Re: Oklahoma bill would protect clergy who won't perform gay marriages
I'll believe this is a serious issue when the Court holds that limiting the priesthood or rabbinate to men violates Title VII, but not a day before. I detect some demagoguery in Oklahoma legislature--shocking I'm sure. Sent from my iPhone On Feb 13, 2015, at 3:53 PM, Brad Pardee bp51...@windstream.netmailto:bp51...@windstream.net wrote: I thought that having nearly ten percent of the legislature oppose it indicates that that the pastors' concerns weren't just products of their imagination, and what nearly ten percent now may grow larger in time as activists and lobbyists play their role in the political process. What I've seen of our legislature here in Nebraska is that, when senators' votes are changed, it seems far more likely that senators who voted with the majority will change rather than one of the minority, which is why I felt it was a serious question. Considering that nearly the entire article as about this piece of legislation and there were no gay rights supporters stating that this proposal was fine and that it was other proposals they would challenge in court, it could be that it is sloppy journalism (not unheared of on Yahoo) or it could be that the gay right supporters included this in the proposals they would challenge. Brad From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Friday, February 13, 2015 3:22 PM To: Law Religion issues for Law Academics Subject: Re: Oklahoma bill would protect clergy who won't perform gay marriages What does it say that seven out of 95 legislators voted against? That this is not a serious question. BTW, the story does not say that supporters of gay rights said they'll challenge the law in the courts if it is passed, indicating that they believe pastors can be forced to perform same sex weddings that violate a church's teaching. What it says is that there are several proposals before the Republican-dominated Oklahoma Legislature intended to protect the interests of people who object to the lifting of the gay marriage ban, and that gay rights supporters have said they would challenge the proposed measures in court if they become law. It does not cite any gay rights supporters as saying they'll sue to require ministers to perform religious weddings for same-sex couples. On Fri, Feb 13, 2015 at 4:13 PM, Brad Pardee bp51...@windstream.netmailto:bp51...@windstream.net wrote: http://news.yahoo.com/oklahoma-bill-protect-clergy-wont-perform-gay-marriages-230731935.html From what I have learned here in my time on this list, I wouldn't think that this law would be necessary because existing law would seem to prevent the government from mandating when churches are required to invoke God's blessing and dictating what churches can include in their moral teaching. However, it says something that a) the pastors felt the protection was required after the ban on same sex marriage was overturned, b) seven legislators opposed providing that protection in the law, and c) supporters of gay rights said they'll challenge the law in the courts if it is passed, indicating that they believe pastors can be forced to perform same sex weddings that violate a church's teaching. Brad Pardee ___ To post, send message to Religionlaw@lists.ucla.edumailto:Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Oklahoma bill would protect clergy who won't perform gay marriages
I think the odds are higher that the electorate of Oklahoma overwhelmingly votes for Elizabeth Warren for President than that both houses of the Oklahoma legislature would approve, and the Oklahoma governor would sign, a bill that requires all clergy in Oklahoma to perform religious weddings for gay and lesbian couples. And the odds are about the same that a court in Oklahoma would construe its public accommodations law --which probably doesn't even protect against sexual orientation discrimination in the first place (I haven't checked)--to require clergy to perform such weddings. On Fri, Feb 13, 2015 at 4:47 PM, Brad Pardee bp51...@windstream.net wrote: I thought that having nearly ten percent of the legislature oppose it indicates that that the pastors' concerns weren't just products of their imagination, and what nearly ten percent now may grow larger in time as activists and lobbyists play their role in the political process. What I've seen of our legislature here in Nebraska is that, when senators' votes are changed, it seems far more likely that senators who voted with the majority will change rather than one of the minority, which is why I felt it was a serious question. Considering that nearly the entire article as about this piece of legislation and there were no gay rights supporters stating that this proposal was fine and that it was other proposals they would challenge in court, it could be that it is sloppy journalism (not unheared of on Yahoo) or it could be that the gay right supporters included this in the proposals they would challenge. Brad *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Marty Lederman *Sent:* Friday, February 13, 2015 3:22 PM *To:* Law Religion issues for Law Academics *Subject:* Re: Oklahoma bill would protect clergy who won't perform gay marriages What does it say that seven out of 95 legislators voted against? That this is not a serious question. BTW, the story does not say that supporters of gay rights said they'll challenge the law in the courts if it is passed, indicating that they believe pastors can be forced to perform same sex weddings that violate a church's teaching. What it says is that there are several proposals before the Republican-dominated Oklahoma Legislature intended to protect the interests of people who object to the lifting of the gay marriage ban, and that gay rights supporters have said they would challenge the proposed measures in court if they become law. It does not cite any gay rights supporters as saying they'll sue to require ministers to perform religious weddings for same-sex couples. On Fri, Feb 13, 2015 at 4:13 PM, Brad Pardee bp51...@windstream.net wrote: http://news.yahoo.com/oklahoma-bill-protect-clergy-wont-perform-gay-marriages-230731935.html From what I have learned here in my time on this list, I wouldn't think that this law would be necessary because existing law would seem to prevent the government from mandating when churches are required to invoke God's blessing and dictating what churches can include in their moral teaching. However, it says something that a) the pastors felt the protection was required after the ban on same sex marriage was overturned, b) seven legislators opposed providing that protection in the law, and c) supporters of gay rights said they'll challenge the law in the courts if it is passed, indicating that they believe pastors can be forced to perform same sex weddings that violate a church's teaching. Brad Pardee ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Oklahoma bill would protect clergy who won't perform gay marriages
Any thoughts on the Coeur d’Alene, Idaho incident in which the City Attorney suggested that a wedding chapel run by two ministers would have to allow same-sex marriages, given a Coeur d’Alene public accommodations ordinance that banned sexual orientation discrimination? See http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/10/22/couer-dalene-city-attorney-confirms-conservative-christian-ministers-wedding-chapel-business-must-provide-same-sex-marriage-ceremonies/ . The same rationale might well apply to a minister who gets paid for officiating just as a side business, even without having a chapel of his own. The city did apparently change its stance, in response to the public outcry, http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/10/24/couer-dalene-apparently-changes-stance-agrees-that-for-profit-chapel-need-not-perform-same-sex-weddings/. But perhaps the Oklahoma Legislature wants to prevent such local decisions from being made, rather than leaving protection against such decision to public pressure or court decision. As to predictions, I wouldn’t have predicted in 1996, when the Defense of Marriage Act was passed, that in 2015 the Court would be quite likely to recognize a constitutional right to same-sex marriage. It might likewise be hard to tell for certain what some Oklahoma cities might do in the coming two decades. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Friday, February 13, 2015 2:39 PM To: Law Religion issues for Law Academics Subject: Re: Oklahoma bill would protect clergy who won't perform gay marriages I think the odds are higher that the electorate of Oklahoma overwhelmingly votes for Elizabeth Warren for President than that both houses of the Oklahoma legislature would approve, and the Oklahoma governor would sign, a bill that requires all clergy in Oklahoma to perform religious weddings for gay and lesbian couples. And the odds are about the same that a court in Oklahoma would construe its public accommodations law --which probably doesn't even protect against sexual orientation discrimination in the first place (I haven't checked)--to require clergy to perform such weddings. On Fri, Feb 13, 2015 at 4:47 PM, Brad Pardee bp51...@windstream.netmailto:bp51...@windstream.net wrote: I thought that having nearly ten percent of the legislature oppose it indicates that that the pastors' concerns weren't just products of their imagination, and what nearly ten percent now may grow larger in time as activists and lobbyists play their role in the political process. What I've seen of our legislature here in Nebraska is that, when senators' votes are changed, it seems far more likely that senators who voted with the majority will change rather than one of the minority, which is why I felt it was a serious question. Considering that nearly the entire article as about this piece of legislation and there were no gay rights supporters stating that this proposal was fine and that it was other proposals they would challenge in court, it could be that it is sloppy journalism (not unheared of on Yahoo) or it could be that the gay right supporters included this in the proposals they would challenge. Brad From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Friday, February 13, 2015 3:22 PM To: Law Religion issues for Law Academics Subject: Re: Oklahoma bill would protect clergy who won't perform gay marriages What does it say that seven out of 95 legislators voted against? That this is not a serious question. BTW, the story does not say that supporters of gay rights said they'll challenge the law in the courts if it is passed, indicating that they believe pastors can be forced to perform same sex weddings that violate a church's teaching. What it says is that there are several proposals before the Republican-dominated Oklahoma Legislature intended to protect the interests of people who object to the lifting of the gay marriage ban, and that gay rights supporters have said they would challenge the proposed measures in court if they become law. It does not cite any gay rights supporters as saying they'll sue to require ministers to perform religious weddings for same-sex couples. On Fri, Feb 13, 2015 at 4:13 PM, Brad Pardee bp51...@windstream.netmailto:bp51...@windstream.net wrote: http://news.yahoo.com/oklahoma-bill-protect-clergy-wont-perform-gay-marriages-230731935.html From what I have learned here in my time on this list, I wouldn't think that this law would be necessary because existing law would seem to prevent the government from mandating when churches are required to invoke God's blessing and dictating what churches can include in their moral teaching. However,
Re: Oklahoma bill would protect clergy who won't perform gay marriages
I think one will see all sorts of errors — like those going the other way in Alabama right now. And like those teachers and administrators who wrongly prohibit kids from private prayer before lunch or from reading the Bible in free reading time. And ironically some of the mistakes will be made because people against gay rights misrepresent what recognition of gay rightss will in fact require — and then when the gay rights come, the misreprentation gets treated as real. Not all that dissimilar from the corporations are people too mistakes made on both sides — they are for some purposes and not others. But they are not treated the same as natural persons with respect to constitutional rights. These mistakes in administering the laws are unavoidable. Would the legislative proposal making clear that the constitutionally required exception applies clarify things and reduce mistakes? I’m not sure that it would, but it might. Steve On Feb 13, 2015, at 5:50 PM, Volokh, Eugene vol...@law.ucla.edu wrote: Any thoughts on the Coeur d’Alene, Idaho incident in which the City Attorney suggested that a wedding chapel run by two ministers would have to allow same-sex marriages, given a Coeur d’Alene public accommodations ordinance that banned sexual orientation discrimination? Seehttp://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/10/22/couer-dalene-city-attorney-confirms-conservative-christian-ministers-wedding-chapel-business-must-provide-same-sex-marriage-ceremonies/ . The same rationale might well apply to a minister who gets paid for officiating just as a side business, even without having a chapel of his own. The city did apparently change its stance, in response to the public outcry,http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/10/24/couer-dalene-apparently-changes-stance-agrees-that-for-profit-chapel-need-not-perform-same-sex-weddings/. But perhaps the Oklahoma Legislature wants to prevent such local decisions from being made, rather than leaving protection against such decision to public pressure or court decision. As to predictions, I wouldn’t have predicted in 1996, when the Defense of Marriage Act was passed, that in 2015 the Court would be quite likely to recognize a constitutional right to same-sex marriage. It might likewise be hard to tell for certain what some Oklahoma cities might do in the coming two decades. Eugene -- Prof. Steven D. Jamar Howard University School of Law vox: 202-806-8017 fax: 202-806-8567 http://sdjlaw.org “It’s not the note you play that’s the wrong note – it’s the note you play afterwards that makes it right or wrong.” Miles Davis ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Oklahoma bill would protect clergy who won't perform gay marriages
Following up on Eugene’s point: Marty and Sandy are basically right, but that doesn’t mean it couldn’t become an issue. If I’m not mistaken, the Obama administration opposed recognition of the ministerial exception (and not just as applied on the facts in Hosanna-Tabor). Some states have antidiscrimination laws that on their face (and probably as correctly interpreted absent a very aggressive reading the other way) provide no exceptions for ministers or churches. Consider the New Mexico Elane Photography case in which creators of celebratory art were penalized for refusing (on sincere religious grounds) to photograph a same-sex ceremony, despite a loosely-drafted state RFRA and despite Supreme Court precedent on compelled speech. State courts, and state and local officials and administrative agencies (e.g., the Coeur d’Alene City Attorney), may take positions quite at odds with popular opinion (and in many cases ought to do so, at least absent valid legislation reflecting that popular opinion). And consider the Bob Jones case, in terms of what could happen at the federal level (which I know the Oklahoma legislature can’t deal with). I testified against a Kansas bill that would have dealt with the marriage facilitation issue in an overbroad and unnecessary way. (But Kansas has a stronger RFRA than New Mexico.) Mark Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Friday, February 13, 2015 2:51 PM To: Law Religion issues for Law Academics Subject: RE: Oklahoma bill would protect clergy who won't perform gay marriages Any thoughts on the Coeur d’Alene, Idaho incident in which the City Attorney suggested that a wedding chapel run by two ministers would have to allow same-sex marriages, given a Coeur d’Alene public accommodations ordinance that banned sexual orientation discrimination? See http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/10/22/couer-dalene-city-attorney-confirms-conservative-christian-ministers-wedding-chapel-business-must-provide-same-sex-marriage-ceremonies/ . The same rationale might well apply to a minister who gets paid for officiating just as a side business, even without having a chapel of his own. The city did apparently change its stance, in response to the public outcry, http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/10/24/couer-dalene-apparently-changes-stance-agrees-that-for-profit-chapel-need-not-perform-same-sex-weddings/. But perhaps the Oklahoma Legislature wants to prevent such local decisions from being made, rather than leaving protection against such decision to public pressure or court decision. As to predictions, I wouldn’t have predicted in 1996, when the Defense of Marriage Act was passed, that in 2015 the Court would be quite likely to recognize a constitutional right to same-sex marriage. It might likewise be hard to tell for certain what some Oklahoma cities might do in the coming two decades. Eugene From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Friday, February 13, 2015 2:39 PM To: Law Religion issues for Law Academics Subject: Re: Oklahoma bill would protect clergy who won't perform gay marriages I think the odds are higher that the electorate of Oklahoma overwhelmingly votes for Elizabeth Warren for President than that both houses of the Oklahoma legislature would approve, and the Oklahoma governor would sign, a bill that requires all clergy in Oklahoma to perform religious weddings for gay and lesbian couples. And the odds are about the same that a court in Oklahoma would construe its public accommodations law --which probably doesn't even protect against sexual orientation discrimination in the first place (I haven't checked)--to require clergy to perform such weddings. On Fri, Feb 13, 2015 at 4:47 PM, Brad Pardee bp51...@windstream.netmailto:bp51...@windstream.net wrote: I thought that having nearly ten percent of the legislature oppose it indicates that that the pastors' concerns weren't just products of their imagination, and what nearly ten percent now may grow larger in time as activists and lobbyists play their role in the political process. What I've seen of our legislature here in Nebraska is that, when senators' votes are changed, it seems far more likely that senators who voted with the majority will change rather than one of the minority, which is why I felt it was a serious question. Considering that nearly the entire article as about this piece of legislation and there were no gay rights supporters stating that this proposal was fine and that it was other proposals they would challenge in court, it could be that it is sloppy journalism (not unheared of on Yahoo) or it could be that the gay
Re: Oklahoma bill would protect clergy who won't perform gay marriages
What does it say that seven out of 95 legislators voted against? That this is not a serious question. BTW, the story does not say that supporters of gay rights said they'll challenge the law in the courts if it is passed, indicating that they believe pastors can be forced to perform same sex weddings that violate a church's teaching. What it says is that there are several proposals before the Republican-dominated Oklahoma Legislature intended to protect the interests of people who object to the lifting of the gay marriage ban, and that gay rights supporters have said they would challenge the proposed measures in court if they become law. It does not cite any gay rights supporters as saying they'll sue to require ministers to perform religious weddings for same-sex couples. On Fri, Feb 13, 2015 at 4:13 PM, Brad Pardee bp51...@windstream.net wrote: http://news.yahoo.com/oklahoma-bill-protect-clergy-wont-perform-gay-marriages-230731935.html From what I have learned here in my time on this list, I wouldn't think that this law would be necessary because existing law would seem to prevent the government from mandating when churches are required to invoke God's blessing and dictating what churches can include in their moral teaching. However, it says something that a) the pastors felt the protection was required after the ban on same sex marriage was overturned, b) seven legislators opposed providing that protection in the law, and c) supporters of gay rights said they'll challenge the law in the courts if it is passed, indicating that they believe pastors can be forced to perform same sex weddings that violate a church's teaching. Brad Pardee ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Oklahoma bill would protect clergy who won't perform gay marriages
http://news.yahoo.com/oklahoma-bill-protect-clergy-wont-perform-gay-marriage s-230731935.html From what I have learned here in my time on this list, I wouldn't think that this law would be necessary because existing law would seem to prevent the government from mandating when churches are required to invoke God's blessing and dictating what churches can include in their moral teaching. However, it says something that a) the pastors felt the protection was required after the ban on same sex marriage was overturned, b) seven legislators opposed providing that protection in the law, and c) supporters of gay rights said they'll challenge the law in the courts if it is passed, indicating that they believe pastors can be forced to perform same sex weddings that violate a church's teaching. Brad Pardee ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Oklahoma bill would protect clergy who won't perform gay marriages
I thought that having nearly ten percent of the legislature oppose it indicates that that the pastors' concerns weren't just products of their imagination, and what nearly ten percent now may grow larger in time as activists and lobbyists play their role in the political process. What I've seen of our legislature here in Nebraska is that, when senators' votes are changed, it seems far more likely that senators who voted with the majority will change rather than one of the minority, which is why I felt it was a serious question. Considering that nearly the entire article as about this piece of legislation and there were no gay rights supporters stating that this proposal was fine and that it was other proposals they would challenge in court, it could be that it is sloppy journalism (not unheared of on Yahoo) or it could be that the gay right supporters included this in the proposals they would challenge. Brad From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Friday, February 13, 2015 3:22 PM To: Law Religion issues for Law Academics Subject: Re: Oklahoma bill would protect clergy who won't perform gay marriages What does it say that seven out of 95 legislators voted against? That this is not a serious question. BTW, the story does not say that supporters of gay rights said they'll challenge the law in the courts if it is passed, indicating that they believe pastors can be forced to perform same sex weddings that violate a church's teaching. What it says is that there are several proposals before the Republican-dominated Oklahoma Legislature intended to protect the interests of people who object to the lifting of the gay marriage ban, and that gay rights supporters have said they would challenge the proposed measures in court if they become law. It does not cite any gay rights supporters as saying they'll sue to require ministers to perform religious weddings for same-sex couples. On Fri, Feb 13, 2015 at 4:13 PM, Brad Pardee bp51...@windstream.net wrote: http://news.yahoo.com/oklahoma-bill-protect-clergy-wont-perform-gay-marriages-230731935.html From what I have learned here in my time on this list, I wouldn't think that this law would be necessary because existing law would seem to prevent the government from mandating when churches are required to invoke God's blessing and dictating what churches can include in their moral teaching. However, it says something that a) the pastors felt the protection was required after the ban on same sex marriage was overturned, b) seven legislators opposed providing that protection in the law, and c) supporters of gay rights said they'll challenge the law in the courts if it is passed, indicating that they believe pastors can be forced to perform same sex weddings that violate a church's teaching. Brad Pardee ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Oklahoma bill would protect clergy who won't perform gay marriages
One interesting question is whether situations like that in Coeur d'Alene -- even assuming they are not adequately addressed by constitutional protections for freedom of association and freedom of religion -- are best addressed statutorily through (1) the definition of places of public accommodation or (2) religious exemptions from antidiscrimination laws. With respect to option #1, although statutory protections have long since supplanted the common law as the primary vehicle for protection against discrimination in places of public accommodation, it might be helpful to consider the scope of the common law rule. Even under the broader of the two leading understandings of the rule -- that it is triggered when a business serves the public generally, regardless of the type of business involved -- the rule would not apply to ministers who provide for-profit wedding services unless those ministers serve the public generally. So, the Las Vegas Elvis Chapel chaplain that generally takes all comers may be covered, but a minister whose wedding business is inherently selective would not necessarily be covered. It could be viewed as an analog to, or a perhaps subset of, the public accommodation/private club distinction. The law has long distinguished between public restaurants, which are covered, and selective private clubs that may nonetheless charge members for food and drink, which are not covered. It may be the case that some current statutes and ordinances are written more broadly than even the broad understanding of the common law -- and thus cover businesses even if they don't hold themselves out to the public generally -- but that still leaves the question of whether the better solution is a more careful definition of public accommodation or separate exemptions. Of course, the serving-the-public-generally/serving-select-individuals distinction will not be sufficient if either (a) one feels that presiding over a wedding is a unique service that -- even when performed for-profit and generally offered to all comers -- it should not be covered by antidiscrimination laws (though, consider the Elvis chaplain who does not want to perform interracial marriages), or (b) one feels that presiding over a wedding *as a religious minister *is such a unique service that -- even when performed for-profit and generally offered to all comers -- it should not be covered by antidiscrimination laws (though, consider if two members of the Restored Church of God in Ohio were to operate a business akin to the Hitching Post business in Coeur d'Alene, marry over 35,000 couples like the Hitching Post ministers, but refuse to perform interracial marriages pursuant to their longstanding and sincere religious belief that God intended the races not to inter-marry). - Jim On Fri, Feb 13, 2015 at 2:50 PM, Volokh, Eugene vol...@law.ucla.edu wrote: Any thoughts on the Coeur d’Alene, Idaho incident in which the City Attorney suggested that a wedding chapel run by two ministers would have to allow same-sex marriages, given a Coeur d’Alene public accommodations ordinance that banned sexual orientation discrimination? See http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/10/22/couer-dalene-city-attorney-confirms-conservative-christian-ministers-wedding-chapel-business-must-provide-same-sex-marriage-ceremonies/ . The same rationale might well apply to a minister who gets paid for officiating just as a side business, even without having a chapel of his own. The city did apparently change its stance, in response to the public outcry, http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/10/24/couer-dalene-apparently-changes-stance-agrees-that-for-profit-chapel-need-not-perform-same-sex-weddings/. But perhaps the Oklahoma Legislature wants to prevent such local decisions from being made, rather than leaving protection against such decision to public pressure or court decision. As to predictions, I wouldn’t have predicted in 1996, when the Defense of Marriage Act was passed, that in 2015 the Court would be quite likely to recognize a constitutional right to same-sex marriage. It might likewise be hard to tell for certain what some Oklahoma cities might do in the coming two decades. Eugene *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Marty Lederman *Sent:* Friday, February 13, 2015 2:39 PM *To:* Law Religion issues for Law Academics *Subject:* Re: Oklahoma bill would protect clergy who won't perform gay marriages I think the odds are higher that the electorate of Oklahoma overwhelmingly votes for Elizabeth Warren for President than that both houses of the Oklahoma legislature would approve, and the Oklahoma governor would sign, a bill that requires all clergy in Oklahoma to perform religious weddings for gay and lesbian couples. And the odds are about the same that a court in Oklahoma would construe its
RE: Oklahoma bill would protect clergy who won't perform gay marriages
The Coeur d’Alene chapel did invite the public generally – just as, to my knowledge, many clergy members are happy to officiate over weddings even for strangers. It’s just that they only want to officiate at weddings that they view as consistent with their beliefs, whether those beliefs forbid interracial marriages, interethnic marriages (e.g., marriages of ethnic Jews and ethnic non-Jews), same-sex marriages, marriages after divorce (even in states that ban marital status discrimination in places of public accommodations). It may well be that some antidiscrimination ordinances forbid such discrimination by clergy, at least ones who charge money and who are willing to marry most people. Indeed, I sense from the tone of Jim’s message that he thinks that some antidiscrimination ordinances should bar such discrimination. But doesn’t that just show that the Oklahoma legislators who take a different view – and who think that ministers should have the right to choose not to conduct ceremonies that they view as unholy, whether or not they charge to conduct such ceremonies – have some legitimate basis for thinking that ministers might some day be covered by such antidiscrimination ordinances (if only in some cities), and should thus get an exemption? Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of James Oleske Sent: Friday, February 13, 2015 4:04 PM To: Law Religion issues for Law Academics Subject: Re: Oklahoma bill would protect clergy who won't perform gay marriages One interesting question is whether situations like that in Coeur d'Alene -- even assuming they are not adequately addressed by constitutional protections for freedom of association and freedom of religion -- are best addressed statutorily through (1) the definition of places of public accommodation or (2) religious exemptions from antidiscrimination laws. With respect to option #1, although statutory protections have long since supplanted the common law as the primary vehicle for protection against discrimination in places of public accommodation, it might be helpful to consider the scope of the common law rule. Even under the broader of the two leading understandings of the rule -- that it is triggered when a business serves the public generally, regardless of the type of business involved -- the rule would not apply to ministers who provide for-profit wedding services unless those ministers serve the public generally. So, the Las Vegas Elvis Chapel chaplain that generally takes all comers may be covered, but a minister whose wedding business is inherently selective would not necessarily be covered. It could be viewed as an analog to, or a perhaps subset of, the public accommodation/private club distinction. The law has long distinguished between public restaurants, which are covered, and selective private clubs that may nonetheless charge members for food and drink, which are not covered. It may be the case that some current statutes and ordinances are written more broadly than even the broad understanding of the common law -- and thus cover businesses even if they don't hold themselves out to the public generally -- but that still leaves the question of whether the better solution is a more careful definition of public accommodation or separate exemptions. Of course, the serving-the-public-generally/serving-select-individuals distinction will not be sufficient if either (a) one feels that presiding over a wedding is a unique service that -- even when performed for-profit and generally offered to all comers -- it should not be covered by antidiscrimination laws (though, consider the Elvis chaplain who does not want to perform interracial marriages), or (b) one feels that presiding over a wedding as a religious minister is such a unique service that -- even when performed for-profit and generally offered to all comers -- it should not be covered by antidiscrimination laws (though, consider if two members of the Restored Church of God in Ohio were to operate a business akin to the Hitching Post business in Coeur d'Alene, marry over 35,000 couples like the Hitching Post ministers, but refuse to perform interracial marriages pursuant to their longstanding and sincere religious belief that God intended the races not to inter-marry). - Jim On Fri, Feb 13, 2015 at 2:50 PM, Volokh, Eugene vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote: Any thoughts on the Coeur d’Alene, Idaho incident in which the City Attorney suggested that a wedding chapel run by two ministers would have to allow same-sex marriages, given a Coeur d’Alene public accommodations ordinance that banned sexual orientation discrimination? See
The racist prostitute hypothetical
I've been thinking about a little thought experiment, and I thought I'd run it past this list to see whether people see it as helpful. Imagine a state in which prostitution is legalized. A prostitute offers her services to the general public (perhaps through a web site, which as I understand it is not uncommon). She is generally not very selective, because it's just business. But she doesn't like black people. A black would-be customer feels understandably insulted by this, so he sues her for discrimination in public accommodations. And the state law does cover all businesses, bricks and mortar or not, that provide goods or services to the general public. (That, after all, is the sort of law that covers bakers, wedding photographers, and perhaps ministers who charge for their services.) My inclination is that the prostitute should have an absolute right to discriminate on any basis she wants, whether it's race, religion, marital status, age, or whatever else. And that is true even though she charges money, and generally provides her services to everyone. (I say she and he in this example, but of course the same would apply regardless of the sex or sexual orientation of the parties.) The choice of whom to have sex with is a personal choice, even when done commercially, and no-one should have to have sex with someone they don't want to have sex with - on pain of either facing a fine or having to quit one's chosen line of business - no matter how many for-pay partners they might have. Are people on this list with me so far? Now the next step: I think that, while sexual conduct should involve a right to choose for particular reasons having to do with bodily autonomy, some other conduct should involve a similar right to choose for other reasons. Religious autonomy, intellectual/expressive autonomy, and personal/familial autonomy are examples of that. Forcing a member of the clergy to perform a marriage he views as unholy, on pain of having to surrender his livelihood (or even a major outside source of income) strikes me as wrong in a way similar to forcing a prostitute to engage in a sexual transaction that she views as repulsive (even if we don't at all share her judgment about the repulsiveness). Naturally, the similarity is distinctly limited: but it is present in the way important here, which is that people should remain autonomous in their religious behavior as well as their sexual behavior. I would say the same about, for instance, a freelance writer who is willing to serve most customers, but who refuses to write press releases for the Church of Scientology (notwithstanding a ban on religious discrimination in public accommodations), or a singer who refuses to sing songs praising a same-sex married couple, or a wedding photographer who refuses to create photographs that portray as beautiful and sacred something she views as sinful. Again, there should be a zone of intellectual/expressive autonomy in which people should be free to choose what expressive works to create and what not to create (and for whom), even if they do it for a living. And I would say the same about certain zones of personal and family life, such as choosing whom to rent a room in one's apartment (see the Ninth Circuit Roommates.com case) or whom to hire as a nanny for one's children. Naturally, I agree that people may have different views of where that zone of autonomy and choice should end. Some might, for instance, say that it applies to sexual autonomy but not religious, intellectual, or family/housemate autonomy. Or some might say that it applies to some kinds of intellectual autonomy (e.g., the writer and maybe the singer) but not others (e.g., the photographer), because some forms of creation of speech are more intellectually significant than others. But if I'm right about the racist prostitute, then the one thing that we can't say is that, just because one opens up a business in which one generally serves all members of the public who are willing to pay, one is necessarily subject to antidiscrimination law (even as to race discrimination). And if I'm right that choices about engaging in religious ceremonies are as significant - albeit significant in a different way - as choices about engaging in sexual transactions, then the Coeur d'Alene City Attorney's position is mistaken. Does that make sense? Eugene ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can
Combined Thread on Civil Rights Laws: Libertarian Definitional Limits or Religious Exemptions?
Given the overlap between Eugene's two most recent messages -- one on the Oklahoma bill thread and the other offering the new racist prostitute hypothetical -- I thought it might be helpful to put them both in one thread. Eugene's messages raise precisely the question I had been hoping to raise: When we are debating the reach of public accommodations laws to service providers that are perceived to be engaged in intimate services, should the discussion be about (1) limiting the reach of civil rights laws to preserve a sphere of personal privacy, regardless of the type of discrimination at issue, or (2) religious exemptions designed to allow one particular type of discrimination. If I am reading him correctly, Eugene is making an argument under approach #1. And although I might draw the privacy line in different places than Eugene does in certain cases, I would also prefer to proceed under approach #1. That is, we should decide what situations are sufficiently intimate and private in nature that we are willing to recognize an absolute right to discriminate on any basis she wants, whether it’s race, religion, marital status, age, or whatever else, and we would then limit the reach of the civil rights laws accordingly. Some of these areas are already established, or assumed to be established, by constitutional doctrine (clergy members performing wedding ceremonies, people choosing their dinner guests). Others are established by statute (Mrs. Murphy). And yet others could be added by statute. But wherever we draw the line, proceeding under approach #1 rather than approach #2 avoids the problem of statutes distinguishing between reasonable religious discrimination and unreasonable religious discrimination (for example, the proposal that would allow small for-profit vendors, employers, and landlords to withhold marriage-related services and benefits from same-sex couples, but not interracial couples). And it also avoids the equal protection implications of approach #2. One final note: Eugene writes that he sense[s] from the tone of Jim's message that he thinks some antidiscrimination statutes *should *bar discrimination by clergy in performing weddings. I did not intend to convey that impression. I have always assumed that clergy are protected by the First Amendment in choosing who to marry. But that assumption was based on the fact that, prior to the Coeur d'Alene case, I was not aware of religious ministers running for-profit, roadside wedding-ceremony businesses, at least outside of Vegas. And I never really gave the Vegas scenario (assuming some of the chaplains at some of the roadside chapels there are sincere religious ministers) much thought. Because the situation of religious ministers performing weddings for profit is a new one for me, my hypotheticals using the example of interracial couples were not intended to argue that antidiscrimination laws *should* apply; they were intended to explore *whether and where *we are willing to have them *not* apply by highlighting the consequences of that choice. Because, like Eugene, I think the task is to identify areas where we will preclude application of the civil rights laws altogether, not to identify areas where we will selectively preclude application of the civil rights laws with regard to discrimination against certain groups. - Jim *EUGENE'S EARLIER MESSAGES:* *Message from Racist Prostitute Thread:* I’ve been thinking about a little thought experiment, and I thought I’d run it past this list to see whether people see it as helpful. Imagine a state in which prostitution is legalized. A prostitute offers her services to the general public (perhaps through a web site, which as I understand it is not uncommon). She is generally not very selective, because it’s just business. But she doesn’t like black people. A black would-be customer feels understandably insulted by this, so he sues her for discrimination in public accommodations. And the state law does cover all businesses, bricks and mortar or not, that provide goods or services to the general public. (That, after all, is the sort of law that covers bakers, wedding photographers, and perhaps ministers who charge for their services.) My inclination is that the prostitute should have an absolute right to discriminate on any basis she wants, whether it’s race, religion, marital status, age, or whatever else. And that is true even though she charges money, and generally provides her services to everyone. (I say “she” and “he” in this example, but of course the same would apply regardless of the sex or sexual orientation of the parties.) The choice of whom to have sex with is a personal choice, even when done commercially, and no-one should have to have sex with someone they don’t want to have sex with – on pain of either facing a fine or having to quit one’s chosen line of business – no matter how many for-pay partners they might have. Are people on
