I’m not sure I understand how Prof. Finkelman can be
misunderstanding me on this. This is an argument about religious exemptions.
It is not an argument about whether the law should be repealed altogether – any
more than arguments about exemptions in O Centro and Smith were about whether
peyote or hoasca laws should be repealed altogether.
It’s not our job to figure out whether a claimant is right or
wrong, reasonable or unreasonable, smart or foolish in deciding that his
religion requires him to use peyote, or bars him from selling to abortion
clinics, or bars him from making wedding cakes. If the claimant has a
religious objection to the law, and a Sherbert/Yoder-like religious exemption
regime exists, then the question is whether denying the exemption is narrowly
tailored to a compelling government interest. It may well be that denying the
exemption from some antidiscrimination laws is indeed narrowly tailored to such
an interest, based on the arguments that I quite clearly acknowledged in my
earlier posts. But one can’t just reject the argument on the grounds that
“that is what a common carrier does,” just as one can’t reject the
peyote/hoasca users’ claims on the grounds that “barring drugs is what drug law
does.”
In any event, if anyone else really does misunderstand this
argument, or would like to engage that argument, I’m happy to answer them.
Eugene
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Paul Finkelman
Sent: Friday, August 14, 2015 11:28 AM
To: Law & Religion issues for Law Academics
Subject: Re: Colorado Cakeshop decision
Because, that is what a common carrier does. Put it another way, if the
common carrier can refuse to pick up people then we are back to 1963. Cabs
don't have to stop for blacks because the drivers believe God made a mistake in
making black people; hotels don't have to rent to blacks, or people with Jewish
names, or people who look Jewish, or men with turbans, or anyone else they do
not like.
You raise the "inappropriate" argument and then say that it is not "our job" to
figure out what is in appropriate. So, in fact, you are not interested in the
"inappropriate use" (the pillow case for the KKK mask), but rather you are
arguing that licensed businesses are free to discriminate for whatever reason
they want, as long as they "mask" it in religious values.
Is that what you are saying here? If so, they why not come out from behind the
curtain and just argue for the repeal of the 1964 Civil Rights Act. That is,
after all, what you are arguing for, masked in religious language. If I am
misreading you, please forgive me and explain why this is a misreading of the
*result* you are arguing for.
******************
Paul Finkelman, Ph.D.
Senior Fellow
Penn Program on Democracy, Citizenship, and Constitutionalism
University of Pennsylvania
and
Scholar-in-Residence
National Constitution Center
Philadelphia, Pennsylvania
518-439-7296 (w)
518-605-0296 (c)
paul.finkel...@yahoo.com<mailto:paul.finkel...@yahoo.com>
www.paulfinkelman.com<http://www.paulfinkelman.com/>
________________________________
From: "Volokh, Eugene" <vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>>
To: Law & Religion issues for Law Academics
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Sent: Friday, August 14, 2015 11:13 AM
Subject: RE: Colorado Cakeshop decision
I don’t think it’s any our job to figure out the inappropriate
use of the Deli’s sandwiches than it is to figure out what’s “inappropriate”
about eating chicken with cream sauce. The Deli owners thought it was
religiously wrong for them to let any of their products be used by anyone
working at a company that, in the owners’ views, was committing mass murder.
Likewise, I imagine there are religious pacifists who for religious reasons
won’t sell any product (even food) to the military or military contractors, or
people who wouldn’t sell any products to South African companies (or to
companies that do business with South Africa), and so on. That we don’t see
anything inappropriate about either the companies or the use to which the
products are put is irrelevant. If they believe it is religiously wrong for
them to sell anything to a company, that’s enough to get in the door under a
religious exemption regime – not just my view, of course, but also that of the
Minnesota Court of Appeals.
Now whether these religious exemption claims should be trumped
by some government interest, such as the interest in preventing discrimination
based on race, or religion, or political affiliation, or business practices, is
a separate matter – that goes to whether denying the exemption is necessary to
serve a compelling government interest.
But, as I said, I would have thought that my view was entirely
orthodox. “[I]t is not for us to say that the line [religious objectors draw
between what they view as religiously permissible or religiously impermissible]
was an unreasonable one.” If devout Jews interpret the Torah as barring not
just the seething of a kid in its mother’s milk, but also mixing chicken meat
with cow milk, it’s not for us to parse their reasoning, or to suggest that
their thinking is inconsistent with what we think sound thinking would be (or
for that matter with their own thinking in other areas). Likewise if someone
feels that it’s inappropriate for him to provide any support, however indirect,
for abortion providers or for the military or for killers of animals or for the
South African regime.
Eugene
From:
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Finkelman, Paul
Sent: Friday, August 14, 2015 10:32 AM
To: Law & Religion issues for Law Academics
Subject: Re: Colorado Cakeshop decision
Eugene:
I am trying to figure out what would be the "inappropriate" use of the Deli's
sandwiches? Is it feeding doctors who perform abortion?
Are you arguing that the pillow case maker can refuse to sell pillow cases to
members of the KKK who use them for pillows? That is, can your refuse to do
business with people if you don't like them or like what they do for a living?
So, if the product -- a sandwich -- is being used properly -- that is it is
being eaten, then how could it possibly be used inappropriately?
Or, are you that the Deli owner can refuse to sell to the clinic because the
clinic does things the owner does not like? So, he won't sell to the clinic
because he does not think doctors who work there should eat food?
And the KKK owner of a clothing store will not sell to blacks or Jews or
Catholics (and many more groups) because he does not think those people should
ever be seen in public so they don't need clothing?
Your widget maker simply would not compete for the military contract. No one
forces him to do so.
At the end of this post you migrate from illegitimate use, to illegitimate
user. That is, you don't want your product being sold in a South Africa
because you are opposed to the regime. So you won't sell to a 2nd party, who
sells it to 3rd party, who sells it to South Africa?
Assuming this is a retail business, then I am guessing you would say that a
racist who believes that blacks are inferior and made to be slaves of whites,
it would be ok for that person to refuse to sell retain good to blacks? It is
worth noting that most southern ministers believed that in the 19th century and
I have had some students tell me they have heard similar things i their
churches. So, we have a "racist" church. Are you arguing the member of that
church can refuse to seat a black at his restaurant, refuse to serve and
interracial couple, or refuse to rent a room to a black?
*************************************************
Paul Finkelman
Senior Fellow
Penn Program on Democracy, Citizenship, and Constitutionalism
University of Pennsylvania
and
Scholar-in-Residence
National Constitution Center
Philadelphia, Pennsylvania
518-439-7296 (p)
518-605-0296 (c)
paul.finkel...@albanylaw.edu<mailto:paul.finkel...@albanylaw.edu>
www.paulfinkelman.com<http://www.paulfinkelman.com/>
*************************************************
________________________________
From:
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>
<religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>>
on behalf of Volokh, Eugene <vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>>
Sent: Thursday, August 13, 2015 7:51 PM
To: Law & Religion issues for Law Academics
Subject: RE: Colorado Cakeshop decision
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] 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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