Re: Report on Draft Language of Indiana Fix
That is not an adequate fix. What if an employer in Indianapolis, relying on RFRA, refuses to provide spousal benefits for a same sex spouse? What if a vendor in Indianapolis refuses on religious grounds to serve a Muslim or an atheist? If the state legislature wants to assure everyone that the RFRA cannot be a defense to a discrimination claim or charge, they have to carve out all relevant anti-discrimination laws. That is not difficult to do. See this story out of Georgia, where the same fight is taking place, this week: http://politics.blog.ajc.com/2015/03/30/defusing-the-religious-liberty-fight-part-ii/ On Wed, Apr 1, 2015 at 11:38 AM, James Oleske jole...@lclark.edu wrote: From the Indianapolis Star, which says it has obtained the language that is being presented to the Governor today: *** The clarification would say that the new religious freedom law does not authorize a provider – including businesses or individuals -- to refuse to offer or provide its services, facilities, goods, or public accommodation to any member of the public based on sexual orientation or gender identity. The proposed language exempts churches or other nonprofit religious organizations -- including affiliated schools – from the definition of provider. http://www.indystar.com/story/news/politics/2015/04/01/indiana-rfra-deal-sets-limited-protections-for-lgbt/70766920/ *** ___ 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. -- Ira C. Lupu F. Elwood Eleanor Davis Professor of Law, Emeritus George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 Co-author (with Professor Robert Tuttle) of Secular Government, Religious People ( Wm. B. Eerdmans Pub. Co., 2014)) My SSRN papers are here: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg ___ 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: Report on Draft Language of Indiana Fix
Based on that account, the fix would not cover, e.g., employment discrimination, even by for-profit employers. And even in the context of customers, it might allow employers to assert the right to discriminate not on the basis of an individual's sexual orientation or gender identity, but instead because the person married a person of the same sex. On Wed, Apr 1, 2015 at 11:38 AM, James Oleske jole...@lclark.edu wrote: From the Indianapolis Star, which says it has obtained the language that is being presented to the Governor today: *** The clarification would say that the new religious freedom law does not authorize a provider – including businesses or individuals -- to refuse to offer or provide its services, facilities, goods, or public accommodation to any member of the public based on sexual orientation or gender identity. The proposed language exempts churches or other nonprofit religious organizations -- including affiliated schools – from the definition of provider. http://www.indystar.com/story/news/politics/2015/04/01/indiana-rfra-deal-sets-limited-protections-for-lgbt/70766920/ *** ___ 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.
Report on Draft Language of Indiana Fix
From the Indianapolis Star, which says it has obtained the language that is being presented to the Governor today: *** The clarification would say that the new religious freedom law does not authorize a provider – including businesses or individuals -- to refuse to offer or provide its services, facilities, goods, or public accommodation to any member of the public based on sexual orientation or gender identity. The proposed language exempts churches or other nonprofit religious organizations -- including affiliated schools – from the definition of provider. http://www.indystar.com/story/news/politics/2015/04/01/indiana-rfra-deal-sets-limited-protections-for-lgbt/70766920/ *** ___ 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: Eugene's Blog Post on Liberals and Exemption Rights
I think the compelled speech issues, re: communicative work like photography, are interesting and sometimes difficult. I address those in an article I will post later this month. All I want to say now is that religious motivation is irrelevant to the compelled speech argument. (See W Va Bd of Educ v. Barnette.) But Mark also say If [harm] depends on the message sent by the refusal, then we have an interesting viewpoint discrimination issue. If, in 1965, Ollie's BBQ had put up a sign in the window that read Federal law says we must serve all, so we will, but n-s are not sincerely welcome, then he would have violated the Public Accommodations title of the Civil Rights Act (he would not have provided full and equal enjoyment of his restaurant without discrimination on the basis of race.) Does Mark or anyone on this list really think that presents a serious First Amendment problem? Ollie can write letters to Congress, and to the newspapers, and put signs on his lawn, all railing against the oppressive Civil Rights Act, but he cannot communicate that directly to customers on his business premises. If it were otherwise, the Act would be gutted entirely. I think that no Justice who has served in the last 50 years would take such a First A claim seriously. On Wed, Apr 1, 2015 at 6:53 PM, Scarberry, Mark mark.scarbe...@pepperdine.edu wrote: I also think the florist and baker examples are weaker for the religious claimant, especially where the flowers and cakes are generic. But what if custom floral arrangements involve artistic choices by the florist? What if the cake is (as some are) a truly creative work of art? And do only high-end bakers get protection from violation of conscience? What if the florist or baker is asked to include particular words or other expressive content in the arrangement or the cake? (This from someone who argued against licensing requirements for sellers of flowers – protectionist provisions for florists who fear grocery stores’ selling of flowers – on the basis that flower arranging is a kind of art that the government has no right to license, other than for health purposes.) What if the custom florist decides to include a lot of black roses in the arrangements? Or just puts the flowers together without using any creativity (so that they look like flowers you would get through 1-800-Flowers)? Can the florist be required to enter into the contract to provide flowers and then be required to follow some sort of industry standard of artistry in arranging the flowers? In the photography example, if the photographer must photograph a ceremony that he or she believes wrong, may the photographer refuse to use the creative skills that would ordinarily be used? (E.g., posing the couple in a particular way, using filters to get a romantic look, telling them to kiss for the photograph, etc.) I suppose that goes with my view that wedding photography is creation of celebratory art, and the First Amendment compelled speech cases prohibit the government from requiring the photographer to create art. On the harm question, of course there is a matter of baseline. Do I harm you by not photographing your ceremony? Or do I benefit you by doing it? If that depends on the message sent by the refusal, then we have an interesting viewpoint discrimination issue. 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 *Levinson, Sanford V *Sent:* Wednesday, April 01, 2015 3:18 PM *To:* Law Religion issues for Law Academics *Subject:* Re: Eugene's Blog Post on Liberals and Exemption Rights I think Prof. Chen is substantially correct, but I believe, more than ever, that it's the kind of problem that can ( and should) be handled outside legal constraints. Why would I want to hire a wedding photographer who so clearly won't view the day as affirmatively special? Ditto the band? But I really can't work up much sympathy for the florist or baker. They should be treated under the general rubric of public accommodations and the Civil Rights Act of 1964. I'm sure there were florists and bakers who objected to mixes-race marriages and could cite the purported curse on Ham. It really doesn't (and shouldn't) matter. Sandy Sent from my iPhone On Apr 1, 2015, at 4:56 PM, K Chen tzn...@gmail.com wrote: As someone putting a wedding together, I can't explain the lack of sympathy for the wedding photographer as anything but thinking that their work is essentially interchangeable. It is not, unfortunately, and it is priced accordingly. Every single photographer of them seems to take their business very, very personally. More to the point, it is a personal, professional service which is by its nature selective compared to the harm done by impersonal corporations excluding goods and services when they otherwise
Re: Eugene's Blog Post on Liberals and Exemption Rights
If the compelled speech argument is constitutionally sufficient, permission to post a disclaiming sign may solve the problem. (It would be like letting a student say aloud I don't mean it after forcing her to recite the Pledge of Allegiance.) If the compelled speech argument is NOT constitutionally sufficient, I think the photographers have no First A right to put up such a sign, though of course the NM legislature could permissibly accommodate the religious objection by permitting a vendor to post such a sign. Away from the business site (on line or physical), the photographer of course is free to express her views on same sex marriage. On Wed, Apr 1, 2015 at 7:37 PM, Scarberry, Mark mark.scarbe...@pepperdine.edu wrote: I don’t have time right now to respond in a substantial way to Chip’s post. Let me just quote this language from the New Mexico Supreme Court’s decision in Elane Photography: “Businesses that choose to be public accommodations must comply with the NMHRA, although such businesses retain their First Amendment rights to express their religious or political beliefs. They may, for example, post a disclaimer on their website or in their studio advertising that they oppose same-sex marriage but that they comply with applicable antidiscrimination laws.” That’s not quite the same as saying that gay couples aren’t welcome, but it’s pretty close. Is the NM court right that the photographers have a 1st Am right to do so? On the question whether religious liberty claims have anything to do with the compelled speech issue, if we believe that the “hybrid rights” part of Smith means anything, it might apply in this kind of case so that the combination of the claims to constitutional protection might create some synergy. 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 *Ira Lupu *Sent:* Wednesday, April 01, 2015 4:22 PM *To:* Law Religion issues for Law Academics *Subject:* Re: Eugene's Blog Post on Liberals and Exemption Rights I think the compelled speech issues, re: communicative work like photography, are interesting and sometimes difficult. I address those in an article I will post later this month. All I want to say now is that religious motivation is irrelevant to the compelled speech argument. (See W Va Bd of Educ v. Barnette.) But Mark also say If [harm] depends on the message sent by the refusal, then we have an interesting viewpoint discrimination issue. If, in 1965, Ollie's BBQ had put up a sign in the window that read Federal law says we must serve all, so we will, but n-s are not sincerely welcome, then he would have violated the Public Accommodations title of the Civil Rights Act (he would not have provided full and equal enjoyment of his restaurant without discrimination on the basis of race.) Does Mark or anyone on this list really think that presents a serious First Amendment problem? Ollie can write letters to Congress, and to the newspapers, and put signs on his lawn, all railing against the oppressive Civil Rights Act, but he cannot communicate that directly to customers on his business premises. If it were otherwise, the Act would be gutted entirely. I think that no Justice who has served in the last 50 years would take such a First A claim seriously. On Wed, Apr 1, 2015 at 6:53 PM, Scarberry, Mark mark.scarbe...@pepperdine.edu wrote: I also think the florist and baker examples are weaker for the religious claimant, especially where the flowers and cakes are generic. But what if custom floral arrangements involve artistic choices by the florist? What if the cake is (as some are) a truly creative work of art? And do only high-end bakers get protection from violation of conscience? What if the florist or baker is asked to include particular words or other expressive content in the arrangement or the cake? (This from someone who argued against licensing requirements for sellers of flowers – protectionist provisions for florists who fear grocery stores’ selling of flowers – on the basis that flower arranging is a kind of art that the government has no right to license, other than for health purposes.) What if the custom florist decides to include a lot of black roses in the arrangements? Or just puts the flowers together without using any creativity (so that they look like flowers you would get through 1-800-Flowers)? Can the florist be required to enter into the contract to provide flowers and then be required to follow some sort of industry standard of artistry in arranging the flowers? In the photography example, if the photographer must photograph a ceremony that he or she believes wrong, may the photographer refuse to use the creative skills that would ordinarily be used? (E.g., posing the couple in a particular way, using
Re: Eugene's Blog Post on Liberals and Exemption Rights
No, I don't think that's OK. But that's a real compelled speech problem, where the student must first utter the Pledge. The wedding vendors do not have to say anything approving about the marriage, or affirm its validity in the eyes of the state or God. They do have to provide goods and services; in the photographer's case, the services include making the wedding look authentic and beautiful, not ugly or false. So the compelled speech concern seems much weaker to me than in Barnette. On Wed, Apr 1, 2015 at 8:53 PM, Scarberry, Mark mark.scarbe...@pepperdine.edu wrote: Apart from the other points with which I disagree: Wow, Chip. You really think it’s OK to make the student recite the Pledge, as long as the student is permitted at the end to say “I don’t mean it”? Can I be required to burn a pinch of incense to the emperor as long as I am permitted afterwards to say that the emperor isn’t really a god? 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 *Ira Lupu *Sent:* Wednesday, April 01, 2015 5:32 PM *To:* Law Religion issues for Law Academics *Subject:* Re: Eugene's Blog Post on Liberals and Exemption Rights If the compelled speech argument is constitutionally sufficient, permission to post a disclaiming sign may solve the problem. (It would be like letting a student say aloud I don't mean it after forcing her to recite the Pledge of Allegiance.) If the compelled speech argument is NOT constitutionally sufficient, I think the photographers have no First A right to put up such a sign, though of course the NM legislature could permissibly accommodate the religious objection by permitting a vendor to post such a sign. Away from the business site (on line or physical), the photographer of course is free to express her views on same sex marriage. On Wed, Apr 1, 2015 at 7:37 PM, Scarberry, Mark mark.scarbe...@pepperdine.edu wrote: I don’t have time right now to respond in a substantial way to Chip’s post. Let me just quote this language from the New Mexico Supreme Court’s decision in Elane Photography: “Businesses that choose to be public accommodations must comply with the NMHRA, although such businesses retain their First Amendment rights to express their religious or political beliefs. They may, for example, post a disclaimer on their website or in their studio advertising that they oppose same-sex marriage but that they comply with applicable antidiscrimination laws.” That’s not quite the same as saying that gay couples aren’t welcome, but it’s pretty close. Is the NM court right that the photographers have a 1st Am right to do so? On the question whether religious liberty claims have anything to do with the compelled speech issue, if we believe that the “hybrid rights” part of Smith means anything, it might apply in this kind of case so that the combination of the claims to constitutional protection might create some synergy. 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 *Ira Lupu *Sent:* Wednesday, April 01, 2015 4:22 PM *To:* Law Religion issues for Law Academics *Subject:* Re: Eugene's Blog Post on Liberals and Exemption Rights I think the compelled speech issues, re: communicative work like photography, are interesting and sometimes difficult. I address those in an article I will post later this month. All I want to say now is that religious motivation is irrelevant to the compelled speech argument. (See W Va Bd of Educ v. Barnette.) But Mark also say If [harm] depends on the message sent by the refusal, then we have an interesting viewpoint discrimination issue. If, in 1965, Ollie's BBQ had put up a sign in the window that read Federal law says we must serve all, so we will, but n-s are not sincerely welcome, then he would have violated the Public Accommodations title of the Civil Rights Act (he would not have provided full and equal enjoyment of his restaurant without discrimination on the basis of race.) Does Mark or anyone on this list really think that presents a serious First Amendment problem? Ollie can write letters to Congress, and to the newspapers, and put signs on his lawn, all railing against the oppressive Civil Rights Act, but he cannot communicate that directly to customers on his business premises. If it were otherwise, the Act would be gutted entirely. I think that no Justice who has served in the last 50 years would take such a First A claim seriously. On Wed, Apr 1, 2015 at 6:53 PM, Scarberry, Mark mark.scarbe...@pepperdine.edu wrote: I also think the florist and baker examples are weaker for the religious claimant, especially where the flowers and cakes are
Re: Eugene's Blog Post on Liberals and Exemption Rights
Thanks, Alan. Speaking again only for myself, I am open to some balancing, not only as to this particular principle (against burden shifting to third parties) but also as a general methodology, as you know. But the conversation is not yet at that point. Right now, the main debate is over whether the principle even exists in constitutional law, and what its most basic applications might be, not over its contours. As a matter of doctrine, the Hobby Lobby Court reaffirmed the principle against burden-shifting in religion accommodations, and Justice Kennedy made it central to his vote, but there is some troubling language in the opinion (see, e.g., footnote 37 and the sharp division between RFRA and pre-Smith cases). As a matter of application, the Hobby Lobby Court did not make its ruling contingent on the absence of harm to third parties. And in fact employees of Hobby Lobby continue to be harmed right now. And as a matter of theory, finally, prominent scholars continue to deny that the principle exists and has legal status, under either free exercise or nonestablishment, despite the fact that the case law in both areas is lopsided in favor of the principle. But again my basic answer is yes, I am open to that approach. On Apr 1, 2015, at 5:46 PM, Alan E Brownstein aebrownst...@ucdavis.edumailto:aebrownst...@ucdavis.edu wrote: I appreciate your point, Nelson. And I think the principle that private citizens should not have to bear the costs associated with other citizens’ religious observance deserves respect. Standing alone, it would often be dispositive. Where we disagree, I think, is that in religious exemption cases I see two principles here that deserve our respect. The one I just quoted above and the principle that the majority and government should not prohibit or burden another citizen's religious observance. I think, you can tell me if I'm wrong, that you would agree that this principle standing alone also deserves respect. If there is no harm to third parties, you would support religious exemptions. Then the question becomes what do we do when these two principles are in conflict with each other. I don't think either trumps the other all of the time. I think as the harm to third parties increases, the principle that citizens should not have to bear the costs associated with the other citizen's religious observance outweighs the religious liberty principle. I understand you to be saying that the religious liberty principle is always trumped in these cases without regard to the magnitude of the costs involved. There are a lot of religious accommodations that result in third parties incurring some cost. A RLUIPA land use accommodation might result in some neighboring homeowner, business or farmer incurring some diminution of value in their property. A public university accommodation shifting move-in day so that it doesn't fall on the Jewish High Holy days may require a shift in the academic calendar that inconveniences the travel plans of specific faculty, students and their families. A court accommodating the religious obligations of a religious attorney or witness may delay or otherwise increase the cost of litigation. A law banning male circumcision exempts Jewish families from its requirements. Does the existence of harm to third parties in these situations and others require the invalidation of all of these accommodations without regard to the magnitude of the harm borne by third parties? Alan From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu on behalf of Nelson Tebbe nelson.te...@brooklaw.edumailto:nelson.te...@brooklaw.edu Sent: Wednesday, April 1, 2015 1:38 PM To: Law Religion issues for Law Academics Subject: Re: Eugene's Blog Post on Liberals and Exemption Rights Alan, I can’t speak for others who have been defending a principle against burden-shifting to third parties, but I do not believe it prohibits religion accommodations that result in costs to the government or to the public. Rather, the principle prohibits government accommodations that shift meaningful costs from religious citizens to other identifiable private citizens. And the reason for this is easy to articulate and deeply rooted — private citizens should not have to bear the costs associated with other citizens’ religious observance. On Apr 1, 2015, at 4:07 PM, Alan E Brownstein aebrownst...@ucdavis.edumailto:aebrownst...@ucdavis.edu wrote: The problem I have with Jim's argument, if I understand him correctly, is that it seems to suggest that no religious exemption can be accepted if it causes any harm to a third party. (I'm not sure if Jim includes the general public or the public fisc in third party.) I think many liberals believe (or at least they used to believe) that rights are expensive political goods. We
Re: Eugene's Blog Post on Liberals and Exemption Rights
You may be right. I was using the term more metaphorically to refer to any business that is open to the public. Sandy Sent from my iPhone On Apr 1, 2015, at 6:48 PM, Richard Friedman rdfrd...@umich.edumailto:rdfrd...@umich.edu wrote: Hi, Sandy. I hope all is well. I'm writing to you off-list, because I haven't followed the entire conversation and may have missed something. But my understanding is that florists and cake-makers (assuming the cakes are not meant to be eaten on premises) are not public accommodations within the meaning of the Civil Rights Act of 1964, though they're covered by many state civil rights acts. Am I in fact missing something? Best, Rich On Wed, Apr 1, 2015 at 6:18 PM, Levinson, Sanford V slevin...@law.utexas.edumailto:slevin...@law.utexas.edu wrote: I think Prof. Chen is substantially correct, but I believe, more than ever, that it's the kind of problem that can ( and should) be handled outside legal constraints. Why would I want to hire a wedding photographer who so clearly won't view the day as affirmatively special? Ditto the band? But I really can't work up much sympathy for the florist or baker. They should be treated under the general rubric of public accommodations and the Civil Rights Act of 1964. I'm sure there were florists and bakers who objected to mixes-race marriages and could cite the purported curse on Ham. It really doesn't (and shouldn't) matter. Sandy Sent from my iPhone On Apr 1, 2015, at 4:56 PM, K Chen tzn...@gmail.commailto:tzn...@gmail.com wrote: As someone putting a wedding together, I can't explain the lack of sympathy for the wedding photographer as anything but thinking that their work is essentially interchangeable. It is not, unfortunately, and it is priced accordingly. Every single photographer of them seems to take their business very, very personally. More to the point, it is a personal, professional service which is by its nature selective compared to the harm done by impersonal corporations excluding goods and services when they otherwise serve the public. A principled difference can be drawn between accommodating personal, inherently selective commercial businesses and businesses that are open to the public at large. The vast majority of commercial transactions are from businesses who sell to the public, or their business community, on a non-discriminatory basis. When such a business denies goods or services to a class of person, that is an inherently political act. Such a businesses is not just refusing the do business with an individual or class, they are making an attempt to exclude them from the definition of the public itself. They are thus doing harm to both individual and society by imposing their will on what constitutes the political community. This harm grows geometrically with each exclusionary actor. Individual consumers on the other hand, are inherently selective. If you need one loaf of bread this week, you will patronize precisely one baker this week. If you need a salary, you will work one, maybe two jobs. The harm of being denied service by a consumer (or laborer) because of their beliefs has a societal harm, if any, nearly indistinguishable to being denied for any other reason. Some services should fall in between. I'm not convinced for the florist and the and the baker, but I'm sympathetic to the photographer, the doctor, the lawyer (ethical obligations notwithstanding) , the political consultant, the ghost writer... I don't know how far that gets liberals of course, but it is a difference beyond mere size and corporate form. Kevin Chen On Wed, Apr 1, 2015 at 2:51 PM, Gaubatz, Derek dgaub...@imb.orgmailto:dgaub...@imb.org wrote: “[l]iberals who opposed Smith in 1990 and supported RFRA in 1993 — including liberal organizations, professors, and politicians — largely continue to support religious exemptions for individuals, while opposing the extension of such exemptions to commercial businesses. I’m not sure I’m seeing the principled distinction. Do not many individuals depend for their livelihood on commercial businesses? Why do liberals see the conscience of individuals like Sherbert or Thomas worthy of protection, but the conscience of an individual photographer, florist, baker, or bed and breakfast owner less worthy of protection?Justice Kagan, at least back in 1996 when she was in the Clinton White House, appeared to recognize that the consciences of individuals operating small commercial businesses was worthy of protection under a RFRA regime. Commenting on the short shrift given to the claim of a Evelyn Smith who, for religious reasons, did not want to rent one of her units to a co-habitating couple, Kagan noted that the court’s reasoning was “outrageous.” She wrote that it was “almost as if a court were to hold that a state law does not impose a substantial burden on religion because the complainant is free to move to another
RE: Eugene's Blog Post on Liberals and Exemption Rights
Sandy: I appreciate your point, but should it be relevant that Title II of the Civil Rights Act of 1964 actually covered a comparatively narrow set of places of public accommodation, and (as best I can tell) didn't apply to retail establishments or service providers such as florists or bakers? Many state laws are broader, to be sure, but if the appeal is to the seminal nature of the federal Civil Rights Act, I'm not sure how far that appeal would take us as to these sorts of businesses. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Levinson, Sanford V Sent: Wednesday, April 01, 2015 3:18 PM To: Law Religion issues for Law Academics Subject: Re: Eugene's Blog Post on Liberals and Exemption Rights I think Prof. Chen is substantially correct, but I believe, more than ever, that it's the kind of problem that can ( and should) be handled outside legal constraints. Why would I want to hire a wedding photographer who so clearly won't view the day as affirmatively special? Ditto the band? But I really can't work up much sympathy for the florist or baker. They should be treated under the general rubric of public accommodations and the Civil Rights Act of 1964. I'm sure there were florists and bakers who objected to mixes-race marriages and could cite the purported curse on Ham. It really doesn't (and shouldn't) matter. Sandy ___ 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: So much for Arkansas RFRA?
The Arkansas Senate passed a new bill tonight, and the House is expected to take it up tomorrow. The text is here: http://www.arkleg.state.ar.us/assembly/2015/2015R/Amendments/sb975-S1.pdf My guess is that the new version of the Arkansas RFRA bill -- which is intended to more closely mirror the federal RFRA than the earlier version of the Arkansas RFRA bill -- will not satisfy most opponents of the earlier bill. A principal source of concern about adopting new state RFRAs today is the Hobby Lobby interpretation of the federal RFRA extending exemption rights to commercial businesses, so mirroring the federal RFRA doesn't do much for the opponents. The question is whether it does enough for Gov. Hutchinson to avoid the Indiana firestorm moving to Arkansas if Indiana adds a civil rights carve-out and Arkansas does not ... - Jim On Wed, Apr 1, 2015 at 10:53 AM, Marty Lederman lederman.ma...@gmail.com wrote: http://www.nytimes.com/2015/04/02/us/arkansas-indiana-religious-freedom-hutchinson-pence.html On Tue, Mar 31, 2015 at 9:39 PM, Friedman, Howard M. howard.fried...@utoledo.edu wrote: The Arkansas legislature today passed a state RFRA. While national media is reporting that the bill is similar to Indiana's, in fact it is broader in several ways. See http://religionclause.blogspot.com/2015/03/arkansas-legislature-passes-rfra-law.html ___ 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. ___ 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: Eugene's Blog Post on Liberals and Exemption Rights
Although it may be awkward to put it this way, my point was not that of the careful lawyer (though I think I can be one when need be :) ), but, rather, appealing to the aspirations underlying the Act. If we were debating the meaning of the 14th Amendment, most (though not all) of us would pay almost no attention to the specific views of the Framers, beginning, of course, with their carefully delineated differentiation of civil, political, and social rights or the assumptions about the continuing validity of segregation, etc. Constitutive statutes like the Civil Rights Act take on a similar life if their own in shaping consciousness, even if there may be a specific exemption for Mrs. Murphy and her boardinghouse. There is a reason that state civil rights statutes are broader. The limitations of 1964 were raw compromises to pick up votes. They scarcely rested on deep principles that were generally accepted. Sandy Sent from my iPhone On Apr 1, 2015, at 8:47 PM, Richard Friedman rdfrd...@umich.edumailto:rdfrd...@umich.edu wrote: But given the way you wrote your post, I don't think you really can, because the decision was pretty deliberate to limit the 1964 Act to a carefully defined list of public accommodations that didn't involve intimate contact -- so no boarding houses, no barbershops, not even most types of retail stores. Somebody (can't remember who) wrote ap iece several years ago emphasizing this. I don't know how universally state laws have filled the gap -- they certainly have to some extent, though I imagine not with respect to boarding houses -- and I suppose there's a national consensus that a barber can't decline to cut a person's hair on account of race, but I don't think you can cite the '64 Act in support of it. On Wed, Apr 1, 2015 at 8:58 PM, Levinson, Sanford V slevin...@law.utexas.edumailto:slevin...@law.utexas.edu wrote: You may be right. I was using the term more metaphorically to refer to any business that is open to the public. Sandy Sent from my iPhone On Apr 1, 2015, at 6:48 PM, Richard Friedman rdfrd...@umich.edumailto:rdfrd...@umich.edu wrote: Hi, Sandy. I hope all is well. I'm writing to you off-list, because I haven't followed the entire conversation and may have missed something. But my understanding is that florists and cake-makers (assuming the cakes are not meant to be eaten on premises) are not public accommodations within the meaning of the Civil Rights Act of 1964, though they're covered by many state civil rights acts. Am I in fact missing something? Best, Rich On Wed, Apr 1, 2015 at 6:18 PM, Levinson, Sanford V slevin...@law.utexas.edumailto:slevin...@law.utexas.edu wrote: I think Prof. Chen is substantially correct, but I believe, more than ever, that it's the kind of problem that can ( and should) be handled outside legal constraints. Why would I want to hire a wedding photographer who so clearly won't view the day as affirmatively special? Ditto the band? But I really can't work up much sympathy for the florist or baker. They should be treated under the general rubric of public accommodations and the Civil Rights Act of 1964. I'm sure there were florists and bakers who objected to mixes-race marriages and could cite the purported curse on Ham. It really doesn't (and shouldn't) matter. Sandy Sent from my iPhone On Apr 1, 2015, at 4:56 PM, K Chen tzn...@gmail.commailto:tzn...@gmail.com wrote: As someone putting a wedding together, I can't explain the lack of sympathy for the wedding photographer as anything but thinking that their work is essentially interchangeable. It is not, unfortunately, and it is priced accordingly. Every single photographer of them seems to take their business very, very personally. More to the point, it is a personal, professional service which is by its nature selective compared to the harm done by impersonal corporations excluding goods and services when they otherwise serve the public. A principled difference can be drawn between accommodating personal, inherently selective commercial businesses and businesses that are open to the public at large. The vast majority of commercial transactions are from businesses who sell to the public, or their business community, on a non-discriminatory basis. When such a business denies goods or services to a class of person, that is an inherently political act. Such a businesses is not just refusing the do business with an individual or class, they are making an attempt to exclude them from the definition of the public itself. They are thus doing harm to both individual and society by imposing their will on what constitutes the political community. This harm grows geometrically with each exclusionary actor. Individual consumers on the other hand, are inherently selective. If you need one loaf of bread this week, you will patronize precisely one baker this week. If you need a salary, you will work one, maybe two jobs. The
RE: Eugene's Blog Post on Liberals and Exemption Rights
I don’t have time right now to respond in a substantial way to Chip’s post. Let me just quote this language from the New Mexico Supreme Court’s decision in Elane Photography: “Businesses that choose to be public accommodations must comply with the NMHRA, although such businesses retain their First Amendment rights to express their religious or political beliefs. They may, for example, post a disclaimer on their website or in their studio advertising that they oppose same-sex marriage but that they comply with applicable antidiscrimination laws.” That’s not quite the same as saying that gay couples aren’t welcome, but it’s pretty close. Is the NM court right that the photographers have a 1st Am right to do so? On the question whether religious liberty claims have anything to do with the compelled speech issue, if we believe that the “hybrid rights” part of Smith means anything, it might apply in this kind of case so that the combination of the claims to constitutional protection might create some synergy. 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 Ira Lupu Sent: Wednesday, April 01, 2015 4:22 PM To: Law Religion issues for Law Academics Subject: Re: Eugene's Blog Post on Liberals and Exemption Rights I think the compelled speech issues, re: communicative work like photography, are interesting and sometimes difficult. I address those in an article I will post later this month. All I want to say now is that religious motivation is irrelevant to the compelled speech argument. (See W Va Bd of Educ v. Barnette.) But Mark also say If [harm] depends on the message sent by the refusal, then we have an interesting viewpoint discrimination issue. If, in 1965, Ollie's BBQ had put up a sign in the window that read Federal law says we must serve all, so we will, but n-s are not sincerely welcome, then he would have violated the Public Accommodations title of the Civil Rights Act (he would not have provided full and equal enjoyment of his restaurant without discrimination on the basis of race.) Does Mark or anyone on this list really think that presents a serious First Amendment problem? Ollie can write letters to Congress, and to the newspapers, and put signs on his lawn, all railing against the oppressive Civil Rights Act, but he cannot communicate that directly to customers on his business premises. If it were otherwise, the Act would be gutted entirely. I think that no Justice who has served in the last 50 years would take such a First A claim seriously. On Wed, Apr 1, 2015 at 6:53 PM, Scarberry, Mark mark.scarbe...@pepperdine.edumailto:mark.scarbe...@pepperdine.edu wrote: I also think the florist and baker examples are weaker for the religious claimant, especially where the flowers and cakes are generic. But what if custom floral arrangements involve artistic choices by the florist? What if the cake is (as some are) a truly creative work of art? And do only high-end bakers get protection from violation of conscience? What if the florist or baker is asked to include particular words or other expressive content in the arrangement or the cake? (This from someone who argued against licensing requirements for sellers of flowers – protectionist provisions for florists who fear grocery stores’ selling of flowers – on the basis that flower arranging is a kind of art that the government has no right to license, other than for health purposes.) What if the custom florist decides to include a lot of black roses in the arrangements? Or just puts the flowers together without using any creativity (so that they look like flowers you would get through 1-800-Flowers)? Can the florist be required to enter into the contract to provide flowers and then be required to follow some sort of industry standard of artistry in arranging the flowers? In the photography example, if the photographer must photograph a ceremony that he or she believes wrong, may the photographer refuse to use the creative skills that would ordinarily be used? (E.g., posing the couple in a particular way, using filters to get a romantic look, telling them to kiss for the photograph, etc.) I suppose that goes with my view that wedding photography is creation of celebratory art, and the First Amendment compelled speech cases prohibit the government from requiring the photographer to create art. On the harm question, of course there is a matter of baseline. Do I harm you by not photographing your ceremony? Or do I benefit you by doing it? If that depends on the message sent by the refusal, then we have an interesting viewpoint discrimination issue. Mark Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or
Re: Eugene's Blog Post on Liberals and Exemption Rights
Chip, Thanks for the explanation, which is helpful. But I want to push a little farther on this concept of dignitary injury. You state that the dignitary injury is more serious because it has wounded the couple with this disrespect. But how far can that argument really go? Are you saying that public non-discrimination laws not only require the provisions of goods and services to all comers, but also require that those services be provided in a way that will be viewed as respectful of the particular beliefs of the customers? If that is the case, does the photographer who has the Piss Christ photograph by Andres Serrano hanging on the wall of their shop (i.e. a photograph which very clearly singles out Christians for disrespect and dignitary injury) also run afoul of public non-discrimination laws even if the photographer is otherwise willing to perform photography services for Christians? Or use the same example but substitute in the cover of the Charlie Hebdo magazine depicting the Prophet Muhammad? Mark pointed it out in several of his later posts, but I'm troubled about how this concept of dignitary injury logically plays out and whether your argument essentially means that anyone involved in businesses which provide public services are required to check their free speech and opinions at the door. There are, after all, many categories of things that a business owner could say which would be gravely disrespectful and injure the dignity of customers (e.g. My are you fat. You are so ugly I can't stand to look at you etc.). The marketplace (particularly in this age of social media) would quickly penalize such disrespect in an economic manner, but I had never viewed it as within the purview of non-discrimination laws to protect citizens from speech that they found disrespectful. I welcome your thoughts. Will Will Esser Charlotte, North Carolina From: Ira Lupu icl...@law.gwu.edu To: Will Esser willes...@yahoo.com; Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Wednesday, April 1, 2015 6:35 PM Subject: Re: Eugene's Blog Post on Liberals and Exemption Rights Thanks for the question, Will. If the kosher butcher gets that exemption, he will sell pork to no one. He never has and never will carry pork in his shop. He also does not sell soda, cars, or wedding cakes. If you want that stuff, you must go elsewhere. Is that a cost to third parties?'' No more than that imposed by any (that is, every) other merchant who sells less than everything. Compare that to a discriminatory refusal to sell. Baker A does sell wedding cakes, but not to same sex couples. Two injuries -- material and dignitary. The material injury is the lost opportunity to buy a cake at the quality and price offered by that baker. Maybe you can do as well or better elsewhere, nearby, or maybe not. The dignitary injury is more serious -- the couple is seeking goods to celebrate one of the most important and special days of their lives. And the baker says, in effect, I do not respect your marriage as a marriage. In my belief system, it is not a marriage at all, because you are of the same sex. (The baker might also think or say that in his view the relationship is disordered, or an abomination, and/or against God's plan, but let's assume he says nothing like that all.) The baker has wounded the couple with this disrespect, and done so in regard to a day that has significant meaning in their lives. Those are the focused, third party harms in the refusal to sell goods or services to some that you sell to others, especially (though not only) for a wedding reception. On Wed, Apr 1, 2015 at 4:38 PM, Will Esser willes...@yahoo.com wrote: Chip, Can you expound on your argument that wedding vendor exemptions from public accommodations laws allow material and dignitary injury to potential customers and that liberals only oppose exemptions that impinge on the welfare of third parties? It seems that both sides agree that the kosher butcher deserves a religious exemption, and yet granting that exemption imposes some cost on third parties (i.e. anyone who wishes to purchase pork must go elsewhere, which could involve multiple trips to different butchers, or may mean spending more time and money to go to a butcher further away). So it's not really that there is no cost to third parties, but perhaps simply a cost which society is more ready to accept (i.e. Go buy your pork somewhere else.) As I understood the third-party harm argument in Hobby Lobby, the argument was that without insurance coverage, female Hobby Lobby employees would be unable to afford coverage of the particular, objectionable contraceptives and therefore the third party harm was equivalent to total lack of access. Given modern changes in societal perspectives, I have not heard the same argument about a total lack of access when it comes to wedding vendors for same-sex
Re: Eugene's Blog Post on Liberals and Exemption Rights
Sandy: the florist who refuses to sell a bouquet for use at a same-sex marriage, who is necessarily condoning the presumptively sinful conduct? I assume you meant to say that the florist would necessarily condone the presumptively sinful conduct if she *did* sell the bouquet to the same-sex couple. If so -- really?! I would think that such a sale would *not* reasonably be viewed as condoning the same-sex marriage even in the absence of an antidiscrimination law requirement . . . and certainly not if it were done solely in order to comply with such a law. On Wed, Apr 1, 2015 at 5:17 PM, Levinson, Sanford V slevin...@law.utexas.edu wrote: Non-Jews are under no obligation not to eat pork (or adhere to almost all of the other 612 mitzvot). So there is no stigma attached to any non-Jew who wants to buy a ham at a kosher butchery. That can't be said with regard to the florist who refuses to sell a bouquet for use at a same-sex marriage, who is necessarily condoning the presumptively sinful conduct. Ironically or not, the only person a Jewish butcher might be upset with is another Jew. This underscores the fact that very few Jewish laws are universal. This is not true of most purported Christian precepts (beginning with the widely shared view among many a Evangelicals that I'm damned for failure to accept the teaching of John 3:16 (which I know by heart having memorized it some 65 years ago in order to earn a Bible certificate from the state of North Carolina). Sandy Sent from my iPhone On Apr 1, 2015, at 3:44 PM, Will Esser willes...@yahoo.com wrote: Chip, Can you expound on your argument that wedding vendor exemptions from public accommodations laws allow material and dignitary injury to potential customers and that liberals only oppose exemptions that impinge on the welfare of third parties? It seems that both sides agree that the kosher butcher deserves a religious exemption, and yet granting that exemption imposes *some* cost on third parties (i.e. anyone who wishes to purchase pork must go elsewhere, which could involve multiple trips to different butchers, or may mean spending more time and money to go to a butcher further away). So it's not really that there is * no* cost to third parties, but perhaps simply a cost which society is more ready to accept (i.e. Go buy your pork somewhere else.) As I understood the third-party harm argument in Hobby Lobby, the argument was that without insurance coverage, female Hobby Lobby employees would be unable to afford coverage of the particular, objectionable contraceptives and therefore the third party harm was equivalent to total lack of access. Given modern changes in societal perspectives, I have not heard the same argument about a total lack of access when it comes to wedding vendors for same-sex wedding ceremonies. Under the assumption the goods and services are otherwise generally available in the marketplace (i.e. there are plenty of wedding photographers, bakers, etc. who would be happy for the business of same-sex weddings), what is the distinguishing factor which causes material and dignitary injury in the wedding vendor exemptions scenario but not in the kosher butcher example? In both, the customers want a service which they can get in the marketplace (although perhaps not from the exact person or place they want it). And in both, the reason for not providing the service is the same (i.e. violation of a sincerely held religious belief). Thanks in advance for clarification. Will Will Esser Charlotte, North Carolina -- *From:* James Oleske jole...@lclark.edu *To:* Law Religion issues for Law Academics religionlaw@lists.ucla.edu *Sent:* Wednesday, April 1, 2015 3:22 PM *Subject:* Re: Eugene's Blog Post on Liberals and Exemption Rights The butcher example Chip gives is why I suggested last spring that the Court might want to read the Lee language not as an absolute rule, but rather, a strong presumption against exemptions in the commercial realm that can be overcome in the very rare case where the basis for the presumption (a third-party harm) does not exist. Alas, the Court instead simply discarded the Lee language wholesale by saying RFRA went further than the pre-Smith law. - Jim On Wed, Apr 1, 2015 at 12:09 PM, Ira Lupu icl...@law.gwu.edu wrote: I do not think most liberals oppose exemptions for businesses per se -- imagine a law that compelled a butcher to carry products in conflict with religious dietary laws to which the butcher and his customers subscribe. Liberals oppose exemptions that impinge on the welfare of third parties -- Hobby Lobby (those female employees still do not have contraceptive coverage) or wedding vendor exemptions from public accommodations laws (those exemptions allow material and dignitary injury to potential customers). U.S. v. Lee involved injury to other family members of Amish
Re: Eugene's Blog Post on Liberals and Exemption Rights
State law definitions of public accommodations are far broader than the federal definition (basically hotels and restaurants) and often do include pretty much any business open to the public. On Thu, 2 Apr 2015 00:58:02 + Levinson, Sanford V slevin...@law.utexas.edu wrote: You may be right. I was using the term more metaphorically to refer to any business that is open to the public. Sandy Sent from my iPhone On Apr 1, 2015, at 6:48 PM, Richard Friedman rdfrd...@umich.edumailto:rdfrd...@umich.edu wrote: Hi, Sandy. I hope all is well. I'm writing to you off-list, because I haven't followed the entire conversation and may have missed something. But my understanding is that florists and cake-makers (assuming the cakes are not meant to be eaten on premises) are not public accommodations within the meaning of the Civil Rights Act of 1964, though they're covered by many state civil rights acts. Am I in fact missing something? Best, Rich On Wed, Apr 1, 2015 at 6:18 PM, Levinson, Sanford V slevin...@law.utexas.edumailto:slevin...@law.utexas.edu wrote: I think Prof. Chen is substantially correct, but I believe, more than ever, that it's the kind of problem that can ( and should) be handled outside legal constraints. Why would I want to hire a wedding photographer who so clearly won't view the day as affirmatively special? Ditto the band? But I really can't work up much sympathy for the florist or baker. They should be treated under the general rubric of public accommodations and the Civil Rights Act of 1964. I'm sure there were florists and bakers who objected to mixes-race marriages and could cite the purported curse on Ham. It really doesn't (and shouldn't) matter. Sandy Sent from my iPhone On Apr 1, 2015, at 4:56 PM, K Chen tzn...@gmail.commailto:tzn...@gmail.com wrote: As someone putting a wedding together, I can't explain the lack of sympathy for the wedding photographer as anything but thinking that their work is essentially interchangeable. It is not, unfortunately, and it is priced accordingly. Every single photographer of them seems to take their business very, very personally. More to the point, it is a personal, professional service which is by its nature selective compared to the harm done by impersonal corporations excluding goods and services when they otherwise serve the public. A principled difference can be drawn between accommodating personal, inherently selective commercial businesses and businesses that are open to the public at large. The vast majority of commercial transactions are from businesses who sell to the public, or their business community, on a non-discriminatory basis. When such a business denies goods or services to a class of person, that is an inherently political act. Such a businesses is not just refusing the do business with an individual or class, they are making an attempt to exclude them from the definition of the public itself. They are thus doing harm to both individual and society by imposing their will on what constitutes the political community. This harm grows geometrically with each exclusionary actor. Individual consumers on the other hand, are inherently selective. If you need one loaf of bread this week, you will patronize precisely one baker this week. If you need a salary, you will work one, maybe two jobs. The harm of being denied service by a consumer (or laborer) because of their beliefs has a societal harm, if any, nearly indistinguishable to being denied for any other reason. Some services should fall in between. I'm not convinced for the florist and the and the baker, but I'm sympathetic to the photographer, the doctor, the lawyer (ethical obligations notwithstanding) , the political consultant, the ghost writer... I don't know how far that gets liberals of course, but it is a difference beyond mere size and corporate form. Kevin Chen On Wed, Apr 1, 2015 at 2:51 PM, Gaubatz, Derek dgaub...@imb.orgmailto:dgaub...@imb.org wrote: “[l]iberals who opposed Smith in 1990 and supported RFRA in 1993 — including liberal organizations, professors, and politicians — largely continue to support religious exemptions for individuals, while opposing the extension of such exemptions to commercial businesses. I’m not sure I’m seeing the principled distinction. Do not many individuals depend for their livelihood on commercial businesses? Why do liberals see the conscience of individuals like Sherbert or Thomas worthy of protection, but the conscience of an individual photographer, florist, baker, or bed and breakfast owner less worthy of protection?Justice Kagan, at least back in 1996 when she was in the Clinton White House, appeared to recognize that the consciences of individuals operating small commercial businesses was worthy of protection under a RFRA regime. Commenting on the short shrift given to the claim of a Evelyn Smith who, for religious reasons, did not want to rent
Re: Eugene's Blog Post on Liberals and Exemption Rights
Well, I thought I was doing this off list and wasn't. Sorry about that! (Could have been worse.) Rich On Wed, Apr 1, 2015 at 9:43 PM, Richard Friedman rdfrd...@umich.edu wrote: But given the way you wrote your post, I don't think you really can, because the decision was pretty deliberate to limit the 1964 Act to a carefully defined list of public accommodations that didn't involve intimate contact -- so no boarding houses, no barbershops, not even most types of retail stores. Somebody (can't remember who) wrote ap iece several years ago emphasizing this. I don't know how universally state laws have filled the gap -- they certainly have to some extent, though I imagine not with respect to boarding houses -- and I suppose there's a national consensus that a barber can't decline to cut a person's hair on account of race, but I don't think you can cite the '64 Act in support of it. On Wed, Apr 1, 2015 at 8:58 PM, Levinson, Sanford V slevin...@law.utexas.edu wrote: You may be right. I was using the term more metaphorically to refer to any business that is open to the public. Sandy Sent from my iPhone On Apr 1, 2015, at 6:48 PM, Richard Friedman rdfrd...@umich.edu wrote: Hi, Sandy. I hope all is well. I'm writing to you off-list, because I haven't followed the entire conversation and may have missed something. But my understanding is that florists and cake-makers (assuming the cakes are not meant to be eaten on premises) are not public accommodations within the meaning of the Civil Rights Act of 1964, though they're covered by many state civil rights acts. Am I in fact missing something? Best, Rich On Wed, Apr 1, 2015 at 6:18 PM, Levinson, Sanford V slevin...@law.utexas.edu wrote: I think Prof. Chen is substantially correct, but I believe, more than ever, that it's the kind of problem that can ( and should) be handled outside legal constraints. Why would I want to hire a wedding photographer who so clearly won't view the day as affirmatively special? Ditto the band? But I really can't work up much sympathy for the florist or baker. They should be treated under the general rubric of public accommodations and the Civil Rights Act of 1964. I'm sure there were florists and bakers who objected to mixes-race marriages and could cite the purported curse on Ham. It really doesn't (and shouldn't) matter. Sandy Sent from my iPhone On Apr 1, 2015, at 4:56 PM, K Chen tzn...@gmail.com wrote: As someone putting a wedding together, I can't explain the lack of sympathy for the wedding photographer as anything but thinking that their work is essentially interchangeable. It is not, unfortunately, and it is priced accordingly. Every single photographer of them seems to take their business very, very personally. More to the point, it is a personal, professional service which is by its nature selective compared to the harm done by impersonal corporations excluding goods and services when they otherwise serve the public. A principled difference can be drawn between accommodating personal, inherently selective commercial businesses and businesses that are open to the public at large. The vast majority of commercial transactions are from businesses who sell to the public, or their business community, on a non-discriminatory basis. When such a business denies goods or services to a class of person, that is an inherently political act. Such a businesses is not just refusing the do business with an individual or class, they are making an attempt to exclude them from *the definition of the public itself. * They are thus doing harm to both individual and society by imposing their will on what constitutes the political community. This harm grows geometrically with each exclusionary actor. Individual consumers on the other hand, are inherently selective. If you need one loaf of bread this week, you will patronize precisely one baker this week. If you need a salary, you will work one, maybe two jobs. The harm of being denied service by a consumer (or laborer) because of their beliefs has a societal harm, if any, nearly indistinguishable to being denied for any other reason. Some services should fall in between. I'm not convinced for the florist and the and the baker, but I'm sympathetic to the photographer, the doctor, the lawyer (ethical obligations notwithstanding) , the political consultant, the ghost writer... I don't know how far that gets liberals of course, but it *is* a difference beyond mere size and corporate form. Kevin Chen On Wed, Apr 1, 2015 at 2:51 PM, Gaubatz, Derek dgaub...@imb.org wrote: “[l]iberals who opposed *Smith* in 1990 and supported RFRA in 1993 — including liberal organizations, professors, and politicians — largely continue to support religious exemptions for individuals, while opposing the extension of such exemptions to commercial businesses. I’m not sure I’m seeing the principled
RE: Eugene's Blog Post on Liberals and Exemption Rights
Apart from the other points with which I disagree: Wow, Chip. You really think it’s OK to make the student recite the Pledge, as long as the student is permitted at the end to say “I don’t mean it”? Can I be required to burn a pinch of incense to the emperor as long as I am permitted afterwards to say that the emperor isn’t really a god? 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 Ira Lupu Sent: Wednesday, April 01, 2015 5:32 PM To: Law Religion issues for Law Academics Subject: Re: Eugene's Blog Post on Liberals and Exemption Rights If the compelled speech argument is constitutionally sufficient, permission to post a disclaiming sign may solve the problem. (It would be like letting a student say aloud I don't mean it after forcing her to recite the Pledge of Allegiance.) If the compelled speech argument is NOT constitutionally sufficient, I think the photographers have no First A right to put up such a sign, though of course the NM legislature could permissibly accommodate the religious objection by permitting a vendor to post such a sign. Away from the business site (on line or physical), the photographer of course is free to express her views on same sex marriage. On Wed, Apr 1, 2015 at 7:37 PM, Scarberry, Mark mark.scarbe...@pepperdine.edumailto:mark.scarbe...@pepperdine.edu wrote: I don’t have time right now to respond in a substantial way to Chip’s post. Let me just quote this language from the New Mexico Supreme Court’s decision in Elane Photography: “Businesses that choose to be public accommodations must comply with the NMHRA, although such businesses retain their First Amendment rights to express their religious or political beliefs. They may, for example, post a disclaimer on their website or in their studio advertising that they oppose same-sex marriage but that they comply with applicable antidiscrimination laws.” That’s not quite the same as saying that gay couples aren’t welcome, but it’s pretty close. Is the NM court right that the photographers have a 1st Am right to do so? On the question whether religious liberty claims have anything to do with the compelled speech issue, if we believe that the “hybrid rights” part of Smith means anything, it might apply in this kind of case so that the combination of the claims to constitutional protection might create some synergy. Mark Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law 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 Ira Lupu Sent: Wednesday, April 01, 2015 4:22 PM To: Law Religion issues for Law Academics Subject: Re: Eugene's Blog Post on Liberals and Exemption Rights I think the compelled speech issues, re: communicative work like photography, are interesting and sometimes difficult. I address those in an article I will post later this month. All I want to say now is that religious motivation is irrelevant to the compelled speech argument. (See W Va Bd of Educ v. Barnette.) But Mark also say If [harm] depends on the message sent by the refusal, then we have an interesting viewpoint discrimination issue. If, in 1965, Ollie's BBQ had put up a sign in the window that read Federal law says we must serve all, so we will, but n-s are not sincerely welcome, then he would have violated the Public Accommodations title of the Civil Rights Act (he would not have provided full and equal enjoyment of his restaurant without discrimination on the basis of race.) Does Mark or anyone on this list really think that presents a serious First Amendment problem? Ollie can write letters to Congress, and to the newspapers, and put signs on his lawn, all railing against the oppressive Civil Rights Act, but he cannot communicate that directly to customers on his business premises. If it were otherwise, the Act would be gutted entirely. I think that no Justice who has served in the last 50 years would take such a First A claim seriously. On Wed, Apr 1, 2015 at 6:53 PM, Scarberry, Mark mark.scarbe...@pepperdine.edumailto:mark.scarbe...@pepperdine.edu wrote: I also think the florist and baker examples are weaker for the religious claimant, especially where the flowers and cakes are generic. But what if custom floral arrangements involve artistic choices by the florist? What if the cake is (as some are) a truly creative work of art? And do only high-end bakers get protection from violation of conscience? What if the florist or baker is asked to include particular words or other expressive content in the arrangement or the cake? (This from someone who argued against licensing requirements for sellers of flowers – protectionist provisions for florists who fear grocery stores’ selling of flowers – on the
Re: Eugene's Blog Post on Liberals and Exemption Rights
But given the way you wrote your post, I don't think you really can, because the decision was pretty deliberate to limit the 1964 Act to a carefully defined list of public accommodations that didn't involve intimate contact -- so no boarding houses, no barbershops, not even most types of retail stores. Somebody (can't remember who) wrote ap iece several years ago emphasizing this. I don't know how universally state laws have filled the gap -- they certainly have to some extent, though I imagine not with respect to boarding houses -- and I suppose there's a national consensus that a barber can't decline to cut a person's hair on account of race, but I don't think you can cite the '64 Act in support of it. On Wed, Apr 1, 2015 at 8:58 PM, Levinson, Sanford V slevin...@law.utexas.edu wrote: You may be right. I was using the term more metaphorically to refer to any business that is open to the public. Sandy Sent from my iPhone On Apr 1, 2015, at 6:48 PM, Richard Friedman rdfrd...@umich.edu wrote: Hi, Sandy. I hope all is well. I'm writing to you off-list, because I haven't followed the entire conversation and may have missed something. But my understanding is that florists and cake-makers (assuming the cakes are not meant to be eaten on premises) are not public accommodations within the meaning of the Civil Rights Act of 1964, though they're covered by many state civil rights acts. Am I in fact missing something? Best, Rich On Wed, Apr 1, 2015 at 6:18 PM, Levinson, Sanford V slevin...@law.utexas.edu wrote: I think Prof. Chen is substantially correct, but I believe, more than ever, that it's the kind of problem that can ( and should) be handled outside legal constraints. Why would I want to hire a wedding photographer who so clearly won't view the day as affirmatively special? Ditto the band? But I really can't work up much sympathy for the florist or baker. They should be treated under the general rubric of public accommodations and the Civil Rights Act of 1964. I'm sure there were florists and bakers who objected to mixes-race marriages and could cite the purported curse on Ham. It really doesn't (and shouldn't) matter. Sandy Sent from my iPhone On Apr 1, 2015, at 4:56 PM, K Chen tzn...@gmail.com wrote: As someone putting a wedding together, I can't explain the lack of sympathy for the wedding photographer as anything but thinking that their work is essentially interchangeable. It is not, unfortunately, and it is priced accordingly. Every single photographer of them seems to take their business very, very personally. More to the point, it is a personal, professional service which is by its nature selective compared to the harm done by impersonal corporations excluding goods and services when they otherwise serve the public. A principled difference can be drawn between accommodating personal, inherently selective commercial businesses and businesses that are open to the public at large. The vast majority of commercial transactions are from businesses who sell to the public, or their business community, on a non-discriminatory basis. When such a business denies goods or services to a class of person, that is an inherently political act. Such a businesses is not just refusing the do business with an individual or class, they are making an attempt to exclude them from *the definition of the public itself. * They are thus doing harm to both individual and society by imposing their will on what constitutes the political community. This harm grows geometrically with each exclusionary actor. Individual consumers on the other hand, are inherently selective. If you need one loaf of bread this week, you will patronize precisely one baker this week. If you need a salary, you will work one, maybe two jobs. The harm of being denied service by a consumer (or laborer) because of their beliefs has a societal harm, if any, nearly indistinguishable to being denied for any other reason. Some services should fall in between. I'm not convinced for the florist and the and the baker, but I'm sympathetic to the photographer, the doctor, the lawyer (ethical obligations notwithstanding) , the political consultant, the ghost writer... I don't know how far that gets liberals of course, but it *is* a difference beyond mere size and corporate form. Kevin Chen On Wed, Apr 1, 2015 at 2:51 PM, Gaubatz, Derek dgaub...@imb.org wrote: “[l]iberals who opposed *Smith* in 1990 and supported RFRA in 1993 — including liberal organizations, professors, and politicians — largely continue to support religious exemptions for individuals, while opposing the extension of such exemptions to commercial businesses. I’m not sure I’m seeing the principled distinction. Do not many individuals depend for their livelihood on commercial businesses? Why do liberals see the conscience of individuals like Sherbert or Thomas worthy of protection,
Re: Eugene's Blog Post on Liberals and Exemption Rights
Hi, Sandy. I hope all is well. I'm writing to you off-list, because I haven't followed the entire conversation and may have missed something. But my understanding is that florists and cake-makers (assuming the cakes are not meant to be eaten on premises) are not public accommodations within the meaning of the Civil Rights Act of 1964, though they're covered by many state civil rights acts. Am I in fact missing something? Best, Rich On Wed, Apr 1, 2015 at 6:18 PM, Levinson, Sanford V slevin...@law.utexas.edu wrote: I think Prof. Chen is substantially correct, but I believe, more than ever, that it's the kind of problem that can ( and should) be handled outside legal constraints. Why would I want to hire a wedding photographer who so clearly won't view the day as affirmatively special? Ditto the band? But I really can't work up much sympathy for the florist or baker. They should be treated under the general rubric of public accommodations and the Civil Rights Act of 1964. I'm sure there were florists and bakers who objected to mixes-race marriages and could cite the purported curse on Ham. It really doesn't (and shouldn't) matter. Sandy Sent from my iPhone On Apr 1, 2015, at 4:56 PM, K Chen tzn...@gmail.com wrote: As someone putting a wedding together, I can't explain the lack of sympathy for the wedding photographer as anything but thinking that their work is essentially interchangeable. It is not, unfortunately, and it is priced accordingly. Every single photographer of them seems to take their business very, very personally. More to the point, it is a personal, professional service which is by its nature selective compared to the harm done by impersonal corporations excluding goods and services when they otherwise serve the public. A principled difference can be drawn between accommodating personal, inherently selective commercial businesses and businesses that are open to the public at large. The vast majority of commercial transactions are from businesses who sell to the public, or their business community, on a non-discriminatory basis. When such a business denies goods or services to a class of person, that is an inherently political act. Such a businesses is not just refusing the do business with an individual or class, they are making an attempt to exclude them from *the definition of the public itself. * They are thus doing harm to both individual and society by imposing their will on what constitutes the political community. This harm grows geometrically with each exclusionary actor. Individual consumers on the other hand, are inherently selective. If you need one loaf of bread this week, you will patronize precisely one baker this week. If you need a salary, you will work one, maybe two jobs. The harm of being denied service by a consumer (or laborer) because of their beliefs has a societal harm, if any, nearly indistinguishable to being denied for any other reason. Some services should fall in between. I'm not convinced for the florist and the and the baker, but I'm sympathetic to the photographer, the doctor, the lawyer (ethical obligations notwithstanding) , the political consultant, the ghost writer... I don't know how far that gets liberals of course, but it *is* a difference beyond mere size and corporate form. Kevin Chen On Wed, Apr 1, 2015 at 2:51 PM, Gaubatz, Derek dgaub...@imb.org wrote: “[l]iberals who opposed *Smith* in 1990 and supported RFRA in 1993 — including liberal organizations, professors, and politicians — largely continue to support religious exemptions for individuals, while opposing the extension of such exemptions to commercial businesses. I’m not sure I’m seeing the principled distinction. Do not many individuals depend for their livelihood on commercial businesses? Why do liberals see the conscience of individuals like Sherbert or Thomas worthy of protection, but the conscience of an individual photographer, florist, baker, or bed and breakfast owner less worthy of protection?Justice Kagan, at least back in 1996 when she was in the Clinton White House, appeared to recognize that the consciences of individuals operating small commercial businesses was worthy of protection under a RFRA regime. Commenting on the short shrift given to the claim of a Evelyn Smith who, for religious reasons, did not want to rent one of her units to a co-habitating couple, Kagan noted that the court’s reasoning was “outrageous.” She wrote that it was “almost as if a court were to hold that a state law does not impose a substantial burden on religion because the complainant is free to move to another state.” http://www.brookings.edu/research/papers/2010/06/23-kagan-rogers *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *James Oleske *Sent:* Wednesday, April 01, 2015 2:25 PM *To:* Law Religion issues for Law Academics
So much for Arkansas RFRA?
http://www.nytimes.com/2015/04/02/us/arkansas-indiana-religious-freedom-hutchinson-pence.html On Tue, Mar 31, 2015 at 9:39 PM, Friedman, Howard M. howard.fried...@utoledo.edu wrote: The Arkansas legislature today passed a state RFRA. While national media is reporting that the bill is similar to Indiana's, in fact it is broader in several ways. See http://religionclause.blogspot.com/2015/03/arkansas-legislature-passes-rfra-law.html ___ 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.
Eugene's Blog Post on Liberals and Exemption Rights
Eugene has a new post up on Volokh Conspiracy entitled, Many liberals’ (sensible) retreat from the old Justice Brennan/ACLU position on religious exemptions. The piece is lengthy, and I recommend folks read it in full, but I want to take issue with the following assertion at the heart of Eugene's analysis: Yes, religious objectors can use these RFRAs to try to get exemptions from antidiscrimination laws. But religious objectors could have done the same under the Sherbert-era Free Exercise Clause that the ACLU had long championed. http://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/04/01/many-liberals-sensible-retreat-from-the-old-justice-brennanaclu-position-on-religious-exemptions/ Insofar as we're talking about discrimination in the commercial marketplace, which is the context generating almost all of the liberal concerns about exemptions today, I have to disagree with Eugene's characterization of the law in the Sherbert era. Indeed, I make precisely the opposite argument at length in Part II of the following piece: http://harvardlawreview.org/2015/01/the-born-again-champion-of-conscience/ (The Real Issue: The Unprecedented Expansion of Exemption Rights into the Commercial Realm). Nowhere in his post does Eugene acknowledge either United States v. Lee, which is the only Sherbert-era case in which the Court explicitly addressed the issue of commercial exemptions, or Piggie Park, where the Court dismissed a commercial businesses' claim for an exemption from an antidiscrimination law as patently frivolous. Instead, Eugene refers to Justice Brennan's pre-Sherbert dissenting opinion in Crown. Whatever Justice Brennan's views in 1961, it is difficult to understand how they are a better representation of the Sherbert-era law than the following explicit statement of the Court in Lee, which was joined by Justice Brennan (as was Piggie Park): When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity. Granting an exemption from social security taxes to an employer operates to impose the employer's religious faith on the employees. Accordingly, I don't think the ACLU's current position can be accurately described as a retreat from their support of Sherbert-era exemption rights. As Eugene notes in his post, the ACLU still opposes Smith and supports exemption rights outside the commercial context. As I note in my piece, this is also true of Americans United and the Brennan Center. The strong opposition of those organizations to extending exemption rights into the for-profit commercial realm has sometimes been misread as a reversal of their position on exemption rights in general (indeed, I myself have made that mistake in the past), but as I detail in the piece cited above, an examination of the full record shows that [l]iberals who opposed *Smith* in 1990 and supported RFRA in 1993 — including liberal organizations, professors, and politicians — largely continue to support religious exemptions for individuals, while opposing the extension of such exemptions to commercial businesses. - Jim ___ 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: Eugene's Blog Post on Liberals and Exemption Rights
“[l]iberals who opposed Smith in 1990 and supported RFRA in 1993 — including liberal organizations, professors, and politicians — largely continue to support religious exemptions for individuals, while opposing the extension of such exemptions to commercial businesses. I’m not sure I’m seeing the principled distinction. Do not many individuals depend for their livelihood on commercial businesses? Why do liberals see the conscience of individuals like Sherbert or Thomas worthy of protection, but the conscience of an individual photographer, florist, baker, or bed and breakfast owner less worthy of protection?Justice Kagan, at least back in 1996 when she was in the Clinton White House, appeared to recognize that the consciences of individuals operating small commercial businesses was worthy of protection under a RFRA regime. Commenting on the short shrift given to the claim of a Evelyn Smith who, for religious reasons, did not want to rent one of her units to a co-habitating couple, Kagan noted that the court’s reasoning was “outrageous.” She wrote that it was “almost as if a court were to hold that a state law does not impose a substantial burden on religion because the complainant is free to move to another state.” http://www.brookings.edu/research/papers/2010/06/23-kagan-rogers From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of James Oleske Sent: Wednesday, April 01, 2015 2:25 PM To: Law Religion issues for Law Academics Subject: Eugene's Blog Post on Liberals and Exemption Rights Eugene has a new post up on Volokh Conspiracy entitled, Many liberals’ (sensible) retreat from the old Justice Brennan/ACLU position on religious exemptions. The piece is lengthy, and I recommend folks read it in full, but I want to take issue with the following assertion at the heart of Eugene's analysis: Yes, religious objectors can use these RFRAs to try to get exemptions from antidiscrimination laws. But religious objectors could have done the same under the Sherbert-era Free Exercise Clause that the ACLU had long championed. http://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/04/01/many-liberals-sensible-retreat-from-the-old-justice-brennanaclu-position-on-religious-exemptions/ Insofar as we're talking about discrimination in the commercial marketplace, which is the context generating almost all of the liberal concerns about exemptions today, I have to disagree with Eugene's characterization of the law in the Sherbert era. Indeed, I make precisely the opposite argument at length in Part II of the following piece: http://harvardlawreview.org/2015/01/the-born-again-champion-of-conscience/ (The Real Issue: The Unprecedented Expansion of Exemption Rights into the Commercial Realm). Nowhere in his post does Eugene acknowledge either United States v. Lee, which is the only Sherbert-era case in which the Court explicitly addressed the issue of commercial exemptions, or Piggie Park, where the Court dismissed a commercial businesses' claim for an exemption from an antidiscrimination law as patently frivolous. Instead, Eugene refers to Justice Brennan's pre-Sherbert dissenting opinion in Crown. Whatever Justice Brennan's views in 1961, it is difficult to understand how they are a better representation of the Sherbert-era law than the following explicit statement of the Court in Lee, which was joined by Justice Brennan (as was Piggie Park): When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity. Granting an exemption from social security taxes to an employer operates to impose the employer's religious faith on the employees. Accordingly, I don't think the ACLU's current position can be accurately described as a retreat from their support of Sherbert-era exemption rights. As Eugene notes in his post, the ACLU still opposes Smith and supports exemption rights outside the commercial context. As I note in my piece, this is also true of Americans United and the Brennan Center. The strong opposition of those organizations to extending exemption rights into the for-profit commercial realm has sometimes been misread as a reversal of their position on exemption rights in general (indeed, I myself have made that mistake in the past), but as I detail in the piece cited above, an examination of the full record shows that [l]iberals who opposed Smith in 1990 and supported RFRA in 1993 — including liberal organizations, professors, and politicians — largely continue to support religious exemptions for individuals, while opposing the extension of such exemptions to commercial businesses. - Jim ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe,
Re: Eugene's Blog Post on Liberals and Exemption Rights
Beyond the question of commerce/non-commerce, there is a broader distinction between accommodations that harm others and accommodations that do not. This distinction was reflected in the Supreme Court’s opinions in United States v. Lee (among other pre-Smith cases), Cutter v. Wilkinson (upholding RLUIPA against Establishment Clause challenge), and in Justice Ginsburg’s dissent in Hobby Lobby and concurrence in Holt v. Hobbs. Quite apart from Hobby Lobby’s status as a for-profit corporation, we (Americans United) opposed the Hobby Lobby exemption because it had the effect of stripping otherwise available healthcare coverage from employees’ compensation. We would have opposed that exemption even if the company was not a for-profit corporation – there were innocent third parties who were losing an important part of their employment compensation as a result of the exemption. There are some accommodations (a prisoner who wants to wear a beard, an individual who wants to use peyote (or wine, for that matter) as part of a religious ceremony, etc. etc.) that do not harm third parties. There are others (withholding healthcare from others, exemptions from antidiscrimination law) that harm third parties directly. That distinction was respected in the pre-Smith cases and highlighted again in Cutter, but it has come under attack in recent rounds of RFRA litigation. On Apr 1, 2015, at 2:51 PM, Gaubatz, Derek dgaub...@imb.orgmailto:dgaub...@imb.org wrote: “[l]iberals who opposed Smith in 1990 and supported RFRA in 1993 — including liberal organizations, professors, and politicians — largely continue to support religious exemptions for individuals, while opposing the extension of such exemptions to commercial businesses. I’m not sure I’m seeing the principled distinction. Do not many individuals depend for their livelihood on commercial businesses? Why do liberals see the conscience of individuals like Sherbert or Thomas worthy of protection, but the conscience of an individual photographer, florist, baker, or bed and breakfast owner less worthy of protection?Justice Kagan, at least back in 1996 when she was in the Clinton White House, appeared to recognize that the consciences of individuals operating small commercial businesses was worthy of protection under a RFRA regime. Commenting on the short shrift given to the claim of a Evelyn Smith who, for religious reasons, did not want to rent one of her units to a co-habitating couple, Kagan noted that the court’s reasoning was “outrageous.” She wrote that it was “almost as if a court were to hold that a state law does not impose a substantial burden on religion because the complainant is free to move to another state.” http://www.brookings.edu/research/papers/2010/06/23-kagan-rogers From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of James Oleske Sent: Wednesday, April 01, 2015 2:25 PM To: Law Religion issues for Law Academics Subject: Eugene's Blog Post on Liberals and Exemption Rights Eugene has a new post up on Volokh Conspiracy entitled, Many liberals’ (sensible) retreat from the old Justice Brennan/ACLU position on religious exemptions. The piece is lengthy, and I recommend folks read it in full, but I want to take issue with the following assertion at the heart of Eugene's analysis: Yes, religious objectors can use these RFRAs to try to get exemptions from antidiscrimination laws. But religious objectors could have done the same under the Sherbert-era Free Exercise Clause that the ACLU had long championed. http://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/04/01/many-liberals-sensible-retreat-from-the-old-justice-brennanaclu-position-on-religious-exemptions/ Insofar as we're talking about discrimination in the commercial marketplace, which is the context generating almost all of the liberal concerns about exemptions today, I have to disagree with Eugene's characterization of the law in the Sherbert era. Indeed, I make precisely the opposite argument at length in Part II of the following piece:http://harvardlawreview.org/2015/01/the-born-again-champion-of-conscience/ (The Real Issue: The Unprecedented Expansion of Exemption Rights into the Commercial Realm). Nowhere in his post does Eugene acknowledge either United States v. Lee, which is the only Sherbert-era case in which the Court explicitly addressed the issue of commercial exemptions, or Piggie Park, where the Court dismissed a commercial businesses' claim for an exemption from an antidiscrimination law as patently frivolous. Instead, Eugene refers to Justice Brennan's pre-Sherbert dissenting opinion in Crown. Whatever Justice Brennan's views in 1961, it is difficult to understand how they are a better representation of the Sherbert-era law than the following explicit statement of the Court in Lee, which was joined by Justice Brennan
Re: Eugene's Blog Post on Liberals and Exemption Rights
I discuss this question -- which is about the merits of the Sherbert-era distinction between commercial and non-commercial, not the existence of the distinction -- in another recent piece: There was very good reason, however, for the earlier consensus that owners of for-profit businesses must comply with secular laws regardless of their religious beliefs. In the commercial context, religious exemptions will almost always impose burdens on third parties, whether employees, customers, or business competitors. As a result, such exemptions implicate a rule “with a long history in libertarian thought”— that rights are limited by the need for “prevention of tangible harm to specifiable others without their consent.” Even in its pre-*Smith *jurisprudence, which held that exemptions from generally applicable laws were sometimes required, the Supreme Court gave force to this limitation, refusing to exempt an employer from the Social Security system because doing so would “operate[] to impose the employer’s religious faith on the employees.” In so reasoning, the Court was acting in accord with the general principle espoused by Justice Jackson four decades earlier that the “limitations which of necessity bound religious freedom . . . begin to operate whenever activities begin to collide with liberties of others or of the public.” Or as Justice Ginsburg has put it more recently, “with respect to free exercise claims no less than free speech claims, ‘your right to swing your arms ends just where the other man’s nose begins.’” http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2400100 (pp. 39-40) As I discuss in footnote 149 of the same piece, the Court has long made a similar commercial/non-commercial distinction in its free association jurisprudence. - Jim On Wed, Apr 1, 2015 at 11:51 AM, Gaubatz, Derek dgaub...@imb.org wrote: “[l]iberals who opposed *Smith* in 1990 and supported RFRA in 1993 — including liberal organizations, professors, and politicians — largely continue to support religious exemptions for individuals, while opposing the extension of such exemptions to commercial businesses. I’m not sure I’m seeing the principled distinction. Do not many individuals depend for their livelihood on commercial businesses? Why do liberals see the conscience of individuals like Sherbert or Thomas worthy of protection, but the conscience of an individual photographer, florist, baker, or bed and breakfast owner less worthy of protection?Justice Kagan, at least back in 1996 when she was in the Clinton White House, appeared to recognize that the consciences of individuals operating small commercial businesses was worthy of protection under a RFRA regime. Commenting on the short shrift given to the claim of a Evelyn Smith who, for religious reasons, did not want to rent one of her units to a co-habitating couple, Kagan noted that the court’s reasoning was “outrageous.” She wrote that it was “almost as if a court were to hold that a state law does not impose a substantial burden on religion because the complainant is free to move to another state.” http://www.brookings.edu/research/papers/2010/06/23-kagan-rogers *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *James Oleske *Sent:* Wednesday, April 01, 2015 2:25 PM *To:* Law Religion issues for Law Academics *Subject:* Eugene's Blog Post on Liberals and Exemption Rights Eugene has a new post up on Volokh Conspiracy entitled, Many liberals’ (sensible) retreat from the old Justice Brennan/ACLU position on religious exemptions. The piece is lengthy, and I recommend folks read it in full, but I want to take issue with the following assertion at the heart of Eugene's analysis: Yes, religious objectors can use these RFRAs to try to get exemptions from antidiscrimination laws. But religious objectors could have done the same under the Sherbert-era Free Exercise Clause that the ACLU had long championed. http://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/04/01/many-liberals-sensible-retreat-from-the-old-justice-brennanaclu-position-on-religious-exemptions/ Insofar as we're talking about discrimination in the commercial marketplace, which is the context generating almost all of the liberal concerns about exemptions today, I have to disagree with Eugene's characterization of the law in the Sherbert era. Indeed, I make precisely the opposite argument at length in Part II of the following piece: http://harvardlawreview.org/2015/01/the-born-again-champion-of-conscience/ (The Real Issue: The Unprecedented Expansion of Exemption Rights into the Commercial Realm). Nowhere in his post does Eugene acknowledge either United States v. Lee, which is the only Sherbert-era case in which the Court explicitly addressed the issue of commercial exemptions, or Piggie Park, where the Court dismissed a commercial businesses' claim for an exemption from an
Re: Eugene's Blog Post on Liberals and Exemption Rights
The butcher example Chip gives is why I suggested last spring that the Court might want to read the Lee language not as an absolute rule, but rather, a strong presumption against exemptions in the commercial realm that can be overcome in the very rare case where the basis for the presumption (a third-party harm) does not exist. Alas, the Court instead simply discarded the Lee language wholesale by saying RFRA went further than the pre-Smith law. - Jim On Wed, Apr 1, 2015 at 12:09 PM, Ira Lupu icl...@law.gwu.edu wrote: I do not think most liberals oppose exemptions for businesses per se -- imagine a law that compelled a butcher to carry products in conflict with religious dietary laws to which the butcher and his customers subscribe. Liberals oppose exemptions that impinge on the welfare of third parties -- Hobby Lobby (those female employees still do not have contraceptive coverage) or wedding vendor exemptions from public accommodations laws (those exemptions allow material and dignitary injury to potential customers). U.S. v. Lee involved injury to other family members of Amish employees, as well as others in the social insurance pool. On Wed, Apr 1, 2015 at 2:51 PM, Gaubatz, Derek dgaub...@imb.org wrote: “[l]iberals who opposed *Smith* in 1990 and supported RFRA in 1993 — including liberal organizations, professors, and politicians — largely continue to support religious exemptions for individuals, while opposing the extension of such exemptions to commercial businesses. I’m not sure I’m seeing the principled distinction. Do not many individuals depend for their livelihood on commercial businesses? Why do liberals see the conscience of individuals like Sherbert or Thomas worthy of protection, but the conscience of an individual photographer, florist, baker, or bed and breakfast owner less worthy of protection?Justice Kagan, at least back in 1996 when she was in the Clinton White House, appeared to recognize that the consciences of individuals operating small commercial businesses was worthy of protection under a RFRA regime. Commenting on the short shrift given to the claim of a Evelyn Smith who, for religious reasons, did not want to rent one of her units to a co-habitating couple, Kagan noted that the court’s reasoning was “outrageous.” She wrote that it was “almost as if a court were to hold that a state law does not impose a substantial burden on religion because the complainant is free to move to another state.” http://www.brookings.edu/research/papers/2010/06/23-kagan-rogers *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *James Oleske *Sent:* Wednesday, April 01, 2015 2:25 PM *To:* Law Religion issues for Law Academics *Subject:* Eugene's Blog Post on Liberals and Exemption Rights Eugene has a new post up on Volokh Conspiracy entitled, Many liberals’ (sensible) retreat from the old Justice Brennan/ACLU position on religious exemptions. The piece is lengthy, and I recommend folks read it in full, but I want to take issue with the following assertion at the heart of Eugene's analysis: Yes, religious objectors can use these RFRAs to try to get exemptions from antidiscrimination laws. But religious objectors could have done the same under the Sherbert-era Free Exercise Clause that the ACLU had long championed. http://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/04/01/many-liberals-sensible-retreat-from-the-old-justice-brennanaclu-position-on-religious-exemptions/ Insofar as we're talking about discrimination in the commercial marketplace, which is the context generating almost all of the liberal concerns about exemptions today, I have to disagree with Eugene's characterization of the law in the Sherbert era. Indeed, I make precisely the opposite argument at length in Part II of the following piece: http://harvardlawreview.org/2015/01/the-born-again-champion-of-conscience/ (The Real Issue: The Unprecedented Expansion of Exemption Rights into the Commercial Realm). Nowhere in his post does Eugene acknowledge either United States v. Lee, which is the only Sherbert-era case in which the Court explicitly addressed the issue of commercial exemptions, or Piggie Park, where the Court dismissed a commercial businesses' claim for an exemption from an antidiscrimination law as patently frivolous. Instead, Eugene refers to Justice Brennan's pre-Sherbert dissenting opinion in Crown. Whatever Justice Brennan's views in 1961, it is difficult to understand how they are a better representation of the Sherbert-era law than the following explicit statement of the Court in Lee, which was joined by Justice Brennan (as was Piggie Park): When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes
Re: Eugene's Blog Post on Liberals and Exemption Rights
I appreciate your point, Nelson. And I think the principle that private citizens should not have to bear the costs associated with other citizens’ religious observance deserves respect. Standing alone, it would often be dispositive. Where we disagree, I think, is that in religious exemption cases I see two principles here that deserve our respect. The one I just quoted above and the principle that the majority and government should not prohibit or burden another citizen's religious observance. I think, you can tell me if I'm wrong, that you would agree that this principle standing alone also deserves respect. If there is no harm to third parties, you would support religious exemptions. Then the question becomes what do we do when these two principles are in conflict with each other. I don't think either trumps the other all of the time. I think as the harm to third parties increases, the principle that citizens should not have to bear the costs associated with the other citizen's religious observance outweighs the religious liberty principle. I understand you to be saying that the religious liberty principle is always trumped in these cases without regard to the magnitude of the costs involved. There are a lot of religious accommodations that result in third parties incurring some cost. A RLUIPA land use accommodation might result in some neighboring homeowner, business or farmer incurring some diminution of value in their property. A public university accommodation shifting move-in day so that it doesn't fall on the Jewish High Holy days may require a shift in the academic calendar that inconveniences the travel plans of specific faculty, students and their families. A court accommodating the religious obligations of a religious attorney or witness may delay or otherwise increase the cost of litigation. A law banning male circumcision exempts Jewish families from its requirements. Does the existence of harm to third parties in these situations and others require the invalidation of all of these accommodations without regard to the magnitude of the harm borne by third parties? Alan From: religionlaw-boun...@lists.ucla.edu religionlaw-boun...@lists.ucla.edu on behalf of Nelson Tebbe nelson.te...@brooklaw.edu Sent: Wednesday, April 1, 2015 1:38 PM To: Law Religion issues for Law Academics Subject: Re: Eugene's Blog Post on Liberals and Exemption Rights Alan, I can’t speak for others who have been defending a principle against burden-shifting to third parties, but I do not believe it prohibits religion accommodations that result in costs to the government or to the public. Rather, the principle prohibits government accommodations that shift meaningful costs from religious citizens to other identifiable private citizens. And the reason for this is easy to articulate and deeply rooted — private citizens should not have to bear the costs associated with other citizens’ religious observance. On Apr 1, 2015, at 4:07 PM, Alan E Brownstein aebrownst...@ucdavis.edumailto:aebrownst...@ucdavis.edu wrote: The problem I have with Jim's argument, if I understand him correctly, is that it seems to suggest that no religious exemption can be accepted if it causes any harm to a third party. (I'm not sure if Jim includes the general public or the public fisc in third party.) I think many liberals believe (or at least they used to believe) that rights are expensive political goods. We protect them even if we have to incur some cost or harm to third parties or the public in order to do so. Of course, that leaves open the difficult question of determining when the price for protecting a right is too high. (And when we are talking about the right to discriminate in employment or public accommodations, leaving religious institutions aside, the price is almost always too high.) But I see no historical consensus that we only protect freedom of speech or religious liberty when the cost of doing so is zero. That certainly wasn't the understanding of freedom of speech that Justice Brandeis defended in his famous dissents on which contemporary free speech doctrine is based. Indeed, the argument that we should only accept zero cost religious accommodations is not only inconsistent with the way we generally understand rights, it seems inconsistent with the way we evaluate government regulations generally. It is one thing to argue that we should reject a religious exemption when the harm or cost of granting it is too high. That position is consistent with the general cost benefit analysis we use to discuss any government decision. But why should we only accept zero cost religious accommodations? We routinely allow government to enact laws that result in some costs, burdens, and harms to third parties or the general public that serve a variety of purposes. Alan ___ To post, send message to
Re: Eugene's Blog Post on Liberals and Exemption Rights
As someone putting a wedding together, I can't explain the lack of sympathy for the wedding photographer as anything but thinking that their work is essentially interchangeable. It is not, unfortunately, and it is priced accordingly. Every single photographer of them seems to take their business very, very personally. More to the point, it is a personal, professional service which is by its nature selective compared to the harm done by impersonal corporations excluding goods and services when they otherwise serve the public. A principled difference can be drawn between accommodating personal, inherently selective commercial businesses and businesses that are open to the public at large. The vast majority of commercial transactions are from businesses who sell to the public, or their business community, on a non-discriminatory basis. When such a business denies goods or services to a class of person, that is an inherently political act. Such a businesses is not just refusing the do business with an individual or class, they are making an attempt to exclude them from *the definition of the public itself. *They are thus doing harm to both individual and society by imposing their will on what constitutes the political community. This harm grows geometrically with each exclusionary actor. Individual consumers on the other hand, are inherently selective. If you need one loaf of bread this week, you will patronize precisely one baker this week. If you need a salary, you will work one, maybe two jobs. The harm of being denied service by a consumer (or laborer) because of their beliefs has a societal harm, if any, nearly indistinguishable to being denied for any other reason. Some services should fall in between. I'm not convinced for the florist and the and the baker, but I'm sympathetic to the photographer, the doctor, the lawyer (ethical obligations notwithstanding) , the political consultant, the ghost writer... I don't know how far that gets liberals of course, but it *is* a difference beyond mere size and corporate form. Kevin Chen On Wed, Apr 1, 2015 at 2:51 PM, Gaubatz, Derek dgaub...@imb.org wrote: “[l]iberals who opposed *Smith* in 1990 and supported RFRA in 1993 — including liberal organizations, professors, and politicians — largely continue to support religious exemptions for individuals, while opposing the extension of such exemptions to commercial businesses. I’m not sure I’m seeing the principled distinction. Do not many individuals depend for their livelihood on commercial businesses? Why do liberals see the conscience of individuals like Sherbert or Thomas worthy of protection, but the conscience of an individual photographer, florist, baker, or bed and breakfast owner less worthy of protection?Justice Kagan, at least back in 1996 when she was in the Clinton White House, appeared to recognize that the consciences of individuals operating small commercial businesses was worthy of protection under a RFRA regime. Commenting on the short shrift given to the claim of a Evelyn Smith who, for religious reasons, did not want to rent one of her units to a co-habitating couple, Kagan noted that the court’s reasoning was “outrageous.” She wrote that it was “almost as if a court were to hold that a state law does not impose a substantial burden on religion because the complainant is free to move to another state.” http://www.brookings.edu/research/papers/2010/06/23-kagan-rogers *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *James Oleske *Sent:* Wednesday, April 01, 2015 2:25 PM *To:* Law Religion issues for Law Academics *Subject:* Eugene's Blog Post on Liberals and Exemption Rights Eugene has a new post up on Volokh Conspiracy entitled, Many liberals’ (sensible) retreat from the old Justice Brennan/ACLU position on religious exemptions. The piece is lengthy, and I recommend folks read it in full, but I want to take issue with the following assertion at the heart of Eugene's analysis: Yes, religious objectors can use these RFRAs to try to get exemptions from antidiscrimination laws. But religious objectors could have done the same under the Sherbert-era Free Exercise Clause that the ACLU had long championed. http://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/04/01/many-liberals-sensible-retreat-from-the-old-justice-brennanaclu-position-on-religious-exemptions/ Insofar as we're talking about discrimination in the commercial marketplace, which is the context generating almost all of the liberal concerns about exemptions today, I have to disagree with Eugene's characterization of the law in the Sherbert era. Indeed, I make precisely the opposite argument at length in Part II of the following piece: http://harvardlawreview.org/2015/01/the-born-again-champion-of-conscience/ (The Real Issue: The Unprecedented Expansion of Exemption Rights into the Commercial Realm).
Re: Eugene's Blog Post on Liberals and Exemption Rights
private citizens should not have to bear the costs associated with other citizens’ religious observance. Except they do. When my co-workers take time off work to observe religious restrictions, everyone else's work increases. Sometimes noticeably. And trying to sort between meaningful costs and *de minimis* costs is going to be tricky. The difference might be drawn between third parties being forced to subsidize a religious belief (I cannot eat ham, so you all have to chip in for a steak sandwich) and merely being asked to bear with it. Kevin Chen On Wed, Apr 1, 2015 at 4:38 PM, Nelson Tebbe nelson.te...@brooklaw.edu wrote: Alan, I can’t speak for others who have been defending a principle against burden-shifting to third parties, but I do not believe it prohibits religion accommodations that result in costs to the government or to the public. Rather, the principle prohibits government accommodations that shift meaningful costs from religious citizens to other identifiable private citizens. And the reason for this is easy to articulate and deeply rooted — private citizens should not have to bear the costs associated with other citizens’ religious observance. On Apr 1, 2015, at 4:07 PM, Alan E Brownstein aebrownst...@ucdavis.edu wrote: The problem I have with Jim's argument, if I understand him correctly, is that it seems to suggest that no religious exemption can be accepted if it causes any harm to a third party. (I'm not sure if Jim includes the general public or the public fisc in third party.) I think many liberals believe (or at least they used to believe) that rights are expensive political goods. We protect them even if we have to incur some cost or harm to third parties or the public in order to do so. Of course, that leaves open the difficult question of determining when the price for protecting a right is too high. (And when we are talking about the right to discriminate in employment or public accommodations, leaving religious institutions aside, the price is almost always too high.) But I see no historical consensus that we only protect freedom of speech or religious liberty when the cost of doing so is zero. That certainly wasn't the understanding of freedom of speech that Justice Brandeis defended in his famous dissents on which contemporary free speech doctrine is based. Indeed, the argument that we should only accept zero cost religious accommodations is not only inconsistent with the way we generally understand rights, it seems inconsistent with the way we evaluate government regulations generally. It is one thing to argue that we should reject a religious exemption when the harm or cost of granting it is too high. That position is consistent with the general cost benefit analysis we use to discuss any government decision. But why should we only accept zero cost religious accommodations? We routinely allow government to enact laws that result in some costs, burdens, and harms to third parties or the general public that serve a variety of purposes. Alan -- *From:* religionlaw-boun...@lists.ucla.edu religionlaw-boun...@lists.ucla.edu on behalf of James Oleske jole...@lclark.edu *Sent:* Wednesday, April 1, 2015 12:22 PM *To:* Law Religion issues for Law Academics *Subject:* Re: Eugene's Blog Post on Liberals and Exemption Rights The butcher example Chip gives is why I suggested last spring that the Court might want to read the Lee language not as an absolute rule, but rather, a strong presumption against exemptions in the commercial realm that can be overcome in the very rare case where the basis for the presumption (a third-party harm) does not exist. Alas, the Court instead simply discarded the Lee language wholesale by saying RFRA went further than the pre-Smith law. - Jim On Wed, Apr 1, 2015 at 12:09 PM, Ira Lupu icl...@law.gwu.edu wrote: I do not think most liberals oppose exemptions for businesses per se -- imagine a law that compelled a butcher to carry products in conflict with religious dietary laws to which the butcher and his customers subscribe. Liberals oppose exemptions that impinge on the welfare of third parties -- Hobby Lobby (those female employees still do not have contraceptive coverage) or wedding vendor exemptions from public accommodations laws (those exemptions allow material and dignitary injury to potential customers). U.S. v. Lee involved injury to other family members of Amish employees, as well as others in the social insurance pool. ___ 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
Re: Eugene's Blog Post on Liberals and Exemption Rights
I think Prof. Chen is substantially correct, but I believe, more than ever, that it's the kind of problem that can ( and should) be handled outside legal constraints. Why would I want to hire a wedding photographer who so clearly won't view the day as affirmatively special? Ditto the band? But I really can't work up much sympathy for the florist or baker. They should be treated under the general rubric of public accommodations and the Civil Rights Act of 1964. I'm sure there were florists and bakers who objected to mixes-race marriages and could cite the purported curse on Ham. It really doesn't (and shouldn't) matter. Sandy Sent from my iPhone On Apr 1, 2015, at 4:56 PM, K Chen tzn...@gmail.commailto:tzn...@gmail.com wrote: As someone putting a wedding together, I can't explain the lack of sympathy for the wedding photographer as anything but thinking that their work is essentially interchangeable. It is not, unfortunately, and it is priced accordingly. Every single photographer of them seems to take their business very, very personally. More to the point, it is a personal, professional service which is by its nature selective compared to the harm done by impersonal corporations excluding goods and services when they otherwise serve the public. A principled difference can be drawn between accommodating personal, inherently selective commercial businesses and businesses that are open to the public at large. The vast majority of commercial transactions are from businesses who sell to the public, or their business community, on a non-discriminatory basis. When such a business denies goods or services to a class of person, that is an inherently political act. Such a businesses is not just refusing the do business with an individual or class, they are making an attempt to exclude them from the definition of the public itself. They are thus doing harm to both individual and society by imposing their will on what constitutes the political community. This harm grows geometrically with each exclusionary actor. Individual consumers on the other hand, are inherently selective. If you need one loaf of bread this week, you will patronize precisely one baker this week. If you need a salary, you will work one, maybe two jobs. The harm of being denied service by a consumer (or laborer) because of their beliefs has a societal harm, if any, nearly indistinguishable to being denied for any other reason. Some services should fall in between. I'm not convinced for the florist and the and the baker, but I'm sympathetic to the photographer, the doctor, the lawyer (ethical obligations notwithstanding) , the political consultant, the ghost writer... I don't know how far that gets liberals of course, but it is a difference beyond mere size and corporate form. Kevin Chen On Wed, Apr 1, 2015 at 2:51 PM, Gaubatz, Derek dgaub...@imb.orgmailto:dgaub...@imb.org wrote: “[l]iberals who opposed Smith in 1990 and supported RFRA in 1993 — including liberal organizations, professors, and politicians — largely continue to support religious exemptions for individuals, while opposing the extension of such exemptions to commercial businesses. I’m not sure I’m seeing the principled distinction. Do not many individuals depend for their livelihood on commercial businesses? Why do liberals see the conscience of individuals like Sherbert or Thomas worthy of protection, but the conscience of an individual photographer, florist, baker, or bed and breakfast owner less worthy of protection?Justice Kagan, at least back in 1996 when she was in the Clinton White House, appeared to recognize that the consciences of individuals operating small commercial businesses was worthy of protection under a RFRA regime. Commenting on the short shrift given to the claim of a Evelyn Smith who, for religious reasons, did not want to rent one of her units to a co-habitating couple, Kagan noted that the court’s reasoning was “outrageous.” She wrote that it was “almost as if a court were to hold that a state law does not impose a substantial burden on religion because the complainant is free to move to another state.” http://www.brookings.edu/research/papers/2010/06/23-kagan-rogers 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 James Oleske Sent: Wednesday, April 01, 2015 2:25 PM To: Law Religion issues for Law Academics Subject: Eugene's Blog Post on Liberals and Exemption Rights Eugene has a new post up on Volokh Conspiracy entitled, Many liberals’ (sensible) retreat from the old Justice Brennan/ACLU position on religious exemptions. The piece is lengthy, and I recommend folks read it in full, but I want to take issue with the following assertion at the heart of Eugene's analysis: Yes, religious objectors can use these RFRAs to try to get exemptions from
Re: Eugene's Blog Post on Liberals and Exemption Rights
Non-Jews are under no obligation not to eat pork (or adhere to almost all of the other 612 mitzvot). So there is no stigma attached to any non-Jew who wants to buy a ham at a kosher butchery. That can't be said with regard to the florist who refuses to sell a bouquet for use at a same-sex marriage, who is necessarily condoning the presumptively sinful conduct. Ironically or not, the only person a Jewish butcher might be upset with is another Jew. This underscores the fact that very few Jewish laws are universal. This is not true of most purported Christian precepts (beginning with the widely shared view among many a Evangelicals that I'm damned for failure to accept the teaching of John 3:16 (which I know by heart having memorized it some 65 years ago in order to earn a Bible certificate from the state of North Carolina). Sandy Sent from my iPhone On Apr 1, 2015, at 3:44 PM, Will Esser willes...@yahoo.commailto:willes...@yahoo.com wrote: Chip, Can you expound on your argument that wedding vendor exemptions from public accommodations laws allow material and dignitary injury to potential customers and that liberals only oppose exemptions that impinge on the welfare of third parties? It seems that both sides agree that the kosher butcher deserves a religious exemption, and yet granting that exemption imposes some cost on third parties (i.e. anyone who wishes to purchase pork must go elsewhere, which could involve multiple trips to different butchers, or may mean spending more time and money to go to a butcher further away). So it's not really that there is no cost to third parties, but perhaps simply a cost which society is more ready to accept (i.e. Go buy your pork somewhere else.) As I understood the third-party harm argument in Hobby Lobby, the argument was that without insurance coverage, female Hobby Lobby employees would be unable to afford coverage of the particular, objectionable contraceptives and therefore the third party harm was equivalent to total lack of access. Given modern changes in societal perspectives, I have not heard the same argument about a total lack of access when it comes to wedding vendors for same-sex wedding ceremonies. Under the assumption the goods and services are otherwise generally available in the marketplace (i.e. there are plenty of wedding photographers, bakers, etc. who would be happy for the business of same-sex weddings), what is the distinguishing factor which causes material and dignitary injury in the wedding vendor exemptions scenario but not in the kosher butcher example? In both, the customers want a service which they can get in the marketplace (although perhaps not from the exact person or place they want it). And in both, the reason for not providing the service is the same (i.e. violation of a sincerely held religious belief). Thanks in advance for clarification. Will Will Esser Charlotte, North Carolina From: James Oleske jole...@lclark.edumailto:jole...@lclark.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Sent: Wednesday, April 1, 2015 3:22 PM Subject: Re: Eugene's Blog Post on Liberals and Exemption Rights The butcher example Chip gives is why I suggested last spring that the Court might want to read the Lee language not as an absolute rule, but rather, a strong presumption against exemptions in the commercial realm that can be overcome in the very rare case where the basis for the presumption (a third-party harm) does not exist. Alas, the Court instead simply discarded the Lee language wholesale by saying RFRA went further than the pre-Smith law. - Jim On Wed, Apr 1, 2015 at 12:09 PM, Ira Lupu icl...@law.gwu.edumailto:icl...@law.gwu.edu wrote: I do not think most liberals oppose exemptions for businesses per se -- imagine a law that compelled a butcher to carry products in conflict with religious dietary laws to which the butcher and his customers subscribe. Liberals oppose exemptions that impinge on the welfare of third parties -- Hobby Lobby (those female employees still do not have contraceptive coverage) or wedding vendor exemptions from public accommodations laws (those exemptions allow material and dignitary injury to potential customers). U.S. v. Lee involved injury to other family members of Amish employees, as well as others in the social insurance pool. On Wed, Apr 1, 2015 at 2:51 PM, Gaubatz, Derek dgaub...@imb.orgmailto:dgaub...@imb.org wrote: “[l]iberals who opposed Smith in 1990 and supported RFRA in 1993 — including liberal organizations, professors, and politicians — largely continue to support religious exemptions for individuals, while opposing the extension of such exemptions to commercial businesses. I’m not sure I’m seeing the principled distinction. Do not many individuals depend for their livelihood on commercial businesses? Why do liberals see the
Re: Eugene's Blog Post on Liberals and Exemption Rights
The problem I have with Jim's argument, if I understand him correctly, is that it seems to suggest that no religious exemption can be accepted if it causes any harm to a third party. (I'm not sure if Jim includes the general public or the public fisc in third party.) I think many liberals believe (or at least they used to believe) that rights are expensive political goods. We protect them even if we have to incur some cost or harm to third parties or the public in order to do so. Of course, that leaves open the difficult question of determining when the price for protecting a right is too high. (And when we are talking about the right to discriminate in employment or public accommodations, leaving religious institutions aside, the price is almost always too high.) But I see no historical consensus that we only protect freedom of speech or religious liberty when the cost of doing so is zero. That certainly wasn't the understanding of freedom of speech that Justice Brandeis defended in his famous dissents on which contemporary free speech doctrine is based. Indeed, the argument that we should only accept zero cost religious accommodations is not only inconsistent with the way we generally understand rights, it seems inconsistent with the way we evaluate government regulations generally. It is one thing to argue that we should reject a religious exemption when the harm or cost of granting it is too high. That position is consistent with the general cost benefit analysis we use to discuss any government decision. But why should we only accept zero cost religious accommodations? We routinely allow government to enact laws that result in some costs, burdens, and harms to third parties or the general public that serve a variety of purposes. Alan From: religionlaw-boun...@lists.ucla.edu religionlaw-boun...@lists.ucla.edu on behalf of James Oleske jole...@lclark.edu Sent: Wednesday, April 1, 2015 12:22 PM To: Law Religion issues for Law Academics Subject: Re: Eugene's Blog Post on Liberals and Exemption Rights The butcher example Chip gives is why I suggested last spring that the Court might want to read the Lee language not as an absolute rule, but rather, a strong presumption against exemptions in the commercial realm that can be overcome in the very rare case where the basis for the presumption (a third-party harm) does not exist. Alas, the Court instead simply discarded the Lee language wholesale by saying RFRA went further than the pre-Smith law. - Jim On Wed, Apr 1, 2015 at 12:09 PM, Ira Lupu icl...@law.gwu.edumailto:icl...@law.gwu.edu wrote: I do not think most liberals oppose exemptions for businesses per se -- imagine a law that compelled a butcher to carry products in conflict with religious dietary laws to which the butcher and his customers subscribe. Liberals oppose exemptions that impinge on the welfare of third parties -- Hobby Lobby (those female employees still do not have contraceptive coverage) or wedding vendor exemptions from public accommodations laws (those exemptions allow material and dignitary injury to potential customers). U.S. v. Lee involved injury to other family members of Amish employees, as well as others in the social insurance pool. ___ 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: Eugene's Blog Post on Liberals and Exemption Rights
Alan, I can’t speak for others who have been defending a principle against burden-shifting to third parties, but I do not believe it prohibits religion accommodations that result in costs to the government or to the public. Rather, the principle prohibits government accommodations that shift meaningful costs from religious citizens to other identifiable private citizens. And the reason for this is easy to articulate and deeply rooted — private citizens should not have to bear the costs associated with other citizens’ religious observance. On Apr 1, 2015, at 4:07 PM, Alan E Brownstein aebrownst...@ucdavis.edumailto:aebrownst...@ucdavis.edu wrote: The problem I have with Jim's argument, if I understand him correctly, is that it seems to suggest that no religious exemption can be accepted if it causes any harm to a third party. (I'm not sure if Jim includes the general public or the public fisc in third party.) I think many liberals believe (or at least they used to believe) that rights are expensive political goods. We protect them even if we have to incur some cost or harm to third parties or the public in order to do so. Of course, that leaves open the difficult question of determining when the price for protecting a right is too high. (And when we are talking about the right to discriminate in employment or public accommodations, leaving religious institutions aside, the price is almost always too high.) But I see no historical consensus that we only protect freedom of speech or religious liberty when the cost of doing so is zero. That certainly wasn't the understanding of freedom of speech that Justice Brandeis defended in his famous dissents on which contemporary free speech doctrine is based. Indeed, the argument that we should only accept zero cost religious accommodations is not only inconsistent with the way we generally understand rights, it seems inconsistent with the way we evaluate government regulations generally. It is one thing to argue that we should reject a religious exemption when the harm or cost of granting it is too high. That position is consistent with the general cost benefit analysis we use to discuss any government decision. But why should we only accept zero cost religious accommodations? We routinely allow government to enact laws that result in some costs, burdens, and harms to third parties or the general public that serve a variety of purposes. Alan From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu on behalf of James Oleske jole...@lclark.edumailto:jole...@lclark.edu Sent: Wednesday, April 1, 2015 12:22 PM To: Law Religion issues for Law Academics Subject: Re: Eugene's Blog Post on Liberals and Exemption Rights The butcher example Chip gives is why I suggested last spring that the Court might want to read the Lee language not as an absolute rule, but rather, a strong presumption against exemptions in the commercial realm that can be overcome in the very rare case where the basis for the presumption (a third-party harm) does not exist. Alas, the Court instead simply discarded the Lee language wholesale by saying RFRA went further than the pre-Smith law. - Jim On Wed, Apr 1, 2015 at 12:09 PM, Ira Lupu icl...@law.gwu.edumailto:icl...@law.gwu.edu wrote: I do not think most liberals oppose exemptions for businesses per se -- imagine a law that compelled a butcher to carry products in conflict with religious dietary laws to which the butcher and his customers subscribe. Liberals oppose exemptions that impinge on the welfare of third parties -- Hobby Lobby (those female employees still do not have contraceptive coverage) or wedding vendor exemptions from public accommodations laws (those exemptions allow material and dignitary injury to potential customers). U.S. v. Lee involved injury to other family members of Amish employees, as well as others in the social insurance pool. ___ 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
Re: Eugene's Blog Post on Liberals and Exemption Rights
Chip, Can you expound on your argument that wedding vendor exemptions from public accommodations laws allow material and dignitary injury to potential customers and that liberals only oppose exemptions that impinge on the welfare of third parties? It seems that both sides agree that the kosher butcher deserves a religious exemption, and yet granting that exemption imposes some cost on third parties (i.e. anyone who wishes to purchase pork must go elsewhere, which could involve multiple trips to different butchers, or may mean spending more time and money to go to a butcher further away). So it's not really that there is no cost to third parties, but perhaps simply a cost which society is more ready to accept (i.e. Go buy your pork somewhere else.) As I understood the third-party harm argument in Hobby Lobby, the argument was that without insurance coverage, female Hobby Lobby employees would be unable to afford coverage of the particular, objectionable contraceptives and therefore the third party harm was equivalent to total lack of access. Given modern changes in societal perspectives, I have not heard the same argument about a total lack of access when it comes to wedding vendors for same-sex wedding ceremonies. Under the assumption the goods and services are otherwise generally available in the marketplace (i.e. there are plenty of wedding photographers, bakers, etc. who would be happy for the business of same-sex weddings), what is the distinguishing factor which causes material and dignitary injury in the wedding vendor exemptions scenario but not in the kosher butcher example? In both, the customers want a service which they can get in the marketplace (although perhaps not from the exact person or place they want it). And in both, the reason for not providing the service is the same (i.e. violation of a sincerely held religious belief). Thanks in advance for clarification. Will Will Esser Charlotte, North Carolina From: James Oleske jole...@lclark.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Wednesday, April 1, 2015 3:22 PM Subject: Re: Eugene's Blog Post on Liberals and Exemption Rights The butcher example Chip gives is why I suggested last spring that the Court might want to read the Lee language not as an absolute rule, but rather, a strong presumption against exemptions in the commercial realm that can be overcome in the very rare case where the basis for the presumption (a third-party harm) does not exist. Alas, the Court instead simply discarded the Lee language wholesale by saying RFRA went further than the pre-Smith law. - Jim On Wed, Apr 1, 2015 at 12:09 PM, Ira Lupu icl...@law.gwu.edu wrote: I do not think most liberals oppose exemptions for businesses per se -- imagine a law that compelled a butcher to carry products in conflict with religious dietary laws to which the butcher and his customers subscribe. Liberals oppose exemptions that impinge on the welfare of third parties -- Hobby Lobby (those female employees still do not have contraceptive coverage) or wedding vendor exemptions from public accommodations laws (those exemptions allow material and dignitary injury to potential customers). U.S. v. Lee involved injury to other family members of Amish employees, as well as others in the social insurance pool. On Wed, Apr 1, 2015 at 2:51 PM, Gaubatz, Derek dgaub...@imb.org wrote: “[l]iberals who opposedSmith in 1990 and supported RFRA in 1993 — including liberal organizations, professors, and politicians — largely continue to support religious exemptions for individuals, while opposing the extension of such exemptions to commercial businesses. I’m not sure I’m seeing the principled distinction. Do not many individuals depend for their livelihood on commercial businesses? Why do liberals see the conscience of individuals like Sherbert or Thomas worthy of protection, but the conscience of an individual photographer, florist, baker, or bed and breakfast owner less worthy of protection? Justice Kagan, at least back in 1996 when she was in the Clinton White House, appeared to recognize that the consciences of individuals operating small commercial businesses was worthy of protection under a RFRA regime. Commenting on the short shrift given to the claim of a Evelyn Smith who, for religious reasons, did not want to rent one of her units to a co-habitating couple, Kagan noted that the court’s reasoning was “outrageous.” She wrote that it was “almost as if a court were to hold that a state law does not impose a substantial burden on religion because the complainant is free to move to another state.” http://www.brookings.edu/research/papers/2010/06/23-kagan-rogers From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu]On Behalf Of James Oleske Sent: Wednesday, April 01, 2015 2:25 PM To: Law Religion issues for Law Academics
Re: Eugene's Blog Post on Liberals and Exemption Rights
Following up on Alan and Nelson's discussion of third-party burdens, I think it might be helpful to identify two separate legal issues that are impacted by such burdens: 1. The issue of whether a party has a right to a religious exemption in a given case. 2. The issue of whether a discretionary legislative decision to grant an exemption in a given situation violates the Establishment Clause. I only meant to be addressing Issue #1, and I think the Sherbert-era decisions are best read as not requiring exemptions as a matter of right when such exemptions would burden identifiable third parties. And I think the Lee language is best explained as a recognition that exemptions for commercial businesses will almost always impose burdens on third parties, whether employees, customers, or business competitors. I don't think, however, that burdens shouldered by the government or the public at large qualified as a third-party burdens under the Sherbert-era decisions, as evidenced by the exemption required in Sherbert itself. As for Issue #2, my view of the Establishment Clause limitations on exemptions is not as robust as Nelson's, and I think legislatures can likely require burdens on third parties that go beyond the burdens that the Sherbert-era Court would have imposed in granting exemptions as a matter of right. - Jim On Wed, Apr 1, 2015 at 2:46 PM, Alan E Brownstein aebrownst...@ucdavis.edu wrote: I appreciate your point, Nelson. And I think the principle that private citizens should not have to bear the costs associated with other citizens’ religious observance deserves respect. Standing alone, it would often be dispositive. Where we disagree, I think, is that in religious exemption cases I see two principles here that deserve our respect. The one I just quoted above and the principle that the majority and government should not prohibit or burden another citizen's religious observance. I think, you can tell me if I'm wrong, that you would agree that this principle standing alone also deserves respect. If there is no harm to third parties, you would support religious exemptions. Then the question becomes what do we do when these two principles are in conflict with each other. I don't think either trumps the other all of the time. I think as the harm to third parties increases, the principle that citizens should not have to bear the costs associated with the other citizen's religious observance outweighs the religious liberty principle. I understand you to be saying that the religious liberty principle is always trumped in these cases without regard to the magnitude of the costs involved. There are a lot of religious accommodations that result in third parties incurring some cost. A RLUIPA land use accommodation might result in some neighboring homeowner, business or farmer incurring some diminution of value in their property. A public university accommodation shifting move-in day so that it doesn't fall on the Jewish High Holy days may require a shift in the academic calendar that inconveniences the travel plans of specific faculty, students and their families. A court accommodating the religious obligations of a religious attorney or witness may delay or otherwise increase the cost of litigation. A law banning male circumcision exempts Jewish families from its requirements. Does the existence of harm to third parties in these situations and others require the invalidation of all of these accommodations without regard to the magnitude of the harm borne by third parties? Alan -- *From:* religionlaw-boun...@lists.ucla.edu religionlaw-boun...@lists.ucla.edu on behalf of Nelson Tebbe nelson.te...@brooklaw.edu *Sent:* Wednesday, April 1, 2015 1:38 PM *To:* Law Religion issues for Law Academics *Subject:* Re: Eugene's Blog Post on Liberals and Exemption Rights Alan, I can’t speak for others who have been defending a principle against burden-shifting to third parties, but I do not believe it prohibits religion accommodations that result in costs to the government or to the public. Rather, the principle prohibits government accommodations that shift meaningful costs from religious citizens to other identifiable private citizens. And the reason for this is easy to articulate and deeply rooted — private citizens should not have to bear the costs associated with other citizens’ religious observance. On Apr 1, 2015, at 4:07 PM, Alan E Brownstein aebrownst...@ucdavis.edu wrote: The problem I have with Jim's argument, if I understand him correctly, is that it seems to suggest that no religious exemption can be accepted if it causes any harm to a third party. (I'm not sure if Jim includes the general public or the public fisc in third party.) I think many liberals believe (or at least they used to believe) that rights are expensive political goods. We protect them even if we have to incur some cost or harm to
Re: Eugene's Blog Post on Liberals and Exemption Rights
Thanks for the question, Will. If the kosher butcher gets that exemption, he will sell pork to no one. He never has and never will carry pork in his shop. He also does not sell soda, cars, or wedding cakes. If you want that stuff, you must go elsewhere. Is that a cost to third parties?'' No more than that imposed by any (that is, every) other merchant who sells less than everything. Compare that to a discriminatory refusal to sell. Baker A does sell wedding cakes, but not to same sex couples. Two injuries -- material and dignitary. The material injury is the lost opportunity to buy a cake at the quality and price offered by that baker. Maybe you can do as well or better elsewhere, nearby, or maybe not. The dignitary injury is more serious -- the couple is seeking goods to celebrate one of the most important and special days of their lives. And the baker says, in effect, I do not respect your marriage as a marriage. In my belief system, it is not a marriage at all, because you are of the same sex. (The baker might also think or say that in his view the relationship is disordered, or an abomination, and/or against God's plan, but let's assume he says nothing like that all.) The baker has wounded the couple with this disrespect, and done so in regard to a day that has significant meaning in their lives. Those are the focused, third party harms in the refusal to sell goods or services to some that you sell to others, especially (though not only) for a wedding reception. On Wed, Apr 1, 2015 at 4:38 PM, Will Esser willes...@yahoo.com wrote: Chip, Can you expound on your argument that wedding vendor exemptions from public accommodations laws allow material and dignitary injury to potential customers and that liberals only oppose exemptions that impinge on the welfare of third parties? It seems that both sides agree that the kosher butcher deserves a religious exemption, and yet granting that exemption imposes *some* cost on third parties (i.e. anyone who wishes to purchase pork must go elsewhere, which could involve multiple trips to different butchers, or may mean spending more time and money to go to a butcher further away). So it's not really that there is *no* cost to third parties, but perhaps simply a cost which society is more ready to accept (i.e. Go buy your pork somewhere else.) As I understood the third-party harm argument in Hobby Lobby, the argument was that without insurance coverage, female Hobby Lobby employees would be unable to afford coverage of the particular, objectionable contraceptives and therefore the third party harm was equivalent to total lack of access. Given modern changes in societal perspectives, I have not heard the same argument about a total lack of access when it comes to wedding vendors for same-sex wedding ceremonies. Under the assumption the goods and services are otherwise generally available in the marketplace (i.e. there are plenty of wedding photographers, bakers, etc. who would be happy for the business of same-sex weddings), what is the distinguishing factor which causes material and dignitary injury in the wedding vendor exemptions scenario but not in the kosher butcher example? In both, the customers want a service which they can get in the marketplace (although perhaps not from the exact person or place they want it). And in both, the reason for not providing the service is the same (i.e. violation of a sincerely held religious belief). Thanks in advance for clarification. Will Will Esser Charlotte, North Carolina -- *From:* James Oleske jole...@lclark.edu *To:* Law Religion issues for Law Academics religionlaw@lists.ucla.edu *Sent:* Wednesday, April 1, 2015 3:22 PM *Subject:* Re: Eugene's Blog Post on Liberals and Exemption Rights The butcher example Chip gives is why I suggested last spring that the Court might want to read the Lee language not as an absolute rule, but rather, a strong presumption against exemptions in the commercial realm that can be overcome in the very rare case where the basis for the presumption (a third-party harm) does not exist. Alas, the Court instead simply discarded the Lee language wholesale by saying RFRA went further than the pre-Smith law. - Jim On Wed, Apr 1, 2015 at 12:09 PM, Ira Lupu icl...@law.gwu.edu wrote: I do not think most liberals oppose exemptions for businesses per se -- imagine a law that compelled a butcher to carry products in conflict with religious dietary laws to which the butcher and his customers subscribe. Liberals oppose exemptions that impinge on the welfare of third parties -- Hobby Lobby (those female employees still do not have contraceptive coverage) or wedding vendor exemptions from public accommodations laws (those exemptions allow material and dignitary injury to potential customers). U.S. v. Lee involved injury to other family members of Amish employees, as well as others in the
RE: Eugene's Blog Post on Liberals and Exemption Rights
I also think the florist and baker examples are weaker for the religious claimant, especially where the flowers and cakes are generic. But what if custom floral arrangements involve artistic choices by the florist? What if the cake is (as some are) a truly creative work of art? And do only high-end bakers get protection from violation of conscience? What if the florist or baker is asked to include particular words or other expressive content in the arrangement or the cake? (This from someone who argued against licensing requirements for sellers of flowers - protectionist provisions for florists who fear grocery stores' selling of flowers - on the basis that flower arranging is a kind of art that the government has no right to license, other than for health purposes.) What if the custom florist decides to include a lot of black roses in the arrangements? Or just puts the flowers together without using any creativity (so that they look like flowers you would get through 1-800-Flowers)? Can the florist be required to enter into the contract to provide flowers and then be required to follow some sort of industry standard of artistry in arranging the flowers? In the photography example, if the photographer must photograph a ceremony that he or she believes wrong, may the photographer refuse to use the creative skills that would ordinarily be used? (E.g., posing the couple in a particular way, using filters to get a romantic look, telling them to kiss for the photograph, etc.) I suppose that goes with my view that wedding photography is creation of celebratory art, and the First Amendment compelled speech cases prohibit the government from requiring the photographer to create art. On the harm question, of course there is a matter of baseline. Do I harm you by not photographing your ceremony? Or do I benefit you by doing it? If that depends on the message sent by the refusal, then we have an interesting viewpoint discrimination issue. 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 Levinson, Sanford V Sent: Wednesday, April 01, 2015 3:18 PM To: Law Religion issues for Law Academics Subject: Re: Eugene's Blog Post on Liberals and Exemption Rights I think Prof. Chen is substantially correct, but I believe, more than ever, that it's the kind of problem that can ( and should) be handled outside legal constraints. Why would I want to hire a wedding photographer who so clearly won't view the day as affirmatively special? Ditto the band? But I really can't work up much sympathy for the florist or baker. They should be treated under the general rubric of public accommodations and the Civil Rights Act of 1964. I'm sure there were florists and bakers who objected to mixes-race marriages and could cite the purported curse on Ham. It really doesn't (and shouldn't) matter. Sandy Sent from my iPhone On Apr 1, 2015, at 4:56 PM, K Chen tzn...@gmail.commailto:tzn...@gmail.com wrote: As someone putting a wedding together, I can't explain the lack of sympathy for the wedding photographer as anything but thinking that their work is essentially interchangeable. It is not, unfortunately, and it is priced accordingly. Every single photographer of them seems to take their business very, very personally. More to the point, it is a personal, professional service which is by its nature selective compared to the harm done by impersonal corporations excluding goods and services when they otherwise serve the public. A principled difference can be drawn between accommodating personal, inherently selective commercial businesses and businesses that are open to the public at large. The vast majority of commercial transactions are from businesses who sell to the public, or their business community, on a non-discriminatory basis. When such a business denies goods or services to a class of person, that is an inherently political act. Such a businesses is not just refusing the do business with an individual or class, they are making an attempt to exclude them from the definition of the public itself. They are thus doing harm to both individual and society by imposing their will on what constitutes the political community. This harm grows geometrically with each exclusionary actor. Individual consumers on the other hand, are inherently selective. If you need one loaf of bread this week, you will patronize precisely one baker this week. If you need a salary, you will work one, maybe two jobs. The harm of being denied service by a consumer (or laborer) because of their beliefs has a societal harm, if any, nearly indistinguishable to being denied for any other reason. Some services should fall in between. I'm not convinced for the florist and the and the baker, but I'm sympathetic to the photographer, the doctor, the lawyer (ethical obligations notwithstanding)
