Mark: I don't accept your account of wedding cake designers. As you surely know, to qualify as expressive conduct, conduct must be both intended to convey a particular message and to be interpreted by the community in such a manner. I don't know why anyone would assume that baking a nice cake for money amounts to a message of support for a gay marriage. It isn't quite as articulate as burning a flag.
Further, this is commercial speech that we are talking about, which also gets lesser protection. And if it is expressive conduct, I don't see why the same theory shouldn't extend to renting an apartment to a same-sex couple (or single mother). I assume that renting an apartment expresses the same thing as baking and decorating a cake. To me, neither one of them expresses anything, but if either one does, then they both do. On Wed, Feb 26, 2014 at 2:59 PM, Scarberry, Mark < mark.scarbe...@pepperdine.edu> wrote: > There certainly is reason to give particular protection to people with > regard to First Amendment expression, such as the creation of celebratory > art by wedding photographers. That is not an "accommodation" given as a > matter of legislative grace, at least not under any sensible approach to > the First Amendment. > > > > It is a separate question whether others' religious conscience should be > protected by "accommodations" under the regime created by Employment > Division v. Smith. > > > > 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 *Hillel Y. Levin > *Sent:* Wednesday, February 26, 2014 11:49 AM > > *To:* Law & Religion issues for Law Academics > *Subject:* Re: Subject: Re: Kansas/Arizona statutes protecting for-profit > businesses > > > > Doug: > > > > What do you mean by the following: "Apart from marriage, there is no > reason to have religious exemptions for businesses from laws on > sexual-orientation discrimination." > > > > There certainly are some religious people (I don't agree with them, but I > could give you their names and numbers) who would find it religiously > problematic to provide certain services to same-sex couples, including, for > example, renting them an apartment. Why is there "no reason" to accommodate > such people if you *would* accommodate the wedding photographer? Am I > misunderstanding you? > > > > On Wed, Feb 26, 2014 at 2:22 PM, Douglas Laycock <dlayc...@virginia.edu> > wrote: > > Many state laws on sexual-orientation discrimination, and most laws on > same-sex marriage, have exemptions for religious organizations. Some are > broad; some are narrow. Some are well drafted; some are a mess. But they > are mostly there. > > > > Apart from marriage, there is no reason to have religious exemptions for > businesses from laws on sexual-orientation discrimination. No one in the > groups I have been part of has ever suggested such exemptions. Not even the > Kansas bill provides such exemptions. > > > > Chip is correct that no state has explicitly exempted small businesses in > the wedding industry, or in marriage counseling, from its same-sex marriage > legislation. All those laws so far have been in blue states. The absurd > overreach in the Kansas bill, and the resulting political reaction to the > radically different Arizona bill, and some bills caught in the fire > elsewhere with less publicity, may indicate that such exemptions will be > hard to enact even in red states. Or maybe not, if someone offers a well > drafted, narrowly targeted bill when or after same-sex marriage becomes the > law in those states. > > > > I agree with Alan Brownstein that part of the problem in red states is > that they want to protect religious conservatives without protecting gays > and lesbians. Not only does Arizona not have same-sex marriage; it doesn't > have a law on sexual-orientation discrimination. The blue states are mostly > the mirror image. More and more they want to protect gays and lesbians but > not religious conservatives. Hardly any political actors appear to be > interested in protecting the liberty of both sides. > > > > > > Douglas Laycock > > Robert E. Scott Distinguished Professor of Law > > University of Virginia Law School > > 580 Massie Road > > Charlottesville, VA 22903 > > 434-243-8546 > > > > *From:* religionlaw-boun...@lists.ucla.edu [mailto: > religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Ira Lupu > *Sent:* Wednesday, February 26, 2014 11:34 AM > > > *To:* Law & Religion issues for Law Academics > > *Subject:* Re: Subject: Re: Kansas/Arizona statutes protecting for-profit > businesses > > > > That is my understanding, Hillel. If Doug, Rick, Tom, or others know of > counterexamples, I'm sure they will bring them forward to the list. > > > > On Wed, Feb 26, 2014 at 11:28 AM, Hillel Y. Levin <hillelle...@gmail.com> > wrote: > > Chip: > > > > Thanks for the cite! I will take a look. > > > > And just so I understand: are you asserting that *none* have adopted the > broader exceptions (wedding vendors, etc)? > > > > On Wed, Feb 26, 2014 at 11:23 AM, Ira Lupu <icl...@law.gwu.edu> wrote: > > Hillel: > > > > The same sex marriage laws to which you refer do have "exceptions," for > clergy, houses of worship, and (sometimes) for religious charities and > social services. Bob Tuttle and I analyze and collect some of that here: > http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1055&context=njlsp. > There is plenty of other literature on the subject. > > > > What has happened in other states since we wrote that piece is quite > consistent with the pattern we described. These laws do NOT contain > exceptions for wedding vendors (bakers, caterers, etc.) or public employees > like marriage license clerks. Those are the efforts that have failed, over > and over. > > > > Chip (not Ira, please) > > > > On Wed, Feb 26, 2014 at 11:13 AM, Hillel Y. Levin <hillelle...@gmail.com> > wrote: > > Ira: > > > > You say that these bills have failed over and over again. If I'm not > mistaken, several states that recognize same-sex marriage and/or have > non-discrimination laws protecting gays and lesbians *do* have religious > exceptions (as does the ENDA that passed the senate not long ago, only to > die in the House). Am I mistaken? Do you (or anyone else here!) know of any > literature that canvasses the laws in this context? > > > > Many thanks. > > > _______________________________________________ > 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. > > > > > > -- > Hillel Y. Levin > Associate Professor > > University of Georgia > School of Law > 120 Herty Dr. > Athens, GA 30602 > (678) 641-7452 > hle...@uga.edu > hillelle...@gmail.com > SSRN Author Page: > http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=466645 > > _______________________________________________ > To post, send message to Religionlaw@lists.ucla.edu > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be viewed as > private. Anyone can subscribe to the list and read messages that are > posted; people can read the Web archives; and list members can (rightly or > wrongly) forward the messages to others. > -- Hillel Y. Levin Associate Professor University of Georgia School of Law 120 Herty Dr. Athens, GA 30602 (678) 641-7452 hle...@uga.edu hillelle...@gmail.com SSRN Author Page: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=466645
_______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
