I am receptive to trying to draw lines between commercial activities that are 
inherently expressive and those that are not (knowing there will be quite grey 
areas). But I think there is a serious difference in the real world between a 
seller of flowers whose objection to same-sex marriage at bottom is hostility 
to gays receiving equal treatment and a person of faith with no objection to 
Jews or Catholics but feel they shouldn't get married to each other. Thus, 
again, I think we can draw a line b/w requests for religious exemptions based 
on group hostility and claims not based on group hostility, even conceding 
Mitch's typical smart and hard hypo is a hard case.



Sent from my iPhone

On Oct 12, 2016, at 11:29 AM, Ira Lupu 
<icl...@law.gwu.edu<mailto:icl...@law.gwu.edu>> wrote:

Mitch Berman's good question asks in general terms about how much "solicitude" 
Fred's claim deserves.  But we cannot answer intelligently unless we know the 
forum and the grounds advanced for Fred.  Is he asking the state legislature to 
exempt religious objectors from public accommodations law?  Is he raising a 
compelled speech claim?  A religious freedom claim under a RFRA, or a state 
constitution?  I would give his claim no solicitude in any of these contexts, 
for reasons I have spelled out at length on this listserv and in law reviews.  
But I can imagine that others might well react differently depending on the 
legal context.

On Tue, Oct 11, 2016 at 2:45 PM, Mitchell Berman 
<mitch...@law.upenn.edu<mailto:mitch...@law.upenn.edu>> wrote:
For what it’s worth, I’d like to add another generally liberal, pluralist voice 
in support of Doug and David.

I don’t have a strong view regarding precisely what the doctrine should be to 
govern cases of this sort, largely because I believe that the adequacy of 
available alternatives will be a critical factor, and I am open to the 
possibility that, due to difficulties of case-by-case inquiry into such 
questions, the law (statutory or judge-made) should adopt prophylactic rules.  
That acknowledged, as a matter of political morality, I also believe that folks 
on my side of the aisle are often insufficiently sensitive to interests of the 
Shlomo Cohens and Barronelle Stutzmans of our nation.

Take this case: in a large city, an observant Jewish photographer or dj, Fred, 
declines to work at an interfaith marriage between a Jew and a Gentile.  Fred 
is happy to take on any other work for Jews or Gentiles, or for both together.  
But he objects to being complicit in a venture—interfaith marriage—that he 
deems wrongful or religiously proscribed.

Marty, Eric: how much solicitude is Fred due?  (And if you choose to answer, I 
ask that you do so without analogizing to interracial marriage; that’s not my 

Mitch Berman

 On Behalf Of David Bernstein
Sent: Tuesday, October 11, 2016 10:00 AM
To: Marty Lederman <lederman.ma...@gmail.com<mailto:lederman.ma...@gmail.com>>; 
conlawp...@lists.ucla.edu<mailto:conlawp...@lists.ucla.edu>; Law & Religion 
issues for Law Academics 
Subject: Re: Noteworthy, puzzling scholars' brief in Arlene Flowers

Unlike Marty, I not only don't find the argument in question shocking, I thin 
it's right. I blogged about this at Volokh a couple of years ago, drawing the 
analogy to a caterer who serves Jewish customers, but refuses to cater brises. 
Unusually, the comments section to the post is also mostly worthwhile. 
 Another hypothetical that could arise is an Orthodox Jewish baker who serves 
all customers.

Is Refusing to Provide Commercial Services for a Circumcision Discrimination 
against Jews?
by David 
 on December 14, 2013 12:46 pm in You Can't Say 

Here’s the hypothetical: Shlomo Cohen has been blessed with a son, but he lives 
in San Francisco, where there is a vocal anti-circumcision movement. He emails 
his neighbor, a photographer, and asks him if he would photograph his son’s 
bris. The photographer responds, “Shlomo, no offense, but I think circumcision 
amounts to genital mutilation, and I can’t participate in that.” Next, he 
approaches his local organic/vegeterian caterer about catering the bris. The 
caterer says, “you know Shlomo, I’ve done brises in the past, but I’ve been 
reading some of the literature put out by the anti-circumcision people, and I 
think circumcisions cause unnecessary pain to baby boys. So I don’t do brises 

Shlomo files a complaint with San Francisco’s human rights commission, claiming 
that the photographer and the caterer are engaging in discrimination against 
him based on his Jewish ethnicity and religion. There is no evidence that 
either person turns down or otherwise mistreats Jewish clients or potential 
clients, and both deny they do so. Should Shlomo win his case?

To me, the answer is no, and pretty obviously so. Neither defending is 
discriminating against Shlomo because he’s Jewish, they are discriminating 
against him (if that’s what you want to call it) because they disagree with his 
particular actions. Indeed, I’d say they are no discriminating against Shlomo 
at all, they are discriminating against potential clients who want them to help 
celebrate something that violates their strongly held personal beliefs.

So, am I right? And if so, is there any sensible legal distinction that can be 
drawn between my hypothetical and the cases in the news in which a photographer 
and a baker were held to have discriminated against gays because they declined 
to provide commercial services on moral grounds for gay weddings, but 
apparently otherwise did not discriminate against gay customers?


David E. Bernstein
Foundation Professor
Antonin Scalia Law School, George Mason Unversity



Get a signature like this: Click 
on behalf of Marty Lederman 
Sent: Monday, October 10, 2016 10:40:23 AM
To: conlawp...@lists.ucla.edu<mailto:conlawp...@lists.ucla.edu>; Law & Religion 
issues for Law Academics
Subject: Noteworthy, puzzling scholars' brief in Arlene Flowers

Some of you may be familiar with the Washington v. Arlene's Flowers case, which 
will be argued in the Washington Supreme Court next month.  Barronelle Stutzman 
and her husband are the owners of Arlene’s Flowers, Inc., a closely held 
for-profit corporation.  Over the course of nine years, Stutzman regularly sold 
floral arrangements to Robert Ingersoll, knowing that he was gay.  When 
Ingersoll asked Stutzman to sell him flower arrangements for his wedding to 
Curt Freed, however, she refused to provide them, even if they were prepared by 
others in her shop, because doing so, she claimed, would "constitute a 
demonstration of [her] approval for the wedding," whereas in fact she has 
religious objections to same-sex marriages.  (She agreed to provide the raw 
materials for the arrangements--the flowers and such--but not to have her shop 
do the arranging.)

The Washington Attorney General sued Arlene's Flowers, seeking an injunction 
against such discrimination in the future.  (Ingersoll and Freed also sued, 
seeking nominal damages for the costs they incurred when Stutzman refused to 
serve them.)  The principal basis for the suit is a claim of discrimination on 
the basis of sexual orientation, prohibited by the Washington Law Against 
Discrimination (WLAD), RCW 49.60.215, which provides that "It shall be an 
unfair practice for any person or the person's agent or employee to commit an 
act which directly or indirectly results in any distinction, restriction, or 
discrimination, . . . or the refusing or withholding from any person the 
admission, patronage, custom, presence, frequenting, dwelling, staying, or 
lodging in any place of public resort, accommodation, assemblage, or 
amusement."  The forms of prohibited discrimination are listed in RCW 
49.60.030:  "The right to be free from discrimination because of race, creed, 
color, national origin, sex, honorably discharged veteran or military status, 
sexual orientation, or the presence of any sensory, mental, or physical 
disability or the use of a trained dog guide or service animal by a person with 
a disability is recognized as and declared to be a civil right. This right 
shall include, but not be limited to: . . . (b) The right to the full enjoyment 
of any of the accommodations, advantages, facilities, or privileges of any 
place of public resort, accommodation, assemblage, or amusement."

Stutzman defended on both statutory and state and federal constitutional (Free 
Speech and Free Exercise) grounds; but the lower court 
 in favor of the Attorney General.  The appeal from that decision is now before 
the Washington Supreme Court, which will hear arguments in about five weeks.

A couple of weeks ago, a group of 27 scholars, some of whom are on these 
listservs, filed an amicus 
 on behalf of Arlene's Flowers.  (According to Rick Garnett, it was written by 
Steve Smith, although he is not listed as counsel.)  That brief does not make a 
constitutional argument at all.  Instead, it argues (as I read it) that the 
Court should construe the Washington antidiscrimination statute so as not to 
include Stutzman's refusal as prohibited discriminatory conduct in the first 

The theory of the brief, such as it is, is that Stutzman must not have been 
engaged in discrimination on the basis of sexual orientation, since she was 
willing to make arrangements for Ingersoll--a man who she knew was gay--for 
purposes other than his marriage.  The lower court erred, according to the 
brief, "[i]n erroneously treating the religious conviction Stutzman does have 
as equivalent to a different and more troublesome objection that she does not 
have."  She doesn't discriminate against gays and lesbians -- "only" against 
same-sex marriage.

I, for one, find this argument to be rather alarming, and, best I can tell, 

As the Washington AG writes in his brief (responding to a similar argument that 
Stutzman offered), "discrimination is discrimination, whether it is complete or 
partial.  An employer cannot say: 'I hire women, but because of my religious 
belief that women should be subservient to men, I will not hire women to 
supervise men.' Similarly, it is irrelevant whether Defendants generally serve 
gay and lesbian customers; their refusal to serve the weddings of gay and 
lesbian customers is still prohibited discrimination."

That's obviously right, isn't it?  The cases demonstrating it are legion.  Bob 
Jones University, for example, surely discriminated on the basis of race by 
prohibiting students from interracial dating, even though it admitted black 
students.  Would anyone have argued with a straight face that the university 
did not discriminate on the basis of race, and that it was error to treat BJU's 
rule "as equivalent to a different and more troublesome objection that it does 
not have [i.e., to exclude black students altogether]"?  And I'm hardly an 
expert on Washington state law, but there's every indication that its statutes 
also reflect this idea--see, e.g., the bolded passages quoted above, including 
the reference to "full enjoyment."

To be sure, it would be even worse if Stutzman categorically refused to serve 
gays and lesbians; her refusal "only" in the context of a same-sex marriage 
thus is not as problematic and disturbing as such a categorical "Gays not 
served here" policy would be.  But, understandably, Washington law, like the 
analogous laws of the federal government and virtually every state, has made it 
unlawful to engage in both categorical and selective discriminatory refusals to 
serve.  There is no reason (none that the brief offers, anyway) to think that 
the Washington legislature did not mean to proscribe discrimination in cases 
where the commercial proprietor "hates the sin but loves the sinner."

The amicus brief's only response to this, far as I can tell, is to argue (pp. 
8-9) that Arlene's Flowers is not discriminating on the basis of sexual 
orientation because Stutzman would also refuse to sell flower arrangements for 
a marriage between, e.g., two heterosexual men, and she would sell arrangements 
to, e.g., a gay man and a lesbian who were marrying one another.

I hope I don't need to explain why this argument is, and ought to be, dead in 
the water.  I'll add only this:  Paul Clement offhandedly offered the same 
argument as to DOMA in his 
 for BLAG in Windsor ("A marriage between a man and a woman would fall within 
DOMA’s definition even if one or both spouses were homosexual. Similarly, the 
marriage of two men would fall outside the definition even if both were 
heterosexual."); but at least he had the good sense to bury it in a footnote 
and otherwise not rely upon it.  Not surprisingly, not a single Justice in 
Windsor considered this virtually buried "argument" even worth discussing.

Likewise, Kentucky ran the argument in its 
 in the Obergefell set of cases (see p. 26) just a bit more aggressively than 
Clement did--promoting it to a single textual paragraph.  Again, no Justices 
thought it worthy of discussion; the majority, however, implicitly rejected it 
out of hand when it wrote:

This dynamic also applies to same-sex marriage. It is
now clear that the challenged laws burden the liberty of
same-sex couples, and it must be further acknowledged
that they abridge central precepts of equality. Here the
marriage laws enforced by the respondents are in essence
unequal: same-sex couples are denied all the benefits
afforded to opposite-sex couples and are barred from exercising
a fundamental right. Especially against a long
history of disapproval of their relationships, this denial to
same-sex couples of the right to marry works a grave and
continuing harm. The imposition of this disability on gays
and lesbians serves to disrespect and subordinate them.
And the Equal Protection Clause, like the Due Process
Clause, prohibits this unjustified infringement of the
fundamental right to marry.

The scholars' amicus brief in Arlene's Flowers does not even contend with these 
fairly important precedents.  Nor does it even discuss the statutory language 
of the Washington law, or its purpose, history, or judicial construction.  It's 
hard to imagine the amici think their statutory construction argument will find 
favor with any of the Justices of the Washington Supreme Court.  Reading the 
Washington law to cover this case is not "stretching" or "distension [sic]" of 
the statute, as the brief argues:  It's standard-issue fare.

So what explains the brief?  Is there more to be said for it than what I've 

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Ira C. Lupu
F. Elwood & Eleanor Davis Professor of Law, Emeritus
George Washington University Law School
2000 H St., NW
Washington, DC 20052
301-928-9178 (mobile, preferred)
202-994-7053 (office)
Co-author (with Professor Robert Tuttle) of "Secular Government, Religious 
People" ( Wm. B. Eerdmans Pub. Co., 2014))
My SSRN papers are here:
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