And treatment of disapproval of same sex marriage as pernicious is counter to the assurances of respect in Obergefel. It treats those assurances as window-dressing, which I imagine many list members consider them to be. Mark Scarberry Pepperdine University School of Law
_____________________________ From: Volokh, Eugene <vol...@law.ucla.edu> Sent: Wednesday, October 12, 2016 11:31 AM Subject: Hostility vs. feeling that certain people shouldn't marry each other To: Law & Religion issues for Law Academics <firstname.lastname@example.org> Well, both the Equal Protection Clause jurisprudence and antidiscrimination law requires figuring out whether the defendant deliberately treated people differently based on race, sex, religion, etc. But I don’t think we ever ask whether a private citizen’s discriminatory actions were “at bottom” based on “hostility” or rather based on “no objection to [people’s identity]” but rather a “feel[ing]” that people of certain identities shouldn’t do something. And I think we basically don’t do that even as to government actors’ imputed motives, either. To give just one example, say that an employer decides not to hire women with small children for a particular job. There may be no evidence at all that this is based on “hostility” to women or even “hostility to [women] receiving equal treatment” (except in the tautological sense that all decisions to treat unequally are based on “hostility” to equal treatment in the sense of a choice against such equal treatment). It may be clear that the employer is very friendly to women in many contexts, but just “feel[s] they shouldn’t” work outside the home when they have small children. But that doesn’t matter for Title VII purposes. Indeed, even if an employer requires women to contribute more to retirement funds simply because women are statistically likelier to live much longer than men -- with not a hint of “hostility” -- is violating Title VII. Now maybe both the photographer -- or wedding singer or portrait painter or calligrapher or press release writer -- who doesn’t want to create material for a same-sex wedding ceremony or similar event and the one who objects to an interfaith event should lose under RFRA or the Free Speech Clause. Maybe both should win. But I can’t see how courts can distinguish between them on the grounds of a perception that one’s discriminatory conduct is motivated by “hostility” and the other’s is motivated by a “feeling [that certain people] shouldn’t get married to each other.” Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu]On Behalf Of Eric J Segall Sent: Wednesday, October 12, 2016 12:10 PM To: Law & Religion issues for Law Academics <email@example.com> Subject: Re: Noteworthy, puzzling scholars' brief in Arlene Flowers Eugene asks tough questions but of course our entire EP jurisprudence requires smoking out pernicious v non-pernicious intent as does post Smith free exercise law and much free speech law. I'm of course willing to cede much more to the political process than most folks but I'm an outlier. The issue here is not whose theology is "accurate" or "correct" but rather hostility to a group based on pernicious discrimination is at play. That issue permeates constitutional law. Best, Eric Sent from my iPhone On Oct 12, 2016, at 12:02 PM, Volokh, Eugene <vol...@law.ucla.edu> wrote: How exactly would courts draw the line between what is really at bottom of various religious practices? Say someone says, “Jews’ objection to Jews marrying non-Jews stems from their viewing themselves as God’s Chosen People, and other people as not God’s Chosen People.” Someone else responds, as I’ve heard many religious Jews say, “No, it’s not that being Chosen makes us better -- it’s just that God has a particular relationship with us that involves specific obligations.” How are courts to tell whose understanding of the proper theological interpretation is right? Conversely, someone says “Objection to same-sex marriage at bottom is hostility to gays receiving equal treatment.” Someone else says, “No, we’re not hostile to gays or to equal treatment generally; we just think that marriage is a special sacrament created by God for men and women.” How are courts to tell whose understanding of the proper theological interpretation is right? Eugene From:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu]On Behalf Of Eric J Segall Sent: Wednesday, October 12, 2016 11:44 AM To: Law & Religion issues for Law Academics <firstname.lastname@example.org> Cc: David Bernstein <dbern...@gmu.edu>; Mitchell Berman <mitch...@law.upenn.edu>;conlawp...@lists.ucla.edu Subject: Re: Noteworthy, puzzling scholars' brief in Arlene Flowers 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. Best, Eric Sent from my iPhone On Oct 12, 2016, at 11:29 AM, Ira Lupu <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> 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 case.) Mitch Berman From:conlawprof-boun...@lists.ucla.edu [mailto:conlawprof-boun...@lists.ucla.edu]On Behalf Of David Bernstein Sent: Tuesday, October 11, 2016 10:00 AM To: Marty Lederman <lederman.ma...@gmail.com>;conlawp...@lists.ucla.edu; Law & Religion issues for Law Academics <email@example.com> 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. http://volokh.com/2013/12/14/refusing-provide-commercial-services-circumcision-discrimination-jews/. 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 Bernstein on December 14, 2013 12:46 pm in You Can't Say That! 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 anymore.” 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 Website Get a signature like this:Click here! From:conlawprof-boun...@lists.ucla.edu <conlawprof-boun...@lists.ucla.edu> on behalf of Marty Lederman <lederman.ma...@gmail.com> Sent: Monday, October 10, 2016 10:40:23 AM To: 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 theWashington 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 whichdirectly 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 courtruled 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 anamicus brief 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 place. 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, indefensible. 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 notas 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 categoricaland 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 shewould 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 inhis brief 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 inits brief 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 thatthey abridge central precepts of equality. Here the marriage laws enforced by the respondentsare 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 inArlene'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 described? _______________________________________________ To post, send message to conlawp...@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof Please note that messages sent to this large list cannot be viewed as private. List members cannot be prevented from forwarding messages without the sender's permission, though they are asked not to do so. -- 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: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg __________________
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