I'm not sure it is that easy Doug because often the difference between a disparate impact and disparate treatment case turns on the motives/intent of the decision-makers.
Mark, it is true that many of us feel that, in the context of the current debates over SSM, hostility to allowing gays the same economic and social benefits of marriage as heterosexuals cannot be meaningfully separated from hostility to gays and lesbians. After all, denied those benefits under the law, they have no where else to go to acquire them. That point of course is separate from whether such hostility has a remedy under the Constitution. Best, Eric Sent from my iPhone On Oct 12, 2016, at 3:45 PM, Laycock, H Douglas (hdl5c) <hd...@virginia.edu<mailto:hd...@virginia.edu>> wrote: Eric is talking about disparate impact; Eugene was talking about disparate treatment. 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 434-243-8546 From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Eric J Segall Sent: Wednesday, October 12, 2016 3:36 PM To: Law & Religion issues for Law Academics <firstname.lastname@example.org<mailto:email@example.com>> Subject: Re: Hostility vs. feeling that certain people shouldn't marry each other 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). Best, Eric ________________________________ 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: 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.” Eugene _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu<mailto:Religionlaw@lists.ucla.edu> To subscribe, unsubscribe, change options, or get password, see https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Flists.ucla.edu%2Fcgi-bin%2Fmailman%2Flistinfo%2Freligionlaw&data=01%7C01%7Cesegall%40gsu.edu%7Ce7ab4e10a5b445e93b0e08d3f2d846db%7C515ad73d8d5e4169895c9789dc742a70%7C0&sdata=5%2F1I0aNUOYIDt%2Beay3jFUn%2BaccPn8S5WGa420VRwYj0%3D&reserved=0 Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
_______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.