Eric is talking about disparate impact; Eugene was talking about disparate 

If someone deliberately acts on the basis of sex, race, etc., motive is 
generally irrelevant. If government acts on some neutral criterion that has 
disparate impact on the basis of race, sex, etc., there is no constitutional 
violation, unless the government chose that criterion because of its impact on 
race, sex, etc.

That distinction may or may not make sense, but it is pretty clearly the law.

Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA 22903

[] On Behalf Of Eric J Segall
Sent: Wednesday, October 12, 2016 3:36 PM
To: Law & Religion issues for Law Academics 
Subject: Re: Hostility vs. feeling that certain people shouldn't marry each 

I am not sure I understand your Equal Protection point. There is a huge 
difference (according to the Court) between a state adopting a veterans 
preference program in the 1970's knowing 99% of the benefits will go to men and 
doing it because of hostility to women in the military. One is (was) legal one 
is not. There is a difference between a Sunday closing law motivated by a 
secular desire to have one uniform day off for everyone and having one on 
Sunday specifically so Christians will get a leg up on minority faiths with a 
Saturday Sabbath.

I agree there may differences in smoking out this kind of pernicious intent 
when we are talking about state actors as opposed to private folks but I'm not 
sure why that matters in light of the flexible, multi-faceted balancing test 
that Doug originally advocated. I think the state interest side of the ledger 
gets much stronger the closer we get to hostility against a group.

I hope this doesn't offend but the elephant in the room here (or in this 
thread) is that there are probably folks who think that pure discriminatory 
animus justified by faith is somehow different or should be treated differently 
by the law, than animus based on other factors. I think that is sustainable 
inside religious institutions but not when selling furniture, flowers, or 
widgets (again with the caveat that I am more sympathetic to free speech 
possibilities when there is an obvious  expressive component to the business).



on behalf of Volokh, Eugene <<>>
Sent: Wednesday, October 12, 2016 2:30:07 PM
To: Law & Religion issues for Law Academics
Subject: Hostility vs. feeling that certain people shouldn't marry each other

               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."


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