What Eugene's argument does is simply reinforce my ever-stronger lament that Justice O'Connor's opinion in Smith, which I thought was analytically terrible insofar as she simply asserted without further argument that Oregon's law met the strict scrutiny required, had become the majority opinion and thus saved us from RFRA, a statute that I supported, but about which I now have severe doubts. Much of this is because, as Eugene eloquently emphasizes, religious arguments are not subjected to any kind of "rational analysis" at all, since they rest, ultimately, on "This is the way I feel about the world, and who are you to tell me otherwise?"
sandy From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Friday, August 14, 2015 10:27 AM To: Law & Religion issues for Law Academics Subject: RE: Colorado Cakeshop decision I still don't quite understand. "No hoasca" means that the ordinary right of citizens to ingest what they please is eliminated - but RFRA says otherwise. "You must serve on a jury" means that the ordinary right of citizens to decide where to go and what to do with their time is eliminated - but religious exemption regimes say otherwise. What's magical about common carrier law that somehow immunizes it from religious exemption regimes, while other laws are deliberately covered by those regimes? (I set aside the possibility that common carrier law, like drug law and other laws, would often be justifiable under strict scrutiny, since I take it that isn't Sandy's argument.) As people on this list know, I'm not a religious exemption maximalist. Once upon a time, I was one of the very few First Amendment people who supported Employment Division v. Smith, though I notice that the tide has turned on that in recent years. I support state RFRAs, but precisely because they are trumpable by legislatures (which could, if they choose, carve out drug laws or common carriers or antidiscrimination law from the state RFRAs); I also would have preferred it if RFRAs had used looser standards than strict scrutiny. But if we're talking about the actual religious exemption model under RFRAs and the state constitutional religious exemption regimes, I just don't see how assumptions about what "common carrier" "just means" resolve the religious exemption analysis. 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: Friday, August 14, 2015 11:16 AM To: Law & Religion issues for Law Academics Subject: RE: Colorado Cakeshop decision I suppose I'm like the naïve first-year student who begins with the assumption that "common carrier" just means that the ordinary right of the seller to pick and choose among customers is eliminated (at least so long as the purchaser can pay the regular price or, in the cases of innkeepers, is behaving properly). Would an English innkeeper at common law been able to say to a Catholic "we don't like your kind here" and turned him/her away (perhaps on Christmas Eve)? I thought the essence of "common carrier" law (about which I know extremely little, obviously) is that it refers to a category of businesses-inns, moving companies, telephone companies, etc.-and not to that subset of companies that can be described as "monopolists." The duties we impose on monopolists rest, presumably, on a different analysis than the duties we impose on Ollie's Barbecue to stop being a bigot. sandy From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Friday, August 14, 2015 10:06 AM To: Law & Religion issues for Law Academics Subject: RE: Colorado Cakeshop decision Sandy: Why exactly should we all agree that anyone covered by "common carrier" law could not refuse to provide service to an abortion center - or a KKK delegation or what have you? After all, we don't agree that everyone covered by drug laws couldn't get a religious exemption, or that everyone covered by the duty to serve as a juror couldn't get a religious exemption, etc. The whole point of religious exemption regimes is to give religious exemptions even to (some) people covered by generally applicable laws. Now if the common carrier is a monopolist, then one could make a good argument that denying the exemption is necessary to serve a compelling interest in making sure that everyone gets access to this service (e.g., electricity). But if the common carrier is not a monopolist - say, a taxicab driver who refuses to drive a Klansman in Klan regalia, in a situation where the Klansman can easily get a different cab - I don't see why common carrier status as such would categorically preclude application of religious exemption law. Finally, as to antidiscrimination law, I think there would be two issues: (1) If the government interest is in making sure that everyone has reasonable access to the good at issue, would granting the exemption really undermine that interest, or would there be dozens of other providers happy to take the customer's money? (2) If the government interest is in precluding every single instance of discrimination, regardless of its tangible consequences, is that interest compelling enough to overcome the religious exemption claim? Again, that was much discussed in the housing marital status discrimination religious exemption cases. 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: Friday, August 14, 2015 10:41 AM To: Law & Religion issues for Law Academics Subject: Re: Colorado Cakeshop decision I suppose one might argue that businesses can refuse to sell to anyone they please, in the absence of relevant public accommodations laws. So I assume we all agree that anyone covered by "common carrier" law could not, for example, refuse to provide service to an abortion center, regardless of religious objections. Ditto re service to members of racial or ethnic minorities, thanks to the Civil Rights Act. I assume that the baker could not refuse to sell the unembellished cupcake to an interracial couple or to a person who announced that it would be consumed at an interracial party, as against, say, a person who said it would be eaten at the Bernie Sanders or Rand Paul campaign headquarters. So the legal issue is when and where sexual orientation has become protected against discrimination. I gather the Colorado decision involves state, and not federal, law. Sandy Sent from my iPhone
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