Although it may be awkward to put it this way, my point was not that of the careful lawyer (though I think I can be one when need be :) ), but, rather, appealing to the aspirations underlying the Act. If we were debating the meaning of the 14th Amendment, most (though not all) of us would pay almost no attention to the specific views of the Framers, beginning, of course, with their carefully delineated differentiation of civil, political, and social rights or the assumptions about the continuing validity of segregation, etc. "Constitutive statutes" like the Civil Rights Act take on a similar life if their own in shaping consciousness, even if there may be a specific exemption for Mrs. Murphy and her boardinghouse. There is a reason that state civil rights statutes are broader. The limitations of 1964 were raw compromises to pick up votes. They scarcely rested on deep principles that were generally accepted.
Sandy Sent from my iPhone On Apr 1, 2015, at 8:47 PM, Richard Friedman <rdfrd...@umich.edu<mailto:rdfrd...@umich.edu>> wrote: But given the way you wrote your post, I don't think you really can, because the decision was pretty deliberate to limit the 1964 Act to a carefully defined list of public accommodations that didn't involve intimate contact -- so no boarding houses, no barbershops, not even most types of retail stores. Somebody (can't remember who) wrote ap iece several years ago emphasizing this. I don't know how universally state laws have filled the gap -- they certainly have to some extent, though I imagine not with respect to boarding houses -- and I suppose there's a national consensus that a barber can't decline to cut a person's hair on account of race, but I don't think you can cite the '64 Act in support of it. On Wed, Apr 1, 2015 at 8:58 PM, Levinson, Sanford V <slevin...@law.utexas.edu<mailto:slevin...@law.utexas.edu>> wrote: You may be right. I was using the term more metaphorically to refer to any business that is open to the public. Sandy Sent from my iPhone On Apr 1, 2015, at 6:48 PM, Richard Friedman <rdfrd...@umich.edu<mailto:rdfrd...@umich.edu>> wrote: Hi, Sandy. I hope all is well. I'm writing to you off-list, because I haven't followed the entire conversation and may have missed something. But my understanding is that florists and cake-makers (assuming the cakes are not meant to be eaten on premises) are not public accommodations within the meaning of the Civil Rights Act of 1964, though they're covered by many state civil rights acts. Am I in fact missing something? Best, Rich On Wed, Apr 1, 2015 at 6:18 PM, Levinson, Sanford V <slevin...@law.utexas.edu<mailto:slevin...@law.utexas.edu>> wrote: I think Prof. Chen is substantially correct, but I believe, more than ever, that it's the kind of problem that can ( and should) be handled outside legal constraints. Why would I want to hire a wedding photographer who so clearly won't view the day as affirmatively special? Ditto the band? But I really can't work up much sympathy for the florist or baker. They should be treated under the general rubric of public accommodations and the Civil Rights Act of 1964. I'm sure there were florists and bakers who objected to mixes-race marriages and could cite the purported curse on Ham. It really doesn't (and shouldn't) matter. Sandy Sent from my iPhone On Apr 1, 2015, at 4:56 PM, K Chen <tzn...@gmail.com<mailto:tzn...@gmail.com>> wrote: As someone putting a wedding together, I can't explain the lack of sympathy for the wedding photographer as anything but thinking that their work is essentially interchangeable. It is not, unfortunately, and it is priced accordingly. Every single photographer of them seems to take their business very, very personally. More to the point, it is a personal, professional service which is by its nature selective compared to the harm done by impersonal corporations excluding goods and services when they otherwise serve the public. A principled difference can be drawn between accommodating personal, inherently selective commercial businesses and businesses that are open to the public at large. The vast majority of commercial transactions are from businesses who sell to the public, or their business community, on a non-discriminatory basis. When such a business denies goods or services to a class of person, that is an inherently political act. Such a businesses is not just refusing the do business with an individual or class, they are making an attempt to exclude them from the definition of the public itself. They are thus doing harm to both individual and society by imposing their will on what constitutes the political community. This harm grows geometrically with each exclusionary actor. Individual consumers on the other hand, are inherently selective. If you need one loaf of bread this week, you will patronize precisely one baker this week. If you need a salary, you will work one, maybe two jobs. The harm of being denied service by a consumer (or laborer) because of their beliefs has a societal harm, if any, nearly indistinguishable to being denied for any other reason. Some services should fall in between. I'm not convinced for the florist and the and the baker, but I'm sympathetic to the photographer, the doctor, the lawyer (ethical obligations notwithstanding) , the political consultant, the ghost writer... I don't know how far that gets "liberals" of course, but it is a difference beyond mere size and corporate form. Kevin Chen On Wed, Apr 1, 2015 at 2:51 PM, Gaubatz, Derek <dgaub...@imb.org<mailto:dgaub...@imb.org>> wrote: “"[l]iberals who opposed Smith in 1990 and supported RFRA in 1993 — including liberal organizations, professors, and politicians — largely continue to support religious exemptions for individuals, while opposing the extension of such exemptions to commercial businesses." I’m not sure I’m seeing the principled distinction. Do not many individuals depend for their livelihood on commercial businesses? Why do liberals see the conscience of individuals like Sherbert or Thomas worthy of protection, but the conscience of an individual photographer, florist, baker, or bed and breakfast owner less worthy of protection? Justice Kagan, at least back in 1996 when she was in the Clinton White House, appeared to recognize that the consciences of individuals operating small commercial businesses was worthy of protection under a RFRA regime. Commenting on the short shrift given to the claim of a Evelyn Smith who, for religious reasons, did not want to rent one of her units to a co-habitating couple, Kagan noted that the court’s reasoning was “outrageous.” She wrote that it was “almost as if a court were to hold that a state law does not impose a substantial burden on religion because the complainant is free to move to another state.” http://www.brookings.edu/research/papers/2010/06/23-kagan-rogers From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [mailto:religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>] On Behalf Of James Oleske Sent: Wednesday, April 01, 2015 2:25 PM To: Law & Religion issues for Law Academics Subject: Eugene's Blog Post on Liberals and Exemption Rights Eugene has a new post up on Volokh Conspiracy entitled, "Many liberals’ (sensible) retreat from the old Justice Brennan/ACLU position on religious exemptions." The piece is lengthy, and I recommend folks read it in full, but I want to take issue with the following assertion at the heart of Eugene's analysis: "Yes, religious objectors can use these RFRAs to try to get exemptions from antidiscrimination laws. But religious objectors could have done the same under the Sherbert-era Free Exercise Clause that the ACLU had long championed." http://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/04/01/many-liberals-sensible-retreat-from-the-old-justice-brennanaclu-position-on-religious-exemptions/ Insofar as we're talking about discrimination in the commercial marketplace, which is the context generating almost all of the liberal concerns about exemptions today, I have to disagree with Eugene's characterization of the law in the Sherbert era. Indeed, I make precisely the opposite argument at length in Part II of the following piece: http://harvardlawreview.org/2015/01/the-born-again-champion-of-conscience/ ("The Real Issue: The Unprecedented Expansion of Exemption Rights into the Commercial Realm"). Nowhere in his post does Eugene acknowledge either United States v. Lee, which is the only Sherbert-era case in which the Court explicitly addressed the issue of commercial exemptions, or Piggie Park, where the Court dismissed a commercial businesses' claim for an exemption from an antidiscrimination law as "patently frivolous." Instead, Eugene refers to Justice Brennan's pre-Sherbert dissenting opinion in Crown. Whatever Justice Brennan's views in 1961, it is difficult to understand how they are a better representation of the Sherbert-era law than the following explicit statement of the Court in Lee, which was joined by Justice Brennan (as was Piggie Park): "When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity. Granting an exemption from social security taxes to an employer operates to impose the employer's religious faith on the employees." Accordingly, I don't think the ACLU's current position can be accurately described as a "retreat" from their support of Sherbert-era exemption rights. As Eugene notes in his post, the ACLU still opposes Smith and supports exemption rights outside the commercial context. As I note in my piece, this is also true of Americans United and the Brennan Center. The strong opposition of those organizations to extending exemption rights into the for-profit commercial realm has sometimes been misread as a reversal of their position on exemption rights in general (indeed, I myself have made that mistake in the past), but as I detail in the piece cited above, an examination of the full record shows that "[l]iberals who opposed Smith in 1990 and supported RFRA in 1993 — including liberal organizations, professors, and politicians — largely continue to support religious exemptions for individuals, while opposing the extension of such exemptions to commercial businesses." - Jim _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu<mailto: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. 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