Re: Colorado Cakeshop decision

[Scarberry, Mark]

I used the term "common carrier." I think those of us who've used that term 
meant to say "public accommodation" or "place of public accommodation." (I did.)

Mark

Mark S. Scarberry
Pepperdine University School of Law


Sent from my iPad

On Aug 14, 2015, at 9:10 AM, "Scarberry, Mark" 
mailto:mark.scarbe...@pepperdine.edu>> wrote:

There is also the question of the meaning of "common carrier." If we think it's 
particularly important for common carriers to serve all comers but then think 
that a business is a common carrier simply because the law currently requires 
it to take all comers, we're engaged in a circular argument. The only function 
of the term would be to evoke historical notions or feelings that it was 
important that certain kinds of businesses serve all comers. I've argued before 
that "common carrier" has been expanded far beyond its historical meaning -- in 
California the Boys Clubs organization was brought within that term by the 
courts and forced to become the Boys and Girls Clubs -- but it was suggested 
that the common carrier category was not as limited historically as I thought. 
(I don't recall whose work was cited for that point.)

Mark

Mark S. Scarberry
Pepperdine University School of Law


Sent from my iPad

On Aug 14, 2015, at 8:29 AM, "Volokh, Eugene" 
mailto:vol...@law.ucla.edu>> wrote:

   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] 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] 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 

Re: Colorado Cakeshop decision

[Finkelman, Paul]

I am not trying to obtuse here or argumentative.  My point is this:  if we 
allow a relugious exemption for common carriers, businesses of public 
accommodation, and businesses that are open to the public then we allow racial, 
ethnic, gender, reigious and other kinds of discrimination for anyone willing 
to say, as Bob Jones university did, that God requires me to discriminate in 
this way and so i am free to do so and disregard civil rights law.  That seems 
to me to be the logical outcome of Eugene's position since he would not allow 
the courts to ever question religious sincerity.


Sent from my T-Mobile 4G LTE device


-- Original message--

From: Volokh, Eugene

Date: Fri, Aug 14, 2015 10:45 AM

To: Paul Finkelman;Law & Religion issues for Law Academics;

Cc:

Subject:RE: Colorado Cakeshop decision

   I’m not sure I understand how Prof. Finkelman can be 
misunderstanding me on this.  This is an argument about religious exemptions.  
It is not an argument about whether the law should be repealed altogether – any 
more than arguments about exemptions in O Centro and Smith were about whether 
peyote or hoasca laws should be repealed altogether.

   It’s not our job to figure out whether a claimant is right or 
wrong, reasonable or unreasonable, smart or foolish in deciding that his 
religion requires him to use peyote, or bars him from selling to abortion 
clinics, or bars him from making wedding cakes.  If the claimant has a 
religious objection to the law, and a Sherbert/Yoder-like religious exemption 
regime exists, then the question is whether denying the exemption is narrowly 
tailored to a compelling government interest.  It may well be that denying the 
exemption from some antidiscrimination laws is indeed narrowly tailored to such 
an interest, based on the arguments that I quite clearly acknowledged in my 
earlier posts.  But one can’t just reject the argument on the grounds that 
“that is what a common carrier does,” just as one can’t reject the 
peyote/hoasca users’ claims on the grounds that “barring drugs is what drug law 
does.”

   In any event, if anyone else really does misunderstand this 
argument, or would like to engage that argument, I’m happy to answer them.

   Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Paul Finkelman
Sent: Friday, August 14, 2015 11:28 AM
To: Law & Religion issues for Law Academics
Subject: Re: Colorado Cakeshop decision

Because, that is what a common carrier does.   Put it another way, if the 
common carrier can refuse to pick up people then we are back to 1963.  Cabs 
don't have to stop for blacks because the drivers believe God made a mistake in 
making black people; hotels don't have to rent to blacks, or people with Jewish 
names, or people who look Jewish, or men with turbans, or anyone else they do 
not like.

You raise the "inappropriate" argument and then say that it is not "our job" to 
figure out what is in appropriate.  So, in fact, you are not interested in the 
"inappropriate use" (the pillow case for the KKK mask), but rather you are 
arguing that licensed businesses are free to discriminate for whatever reason 
they want, as long as they "mask" it in religious values.

Is that what you are saying here?  If so, they why not come out from behind the 
curtain and just argue for the repeal of the 1964 Civil Rights Act.  That is, 
after all, what you are arguing for, masked in religious language.  If I am 
misreading you, please forgive me and explain why this is a misreading of the 
*result* you are arguing for.


**
Paul Finkelman, Ph.D.
Senior Fellow
Penn Program on Democracy, Citizenship, and Constitutionalism
University of Pennsylvania
and
Scholar-in-Residence
National Constitution Center
Philadelphia, Pennsylvania
518-439-7296 (w)
518-605-0296 (c)
paul.finkel...@yahoo.com
www.paulfinkelman.com


From: "Volokh, Eugene" mailto:vol...@law.ucla.edu>>
To: Law & Religion issues for Law Academics 
mailto:religionlaw@lists.ucla.edu>>
Sent: Friday, August 14, 2015 11:13 AM
Subject: RE: Colorado Cakeshop decision

   I don’t think it’s any our job to figure out the inappropriate 
use of the Deli’s sandwiches than it is to figure out what’s “inappropriate” 
about eating chicken with cream sauce.  The Deli owners thought it was 
religiously wrong for them to let any of their products be used by anyone 
working at a company that, in the owners’ views, was committing mass murder.  
Likewise, I imagine there are religious pacifists who for religious reasons 
won’t sell any product (even food) to the military or military contractors, or 
people who wouldn’t sell any products to South African companies (or to 
companies that do business with South Africa), and so on.  That we don’t see 
anything inappropriate about eithe

RE: Colorado Cakeshop decision

[Berg, Thomas C.]

The Massachusetts Supreme Judicial Court--hardly a reactionary body--made the 
distinction between small vendor refusals that do and don't harm access 
meaningfully, in Attorney General v. Desilets, 636 N.E.2d 233, 240 (Mass. 
1994), one of the cases Eugene referred to involving small landlords and 
unmarried straight couples. The court denied summary judgment to the state in 
light of the landlord's claim under the Massachusetts constitution's free 
exercise provision, which is governed by the compelling interest test.
Without supporting facts in the record or in legislative findings, we are 
unwilling to conclude that simple enactment of the prohibition against 
discrimination based on marital status establishes that the State has such a 
substantial interest in eliminating that form of housing discrimination that, 
on a balancing test, the substantial burden on the defendants' free exercise of 
religion must be disregarded. It is no doubt true that many men and women are 
cohabiting in the Commonwealth and that numbers have increased in the last 
twenty years. We have no sense, however, of the numbers of rental units that 
might be withheld from such people because of the religious beliefs of the 
owners of rental housing. Although the prohibition against discrimination based 
on marital status was enacted over twenty years ago (St.1973, c. 187), this is 
the first case of this character that has come to our attention.

We have no indication, beyond the facts of this case, whether the rental 
housing policies of people such as the defendants can be accommodated, at least 
in the Turners Falls (Montague) area, without significantly impeding the 
availability of rental housing for people who are cohabiting or wish to 
cohabit. Market forces often tend to discourage owners from restricting the 
class of people to whom they would rent. On the other hand, discrimination of 
the sort challenged here may present a significant housing problem if a large 
percentage of units are unavailable to cohabitants.
Of course, as Eugene notes, other courts have said there is a compelling 
interest in preventing statutorily prohibited discrimination in each and every 
instance, regardless of whether there are ready alternatives.

-
Thomas C. Berg
James L. Oberstar Professor of Law and Public Policy
University of St. Thomas School of Law
MSL 400, 1000 LaSalle Avenue
Minneapolis, MN   55403-2015
Phone: 651 962 4918
Fax: 651 962 4881
E-mail: 
tcb...@stthomas.edu
SSRN: 
http://ssrn.com/author='261564
Weblog: http://www.mirrorofjustice.blogs.com


From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Jean Dudley [jean.dud...@gmail.com]
Sent: Friday, August 14, 2015 12:07 PM
To: Law & Religion issues for Law Academics
Subject: Re: Colorado Cakeshop decision


On Aug 14, 2015, at 6:03 AM, Volokh, Eugene 
mailto:vol...@law.ucla.edu>> wrote:

2.  The “single grocer in town” hypothetical may be relevant to the compelling 
government interest inquiry – maybe one could argue that the government has a 
compelling interest in making sure that everyone has access to food without 
having to drive to the next town, and therefore requiring the grocer to sell to 
the KKK sympathizers, or for that matter to sell food that he knows will be 
used at the KKK picnic.  But in the much more typical town in which there are 
many grocers, most of which are quite happy to sell to anyone who has the 
money, denying the exemption isn’t necessary to serve the government interest.

Is there legal precedence establishing this hypothetical into law?  It seems to 
me that it may apply to the county clerk who is refusing to issue any marriage 
licenses or allow any assistant to issue them and instead send couples to the 
next county.



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Re: Colorado Cakeshop decision

[Jean Dudley]

> On Aug 14, 2015, at 6:03 AM, Volokh, Eugene  wrote:
> 
> 2.  The “single grocer in town” hypothetical may be relevant to the 
> compelling government interest inquiry – maybe one could argue that the 
> government has a compelling interest in making sure that everyone has access 
> to food without having to drive to the next town, and therefore requiring the 
> grocer to sell to the KKK sympathizers, or for that matter to sell food that 
> he knows will be used at the KKK picnic.  But in the much more typical town 
> in which there are many grocers, most of which are quite happy to sell to 
> anyone who has the money, denying the exemption isn’t necessary to serve the 
> government interest.

Is there legal precedence establishing this hypothetical into law?  It seems to 
me that it may apply to the county clerk who is refusing to issue any marriage 
licenses or allow any assistant to issue them and instead send couples to the 
next county. 

 

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Re: Colorado Cakeshop decision

[Scarberry, Mark]

Marty makes a good but not dispositive point. In any event we have to be sure 
this doesn't turn into a principle that bars people who belong to a certain 
religion from some professions. There are analogous and very disturbing 
historical prohibitions, not limited to those the mention of which would 
trigger Godwin's Law.

Mark

Sent from my iPad

On Aug 14, 2015, at 9:26 AM, "Marty Lederman" 
mailto:lederman.ma...@gmail.com>> wrote:

The burden on religious exercise if you have to give up your business might be 
quite substantial, especially if means choosing between your religion and 
sacrificing many years of work, costs, good will, self-fulfillment, etc.  But 
not if "giving it up" means "not starting down that path in the first place 
because you're not willing to abide by the common-carrier rules required of 
such businesses."  (Denial of unemployment benefits, likewise, imposes a much 
greater burden on poor persons than on the wealthy.)

For example:

Let's take two people who both really want to teach 10th grade biology.  And 
they both have the same religious belief that it would be sinful for them to 
teach Darwinian evolution.  State X passes a law requiring all schools (public 
and private) to teach Darwinian evolution in 10th Grade.

One difference between the two wannabe teachers:  One of them is 55 years old, 
and has been teaching 10th Grade Bio in a religious school for over 30 years, 
from an evolutionist perspective, without speaking a word of Darwin.  It's the 
only job she's ever had, and her family depends upon her income.  The other is 
a recent high-school graduate who had planned to study for an education degree 
so as to be able to fulfill his dream of teaching creationism to 10th Graders.

Neither of them can henceforth teach 10th Grade without violating their 
religious precepts (or moving to a different state).  Equal burden on their 
religious exercise?  I think not.  Not even close.

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Re: Colorado Cakeshop decision

[Marty Lederman]

The burden on religious exercise if you have to give up your business *might
*be quite substantial, especially if means choosing between your religion
and sacrificing many years of work, costs, good will, self-fulfillment,
etc.  But not if "giving it up" means "not starting down that path in the
first place because you're not willing to abide by the common-carrier rules
required of such businesses."  (Denial of unemployment benefits, likewise,
imposes a much greater burden on poor persons than on the wealthy.)

For example:

Let's take two people who both *really *want to teach 10th grade biology.
And they both have the same religious belief that it would be sinful for
them to teach Darwinian evolution.  State X passes a law requiring all
schools (public and private) to teach Darwinian evolution in 10th Grade.

One difference between the two wannabe teachers:  One of them is 55 years
old, and has been teaching 10th Grade Bio in a religious school for over 30
years, from an evolutionist perspective, without speaking a word of
Darwin.  It's the only job she's ever had, and her family depends upon her
income.  The other is a recent high-school graduate who had planned to
study for an education degree so as to be able to fulfill his dream of
teaching creationism to 10th Graders.

Neither of them can henceforth teach 10th Grade without violating their
religious precepts (or moving to a different state).  Equal burden on their
religious exercise?  I think not.  Not even close.

On Fri, Aug 14, 2015 at 12:07 PM, Volokh, Eugene 
wrote:

>I appreciate Marty’s argument, but I’m not sure it quite
> works.  The burden of giving up your business (if you want to avoid
> violating your religious beliefs) strikes me as quite substantial, just as
> is the burden of giving up your unemployment compensation (if you want to
> avoid violating your religious beliefs).  And I don’t think the fact that
> “you knew the job was dangerous when you took it” changes that analysis,
> see *Hobbie v. Unemployment Appeals Comm’n*:
>
>
>
> The Appeals Commission also attempts to distinguish this case by arguing
> that, unlike the employees in *Sherbert* and *Thomas*, Hobbie was the
> "agent of change" and is therefore responsible for the consequences of the
> conflict between her job and her religious beliefs. In Sherbert and Thomas,
> the employees held their respective religious beliefs at the time of hire;
> subsequent changes in the conditions of employment made by the employer
> caused the conflict between work and belief. In this case, Hobbie's beliefs
> changed during the course of her employment, creating a conflict between
> job and faith that had not previously existed. The Appeals Commission
> contends that "it is . . . unfair for an employee to adopt religious
> beliefs that conflict with existing employment and expect to continue the
> employment without compromising those beliefs" and that this "intentional
> disregard of the employer's interests . . . constitutes misconduct." Brief
> for Appellee Appeals Commission 20-21.
>
>
>
> In effect, the Appeals Commission asks us to single out the religious
> convert for different, less favorable treatment than that given an
> individual whose adherence to his or her faith precedes employment. We
> decline to do so. The First Amendment protects the free exercise rights of
> employees who adopt religious beliefs or convert from one faith to another
> after they are hired. The timing of Hobbie's conversion is immaterial to
> our determination that her free exercise rights have been burdened; the
> salient inquiry under the Free Exercise Clause is the burden involved. In
> Sherbert, Thomas, and the present case, the employee was forced to choose
> between fidelity to religious belief and continued employment; the
> forfeiture of unemployment benefits for choosing the former over the latter
> brings unlawful coercion to bear on the employee's choice.
>
>
>
> (By the way, I’m not sure on these facts whether the Colorado cake shop
> went into business before or after Colorado banned sexual orientation
> discrimination in public accommodations, but I’m happy to set that aside
> for purposes of the broader discussion.)
>
>
>
>Eugene
>
>
>
> Marty Lederman writes:
>
>
>
> Or to put Paul's point in a slightly different, more doctrinal light --
> and one that harkens back to our landlord discussions circa 1998 [you can
> look it up!] -- if we're in a RFRA jurisdiction, there is far less of a
> "substantial burden" on one's religious exercise if the government
> "sanction" is merely "if you're not willing to serve everyone, then you
> can't be a common carrier" than if the government actually makes it
> unlawful for you to do what your religion requires (e.g., O Centro, Yoder).
>
>
>
> Of course, the burden is higher on those who developed a reliance interest
> on their being able to discriminate -- e.g., those who paid huge costs in
> terms of time and money in l

Re: Colorado Cakeshop decision

[Levinson, Sanford V]

Obviously, my lament is that O'Connor's opinion did NOT replace Scalia's as the 
majority opinion in Smith.

Sent from my iPhone

On Aug 14, 2015, at 11:03 AM, Levinson, Sanford V 
mailto:slevin...@law.utexas.edu>> wrote:

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] 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] 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

Re: Colorado Cakeshop decision

[Scarberry, Mark]

There is also the question of the meaning of "common carrier." If we think it's 
particularly important for common carriers to serve all comers but then think 
that a business is a common carrier simply because the law currently requires 
it to take all comers, we're engaged in a circular argument. The only function 
of the term would be to evoke historical notions or feelings that it was 
important that certain kinds of businesses serve all comers. I've argued before 
that "common carrier" has been expanded far beyond its historical meaning -- in 
California the Boys Clubs organization was brought within that term by the 
courts and forced to become the Boys and Girls Clubs -- but it was suggested 
that the common carrier category was not as limited historically as I thought. 
(I don't recall whose work was cited for that point.)

Mark

Mark S. Scarberry
Pepperdine University School of Law


Sent from my iPad

On Aug 14, 2015, at 8:29 AM, "Volokh, Eugene" 
mailto:vol...@law.ucla.edu>> wrote:

   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] 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] 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

RE: Colorado Cakeshop decision

[Volokh, Eugene]

   I appreciate Marty’s argument, but I’m not sure it quite works.  
The burden of giving up your business (if you want to avoid violating your 
religious beliefs) strikes me as quite substantial, just as is the burden of 
giving up your unemployment compensation (if you want to avoid violating your 
religious beliefs).  And I don’t think the fact that “you knew the job was 
dangerous when you took it” changes that analysis, see Hobbie v. Unemployment 
Appeals Comm’n:

The Appeals Commission also attempts to distinguish this case by arguing that, 
unlike the employees in Sherbert and Thomas, Hobbie was the "agent of change" 
and is therefore responsible for the consequences of the conflict between her 
job and her religious beliefs. In Sherbert and Thomas, the employees held their 
respective religious beliefs at the time of hire; subsequent changes in the 
conditions of employment made by the employer caused the conflict between work 
and belief. In this case, Hobbie's beliefs changed during the course of her 
employment, creating a conflict between job and faith that had not previously 
existed. The Appeals Commission contends that "it is . . . unfair for an 
employee to adopt religious beliefs that conflict with existing employment and 
expect to continue the employment without compromising those beliefs" and that 
this "intentional disregard of the employer's interests . . . constitutes 
misconduct." Brief for Appellee Appeals Commission 20-21.

In effect, the Appeals Commission asks us to single out the religious convert 
for different, less favorable treatment than that given an individual whose 
adherence to his or her faith precedes employment. We decline to do so. The 
First Amendment protects the free exercise rights of employees who adopt 
religious beliefs or convert from one faith to another after they are hired. 
The timing of Hobbie's conversion is immaterial to our determination that her 
free exercise rights have been burdened; the salient inquiry under the Free 
Exercise Clause is the burden involved. In Sherbert, Thomas, and the present 
case, the employee was forced to choose between fidelity to religious belief 
and continued employment; the forfeiture of unemployment benefits for choosing 
the former over the latter brings unlawful coercion to bear on the employee's 
choice.

(By the way, I’m not sure on these facts whether the Colorado cake shop went 
into business before or after Colorado banned sexual orientation discrimination 
in public accommodations, but I’m happy to set that aside for purposes of the 
broader discussion.)

   Eugene

Marty Lederman writes:

Or to put Paul's point in a slightly different, more doctrinal light -- and one 
that harkens back to our landlord discussions circa 1998 [you can look it up!] 
-- if we're in a RFRA jurisdiction, there is far less of a "substantial burden" 
on one's religious exercise if the government "sanction" is merely "if you're 
not willing to serve everyone, then you can't be a common carrier" than if the 
government actually makes it unlawful for you to do what your religion requires 
(e.g., O Centro, Yoder).

Of course, the burden is higher on those who developed a reliance interest on 
their being able to discriminate -- e.g., those who paid huge costs in terms of 
time and money in learning a profession, and building a business, at a time 
when the business was not viewed as a common carrier, or where (in this case) a 
prohibition on sexual-orientation discrimination was not foreseeable.

But if one entered the profession when it was already a rule that "you must 
serve all comers," or "you can't discriminate on the basis of X,Y and Z," then 
surely the denial of a religious exemption causes far less of a burden than in 
O Centro-like cases.  Not no burden, of course -- after all, if it's always 
been your dream to be a police officer, or to own a retail business in a state 
where such businesses have to serve all comers, then those laws do put some 
pressure on you to deviate from your religious beliefs.  But not nearly as much.
___
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RE: Colorado Cakeshop decision

[Levinson, Sanford V]

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] 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] 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 o

Re: Colorado Cakeshop decision

[Marty Lederman]

Or to put Paul's point in a slightly different, more doctrinal light -- and
one that harkens back to our landlord discussions circa 1998 [you can look
it up!] -- if we're in a RFRA jurisdiction, there is far less of a
"substantial burden" on one's religious exercise if the government
"sanction" is merely "if you're not willing to serve everyone, then you
can't be a common carrier" than if the government actually makes it
unlawful for you to do what your religion requires (e.g., O Centro, Yoder).

Of course, the burden is higher on those who developed a reliance interest
on their being able to discriminate -- e.g., those who paid huge costs in
terms of time and money in learning a profession, and building a business,
at a time when the business was not viewed as a common carrier, or where
(in this case) a prohibition on sexual-orientation discrimination was not
foreseeable.

But if one entered the profession when it was *already *a rule that "you
must serve all comers," or "you can't discriminate on the basis of X,Y and
Z," then surely the denial of a religious exemption causes far less of a
burden than in O Centro-like cases.  Not *no *burden, of course -- after
all, if it's always been your dream to be a police officer, or to own a
retail business in a state where such businesses have to serve all comers,
then those laws do put *some *pressure on you to deviate from your
religious beliefs.  But not nearly as much.

On Fri, Aug 14, 2015 at 11:40 AM, Finkelman, Paul <
paul.finkel...@albanylaw.edu> wrote:

> what is "magical" about common carrier is that if you go into the business
> of being a common carrier, and you get a license from the state to operate
> your business, you have agreed to accept all who come forward with the fee
> and behave properly.   So the restaurant can require shoes and shirts, but
> not that everyone take their hat off in the room because that is not a
> health safety issue.  The restaurant can require you turn off your music in
> the restaurant but not prohibit you because you are [fill in a racial,
> ethnic, religious, gendered based minority].  That is what common carriers
> do.
>
>
> If you don't want to do that, then go into another business.  If you
> deliver pizzas, you can't say, but not to your store because we don't like
> what you sell in that store.  Don't offer to deliver pizzas and you don't
> have that problem.
>
>
> What you seem to be arguing for is a religious right to be a bigot, and
> essentially saying that what the segregationists lost in 1964 on race, they
> can win back on religion.  That somehow the First Amendment must always
> trump everything else in the Constitution, including the 14th.
>
>
> Here Harlan's dissent in Plessy is worth rereading.  His argument is that
> common carriers are regulated by the state and so there must be equal
> protection -- equal access -- to all.  I buy my meat from a farmer.  Grass
> fed happy cow.  He is not a common carrier; he does not have a store, and
> he does not even have to follow USDA rules because he sells directly to
> customers in low enough quantities so that buying from him constitutes a
> "club" not a business.  He could discriminate on the basis of whatever he
> wants.  He is not a common carrier or a business that is involved with
> public accommodations.  The local deli is another matter.
>
>
> And, again, doesn't your position -- that anyone can refuse to sell to
> anyone else -- simply move us back to 1963?
>
>
>
> *
> Paul Finkelman
> *Senior Fellow*
> *Penn Program on Democracy, Citizenship, and Constitutionalism*
> *University of Pennsylvania*
> *and*
> *Scholar-in-Residence *
> *National Constitution Center*
> *Philadelphia, Pennsylvania*
>
> 518-439-7296 (p)
> 518-605-0296 (c)
>
> paul.finkel...@albanylaw.edu
> www.paulfinkelman.com
> *
>
>
>
> --
> *From:* religionlaw-boun...@lists.ucla.edu <
> religionlaw-boun...@lists.ucla.edu> on behalf of Volokh, Eugene <
> vol...@law.ucla.edu>
> *Sent:* Friday, August 14, 2015 11:27 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,

RE: Colorado Cakeshop decision

[Volokh, Eugene]

   No, it doesn't, for reasons that I thought were obvious, and 
that I thought I have laid out several times already.  But I will leave the 
conversation with Prof. Finkelman be, though I'm happy to continue it with 
others.

   Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Finkelman, Paul
Sent: Friday, August 14, 2015 11:41 AM
To: Law & Religion issues for Law Academics
Subject: Re: Colorado Cakeshop decision


what is "magical" about common carrier is that if you go into the business of 
being a common carrier, and you get a license from the state to operate your 
business, you have agreed to accept all who come forward with the fee and 
behave properly.   So the restaurant can require shoes and shirts, but not that 
everyone take their hat off in the room because that is not a health safety 
issue.  The restaurant can require you turn off your music in the restaurant 
but not prohibit you because you are [fill in a racial, ethnic, religious, 
gendered based minority].  That is what common carriers do.



If you don't want to do that, then go into another business.  If you deliver 
pizzas, you can't say, but not to your store because we don't like what you 
sell in that store.  Don't offer to deliver pizzas and you don't have that 
problem.



What you seem to be arguing for is a religious right to be a bigot, and 
essentially saying that what the segregationists lost in 1964 on race, they can 
win back on religion.  That somehow the First Amendment must always trump 
everything else in the Constitution, including the 14th.



Here Harlan's dissent in Plessy is worth rereading.  His argument is that 
common carriers are regulated by the state and so there must be equal 
protection -- equal access -- to all.  I buy my meat from a farmer.  Grass fed 
happy cow.  He is not a common carrier; he does not have a store, and he does 
not even have to follow USDA rules because he sells directly to customers in 
low enough quantities so that buying from him constitutes a "club" not a 
business.  He could discriminate on the basis of whatever he wants.  He is not 
a common carrier or a business that is involved with public accommodations.  
The local deli is another matter.



And, again, doesn't your position -- that anyone can refuse to sell to anyone 
else -- simply move us back to 1963?



*
Paul Finkelman
Senior Fellow
Penn Program on Democracy, Citizenship, and Constitutionalism
University of Pennsylvania
and
Scholar-in-Residence
National Constitution Center
Philadelphia, Pennsylvania

518-439-7296 (p)
518-605-0296 (c)

paul.finkel...@albanylaw.edu
www.paulfinkelman.com
*


From: 
religionlaw-boun...@lists.ucla.edu 
mailto:religionlaw-boun...@lists.ucla.edu>> 
on behalf of Volokh, Eugene mailto:vol...@law.ucla.edu>>
Sent: Friday, August 14, 2015 11:27 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] On Behalf Of Levinson, Sanford V
Sent: Friday, August 14, 2015 11:16 AM
To: Law & Religion

Re: Colorado Cakeshop decision

[Finkelman, Paul]

what is "magical" about common carrier is that if you go into the business of 
being a common carrier, and you get a license from the state to operate your 
business, you have agreed to accept all who come forward with the fee and 
behave properly.   So the restaurant can require shoes and shirts, but not that 
everyone take their hat off in the room because that is not a health safety 
issue.  The restaurant can require you turn off your music in the restaurant 
but not prohibit you because you are [fill in a racial, ethnic, religious, 
gendered based minority].  That is what common carriers do.


If you don't want to do that, then go into another business.  If you deliver 
pizzas, you can't say, but not to your store because we don't like what you 
sell in that store.  Don't offer to deliver pizzas and you don't have that 
problem.


What you seem to be arguing for is a religious right to be a bigot, and 
essentially saying that what the segregationists lost in 1964 on race, they can 
win back on religion.  That somehow the First Amendment must always trump 
everything else in the Constitution, including the 14th.


Here Harlan's dissent in Plessy is worth rereading.  His argument is that 
common carriers are regulated by the state and so there must be equal 
protection -- equal access -- to all.  I buy my meat from a farmer.  Grass fed 
happy cow.  He is not a common carrier; he does not have a store, and he does 
not even have to follow USDA rules because he sells directly to customers in 
low enough quantities so that buying from him constitutes a "club" not a 
business.  He could discriminate on the basis of whatever he wants.  He is not 
a common carrier or a business that is involved with public accommodations.  
The local deli is another matter.


And, again, doesn't your position -- that anyone can refuse to sell to anyone 
else -- simply move us back to 1963?



*
Paul Finkelman
Senior Fellow
Penn Program on Democracy, Citizenship, and Constitutionalism
University of Pennsylvania
and
Scholar-in-Residence
National Constitution Center
Philadelphia, Pennsylvania

518-439-7296 (p)
518-605-0296 (c)

paul.finkel...@albanylaw.edu
www.paulfinkelman.com
*




From: religionlaw-boun...@lists.ucla.edu  
on behalf of Volokh, Eugene 
Sent: Friday, August 14, 2015 11:27 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] 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 

RE: Colorado Cakeshop decision

[Volokh, Eugene]

   I’m not sure I understand how Prof. Finkelman can be 
misunderstanding me on this.  This is an argument about religious exemptions.  
It is not an argument about whether the law should be repealed altogether – any 
more than arguments about exemptions in O Centro and Smith were about whether 
peyote or hoasca laws should be repealed altogether.

   It’s not our job to figure out whether a claimant is right or 
wrong, reasonable or unreasonable, smart or foolish in deciding that his 
religion requires him to use peyote, or bars him from selling to abortion 
clinics, or bars him from making wedding cakes.  If the claimant has a 
religious objection to the law, and a Sherbert/Yoder-like religious exemption 
regime exists, then the question is whether denying the exemption is narrowly 
tailored to a compelling government interest.  It may well be that denying the 
exemption from some antidiscrimination laws is indeed narrowly tailored to such 
an interest, based on the arguments that I quite clearly acknowledged in my 
earlier posts.  But one can’t just reject the argument on the grounds that 
“that is what a common carrier does,” just as one can’t reject the 
peyote/hoasca users’ claims on the grounds that “barring drugs is what drug law 
does.”

   In any event, if anyone else really does misunderstand this 
argument, or would like to engage that argument, I’m happy to answer them.

   Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Paul Finkelman
Sent: Friday, August 14, 2015 11:28 AM
To: Law & Religion issues for Law Academics
Subject: Re: Colorado Cakeshop decision

Because, that is what a common carrier does.   Put it another way, if the 
common carrier can refuse to pick up people then we are back to 1963.  Cabs 
don't have to stop for blacks because the drivers believe God made a mistake in 
making black people; hotels don't have to rent to blacks, or people with Jewish 
names, or people who look Jewish, or men with turbans, or anyone else they do 
not like.

You raise the "inappropriate" argument and then say that it is not "our job" to 
figure out what is in appropriate.  So, in fact, you are not interested in the 
"inappropriate use" (the pillow case for the KKK mask), but rather you are 
arguing that licensed businesses are free to discriminate for whatever reason 
they want, as long as they "mask" it in religious values.

Is that what you are saying here?  If so, they why not come out from behind the 
curtain and just argue for the repeal of the 1964 Civil Rights Act.  That is, 
after all, what you are arguing for, masked in religious language.  If I am 
misreading you, please forgive me and explain why this is a misreading of the 
*result* you are arguing for.


**
Paul Finkelman, Ph.D.
Senior Fellow
Penn Program on Democracy, Citizenship, and Constitutionalism
University of Pennsylvania
and
Scholar-in-Residence
National Constitution Center
Philadelphia, Pennsylvania
518-439-7296 (w)
518-605-0296 (c)
paul.finkel...@yahoo.com
www.paulfinkelman.com


From: "Volokh, Eugene" mailto:vol...@law.ucla.edu>>
To: Law & Religion issues for Law Academics 
mailto:religionlaw@lists.ucla.edu>>
Sent: Friday, August 14, 2015 11:13 AM
Subject: RE: Colorado Cakeshop decision

   I don’t think it’s any our job to figure out the inappropriate 
use of the Deli’s sandwiches than it is to figure out what’s “inappropriate” 
about eating chicken with cream sauce.  The Deli owners thought it was 
religiously wrong for them to let any of their products be used by anyone 
working at a company that, in the owners’ views, was committing mass murder.  
Likewise, I imagine there are religious pacifists who for religious reasons 
won’t sell any product (even food) to the military or military contractors, or 
people who wouldn’t sell any products to South African companies (or to 
companies that do business with South Africa), and so on.  That we don’t see 
anything inappropriate about either the companies or the use to which the 
products are put is irrelevant.  If they believe it is religiously wrong for 
them to sell anything to a company, that’s enough to get in the door under a 
religious exemption regime – not just my view, of course, but also that of the 
Minnesota Court of Appeals.

   Now whether these religious exemption claims should be trumped 
by some government interest, such as the interest in preventing discrimination 
based on race, or religion, or political affiliation, or business practices, is 
a separate matter – that goes to whether denying the exemption is necessary to 
serve a compelling government interest.

   But, as I said, I would have thought that my view was entirely 
orthodox.  “[I]t is not for us to say that the line [religious objectors draw 
b

Re: Colorado Cakeshop decision

[Paul Finkelman]

Because, that is what a common carrier does.   Put it another way, if the 
common carrier can refuse to pick up people then we are back to 1963.  Cabs 
don't have to stop for blacks because the drivers believe God made a mistake in 
making black people; hotels don't have to rent to blacks, or people with Jewish 
names, or people who look Jewish, or men with turbans, or anyone else they do 
not like.
You raise the "inappropriate" argument and then say that it is not "our job" to 
figure out what is in appropriate.  So, in fact, you are not interested in the 
"inappropriate use" (the pillow case for the KKK mask), but rather you are 
arguing that licensed businesses are free to discriminate for whatever reason 
they want, as long as they "mask" it in religious values.
Is that what you are saying here?  If so, they why not come out from behind the 
curtain and just argue for the repeal of the 1964 Civil Rights Act.  That is, 
after all, what you are arguing for, masked in religious language.  If I am 
misreading you, please forgive me and explain why this is a misreading of the 
*result* you are arguing for.
 
**
Paul Finkelman, Ph.D.
Senior Fellow
 Penn Program on Democracy, Citizenship, and Constitutionalism
 University of Pennsylvania
 and 
 Scholar-in-Residence  
 National Constitution Center 
 Philadelphia, Pennsylvania 
 518-439-7296 (w)
 518-605-0296 (c) 
 paul.finkel...@yahoo.com 
www.paulfinkelman.com
  From: "Volokh, Eugene" 
 To: Law & Religion issues for Law Academics  
 Sent: Friday, August 14, 2015 11:13 AM
 Subject: RE: Colorado Cakeshop decision
   
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{}#yiv7090365976    I don’t think it’s any our job to figure out 
the inappropriate use of the Deli’s sandwiches than it is to figure out what’s 
“inappropriate” about eating chicken with cream sauce.  The Deli owners thought 
it was religiously wrong for them to let any of their products be used by 
anyone working at a company that, in the owners’ views, was committing mass 
murder.  Likewise, I imagine there are religious pacifists who for religious 
reasons won’t sell any product (even food) to the military or military 
contractors, or people who wouldn’t sell any products to South African 
companies (or to companies that do business with South Africa), and so on.  
That we don’t see anything inappropriate about either the companies or the use 
to which the products are put is irrelevant.  If they believe it is religiously 
wrong for them to sell anything to a company, that’s enough to get in the door 
under a religious exemption regime – not just my view, of course, but also that 
of the Minnesota Court of Appeals.       Now whether these 
religious exemption claims should be trumped by some government interest, such 
as the interest in preventing discrimination based on race, or religion, or 
political affiliation, or business practices, is a separate matter – that goes 
to whether denying the exemption is necessary to serve a compelling government 
interest.       But, as I said, I would have thought that my view 
was entirely orthodox.  “[I]t is not for us to say that the line [religious 
objectors draw between what they view as religiously permissible or religiously 
impermissible] was an unreasonable one.”  If devout Jews interpret the Torah as 
barring not just the seething of a kid in its mother’s milk, but also mixing 
chicken meat with cow milk, it’s not for us to parse their reasoning, or to 
suggest that their thinking is inconsistent with what we think sound thinking 
would be (or for that matter with their own thinking in other areas).  Likewise 
if someone feels that it’s inappropriate for him to provide any support, 
however indirect, for abortion providers or for the military or for killers of 
animals or for the South African regime.     

RE: Colorado Cakeshop decision

[Volokh, Eugene]

   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] 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] 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] On Behalf Of Levinson, Sanford V
Sent: Friday, August 14, 2015 10:41 AM
To: Law & Religion issues for

RE: Colorado Cakeshop decision

[Levinson, Sanford V]

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] 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] 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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RE: Colorado Cakeshop decision

[Volokh, Eugene]

   I don't think it's any our job to figure out the inappropriate 
use of the Deli's sandwiches than it is to figure out what's "inappropriate" 
about eating chicken with cream sauce.  The Deli owners thought it was 
religiously wrong for them to let any of their products be used by anyone 
working at a company that, in the owners' views, was committing mass murder.  
Likewise, I imagine there are religious pacifists who for religious reasons 
won't sell any product (even food) to the military or military contractors, or 
people who wouldn't sell any products to South African companies (or to 
companies that do business with South Africa), and so on.  That we don't see 
anything inappropriate about either the companies or the use to which the 
products are put is irrelevant.  If they believe it is religiously wrong for 
them to sell anything to a company, that's enough to get in the door under a 
religious exemption regime - not just my view, of course, but also that of the 
Minnesota Court of Appeals.

   Now whether these religious exemption claims should be trumped 
by some government interest, such as the interest in preventing discrimination 
based on race, or religion, or political affiliation, or business practices, is 
a separate matter - that goes to whether denying the exemption is necessary to 
serve a compelling government interest.

   But, as I said, I would have thought that my view was entirely 
orthodox.  "[I]t is not for us to say that the line [religious objectors draw 
between what they view as religiously permissible or religiously impermissible] 
was an unreasonable one."  If devout Jews interpret the Torah as barring not 
just the seething of a kid in its mother's milk, but also mixing chicken meat 
with cow milk, it's not for us to parse their reasoning, or to suggest that 
their thinking is inconsistent with what we think sound thinking would be (or 
for that matter with their own thinking in other areas).  Likewise if someone 
feels that it's inappropriate for him to provide any support, however indirect, 
for abortion providers or for the military or for killers of animals or for the 
South African regime.

   Eugene



From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Finkelman, Paul
Sent: Friday, August 14, 2015 10:32 AM
To: Law & Religion issues for Law Academics
Subject: Re: Colorado Cakeshop decision


Eugene:



 I am trying to figure out what would  be the "inappropriate" use of the Deli's 
sandwiches?  Is it feeding doctors who perform abortion?


Are you arguing that the pillow case maker can refuse to sell pillow cases to 
members of the KKK who use them for pillows?  That is, can your refuse to do 
business with people if you don't like them or like what they do for a living?  
So, if the product -- a sandwich -- is being used properly -- that is it is 
being eaten, then how could it possibly be used inappropriately?



Or, are you that the Deli owner can refuse to sell to the clinic because the 
clinic does things the owner does not like?  So, he won't sell to the clinic 
because he does not think doctors who work there should eat food?



And the KKK owner of a clothing store will not sell to blacks or Jews or 
Catholics (and many more groups) because he does not think those people should 
ever be seen in public so they don't need clothing?



Your widget maker simply would not compete for the military contract.  No one 
forces him to do so.



At the end of this post you migrate from illegitimate use, to illegitimate 
user.  That is, you don't want your product being sold in a South Africa 
because you are opposed to the regime.  So you won't sell to a 2nd party, who 
sells it to 3rd party, who sells it to South Africa?



Assuming this is a retail business, then I am guessing you would say that a 
racist who believes that blacks are inferior and made to be slaves of whites, 
it would be ok for that person to refuse to sell retain good to blacks?  It is 
worth noting that most southern ministers believed that in the 19th century and 
I have had some students tell me they have heard similar things i their 
churches.  So, we have a "racist" church.  Are you arguing the member of that 
church can refuse to seat a black at his restaurant, refuse to serve and 
interracial couple, or refuse to rent a room to a black?







*
Paul Finkelman
Senior Fellow
Penn Program on Democracy, Citizenship, and Constitutionalism
University of Pennsylvania
and
Scholar-in-Residence
National Constitution Center
Philadelphia, Pennsylvania

518-439-7296 (p)
518-605-0296 (c)

paul.finkel...@albanylaw.edu
www.paulfinkelman.com
*


From: 
religionlaw-boun...@lists.ucla.edu

RE: Colorado Cakeshop decision

[Volokh, Eugene]

   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] 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
___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
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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.

Re: Colorado Cakeshop decision

[K Chen]

The compelling interest of "mandating equal treatment in all situations"
does not depend on the impropriety of the reason on its own. Rather, it is
the harm associated with unequal treatment because of that reason. Suspect
classes are suspect classes (in part) due to the length and scale of the
discrimination against the class. The goal isn't, or shouldn't be at least,
to punish bad reasons for discrimination, it is to protect the class from
the effects of discrimination. Thus, the interest is more or less
compelling proportional to the ease with which a member of the class can
find an alternate public accommodation. The irony of course being that
sexual orientation protections spring up faster in places where
discrimination is comparatively minimal, however noxious.

On Fri, Aug 14, 2015 at 9:03 AM, Volokh, Eugene  wrote:

>As I understand the orthodox (with a lower-case “o”)
> understanding of religious exemption doctrine, religious objectors are
> entitled to exemptions from (at least) laws that require them to do things
> that they sincerely view as sinful, unless granting the exemption would
> necessarily substantially undermine a compelling government interest.
>
>
>
>1.  If this is so, then I don’t think that it matters
> whether the sin is providing materials that one sincerely believes are used
> in killing human beings, or providing materials that one sincerely believes
> are used in other sinful things.  If a Muslim or Jewish supplier doesn’t
> want to sell products to a pork farm (I’m not sure that this is standard
> Muslim or Jewish doctrine, but imagine someone who takes that view), I
> don’t see why he should be denied an exemption that the pacifist widget
> maker or the anti-abortion deli owner is granted.  Likewise if someone
> doesn’t want to sell products that would be used in a Black Mass or in a
> wedding of a divorced person or in a same-sex wedding.
>
>
>
>2.  The “single grocer in town” hypothetical may be
> relevant to the compelling government interest inquiry – maybe one could
> argue that the government has a compelling interest in making sure that
> everyone has access to food without having to drive to the next town, and
> therefore requiring the grocer to sell to the KKK sympathizers, or for that
> matter to sell food that he knows will be used at the KKK picnic.  But in
> the much more typical town in which there are many grocers, most of which
> are quite happy to sell to anyone who has the money, denying the exemption
> isn’t necessary to serve the government interest.
>
>
>
>3.  Of course, there is also the argument that there is a
> compelling interest in making sure that no customer is ever rejected by any
> provider for what one sees as improper reasons.  I’m not sure I’m persuaded
> by this argument as a general matter, but I understand it.  Still, that’s a
> question of what compelling interests trump and when.  If the issue is, “is
> there any model that would justify refusing to sell an in embellished
> product--say a cupcake--to someone whose potential use--at a same sex
> wedding, at a tryst with one's heterosexual lover, or whatever--you
> disapproved of on religious grounds?,” I would think that the orthodox
> model would eminently justify it, unless one thinks there is this sort of
> compelling interest in mandating equal treatment in all situations.
>
>
>
>This is also related, of course, to the 1990s litigation
> over landlord refusals to rent to unmarried couples, which led to different
> results in different states.
>
>
>
>Eugene
>
>
>
> *From:* religionlaw-boun...@lists.ucla.edu [mailto:
> religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Levinson, Sanford V
> *Sent:* Thursday, August 13, 2015 10:58 PM
>
> *To:* Law & Religion issues for Law Academics
> *Subject:* Re: Colorado Cakeshop decision
>
>
>
> This is an interesting example. (And I thank Eugene for his typically
> thoughtful answer.)  Can one distinguish between the illegitimate direct
> use of the product (to kill human beings) and the mere fact that the
> cupcake will be eaten at a wedding (or trust)?  Would we be comfortable if
> the single grocer in town refused to sell food to someone known to
> sympathize with the KKK?  I assume, though, that the civil rights laws was
> prohibits discriminating on grounds of race etc., and this should hold for
> sexual orientation as well.
>
>
>
> Sandy
>
> Sent from my iPhone
>
>
> On Aug 13, 2015, at 7:25 PM, K Chen  wrote:
>
> The various pharmaceutical companies refusing to sell certain drugs to
> death penalty states come to mind.
>
>
>
> -Kevin Chen
>
>
>
> On Thu, Aug 13, 2015 at 7:51 PM, Volokh, Eugene 
> wrote:
>
>Sure, why not?  Say a grape grower refuses to sell to
> winemakers, or a pacifist widget maker refuses to sell to military
> contractors, or a restaurant refuses to deliver to abortion clinics?  See 
> *Rasmussen
> v. Glass* (M

Re: Colorado Cakeshop decision

[Nelson Tebbe]

Sandy, that is mostly correct. I would add, however, that some states have 
common law rules that require businesses which choose to open their doors to 
the public to serve everyone, unless they have a business-related reason for 
excluding a customer. See, e.g., see Uston v. Resorts Intern. Hotel, Inc., 89 
N.J. 163, 173 (1982). In those jurisdictions, groups subject to exclusion for 
irrational reasons have a claim, even if those groups do not constitute 
protected classes under the relevant civil rights law. If you’re interested, 
the classic article on this is Singer, No Right To Exclude, 90 Nw. U. L. Rev. 
1283 (1996). I look at the common-law rule (citing additional cases) in the 
context of discrimination against LGBT people on pages 56-68 of Religion and 
Marriage Equality Statutes, http://ssrn.com/abstract=2579337.

On Aug 14, 2015, at 10:40 AM, Levinson, Sanford V 
mailto:slevin...@law.utexas.edu>> wrote:

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

On Aug 14, 2015, at 9:19 AM, Nelson Tebbe 
mailto:nelson.te...@brooklaw.edu>> wrote:



My sense is that the answer to Sandy’s question might be different if the 
refusals he describes were found to constitute discrimination on the basis of 
sexual orientation or gender identity in a jurisdiction that prohibits such 
discrimination in public accommodations. For example, in Elane Photography the 
New Mexico Supreme Court found the company’s policy of not photographing 
same-sex weddings to constitute discrimination on the basis of sexual 
orientation under the New Mexico public accommodations law. Rasmussen v. Glass 
is an interesting case that I hadn’t seen before, but its main holding seems to 
be that refusing to serve abortion clinics did not constitute prohibited 
discrimination under the relevant civil rights law. Although the court went on 
to say that even if the conduct constituted discrimination, the service 
providers would be entitled to religion exemption under state law, that was 
arguably dicta. I’m not sure which is the more orthodox approach, but under 
Smith the federal Constitution would not provide such an exemption from a 
generally applicable public accommodations law, and courts in jurisdictions 
with more rigorous free exercise protections might well find that a government 
has a compelling interest in prohibiting discrimination on a protected ground 
under its civil rights law.

On Aug 14, 2015, at 9:03 AM, Volokh, Eugene 
mailto:vol...@law.ucla.edu>> wrote:

   As I understand the orthodox (with a lower-case “o”) 
understanding of religious exemption doctrine, religious objectors are entitled 
to exemptions from (at least) laws that require them to do things that they 
sincerely view as sinful, unless granting the exemption would necessarily 
substantially undermine a compelling government interest.

   1.  If this is so, then I don’t think that it matters whether 
the sin is providing materials that one sincerely believes are used in killing 
human beings, or providing materials that one sincerely believes are used in 
other sinful things.  If a Muslim or Jewish supplier doesn’t want to sell 
products to a pork farm (I’m not sure that this is standard Muslim or Jewish 
doctrine, but imagine someone who takes that view), I don’t see why he should 
be denied an exemption that the pacifist widget maker or the anti-abortion deli 
owner is granted.  Likewise if someone doesn’t want to sell products that would 
be used in a Black Mass or in a wedding of a divorced person or in a same-sex 
wedding.

   2.  The “single grocer in town” hypothetical may be relevant to 
the compelling government interest inquiry – maybe one could argue that the 
government has a compelling interest in making sure that everyone has access to 
food without having to drive to the next town, and therefore requiring the 
grocer to sell to the KKK sympathizers, or for that matter to sell food that he 
knows will be used at the KKK picnic.  But in the much more typical town in 
which there are many grocers, most of which are quite happy to sell to anyone 
who has the money,

Re: Colorado Cakeshop decision

[Levinson, Sanford V]

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

On Aug 14, 2015, at 9:19 AM, Nelson Tebbe 
mailto:nelson.te...@brooklaw.edu>> wrote:



My sense is that the answer to Sandy’s question might be different if the 
refusals he describes were found to constitute discrimination on the basis of 
sexual orientation or gender identity in a jurisdiction that prohibits such 
discrimination in public accommodations. For example, in Elane Photography the 
New Mexico Supreme Court found the company’s policy of not photographing 
same-sex weddings to constitute discrimination on the basis of sexual 
orientation under the New Mexico public accommodations law. Rasmussen v. Glass 
is an interesting case that I hadn’t seen before, but its main holding seems to 
be that refusing to serve abortion clinics did not constitute prohibited 
discrimination under the relevant civil rights law. Although the court went on 
to say that even if the conduct constituted discrimination, the service 
providers would be entitled to religion exemption under state law, that was 
arguably dicta. I’m not sure which is the more orthodox approach, but under 
Smith the federal Constitution would not provide such an exemption from a 
generally applicable public accommodations law, and courts in jurisdictions 
with more rigorous free exercise protections might well find that a government 
has a compelling interest in prohibiting discrimination on a protected ground 
under its civil rights law.

On Aug 14, 2015, at 9:03 AM, Volokh, Eugene 
mailto:vol...@law.ucla.edu>> wrote:

   As I understand the orthodox (with a lower-case “o”) 
understanding of religious exemption doctrine, religious objectors are entitled 
to exemptions from (at least) laws that require them to do things that they 
sincerely view as sinful, unless granting the exemption would necessarily 
substantially undermine a compelling government interest.

   1.  If this is so, then I don’t think that it matters whether 
the sin is providing materials that one sincerely believes are used in killing 
human beings, or providing materials that one sincerely believes are used in 
other sinful things.  If a Muslim or Jewish supplier doesn’t want to sell 
products to a pork farm (I’m not sure that this is standard Muslim or Jewish 
doctrine, but imagine someone who takes that view), I don’t see why he should 
be denied an exemption that the pacifist widget maker or the anti-abortion deli 
owner is granted.  Likewise if someone doesn’t want to sell products that would 
be used in a Black Mass or in a wedding of a divorced person or in a same-sex 
wedding.

   2.  The “single grocer in town” hypothetical may be relevant to 
the compelling government interest inquiry – maybe one could argue that the 
government has a compelling interest in making sure that everyone has access to 
food without having to drive to the next town, and therefore requiring the 
grocer to sell to the KKK sympathizers, or for that matter to sell food that he 
knows will be used at the KKK picnic.  But in the much more typical town in 
which there are many grocers, most of which are quite happy to sell to anyone 
who has the money, denying the exemption isn’t necessary to serve the 
government interest.

   3.  Of course, there is also the argument that there is a 
compelling interest in making sure that no customer is ever rejected by any 
provider for what one sees as improper reasons.  I’m not sure I’m persuaded by 
this argument as a general matter, but I understand it.  Still, that’s a 
question of what compelling interests trump and when.  If the issue is, “is 
there any model that would justify refusing to sell an in embellished 
product--say a cupcake--to someone whose potential use--at a same sex wedding, 
at a tryst with one's heterosexual lover, or whatever--you disapproved of on 
religious grounds?,” I would think that the orthodox model would eminently 
justify it, unless one thinks there is this sort of compelling interest in 
mandating equal treatment in all situations.

   This is also related, of course, t

Re: Colorado Cakeshop decision

[Finkelman, Paul]

Eugene:


 I am trying to figure out what would  be the "inappropriate" use of the Deli's 
sandwiches?  Is it feeding doctors who perform abortion?


Are you arguing that the pillow case maker can refuse to sell pillow cases to 
members of the KKK who use them for pillows?  That is, can your refuse to do 
business with people if you don't like them or like what they do for a living?  
So, if the product -- a sandwich -- is being used properly -- that is it is 
being eaten, then how could it possibly be used inappropriately?


Or, are you that the Deli owner can refuse to sell to the clinic because the 
clinic does things the owner does not like?  So, he won't sell to the clinic 
because he does not think doctors who work there should eat food?


And the KKK owner of a clothing store will not sell to blacks or Jews or 
Catholics (and many more groups) because he does not think those people should 
ever be seen in public so they don't need clothing?


Your widget maker simply would not compete for the military contract.  No one 
forces him to do so.


At the end of this post you migrate from illegitimate use, to illegitimate 
user.  That is, you don't want your product being sold in a South Africa 
because you are opposed to the regime.  So you won't sell to a 2nd party, who 
sells it to 3rd party, who sells it to South Africa?


Assuming this is a retail business, then I am guessing you would say that a 
racist who believes that blacks are inferior and made to be slaves of whites, 
it would be ok for that person to refuse to sell retain good to blacks?  It is 
worth noting that most southern ministers believed that in the 19th century and 
I have had some students tell me they have heard similar things i their 
churches.  So, we have a "racist" church.  Are you arguing the member of that 
church can refuse to seat a black at his restaurant, refuse to serve and 
interracial couple, or refuse to rent a room to a black?





*
Paul Finkelman
Senior Fellow
Penn Program on Democracy, Citizenship, and Constitutionalism
University of Pennsylvania
and
Scholar-in-Residence
National Constitution Center
Philadelphia, Pennsylvania

518-439-7296 (p)
518-605-0296 (c)

paul.finkel...@albanylaw.edu
www.paulfinkelman.com
*




From: religionlaw-boun...@lists.ucla.edu  
on behalf of Volokh, Eugene 
Sent: Thursday, August 13, 2015 7:51 PM
To: Law & Religion issues for Law Academics
Subject: RE: Colorado Cakeshop decision


   Sure, why not?  Say a grape grower refuses to sell to 
winemakers, or a pacifist widget maker refuses to sell to military contractors, 
or a restaurant refuses to deliver to abortion clinics?  See Rasmussen v. Glass 
(Minn. Ct. App. 1993), 
https://scholar.google.com/scholar_case?case=648897692635049631, which holds 
that, even if a city ordinance banning discrimination based on “creed” required 
restaurants to deliver to abortion clinics, there had to be a religious 
exemption from such an ordinance.  “Under the provisions of the Minneapolis 
ordinance, relator Glass [owner of the Beach Club Deli] has two choices. He can 
either associate with an entity that engages in conduct which he finds to be 
morally offensive [delivering to abortion clinics], thus compromising his 
conscience, or he can refuse and be found guilty of discrimination and fined.”



   Now these have to do with objections to sales to businesses, not 
sales to individuals – but I can’t see why they would be different for RFRA / 
state Free Exercise Clause purposes.  As to how the information would be 
obtained, I take it that many a business wouldn’t work very hard to investigate 
the matter, but when it learned that its products were used by a customer in 
ways it disapproved of, might stop selling them to that customer.



   Isn’t that how many of us would act if we were businesspeople, 
and we learned that some of our customers were using our products in ways we 
strongly disapproved of?  Want to buy our pillowcases?  Go right ahead.  Oh, 
wait, you’re the KKK and you want to use them for your hoods; sorry, your 
business isn’t welcome here.  Same if you learn your customers are using your 
products to kill animals (if you object to that), resell them to South Africa 
(if you objected to that back in the 1980s), and so on.  Some people take a 
“Hey, the product is out of our hands, none of our business” attitude, which I 
think is just fine.  But other people care more about the behavior of their 
customers (and for that matter of their suppliers) – indeed, many who praise 
“corporate social responsibility” support that general approach.  And when the 
business feels a religious objection in such a situation, any existing 
religious exemption regime would be implicated, wouldn’t it be?



  

Re: Colorado Cakeshop decision

[Nelson Tebbe]

My sense is that the answer to Sandy’s question might be different if the 
refusals he describes were found to constitute discrimination on the basis of 
sexual orientation or gender identity in a jurisdiction that prohibits such 
discrimination in public accommodations. For example, in Elane Photography the 
New Mexico Supreme Court found the company’s policy of not photographing 
same-sex weddings to constitute discrimination on the basis of sexual 
orientation under the New Mexico public accommodations law. Rasmussen v. Glass 
is an interesting case that I hadn’t seen before, but its main holding seems to 
be that refusing to serve abortion clinics did not constitute prohibited 
discrimination under the relevant civil rights law. Although the court went on 
to say that even if the conduct constituted discrimination, the service 
providers would be entitled to religion exemption under state law, that was 
arguably dicta. I’m not sure which is the more orthodox approach, but under 
Smith the federal Constitution would not provide such an exemption from a 
generally applicable public accommodations law, and courts in jurisdictions 
with more rigorous free exercise protections might well find that a government 
has a compelling interest in prohibiting discrimination on a protected ground 
under its civil rights law.

On Aug 14, 2015, at 9:03 AM, Volokh, Eugene 
mailto:vol...@law.ucla.edu>> wrote:

   As I understand the orthodox (with a lower-case “o”) 
understanding of religious exemption doctrine, religious objectors are entitled 
to exemptions from (at least) laws that require them to do things that they 
sincerely view as sinful, unless granting the exemption would necessarily 
substantially undermine a compelling government interest.

   1.  If this is so, then I don’t think that it matters whether 
the sin is providing materials that one sincerely believes are used in killing 
human beings, or providing materials that one sincerely believes are used in 
other sinful things.  If a Muslim or Jewish supplier doesn’t want to sell 
products to a pork farm (I’m not sure that this is standard Muslim or Jewish 
doctrine, but imagine someone who takes that view), I don’t see why he should 
be denied an exemption that the pacifist widget maker or the anti-abortion deli 
owner is granted.  Likewise if someone doesn’t want to sell products that would 
be used in a Black Mass or in a wedding of a divorced person or in a same-sex 
wedding.

   2.  The “single grocer in town” hypothetical may be relevant to 
the compelling government interest inquiry – maybe one could argue that the 
government has a compelling interest in making sure that everyone has access to 
food without having to drive to the next town, and therefore requiring the 
grocer to sell to the KKK sympathizers, or for that matter to sell food that he 
knows will be used at the KKK picnic.  But in the much more typical town in 
which there are many grocers, most of which are quite happy to sell to anyone 
who has the money, denying the exemption isn’t necessary to serve the 
government interest.

   3.  Of course, there is also the argument that there is a 
compelling interest in making sure that no customer is ever rejected by any 
provider for what one sees as improper reasons.  I’m not sure I’m persuaded by 
this argument as a general matter, but I understand it.  Still, that’s a 
question of what compelling interests trump and when.  If the issue is, “is 
there any model that would justify refusing to sell an in embellished 
product--say a cupcake--to someone whose potential use--at a same sex wedding, 
at a tryst with one's heterosexual lover, or whatever--you disapproved of on 
religious grounds?,” I would think that the orthodox model would eminently 
justify it, unless one thinks there is this sort of compelling interest in 
mandating equal treatment in all situations.

   This is also related, of course, to the 1990s litigation over 
landlord refusals to rent to unmarried couples, which led to different results 
in different states.

   Eugene

From: 
religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Levinson, Sanford V
Sent: Thursday, August 13, 2015 10:58 PM
To: Law & Religion issues for Law Academics
Subject: Re: Colorado Cakeshop decision

This is an interesting example. (And I thank Eugene for his typically 
thoughtful answer.)  Can one distinguish between the illegitimate direct use of 
the product (to kill human beings) and the mere fact that the cupcake will be 
eaten at a wedding (or trust)?  Would we be comfortable if the single grocer in 
town refused to sell food to someone known to sympathize with the KKK?  I 
assume, though, that the civil rights laws was prohibits discriminating on 
grounds of race etc., and this should hold for sexual orientation as well.

Sandy

Sent f

RE: Colorado Cakeshop decision

[Volokh, Eugene]

   As I understand the orthodox (with a lower-case "o") 
understanding of religious exemption doctrine, religious objectors are entitled 
to exemptions from (at least) laws that require them to do things that they 
sincerely view as sinful, unless granting the exemption would necessarily 
substantially undermine a compelling government interest.

   1.  If this is so, then I don't think that it matters whether 
the sin is providing materials that one sincerely believes are used in killing 
human beings, or providing materials that one sincerely believes are used in 
other sinful things.  If a Muslim or Jewish supplier doesn't want to sell 
products to a pork farm (I'm not sure that this is standard Muslim or Jewish 
doctrine, but imagine someone who takes that view), I don't see why he should 
be denied an exemption that the pacifist widget maker or the anti-abortion deli 
owner is granted.  Likewise if someone doesn't want to sell products that would 
be used in a Black Mass or in a wedding of a divorced person or in a same-sex 
wedding.

   2.  The "single grocer in town" hypothetical may be relevant to 
the compelling government interest inquiry - maybe one could argue that the 
government has a compelling interest in making sure that everyone has access to 
food without having to drive to the next town, and therefore requiring the 
grocer to sell to the KKK sympathizers, or for that matter to sell food that he 
knows will be used at the KKK picnic.  But in the much more typical town in 
which there are many grocers, most of which are quite happy to sell to anyone 
who has the money, denying the exemption isn't necessary to serve the 
government interest.

   3.  Of course, there is also the argument that there is a 
compelling interest in making sure that no customer is ever rejected by any 
provider for what one sees as improper reasons.  I'm not sure I'm persuaded by 
this argument as a general matter, but I understand it.  Still, that's a 
question of what compelling interests trump and when.  If the issue is, "is 
there any model that would justify refusing to sell an in embellished 
product--say a cupcake--to someone whose potential use--at a same sex wedding, 
at a tryst with one's heterosexual lover, or whatever--you disapproved of on 
religious grounds?," I would think that the orthodox model would eminently 
justify it, unless one thinks there is this sort of compelling interest in 
mandating equal treatment in all situations.

   This is also related, of course, to the 1990s litigation over 
landlord refusals to rent to unmarried couples, which led to different results 
in different states.

   Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Levinson, Sanford V
Sent: Thursday, August 13, 2015 10:58 PM
To: Law & Religion issues for Law Academics
Subject: Re: Colorado Cakeshop decision

This is an interesting example. (And I thank Eugene for his typically 
thoughtful answer.)  Can one distinguish between the illegitimate direct use of 
the product (to kill human beings) and the mere fact that the cupcake will be 
eaten at a wedding (or trust)?  Would we be comfortable if the single grocer in 
town refused to sell food to someone known to sympathize with the KKK?  I 
assume, though, that the civil rights laws was prohibits discriminating on 
grounds of race etc., and this should hold for sexual orientation as well.

Sandy

Sent from my iPhone

On Aug 13, 2015, at 7:25 PM, K Chen mailto:tzn...@gmail.com>> 
wrote:
The various pharmaceutical companies refusing to sell certain drugs to death 
penalty states come to mind.

-Kevin Chen

On Thu, Aug 13, 2015 at 7:51 PM, Volokh, Eugene 
mailto:vol...@law.ucla.edu>> wrote:
   Sure, why not?  Say a grape grower refuses to sell to 
winemakers, or a pacifist widget maker refuses to sell to military contractors, 
or a restaurant refuses to deliver to abortion clinics?  See Rasmussen v. Glass 
(Minn. Ct. App. 1993), 
https://scholar.google.com/scholar_case?case=648897692635049631, which holds 
that, even if a city ordinance banning discrimination based on "creed" required 
restaurants to deliver to abortion clinics, there had to be a religious 
exemption from such an ordinance.  "Under the provisions of the Minneapolis 
ordinance, relator Glass [owner of the Beach Club Deli] has two choices. He can 
either associate with an entity that engages in conduct which he finds to be 
morally offensive [delivering to abortion clinics], thus compromising his 
conscience, or he can refuse and be found guilty of discrimination and fined."

   Now these have to do with objections to sales to businesses, not 
sales to individuals - but I can't see why they would be different for RFRA / 
state Free Exercise Clause purposes.  As to how the information would be 
obtained, I take it that many a business wouldn't work very ha

RE: Colorado Cakeshop decision

[Marc Stern]

Many years ago , a German style restaurant in California was sued under the 
Unruh Act(California's public accommodation law) for
excluding a neo-Nazi group which was seeking to trade on the ethnic cuisine to 
enhance its own legitimacy. The restaurant lost at the trial  court. I offered 
to carry the appeal pro bono (on a forced speech theory)  but the  restaurant's 
 insurance company balked at being responsible for additional attorney's fees 
for the plaintiff and the case settled in favor of the neo-Nazis.

Someday someone will write a great article on the influence of insurance 
companies on the course of constitutional law.

Marc D. Stern
General Counsel
AJC
212 891 1480
646 289 2707 (c )
212 891 1495 (f)
ste...@ajc.org
www.ajc.org
Facebook.com/AJCGlobal
Twitter.com/AJCGlobal
[cid:image001.jpg@01D0D66C.3EA30EF0]

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Friedman, Howard M.
Sent: Friday, August 14, 2015 6:21 AM
To: Law & Religion issues for Law Academics
Subject: RE: Colorado Cakeshop decision

A famous example of this many years ago involved the issue of whether Dow 
Chemical should stop selling napalm to the U.S. government for use in the Viet 
Nam War because of the terrible injuries it caused.  Some shareholders 
attempted to stop the company from continuing to manufacture the product. Dow 
argued that it had a moral and political responsibility to continue to furnish 
it in furtherance of government policy, even though the sales were not 
particularly profitable.  This got litigated in the context of an SEC 
shareholder proposal: Medical Committee for Human Rights v SEC 
http://openjurist.org/432/f2d/659/medical-committee-for-human-rights-v-securities-and-exchange-commission

From: 
religionlaw-boun...@lists.ucla.edu 
[religionlaw-boun...@lists.ucla.edu] on behalf of Jean Dudley 
[jean.dud...@gmail.com]
Sent: Friday, August 14, 2015 12:30 AM
To: Law & Religion issues for Law Academics
Subject: Re: Colorado Cakeshop decision
There are moral/ethical dilemmas, and then there are legal ones;  In the case 
of the KKK and selling sheets, it could be argued that a shop owner could 
refuse to sell sheets and pillow cases because a legal argument could be made 
that the act would be complicit (not sure of the terminology here) in illegal 
activity, namely domestic terrorism.  (Yeah, yeah, peaceful protest, heritage 
not hate, blah, blah, blah.  I call BS.  The mere sight of a hooded and robed 
KKK member is terrifying to a significant section of American citizens. It's 
domestic terrorism, whether it is prosecuted or not. If it makes you feel 
better, how about calling it "disturbing the peace"?)

In the case of pharmaceutical companies refusing to sell drugs for execution, 
it could be argued that they would be abetting in an act that is illegal where 
the drugs are made;  if those drugs are being shipped across state lines for 
use in an execution of a prisoner that would not be facing the death penalty in 
the drug manufacturers' home state, isn't that illegal, too?  This one I'll 
admit is a bit blurry.

Then there's the restaurant that refused to provide a public service to a 
clinic that provides safe, legal abortions.  This one is pretty clear cut to 
me; if they can't provide that service to all, they shouldn't be in that 
business.

As a photographer, I've watched stock photographs being used for all sorts of 
things that I find morally repugnant, but alas, are legal;  one case in 
particular sticks in my mind.  A mother brought her daughter in for "modeling" 
photographs, signed a release.  To her horror, her daughter's image was used by 
a "pro-life" group on a poster that read "The most dangerous place for African 
American women is in the womb".  Mother sued and lost.  She'd signed the 
release. The photographer had sold the image to a stock photography business, 
who in turn told it to the "Pro-life" group.

I've seen images of Yosemite in pseudo-scientific text books on "intelligent 
design".  Again, bought and paid for through stock agencies.  That is why I 
donate my Yosemite images to public school teachers who promise not to use them 
to teach creationism or "intelligent design".

These are indeed legal uses of images.  That is why I am not a stock 
photographer.


On Aug 13, 2015, at 7:58 PM, Levinson, Sanford V 
mailto:slevin...@law.utexas.edu>> wrote:

This is an interesting example. (And I thank Eugene for his typically 
thoughtful answer.)  Can one distinguish between the illegitimate direct use of 
the product (to kill human beings) and the mere fact that the cupcake will be 
eaten at a wedding (or trust)?  Would we be comfortable if the single grocer in 
town refused to sell food to someone known to sympathize with the KKK?  I 
assume, th

RE: Colorado Cakeshop decision

[Friedman, Howard M.]

A famous example of this many years ago involved the issue of whether Dow 
Chemical should stop selling napalm to the U.S. government for use in the Viet 
Nam War because of the terrible injuries it caused.  Some shareholders 
attempted to stop the company from continuing to manufacture the product. Dow 
argued that it had a moral and political responsibility to continue to furnish 
it in furtherance of government policy, even though the sales were not 
particularly profitable.  This got litigated in the context of an SEC 
shareholder proposal: Medical Committee for Human Rights v SEC 
http://openjurist.org/432/f2d/659/medical-committee-for-human-rights-v-securities-and-exchange-commission

From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Jean Dudley [jean.dud...@gmail.com]
Sent: Friday, August 14, 2015 12:30 AM
To: Law & Religion issues for Law Academics
Subject: Re: Colorado Cakeshop decision

There are moral/ethical dilemmas, and then there are legal ones;  In the case 
of the KKK and selling sheets, it could be argued that a shop owner could 
refuse to sell sheets and pillow cases because a legal argument could be made 
that the act would be complicit (not sure of the terminology here) in illegal 
activity, namely domestic terrorism.  (Yeah, yeah, peaceful protest, heritage 
not hate, blah, blah, blah.  I call BS.  The mere sight of a hooded and robed 
KKK member is terrifying to a significant section of American citizens. It’s 
domestic terrorism, whether it is prosecuted or not. If it makes you feel 
better, how about calling it “disturbing the peace”?)

In the case of pharmaceutical companies refusing to sell drugs for execution, 
it could be argued that they would be abetting in an act that is illegal where 
the drugs are made;  if those drugs are being shipped across state lines for 
use in an execution of a prisoner that would not be facing the death penalty in 
the drug manufacturers’ home state, isn’t that illegal, too?  This one I’ll 
admit is a bit blurry.

Then there’s the restaurant that refused to provide a public service to a 
clinic that provides safe, legal abortions.  This one is pretty clear cut to 
me; if they can’t provide that service to all, they shouldn’t be in that 
business.

As a photographer, I’ve watched stock photographs being used for all sorts of 
things that I find morally repugnant, but alas, are legal;  one case in 
particular sticks in my mind.  A mother brought her daughter in for “modeling” 
photographs, signed a release.  To her horror, her daughter’s image was used by 
a “pro-life” group on a poster that read “The most dangerous place for African 
American women is in the womb”.  Mother sued and lost.  She’d signed the 
release. The photographer had sold the image to a stock photography business, 
who in turn told it to the “Pro-life” group.

I’ve seen images of Yosemite in pseudo-scientific text books on “intelligent 
design”.  Again, bought and paid for through stock agencies.  That is why I 
donate my Yosemite images to public school teachers who promise not to use them 
to teach creationism or “intelligent design”.

These are indeed legal uses of images.  That is why I am not a stock 
photographer.


On Aug 13, 2015, at 7:58 PM, Levinson, Sanford V 
mailto:slevin...@law.utexas.edu>> wrote:

This is an interesting example. (And I thank Eugene for his typically 
thoughtful answer.)  Can one distinguish between the illegitimate direct use of 
the product (to kill human beings) and the mere fact that the cupcake will be 
eaten at a wedding (or trust)?  Would we be comfortable if the single grocer in 
town refused to sell food to someone known to sympathize with the KKK?  I 
assume, though, that the civil rights laws was prohibits discriminating on 
grounds of race etc., and this should hold for sexual orientation as well.

Sandy

Sent from my iPhone

On Aug 13, 2015, at 7:25 PM, K Chen mailto:tzn...@gmail.com>> 
wrote:

The various pharmaceutical companies refusing to sell certain drugs to death 
penalty states come to mind.

-Kevin Chen

On Thu, Aug 13, 2015 at 7:51 PM, Volokh, Eugene 
mailto:vol...@law.ucla.edu>> wrote:
   Sure, why not?  Say a grape grower refuses to sell to 
winemakers, or a pacifist widget maker refuses to sell to military contractors, 
or a restaurant refuses to deliver to abortion clinics?  See Rasmussen v. Glass 
(Minn. Ct. App. 1993), 
https://scholar.google.com/scholar_case?case=648897692635049631, which holds 
that, even if a city ordinance banning discrimination based on “creed” required 
restaurants to deliver to abortion clinics, there had to be a religious 
exemption from such an ordinance.  “Under the provisions of the Minneapolis 
ordinance, relator Glass [owner of the Beach Club Deli] has two choices. He can 
either associate with an entity that engages in conduct which he finds to be 
morally offensive [delivering to abortion clinics], thus co