As I understand the orthodox (with a lower-case "o")
understanding of religious exemption doctrine, religious objectors are entitled
to exemptions from (at least) laws that require them to do things that they
sincerely view as sinful, unless granting the exemption would necessarily
substantially undermine a compelling government interest.
1. If this is so, then I don't think that it matters whether
the sin is providing materials that one sincerely believes are used in killing
human beings, or providing materials that one sincerely believes are used in
other sinful things. If a Muslim or Jewish supplier doesn't want to sell
products to a pork farm (I'm not sure that this is standard Muslim or Jewish
doctrine, but imagine someone who takes that view), I don't see why he should
be denied an exemption that the pacifist widget maker or the anti-abortion deli
owner is granted. Likewise if someone doesn't want to sell products that would
be used in a Black Mass or in a wedding of a divorced person or in a same-sex
wedding.
2. The "single grocer in town" hypothetical may be relevant to
the compelling government interest inquiry - maybe one could argue that the
government has a compelling interest in making sure that everyone has access to
food without having to drive to the next town, and therefore requiring the
grocer to sell to the KKK sympathizers, or for that matter to sell food that he
knows will be used at the KKK picnic. But in the much more typical town in
which there are many grocers, most of which are quite happy to sell to anyone
who has the money, denying the exemption isn't necessary to serve the
government interest.
3. Of course, there is also the argument that there is a
compelling interest in making sure that no customer is ever rejected by any
provider for what one sees as improper reasons. I'm not sure I'm persuaded by
this argument as a general matter, but I understand it. Still, that's a
question of what compelling interests trump and when. If the issue is, "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?," I would think that the orthodox model would eminently
justify it, unless one thinks there is this sort of compelling interest in
mandating equal treatment in all situations.
This is also related, of course, to the 1990s litigation over
landlord refusals to rent to unmarried couples, which led to different results
in different states.
Eugene
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Levinson, Sanford V
Sent: Thursday, August 13, 2015 10:58 PM
To: Law & Religion issues for Law Academics
Subject: Re: Colorado Cakeshop decision
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.)
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