Many years ago , a German style restaurant in California was sued under the Unruh Act(California's public accommodation law) for excluding a neo-Nazi group which was seeking to trade on the ethnic cuisine to enhance its own legitimacy. The restaurant lost at the trial court. I offered to carry the appeal pro bono (on a forced speech theory) but the restaurant's insurance company balked at being responsible for additional attorney's fees for the plaintiff and the case settled in favor of the neo-Nazis.
Someday someone will write a great article on the influence of insurance companies on the course of constitutional law. Marc D. Stern General Counsel AJC 212 891 1480 646 289 2707 (c ) 212 891 1495 (f) ste...@ajc.org<mailto:ste...@ajc.org> www.ajc.org<http://www.ajc.org/> Facebook.com/AJCGlobal<http://www.facebook.com/AJCGlobal> Twitter.com/AJCGlobal<http://www.twitter.com/AJCGlobal> [cid:image001.jpg@01D0D66C.3EA30EF0] From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Friedman, Howard M. Sent: Friday, August 14, 2015 6:21 AM To: Law & Religion issues for Law Academics Subject: RE: Colorado Cakeshop decision A famous example of this many years ago involved the issue of whether Dow Chemical should stop selling napalm to the U.S. government for use in the Viet Nam War because of the terrible injuries it caused. Some shareholders attempted to stop the company from continuing to manufacture the product. Dow argued that it had a moral and political responsibility to continue to furnish it in furtherance of government policy, even though the sales were not particularly profitable. This got litigated in the context of an SEC shareholder proposal: Medical Committee for Human Rights v SEC http://openjurist.org/432/f2d/659/medical-committee-for-human-rights-v-securities-and-exchange-commission ________________________________ From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [religionlaw-boun...@lists.ucla.edu] on behalf of Jean Dudley [jean.dud...@gmail.com] Sent: Friday, August 14, 2015 12:30 AM To: Law & Religion issues for Law Academics Subject: Re: Colorado Cakeshop decision There are moral/ethical dilemmas, and then there are legal ones; In the case of the KKK and selling sheets, it could be argued that a shop owner could refuse to sell sheets and pillow cases because a legal argument could be made that the act would be complicit (not sure of the terminology here) in illegal activity, namely domestic terrorism. (Yeah, yeah, peaceful protest, heritage not hate, blah, blah, blah. I call BS. The mere sight of a hooded and robed KKK member is terrifying to a significant section of American citizens. It's domestic terrorism, whether it is prosecuted or not. If it makes you feel better, how about calling it "disturbing the peace"?) In the case of pharmaceutical companies refusing to sell drugs for execution, it could be argued that they would be abetting in an act that is illegal where the drugs are made; if those drugs are being shipped across state lines for use in an execution of a prisoner that would not be facing the death penalty in the drug manufacturers' home state, isn't that illegal, too? This one I'll admit is a bit blurry. Then there's the restaurant that refused to provide a public service to a clinic that provides safe, legal abortions. This one is pretty clear cut to me; if they can't provide that service to all, they shouldn't be in that business. As a photographer, I've watched stock photographs being used for all sorts of things that I find morally repugnant, but alas, are legal; one case in particular sticks in my mind. A mother brought her daughter in for "modeling" photographs, signed a release. To her horror, her daughter's image was used by a "pro-life" group on a poster that read "The most dangerous place for African American women is in the womb". Mother sued and lost. She'd signed the release. The photographer had sold the image to a stock photography business, who in turn told it to the "Pro-life" group. I've seen images of Yosemite in pseudo-scientific text books on "intelligent design". Again, bought and paid for through stock agencies. That is why I donate my Yosemite images to public school teachers who promise not to use them to teach creationism or "intelligent design". These are indeed legal uses of images. That is why I am not a stock photographer. On Aug 13, 2015, at 7:58 PM, Levinson, Sanford V <slevin...@law.utexas.edu<mailto:slevin...@law.utexas.edu>> wrote: This is an interesting example. (And I thank Eugene for his typically thoughtful answer.) Can one distinguish between the illegitimate direct use of the product (to kill human beings) and the mere fact that the cupcake will be eaten at a wedding (or trust)? Would we be comfortable if the single grocer in town refused to sell food to someone known to sympathize with the KKK? I assume, though, that the civil rights laws was prohibits discriminating on grounds of race etc., and this should hold for sexual orientation as well. Sandy Sent from my iPhone On Aug 13, 2015, at 7:25 PM, K Chen <tzn...@gmail.com<mailto:tzn...@gmail.com>> wrote: The various pharmaceutical companies refusing to sell certain drugs to death penalty states come to mind. -Kevin Chen On Thu, Aug 13, 2015 at 7:51 PM, Volokh, Eugene <vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>> wrote: Sure, why not? Say a grape grower refuses to sell to winemakers, or a pacifist widget maker refuses to sell to military contractors, or a restaurant refuses to deliver to abortion clinics? See Rasmussen v. Glass (Minn. Ct. App. 1993), https://scholar.google.com/scholar_case?case=648897692635049631, which holds that, even if a city ordinance banning discrimination based on "creed" required restaurants to deliver to abortion clinics, there had to be a religious exemption from such an ordinance. "Under the provisions of the Minneapolis ordinance, relator Glass [owner of the Beach Club Deli] has two choices. He can either associate with an entity that engages in conduct which he finds to be morally offensive [delivering to abortion clinics], thus compromising his conscience, or he can refuse and be found guilty of discrimination and fined." Now these have to do with objections to sales to businesses, not sales to individuals - but I can't see why they would be different for RFRA / state Free Exercise Clause purposes. As to how the information would be obtained, I take it that many a business wouldn't work very hard to investigate the matter, but when it learned that its products were used by a customer in ways it disapproved of, might stop selling them to that customer. Isn't that how many of us would act if we were businesspeople, and we learned that some of our customers were using our products in ways we strongly disapproved of? Want to buy our pillowcases? Go right ahead. Oh, wait, you're the KKK and you want to use them for your hoods; sorry, your business isn't welcome here. Same if you learn your customers are using your products to kill animals (if you object to that), resell them to South Africa (if you objected to that back in the 1980s), and so on. Some people take a "Hey, the product is out of our hands, none of our business" attitude, which I think is just fine. But other people care more about the behavior of their customers (and for that matter of their suppliers) - indeed, many who praise "corporate social responsibility" support that general approach. And when the business feels a religious objection in such a situation, any existing religious exemption regime would be implicated, wouldn't it be? Eugene 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 Levinson, Sanford V Sent: Thursday, August 13, 2015 7:20 PM To: Law & Religion issues for Law Academics Subject: Re: Colorado Cakeshop decision A non-rhetorical question: is there any model that would justify refusing to sell an in embellished product--say a cupcake--to someone whose potential use--at a same sex wedding, at a tryst with one's heterosexual lover, or whatever--you disapproved of on religious grounds? An obvious question, of course, is how such information would be obtained. Could a sign indicate the exclusive list of cupcake-eligible customers and include, in addition to payment and appropriate demeanor, "adherence to the baker's views of sexual propriety"? Sandy Sent from my iPhone On Aug 13, 2015, at 4:27 PM, Volokh, Eugene <vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>> wrote: I should add that it also concludes that the Colorado Constitution's religious freedom guarantee follows the Smith model rather than the Sherbert/Yoder model, something that was less clear before. Eugene From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Thursday, August 13, 2015 5:06 PM To: Law & Religion issues for Law Academics Subject: Colorado Cakeshop decision https://www.courts.state.co.us/Courts/Court_of_Appeals/Opinion/2015/14CA1351-PD.pdf Fairly straightforward. Rejects free speech and free exercise claims. (The case does not involve a refusal to bake a cake displaying any particular "content" -- the bakery refused to bake any cake for a same-sex wedding.) _______________________________________________ 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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