audience, or to write such a press release?  


 


   Such laws in some places also ban discrimination based on 
political affiliation.  (D.C. is one example.)  Say someone doesn’t want to 
write a press release for
 a candidate who belongs to a party he disapproves of.  Would that be enough 
for a compelled speech claim?  Is the line between creators of different kinds 
of speech (photographs vs. portraits vs. press releases vs. speeches)?  Or is 
it that people who write/speak/etc.
 for a living, and who take various contracts, can’t raise compelled speech 
objections in any contexts?


 


   Eugene


 


From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu]
On Behalf Of Ira Lupu

Sent: Wednesday, October 12, 2016 11:29 AM

To: Mitchell Berman 

Cc: David Bernstein ; Law & Religion issues for Law Academics 
; conlawp...@lists.ucla.edu

Subject: Re: Noteworthy, puzzling scholars' brief in Arlene Flowers


 




Mitch Berman's good question asks in general terms about how much "solicitude" 
Fred's claim deserves.  But we cannot answer intelligently unless we know the 
forum and the grounds advanced for
 Fred.  Is he asking the state legislature to exempt religious objectors from 
public accommodations law?  Is he raising a compelled speech claim?  A 
religious freedom claim under a RFRA, or a state constitution?  I would give 
his claim no solicitude in any
 of these contexts, for reasons I have spelled out at length on this listserv 
and in law reviews.  But I can imagine that others might well react differently 
depending on the legal context.










___
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: Noteworthy, puzzling scholars' brief in Arlene Flowers

[Volokh, Eugene]

   A question about Chip’s “no solicitude” position to the 
compelled speech claim for Fred the photographer or DJ:  Chip, would you say 
the same as to a singer?  A portrait painter?  A calligrapher?

   Antidiscrimination laws ban religious discrimination as well as 
sexual orientation discrimination.  Say a motivational speaker who generally 
speaks to pretty much any group is asked to speak to a Church of Scientology 
gathering, or a press release writer who is generally open for business is 
asked to write a press release for the Scientologists.  Would he have a 
legitimate claim not to be compelled to speak to such an audience, or to write 
such a press release?

   Such laws in some places also ban discrimination based on 
political affiliation.  (D.C. is one example.)  Say someone doesn’t want to 
write a press release for a candidate who belongs to a party he disapproves of. 
 Would that be enough for a compelled speech claim?  Is the line between 
creators of different kinds of speech (photographs vs. portraits vs. press 
releases vs. speeches)?  Or is it that people who write/speak/etc. for a 
living, and who take various contracts, can’t raise compelled speech objections 
in any contexts?

   Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Wednesday, October 12, 2016 11:29 AM
To: Mitchell Berman 
Cc: David Bernstein ; Law & Religion issues for Law Academics 
; conlawp...@lists.ucla.edu
Subject: Re: Noteworthy, puzzling scholars' brief in Arlene Flowers

Mitch Berman's good question asks in general terms about how much "solicitude" 
Fred's claim deserves.  But we cannot answer intelligently unless we know the 
forum and the grounds advanced for Fred.  Is he asking the state legislature to 
exempt religious objectors from public accommodations law?  Is he raising a 
compelled speech claim?  A religious freedom claim under a RFRA, or a state 
constitution?  I would give his claim no solicitude in any of these contexts, 
for reasons I have spelled out at length on this listserv and in law reviews.  
But I can imagine that others might well react differently depending on the 
legal context.
___
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.

Hostility vs. feeling that certain people shouldn't marry each other

[Volokh, Eugene]

   Well, both the Equal Protection Clause jurisprudence and 
antidiscrimination law requires figuring out whether the defendant deliberately 
treated people differently based on race, sex, religion, etc.

   But I don't think we ever ask whether a private citizen's 
discriminatory actions were "at bottom" based on "hostility" or rather based on 
"no objection to [people's identity]" but rather a "feel[ing]" that people of 
certain identities shouldn't do something.  And I think we basically don't do 
that even as to government actors' imputed motives, either.  To give just one 
example, say that an employer decides not to hire women with small children for 
a particular job.  There may be no evidence at all that this is based on 
"hostility" to women or even "hostility to [women] receiving equal treatment" 
(except in the tautological sense that all decisions to treat unequally are 
based on "hostility" to equal treatment in the sense of a choice against such 
equal treatment).  It may be clear that the employer is very friendly to women 
in many contexts, but just "feel[s] they shouldn't" work outside the home when 
they have small children.  But that doesn't matter for Title VII purposes.  
Indeed, even if an employer requires women to contribute more to retirement 
funds simply because women are statistically likelier to live much longer than 
men -- with not a hint of "hostility" -- is violating Title VII.

   Now maybe both the photographer -- or wedding singer or portrait 
painter or calligrapher or press release writer -- who doesn't want to create 
material for a same-sex wedding ceremony or similar event and the one who 
objects to an interfaith event should lose under RFRA or the Free Speech 
Clause.  Maybe both should win.  But I can't see how courts can distinguish 
between them on the grounds of a perception that one's discriminatory conduct 
is motivated by "hostility" and the other's is motivated by a "feeling [that 
certain people] shouldn't get married to each other."

   Eugene


From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Eric J Segall
Sent: Wednesday, October 12, 2016 12:10 PM
To: Law & Religion issues for Law Academics 
Subject: Re: Noteworthy, puzzling scholars' brief in Arlene Flowers

Eugene asks tough questions but of course our entire EP jurisprudence requires 
smoking out pernicious v non-pernicious intent as does post Smith free exercise 
law and much free speech law. I'm of course willing to cede much more to the 
political process than most folks but I'm an outlier. The issue here is not 
whose theology is "accurate" or "correct" but rather hostility to a group based 
on pernicious discrimination is at play. That issue permeates constitutional 
law.

Best,

Eric

Sent from my iPhone

On Oct 12, 2016, at 12:02 PM, Volokh, Eugene 
> wrote:
   How exactly would courts draw the line between what is really at 
bottom of various religious practices?  Say someone says, "Jews' objection to 
Jews marrying non-Jews stems from their viewing themselves as God's Chosen 
People, and other people as not God's Chosen People."  Someone else responds, 
as I've heard many religious Jews say, "No, it's not that being Chosen makes us 
better -- it's just that God has a particular relationship with us that 
involves specific obligations."  How are courts to tell whose understanding of 
the proper theological interpretation is right?

   Conversely, someone says "Objection to same-sex marriage at 
bottom is hostility to gays receiving equal treatment."  Someone else says, 
"No, we're not hostile to gays or to equal treatment generally; we just think 
that marriage is a special sacrament created by God for men and women."  How 
are courts to tell whose understanding of the proper theological interpretation 
is right?

   Eugene

From: 
religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Eric J Segall
Sent: Wednesday, October 12, 2016 11:44 AM
To: Law & Religion issues for Law Academics 
>
Cc: David Bernstein >; Mitchell 
Berman >; 
conlawp...@lists.ucla.edu
Subject: Re: Noteworthy, puzzling scholars' brief in Arlene Flowers

I am receptive to trying to draw lines between commercial activities that are 
inherently expressive and those that are not (knowing there will be quite grey 
areas). But I think there is a serious difference in the real world between a 
seller of flowers whose objection to same-sex marriage at bottom is hostility 
to gays receiving equal treatment and a person of faith with no objection to 
Jews 

Re: Noteworthy, puzzling scholars' brief in Arlene Flowers

[Eric J Segall]

Eugene asks tough questions but of course our entire EP jurisprudence requires 
smoking out pernicious v non-pernicious intent as does post Smith free exercise 
law and much free speech law. I'm of course willing to cede much more to the 
political process than most folks but I'm an outlier. The issue here is not 
whose theology is "accurate" or "correct" but rather hostility to a group based 
on pernicious discrimination is at play. That issue permeates constitutional 
law.

Best,

Eric

Sent from my iPhone

On Oct 12, 2016, at 12:02 PM, Volokh, Eugene 
> wrote:

   How exactly would courts draw the line between what is really at 
bottom of various religious practices?  Say someone says, “Jews’ objection to 
Jews marrying non-Jews stems from their viewing themselves as God’s Chosen 
People, and other people as not God’s Chosen People.”  Someone else responds, 
as I’ve heard many religious Jews say, “No, it’s not that being Chosen makes us 
better -- it’s just that God has a particular relationship with us that 
involves specific obligations.”  How are courts to tell whose understanding of 
the proper theological interpretation is right?

   Conversely, someone says “Objection to same-sex marriage at 
bottom is hostility to gays receiving equal treatment.”  Someone else says, 
“No, we’re not hostile to gays or to equal treatment generally; we just think 
that marriage is a special sacrament created by God for men and women.”  How 
are courts to tell whose understanding of the proper theological interpretation 
is right?

   Eugene

From: 
religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Eric J Segall
Sent: Wednesday, October 12, 2016 11:44 AM
To: Law & Religion issues for Law Academics 
>
Cc: David Bernstein >; Mitchell 
Berman >; 
conlawp...@lists.ucla.edu
Subject: Re: Noteworthy, puzzling scholars' brief in Arlene Flowers

I am receptive to trying to draw lines between commercial activities that are 
inherently expressive and those that are not (knowing there will be quite grey 
areas). But I think there is a serious difference in the real world between a 
seller of flowers whose objection to same-sex marriage at bottom is hostility 
to gays receiving equal treatment and a person of faith with no objection to 
Jews or Catholics but feel they shouldn't get married to each other. Thus, 
again, I think we can draw a line b/w requests for religious exemptions based 
on group hostility and claims not based on group hostility, even conceding 
Mitch's typical smart and hard hypo is a hard case.

Best,

Eric

Sent from my iPhone

On Oct 12, 2016, at 11:29 AM, Ira Lupu 
> wrote:
Mitch Berman's good question asks in general terms about how much "solicitude" 
Fred's claim deserves.  But we cannot answer intelligently unless we know the 
forum and the grounds advanced for Fred.  Is he asking the state legislature to 
exempt religious objectors from public accommodations law?  Is he raising a 
compelled speech claim?  A religious freedom claim under a RFRA, or a state 
constitution?  I would give his claim no solicitude in any of these contexts, 
for reasons I have spelled out at length on this listserv and in law reviews.  
But I can imagine that others might well react differently depending on the 
legal context.

On Tue, Oct 11, 2016 at 2:45 PM, Mitchell Berman 
> wrote:
For what it’s worth, I’d like to add another generally liberal, pluralist voice 
in support of Doug and David.

I don’t have a strong view regarding precisely what the doctrine should be to 
govern cases of this sort, largely because I believe that the adequacy of 
available alternatives will be a critical factor, and I am open to the 
possibility that, due to difficulties of case-by-case inquiry into such 
questions, the law (statutory or judge-made) should adopt prophylactic rules.  
That acknowledged, as a matter of political morality, I also believe that folks 
on my side of the aisle are often insufficiently sensitive to interests of the 
Shlomo Cohens and Barronelle Stutzmans of our nation.

Take this case: in a large city, an observant Jewish photographer or dj, Fred, 
declines to work at an interfaith marriage between a Jew and a Gentile.  Fred 
is happy to take on any other work for Jews or Gentiles, or for both together.  
But he objects to being complicit in a venture—interfaith marriage—that he 
deems wrongful or religiously proscribed.

Marty, Eric: how much solicitude is Fred due?  (And if you choose to answer, I 
ask that you do so without analogizing to interracial marriage; 

RE: Noteworthy, puzzling scholars' brief in Arlene Flowers

[Volokh, Eugene]

   How exactly would courts draw the line between what is really at 
bottom of various religious practices?  Say someone says, "Jews' objection to 
Jews marrying non-Jews stems from their viewing themselves as God's Chosen 
People, and other people as not God's Chosen People."  Someone else responds, 
as I've heard many religious Jews say, "No, it's not that being Chosen makes us 
better -- it's just that God has a particular relationship with us that 
involves specific obligations."  How are courts to tell whose understanding of 
the proper theological interpretation is right?

   Conversely, someone says "Objection to same-sex marriage at 
bottom is hostility to gays receiving equal treatment."  Someone else says, 
"No, we're not hostile to gays or to equal treatment generally; we just think 
that marriage is a special sacrament created by God for men and women."  How 
are courts to tell whose understanding of the proper theological interpretation 
is right?

   Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Eric J Segall
Sent: Wednesday, October 12, 2016 11:44 AM
To: Law & Religion issues for Law Academics 
Cc: David Bernstein ; Mitchell Berman 
; conlawp...@lists.ucla.edu
Subject: Re: Noteworthy, puzzling scholars' brief in Arlene Flowers

I am receptive to trying to draw lines between commercial activities that are 
inherently expressive and those that are not (knowing there will be quite grey 
areas). But I think there is a serious difference in the real world between a 
seller of flowers whose objection to same-sex marriage at bottom is hostility 
to gays receiving equal treatment and a person of faith with no objection to 
Jews or Catholics but feel they shouldn't get married to each other. Thus, 
again, I think we can draw a line b/w requests for religious exemptions based 
on group hostility and claims not based on group hostility, even conceding 
Mitch's typical smart and hard hypo is a hard case.

Best,

Eric

Sent from my iPhone

On Oct 12, 2016, at 11:29 AM, Ira Lupu 
> wrote:
Mitch Berman's good question asks in general terms about how much "solicitude" 
Fred's claim deserves.  But we cannot answer intelligently unless we know the 
forum and the grounds advanced for Fred.  Is he asking the state legislature to 
exempt religious objectors from public accommodations law?  Is he raising a 
compelled speech claim?  A religious freedom claim under a RFRA, or a state 
constitution?  I would give his claim no solicitude in any of these contexts, 
for reasons I have spelled out at length on this listserv and in law reviews.  
But I can imagine that others might well react differently depending on the 
legal context.

On Tue, Oct 11, 2016 at 2:45 PM, Mitchell Berman 
> wrote:
For what it's worth, I'd like to add another generally liberal, pluralist voice 
in support of Doug and David.

I don't have a strong view regarding precisely what the doctrine should be to 
govern cases of this sort, largely because I believe that the adequacy of 
available alternatives will be a critical factor, and I am open to the 
possibility that, due to difficulties of case-by-case inquiry into such 
questions, the law (statutory or judge-made) should adopt prophylactic rules.  
That acknowledged, as a matter of political morality, I also believe that folks 
on my side of the aisle are often insufficiently sensitive to interests of the 
Shlomo Cohens and Barronelle Stutzmans of our nation.

Take this case: in a large city, an observant Jewish photographer or dj, Fred, 
declines to work at an interfaith marriage between a Jew and a Gentile.  Fred 
is happy to take on any other work for Jews or Gentiles, or for both together.  
But he objects to being complicit in a venture-interfaith marriage-that he 
deems wrongful or religiously proscribed.

Marty, Eric: how much solicitude is Fred due?  (And if you choose to answer, I 
ask that you do so without analogizing to interracial marriage; that's not my 
case.)

Mitch Berman


From: 
conlawprof-boun...@lists.ucla.edu 
[mailto:conlawprof-boun...@lists.ucla.edu]
 On Behalf Of David Bernstein
Sent: Tuesday, October 11, 2016 10:00 AM
To: Marty Lederman >; 
conlawp...@lists.ucla.edu; Law & Religion 
issues for Law Academics 
>
Subject: Re: Noteworthy, puzzling scholars' brief in Arlene Flowers


Unlike Marty, I not only don't find the argument in question shocking, I thin 
it's right. I blogged about this at Volokh a couple of years ago, drawing the 
analogy to a caterer who serves 

Re: Noteworthy, puzzling scholars' brief in Arlene Flowers

[Eric J Segall]

I am receptive to trying to draw lines between commercial activities that are 
inherently expressive and those that are not (knowing there will be quite grey 
areas). But I think there is a serious difference in the real world between a 
seller of flowers whose objection to same-sex marriage at bottom is hostility 
to gays receiving equal treatment and a person of faith with no objection to 
Jews or Catholics but feel they shouldn't get married to each other. Thus, 
again, I think we can draw a line b/w requests for religious exemptions based 
on group hostility and claims not based on group hostility, even conceding 
Mitch's typical smart and hard hypo is a hard case.

Best,

Eric

Sent from my iPhone

On Oct 12, 2016, at 11:29 AM, Ira Lupu 
> wrote:

Mitch Berman's good question asks in general terms about how much "solicitude" 
Fred's claim deserves.  But we cannot answer intelligently unless we know the 
forum and the grounds advanced for Fred.  Is he asking the state legislature to 
exempt religious objectors from public accommodations law?  Is he raising a 
compelled speech claim?  A religious freedom claim under a RFRA, or a state 
constitution?  I would give his claim no solicitude in any of these contexts, 
for reasons I have spelled out at length on this listserv and in law reviews.  
But I can imagine that others might well react differently depending on the 
legal context.

On Tue, Oct 11, 2016 at 2:45 PM, Mitchell Berman 
> wrote:
For what it’s worth, I’d like to add another generally liberal, pluralist voice 
in support of Doug and David.

I don’t have a strong view regarding precisely what the doctrine should be to 
govern cases of this sort, largely because I believe that the adequacy of 
available alternatives will be a critical factor, and I am open to the 
possibility that, due to difficulties of case-by-case inquiry into such 
questions, the law (statutory or judge-made) should adopt prophylactic rules.  
That acknowledged, as a matter of political morality, I also believe that folks 
on my side of the aisle are often insufficiently sensitive to interests of the 
Shlomo Cohens and Barronelle Stutzmans of our nation.

Take this case: in a large city, an observant Jewish photographer or dj, Fred, 
declines to work at an interfaith marriage between a Jew and a Gentile.  Fred 
is happy to take on any other work for Jews or Gentiles, or for both together.  
But he objects to being complicit in a venture—interfaith marriage—that he 
deems wrongful or religiously proscribed.

Marty, Eric: how much solicitude is Fred due?  (And if you choose to answer, I 
ask that you do so without analogizing to interracial marriage; that’s not my 
case.)

Mitch Berman


From: 
conlawprof-boun...@lists.ucla.edu 
[mailto:conlawprof-boun...@lists.ucla.edu]
 On Behalf Of David Bernstein
Sent: Tuesday, October 11, 2016 10:00 AM
To: Marty Lederman >; 
conlawp...@lists.ucla.edu; Law & Religion 
issues for Law Academics 
>
Subject: Re: Noteworthy, puzzling scholars' brief in Arlene Flowers


Unlike Marty, I not only don't find the argument in question shocking, I thin 
it's right. I blogged about this at Volokh a couple of years ago, drawing the 
analogy to a caterer who serves Jewish customers, but refuses to cater brises. 
Unusually, the comments section to the post is also mostly worthwhile. 
http://volokh.com/2013/12/14/refusing-provide-commercial-services-circumcision-discrimination-jews/.
 Another hypothetical that could arise is an Orthodox Jewish baker who serves 
all customers.




Is Refusing to Provide Commercial Services for a Circumcision Discrimination 
against Jews?
by David 
Bernstein
 on December 14, 2013 12:46 pm in You Can't Say 
That!

Here’s the hypothetical: Shlomo Cohen has been blessed with a son, but he lives 
in San 

Re: Noteworthy, puzzling scholars' brief in Arlene Flowers

[Ira Lupu]

Mitch Berman's good question asks in general terms about how much
"solicitude" Fred's claim deserves.  But we cannot answer intelligently
unless we know the forum and the grounds advanced for Fred.  Is he asking
the state legislature to exempt religious objectors from public
accommodations law?  Is he raising a compelled speech claim?  A religious
freedom claim under a RFRA, or a state constitution?  I would give his
claim no solicitude in any of these contexts, for reasons I have spelled
out at length on this listserv and in law reviews.  But I can imagine that
others might well react differently depending on the legal context.

On Tue, Oct 11, 2016 at 2:45 PM, Mitchell Berman 
wrote:

> For what it’s worth, I’d like to add another generally liberal, pluralist
> voice in support of Doug and David.
>
>
>
> I don’t have a strong view regarding precisely what the doctrine should be
> to govern cases of this sort, largely because I believe that the adequacy
> of available alternatives will be a critical factor, and I am open to the
> possibility that, due to difficulties of case-by-case inquiry into such
> questions, the law (statutory or judge-made) should adopt prophylactic
> rules.  That acknowledged, as a matter of political morality, I also
> believe that folks on my side of the aisle are often insufficiently
> sensitive to interests of the Shlomo Cohens and Barronelle Stutzmans of our
> nation.
>
>
>
> Take this case: in a large city, an observant Jewish photographer or dj,
> Fred, declines to work at an interfaith marriage between a Jew and a
> Gentile.  Fred is happy to take on any other work for Jews or Gentiles, or
> for both together.  But he objects to being complicit in a
> venture—interfaith marriage—that he deems wrongful or religiously
> proscribed.
>
>
>
> Marty, Eric: how much solicitude is Fred due?  (And if you choose to
> answer, I ask that you do so without analogizing to interracial marriage;
> that’s not my case.)
>
>
>
> Mitch Berman
>
>
>
>
>
> *From:* conlawprof-boun...@lists.ucla.edu [mailto:conlawprof-bounces@
> lists.ucla.edu] *On Behalf Of *David Bernstein
> *Sent:* Tuesday, October 11, 2016 10:00 AM
> *To:* Marty Lederman ; conlawp...@lists.ucla.edu;
> Law & Religion issues for Law Academics 
> *Subject:* Re: Noteworthy, puzzling scholars' brief in Arlene Flowers
>
>
>
> Unlike Marty, I not only don't find the argument in question shocking, I
> thin it's right. I blogged about this at Volokh a couple of years ago,
> drawing the analogy to a caterer who serves Jewish customers, but refuses
> to cater brises. Unusually, the comments section to the post is also mostly
> worthwhile. http://volokh.com/2013/12/14/refusing-provide-
> commercial-services-circumcision-discrimination-jews/
> .
> Another hypothetical that could arise is an Orthodox Jewish baker who
> serves all customers.
>
>
>
>
> Is Refusing to Provide Commercial Services for a Circumcision
> Discrimination against Jews?
>
> by *David Bernstein*
> 
>  on December 14, 2013 12:46 pm in *You Can't Say That!*
> 
>
> Here’s the hypothetical: Shlomo Cohen has been blessed with a son, but he
> lives in San Francisco, where there is a vocal anti-circumcision movement.
> He emails his neighbor, a photographer, and asks him if he would photograph
> his son’s bris. The photographer responds, “Shlomo, no offense, but I think
> circumcision amounts to genital mutilation, and I can’t participate in
> that.” Next, he approaches his local organic/vegeterian caterer about
> catering the bris. The caterer says, “you know Shlomo, I’ve done brises in
> the past, but I’ve been reading some of the literature put out by the
> anti-circumcision people, and I think circumcisions cause unnecessary pain
> to baby boys. So I don’t do brises anymore.”
>
> Shlomo files a complaint with San Francisco’s human rights commission,
> claiming that the photographer and the caterer are engaging in
> discrimination against him based on his Jewish ethnicity and religion.
> There is no evidence that either person turns down or otherwise