Re: Dignitary Injury as an argument against religious exemptions to non-discrimination laws
Alan,
Thanks for your post. However, both of the examples that you used to
illustrate dignitary harms involve affirmative conduct of the person causing
the harm (i.e. battery and trespass). In the wedding photographer example,
however, the opposite is true. In that example, the alleged dignitary harm is
caused by the decision of the individual not to engage in conduct (i.e. the
wedding photographer says that she is happy to photograph gays and lesbians who
come in to have their pictures taken, but simply wants to abstain from
participating in the same-sex wedding).
And more specifically, the alleged dignitary harm is explicitly tied to the
reason the wedding photographer is refusing to participate. In other words,
the wedding photographer is allowed to refuse to shoot the wedding for a myriad
of non-discriminatory reasons (e.g. I'm on vacation then, I don't shoot
weddings for people with tattoos, etc.) and those do not cause dignitary harm
(or they cause dignitary harm based on unprotected classifications) (e.g. I
don't photograph fat people). So it is in fact, the reason for the refusal to
participate (i.e. the religious viewpoint that participating in a same-sex
wedding ceremony violates religious precepts) which makes the difference under
the relevant non-discrimination law and it is the reason for the refusal which
causes the dignitary harm.
It seems to me that whether there is affirmative action by the viewer versus
simply refusing to participate makes a substantial difference when talking
about dignitary harms.
And on a related point, I'm not so sure that I agree with your initial premise
that the refusal to engage in conduct which the religious believer views as
violating her sincerely held religious beliefs is conduct and not speech.
After all, actions speak louder than words and oftentimes the most expressive
statement someone can make is refusing to participate in conduct. (Not that
I've given this point much prior thought, so I'd welcome anyone pointing me to
cases which elaborate on this distinction about whether the refusal to perform
an action constitutes conduct versus speech).
Will Will Esser Charlotte, North Carolina
From: Alan E Brownstein aebrownst...@ucdavis.edu
To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu
Sent: Thursday, April 2, 2015 2:48 PM
Subject: RE: Dignitary Injury as an argument against religious exemptions to
non-discrimination laws
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{}#yiv9811712642 Will and Chip’s exchange ended on such a thoughtful and
positive note (which I greatly appreciate) that I hesitate to add another post
to this thread out of fear it might break the spell. I agree with Will and
Chip’s discussion about when and whether speech by itself constitutes
discrimination for the purposes of civil rights laws. When we are talking
about exemptions from anti-discrimination laws, however, the core issue isn’t
dignitary harms that result from a proprietor’s speech. It is dignitary harms
that result from the proprietor’s conduct. (I assume we all agree that a
discriminatory refusal to serve a customer or to hire a job applicant is
conduct and not speech.) And while both speech and conduct can cause
dignitary harms, we typically don’t equate the two and excuse the latter
because we would tolerate the former. I may have no recourse if someone insults
me because I’m a Jew. Indeed, the person insulting has a First Amendment right
to express anti-Semitic statements. But if he spits on my shirt or knocks my
yarmulke off my head (which given my bald head takes very little force), I may
not be able to get a pound of flesh for redress, but I can sue the person for
RE: Text of Indiana RFRA Fix; Video of Hearing
Well, those list members, and activist groups, who wanted civil-rights claims excluded altogether want religious nonprofits not to be able to bring them either. And if the test is where we would allow discrimination based on race, religious nonprofits have almost never been exempted from race discrimination laws, except with respect to churches and ministers. So treating sexual-orientation claims exactly the same would mean a huge number of religious exemptions in existing state laws should be eliminated, and a vast number of actions brought against nonprofit institutions such as colleges and schools--evangelical, Catholic, Orthodox Jewish, Muslim, etc.--who should also lose their tax exemptions. The NCAA and other business critics are happy with the Indiana fix, and that may indicate that the for-profit/non-profit line appeals to a lot of people who generally want to respect both gay rights and religious liberty. But the wave that worked against the Indiana law won't stop at that line. - Thomas C. Berg James L. Oberstar Professor of Law and Public Policy University of St. Thomas School of Law MSL 400, 1000 LaSalle Avenue Minneapolis, MN 55403-2015 Phone: 651 962 4918 Fax: 651 962 4881 E-mail: tcb...@stthomas.eduhttps://mail.stthomas.edu/owa/redir.aspx?C=6b610058a5ad42118976395f869e05d3URL=mailto%3atcberg%40stthomas.edu SSRN: http://ssrn.com/author='261564https://mail.stthomas.edu/owa/redir.aspx?C=6b610058a5ad42118976395f869e05d3URL=http%3a%2f%2fssrn.com%2fauthor%3d'261564 Weblog: http://www.mirrorofjustice.blogs.com From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of James Oleske [jole...@lclark.edu] Sent: Thursday, April 02, 2015 3:30 PM To: Law Religion issues for Law Academics Subject: Re: Text of Indiana RFRA Fix; Video of Hearing The Indiana House just passed the fix 66-30. Thanks to Tom, Doug, and Marty for their responses. As Doug notes, things are moving to fast to expect either of the law-professor groups who weighed in earlier on the Indiana RFRA to formulate a new group position on the fix, and I didn't meant to be asking for group positions. I merely meant to be asking if individual members of the list who had signed letters on either side might be supportive or not supportive of the proposed fix. And I should have mentioned that I am supportive of the fix, which seems to me to deliver at least 99% of the religious liberty protection that academic proponents of RFRA want, while excluding the 1% of cases that so concern the LGBT community. With regard to Tom's prediction that many list members would oppose allowing nonprofit religious institutions to make RFRA claims, and speaking only for myself: Although I'm not a fan of RFRA's strict scrutiny standard in general,* I would not actively oppose legislation that allows religious institutions to bring RFRA claims. My central concern about the latest round of RFRA advocacy has been the move to extend exemption rights into the for-profit commercial realm, particularly in the context of LGBT rights. I don't think religious exemptions in the LGBT context should be any broader than they have traditionally been with respect to the other classes covered under state antidiscrimination laws, and we have not had a tradition of granting religious exemptions to commercial businesses. Florists, bakers, caterers, and wedding venues that are open to the public have never been exempted from state laws that preclude discrimination against interracial couples, interfaith couples, or couples involving divorced individuals, and I don't think we should change that approach to allow discrimination against same-sex couples. I'm open to libertarian arguments for limiting the reach of state public accommodations laws so they don't reach certain truly intimate or core expressive services, and the test I would apply is whether we would allow those services to discriminate on the basis of race. I'm pretty sure we wouldn't pass a law letting a bakery refuse to provide a wedding cake for an interracial couple, but perhaps there are spheres beyond Mrs. Murphy boarding houses where consensus could be achieved that proprietors should have absolute discretion to select customers (e.g., freelance writers). * I would prefer that the Court revisit Smith and apply modestly heightened scrutiny to incidental burdens as a constitutional matter, not unlike it does to incidental burdens on speech; in the absence of that, I would support reasonable accommodation statutes at the state level resulting in modestly heightened scrutiny of incidental burdens on religious practices. - Jim On Thu, Apr 2, 2015 at 12:34 PM, Doug Laycock dlayc...@virginia.edumailto:dlayc...@virginia.edu wrote: Sexual orientation and religious faith go to the core of
RE: Text of Indiana RFRA Fix; Video of Hearing
Jim, this is helpful and clarifying, thanks. - Thomas C. Berg James L. Oberstar Professor of Law and Public Policy University of St. Thomas School of Law MSL 400, 1000 LaSalle Avenue Minneapolis, MN 55403-2015 Phone: 651 962 4918 Fax: 651 962 4881 E-mail: tcb...@stthomas.eduhttps://mail.stthomas.edu/owa/redir.aspx?C=6b610058a5ad42118976395f869e05d3URL=mailto%3atcberg%40stthomas.edu SSRN: http://ssrn.com/author='261564https://mail.stthomas.edu/owa/redir.aspx?C=6b610058a5ad42118976395f869e05d3URL=http%3a%2f%2fssrn.com%2fauthor%3d'261564 Weblog: http://www.mirrorofjustice.blogs.com From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of James Oleske [jole...@lclark.edu] Sent: Thursday, April 02, 2015 6:18 PM To: Law Religion issues for Law Academics Subject: Re: Text of Indiana RFRA Fix; Video of Hearing Tom, Again, I can't speak for others, but I think I was pretty clear in my message below that I was only talking about the for-profit-commercial context when I suggested using the race example as a tool for distinguishing between businesses that should be covered by state public accommodations laws and businesses that should not (central concern ... for-profit commercial realm ... commercial businesses ... bakery). But in case not, let me be explicit: I was only making an argument about regulation in the for-profit-commercial realm. American law has traditionally treated the nonprofit-religious-organization context very differently than the for-profit-commercial context, and it has allowed many more exemptions in the former context than the latter. If a given federal or state law allows nonprofit religious organizations to discriminate on all typically proscribed grounds except race, I could see an argument that sexual-orientation discrimination should be treated like sex discrimination and religious discrimination and allowed rather than race discrimination and disallowed. I would be troubled, however, if exemptions were adopted to allow discrimination in the nonprofit realm uniquely on the basis of sexual-orientation (e.g., nonprofit wedding venue can't discriminate against interfaith couple or couple including a divorced person, but can discriminate against a same-sex couple). And when it comes to the for-profit commercial context, where I do not believe there is any tradition of federal and state public accommodations laws making exemptions that allow businesses to discriminate on all typically proscribed grounds except race, it seems to me that the race example can be a helpful tool for identifying the proper scope of the public accommodations laws when libertarian arguments are made for limiting their scope. - Jim On Thu, Apr 2, 2015 at 2:35 PM, Berg, Thomas C. tcb...@stthomas.edumailto:tcb...@stthomas.edu wrote: Well, those list members, and activist groups, who wanted civil-rights claims excluded altogether want religious nonprofits not to be able to bring them either. And if the test is where we would allow discrimination based on race, religious nonprofits have almost never been exempted from race discrimination laws, except with respect to churches and ministers. So treating sexual-orientation claims exactly the same would mean a huge number of religious exemptions in existing state laws should be eliminated, and a vast number of actions brought against nonprofit institutions such as colleges and schools--evangelical, Catholic, Orthodox Jewish, Muslim, etc.--who should also lose their tax exemptions. The NCAA and other business critics are happy with the Indiana fix, and that may indicate that the for-profit/non-profit line appeals to a lot of people who generally want to respect both gay rights and religious liberty. But the wave that worked against the Indiana law won't stop at that line. - Thomas C. Berg James L. Oberstar Professor of Law and Public Policy University of St. Thomas School of Law MSL 400, 1000 LaSalle Avenue Minneapolis, MN 55403-2015 Phone: 651 962 4918tel:651%20962%204918 Fax: 651 962 4881tel:651%20962%204881 E-mail: tcb...@stthomas.eduhttps://mail.stthomas.edu/owa/redir.aspx?C=6b610058a5ad42118976395f869e05d3URL=mailto%3atcberg%40stthomas.edu SSRN: http://ssrn.com/author='261564https://mail.stthomas.edu/owa/redir.aspx?C=6b610058a5ad42118976395f869e05d3URL=http%3a%2f%2fssrn.com%2fauthor%3d'261564 Weblog: http://www.mirrorofjustice.blogs.com 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: Thursday, April
Re: Text of Indiana RFRA Fix; Video of Hearing
Tom, Again, I can't speak for others, but I think I was pretty clear in my message below that I was only talking about the for-profit-commercial context when I suggested using the race example as a tool for distinguishing between businesses that should be covered by state public accommodations laws and businesses that should not (central concern ... for-profit commercial realm ... commercial businesses ... bakery). But in case not, let me be explicit: I was only making an argument about regulation in the for-profit-commercial realm. American law has traditionally treated the nonprofit-religious-organization context very differently than the for-profit-commercial context, and it has allowed many more exemptions in the former context than the latter. If a given federal or state law allows nonprofit religious organizations to discriminate on all typically proscribed grounds except race, I could see an argument that sexual-orientation discrimination should be treated like sex discrimination and religious discrimination and allowed rather than race discrimination and disallowed. I would be troubled, however, if exemptions were adopted to allow discrimination in the nonprofit realm uniquely on the basis of sexual-orientation (e.g., nonprofit wedding venue can't discriminate against interfaith couple or couple including a divorced person, but can discriminate against a same-sex couple). And when it comes to the for-profit commercial context, where I do not believe there is any tradition of federal and state public accommodations laws making exemptions that allow businesses to discriminate on all typically proscribed grounds except race, it seems to me that the race example can be a helpful tool for identifying the proper scope of the public accommodations laws when libertarian arguments are made for limiting their scope. - Jim On Thu, Apr 2, 2015 at 2:35 PM, Berg, Thomas C. tcb...@stthomas.edu wrote: Well, those list members, and activist groups, who wanted civil-rights claims excluded altogether want religious nonprofits not to be able to bring them either. And if the test is where we would allow discrimination based on race, religious nonprofits have almost never been exempted from race discrimination laws, except with respect to churches and ministers. So treating sexual-orientation claims exactly the same would mean a huge number of religious exemptions in existing state laws should be eliminated, and a vast number of actions brought against nonprofit institutions such as colleges and schools--evangelical, Catholic, Orthodox Jewish, Muslim, etc.--who should also lose their tax exemptions. The NCAA and other business critics are happy with the Indiana fix, and that may indicate that the for-profit/non-profit line appeals to a lot of people who generally want to respect both gay rights and religious liberty. But the wave that worked against the Indiana law won't stop at that line. - Thomas C. Berg James L. Oberstar Professor of Law and Public Policy University of St. Thomas School of Law MSL 400, 1000 LaSalle Avenue Minneapolis, MN 55403-2015 Phone: 651 962 4918 Fax: 651 962 4881 E-mail: tcb...@stthomas.edu https://mail.stthomas.edu/owa/redir.aspx?C=6b610058a5ad42118976395f869e05d3URL=mailto%3atcberg%40stthomas.edu SSRN: http://ssrn.com/author='261564 https://mail.stthomas.edu/owa/redir.aspx?C=6b610058a5ad42118976395f869e05d3URL=http%3a%2f%2fssrn.com%2fauthor%3d'261564 Weblog: http://www.mirrorofjustice.blogs.com -- *From:* religionlaw-boun...@lists.ucla.edu [ religionlaw-boun...@lists.ucla.edu] on behalf of James Oleske [ jole...@lclark.edu] *Sent:* Thursday, April 02, 2015 3:30 PM *To:* Law Religion issues for Law Academics *Subject:* Re: Text of Indiana RFRA Fix; Video of Hearing The Indiana House just passed the fix 66-30. Thanks to Tom, Doug, and Marty for their responses. As Doug notes, things are moving to fast to expect either of the law-professor groups who weighed in earlier on the Indiana RFRA to formulate a new group position on the fix, and I didn't meant to be asking for group positions. I merely meant to be asking if individual members of the list who had signed letters on either side might be supportive or not supportive of the proposed fix. And I should have mentioned that I am supportive of the fix, which seems to me to deliver at least 99% of the religious liberty protection that academic proponents of RFRA want, while excluding the 1% of cases that so concern the LGBT community. With regard to Tom's prediction that many list members would oppose allowing nonprofit religious institutions to make RFRA claims, and speaking only for myself: Although I'm not a fan of RFRA's strict scrutiny standard in general,* I would not actively oppose legislation
RE: Text of Indiana RFRA Fix; Video of Hearing
I am dealing with other matters and cannot say more, but as someone who supported the Indiana RFRA and a letter on that side, I strongly support the fix, in part because James is largely correct when he says that it seems “to deliver at least 99% of the religious liberty protection that academic proponents of RFRA want, while excluding the 1% of cases that so concern the LGBT community.” But beyond that, the RFRA without the fix – whether or not as a matter of misperception – was giving religious freedom a bad name and was tearing my state apart. The fix does not include statewide antidiscrimination protection for members of the LGBT community; I wish it did Dan Daniel O. Conkle Robert H. McKinney Professor of Law Indiana University Maurer School of Law Bloomington, Indiana 47405 (812) 855-4331 fax (812) 855-0555 e-mail con...@indiana.edumailto:con...@indiana.edu From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of James Oleske Sent: Thursday, April 02, 2015 4:30 PM To: Law Religion issues for Law Academics Subject: Re: Text of Indiana RFRA Fix; Video of Hearing The Indiana House just passed the fix 66-30. Thanks to Tom, Doug, and Marty for their responses. As Doug notes, things are moving to fast to expect either of the law-professor groups who weighed in earlier on the Indiana RFRA to formulate a new group position on the fix, and I didn't meant to be asking for group positions. I merely meant to be asking if individual members of the list who had signed letters on either side might be supportive or not supportive of the proposed fix. And I should have mentioned that I am supportive of the fix, which seems to me to deliver at least 99% of the religious liberty protection that academic proponents of RFRA want, while excluding the 1% of cases that so concern the LGBT community. With regard to Tom's prediction that many list members would oppose allowing nonprofit religious institutions to make RFRA claims, and speaking only for myself: Although I'm not a fan of RFRA's strict scrutiny standard in general,* I would not actively oppose legislation that allows religious institutions to bring RFRA claims. My central concern about the latest round of RFRA advocacy has been the move to extend exemption rights into the for-profit commercial realm, particularly in the context of LGBT rights. I don't think religious exemptions in the LGBT context should be any broader than they have traditionally been with respect to the other classes covered under state antidiscrimination laws, and we have not had a tradition of granting religious exemptions to commercial businesses. Florists, bakers, caterers, and wedding venues that are open to the public have never been exempted from state laws that preclude discrimination against interracial couples, interfaith couples, or couples involving divorced individuals, and I don't think we should change that approach to allow discrimination against same-sex couples. I'm open to libertarian arguments for limiting the reach of state public accommodations laws so they don't reach certain truly intimate or core expressive services, and the test I would apply is whether we would allow those services to discriminate on the basis of race. I'm pretty sure we wouldn't pass a law letting a bakery refuse to provide a wedding cake for an interracial couple, but perhaps there are spheres beyond Mrs. Murphy boarding houses where consensus could be achieved that proprietors should have absolute discretion to select customers (e.g., freelance writers). * I would prefer that the Court revisit Smith and apply modestly heightened scrutiny to incidental burdens as a constitutional matter, not unlike it does to incidental burdens on speech; in the absence of that, I would support reasonable accommodation statutes at the state level resulting in modestly heightened scrutiny of incidental burdens on religious practices. - Jim On Thu, Apr 2, 2015 at 12:34 PM, Doug Laycock dlayc...@virginia.edumailto:dlayc...@virginia.edu wrote: Sexual orientation and religious faith go to the core of identity. That is a reason for protecting them; it is obviously not an operational test. I would protect the religious organizations themselves. I would exempt marriage counselors; it is in no one’s interest to force them to counsel couples whose relationship they think is fundamentally wrong. I would exempt very small businesses in the wedding industry, where the owner has to be personally involved in providing the services, if similar services are readily available elsewhere. Weddings are special because the religious side understands them as inherently religious events, creating a religious relationship – even if the couple is secular and thinking only of civil marriage. And all those who assist with a wedding are
RE: Dignitary Injury as an argument against religious exemptions to non-discrimination laws
Good questions, Will. Let me start with the last point and work backwards. I have no doubt that actions can be extremely expressive. And the action of not obeying what one considers to be an unjust law can send a very powerful message. But for free speech purposes, these actions are not protected speech. The draft resister who refused induction to protest the Viet Nam war goes to jail. The religious person who refuses to pay taxes to support what he or she considers to be immoral conduct may be sending a message too but they are still subject to sanction. The religious proponent of segregation who refuses to serve an African-American patron in his restaurant to express his commitment to racial hierarchy can be sued for doing so. If any of these people communicated their message of opposing the government’s policies with speech, but did not refuse to comply with a legal obligation, they would be protected by the First Amendment. As you say, in the wedding photography case, the dignitary harm is tied to the reason the wedding photographer is refusing to provide services to the same-sex couple. But the defendant’s motive is often an important component of a law that protects people against dignitary harm and it will clearly be relevant to the sentence or damage award. Not all contact between one person and another constitutes a battery, for example. Intent is necessary and the reason why the contact occurs will often help to determine whether it is offensive or not. I understand that my examples involve affirmative conduct that causes dignitary harm. I think one can argue discrimination in operating a place of public accommodation is affirmative conduct as well. If the base line is serving everyone, singling out members of a particular class for less satisfactory service or no service has an affirmative conduct dimension to it. But I take your point that refusing to serve a gay man or an African-American woman is a decision not to engage in conduct. But I’m not sure why this distinction makes a difference. I appreciate the religious liberty value assigned to the wedding photographer’s decision, but I have never differentiated between religious obligations that prohibit a person from doing something (don’t work on the Sabbath) and religious obligations that require a person to do something (smoke peyote in a religious ritual). I can come up with hypotheticals where the dignitary harm caused by a refusal to so something is greater than the dignitary harm resulting from affirmative conduct. If both are unlawful and both cause dignitary harm, why should we differentiate between the two or treat a claim for religious exemption more favorably in one case than the other. Alan From: Will Esser [mailto:willes...@yahoo.com] Sent: Thursday, April 02, 2015 2:19 PM To: Law Religion issues for Law Academics; Alan E Brownstein Subject: Re: Dignitary Injury as an argument against religious exemptions to non-discrimination laws Alan, Thanks for your post. However, both of the examples that you used to illustrate dignitary harms involve affirmative conduct of the person causing the harm (i.e. battery and trespass). In the wedding photographer example, however, the opposite is true. In that example, the alleged dignitary harm is caused by the decision of the individual not to engage in conduct (i.e. the wedding photographer says that she is happy to photograph gays and lesbians who come in to have their pictures taken, but simply wants to abstain from participating in the same-sex wedding). And more specifically, the alleged dignitary harm is explicitly tied to the reason the wedding photographer is refusing to participate. In other words, the wedding photographer is allowed to refuse to shoot the wedding for a myriad of non-discriminatory reasons (e.g. I'm on vacation then, I don't shoot weddings for people with tattoos, etc.) and those do not cause dignitary harm (or they cause dignitary harm based on unprotected classifications) (e.g. I don't photograph fat people). So it is in fact, the reason for the refusal to participate (i.e. the religious viewpoint that participating in a same-sex wedding ceremony violates religious precepts) which makes the difference under the relevant non-discrimination law and it is the reason for the refusal which causes the dignitary harm. It seems to me that whether there is affirmative action by the viewer versus simply refusing to participate makes a substantial difference when talking about dignitary harms. And on a related point, I'm not so sure that I agree with your initial premise that the refusal to engage in conduct which the religious believer views as violating her sincerely held religious beliefs is conduct and not speech. After all, actions speak louder than words and oftentimes the most expressive statement someone can make is refusing to participate in conduct. (Not that I've given this point much
Re: Dignitary Injury as an argument against religious exemptions to non-discrimination laws
I disagree with the New Mexico Supreme Court. Telling some customers that their business is unwelcome represents a denial of equal enjoyment of the goods and services . . . without discrimination on the basis of race, gender, sexual orientation, et cetera. Sent from my iPhone On Apr 2, 2015, at 7:15 AM, Will Esser willes...@yahoo.com wrote: Chip, Your example misses my point, so let me restate. Here is a recap of where I think we are: 1. You argue against religious exemptions to non-discrimination laws on two grounds, i.e. because of (a) material injury and (b) dignitary injury. 2. The material injury is the lost opportunity to receive the good or service at the price or quality offered by a particular business. 3. The dignitary injury is (in your example) the wound to the dignity of the couple by having to hear a viewpoint from the business owner which they find offensive or with which they disagree. I'm pushing back, because I'm not sure that both of these prongs can be used to support your argument. Let's assume the material injury prong is ABSENT in each situation so that we can just test the sufficiency of the dignitary injury prong (i.e. the wedding photographer WILL in fact provide photography services for both opposite and same-sex weddings, and the bookseller will sell anti-Christian books to everyone). Let's go a step further and say that the speech which wounds the dignity of the couple is present in EVERY situation (i.e. the photographer notifies ALL her customers regarding her belief about the morality of same-sex marriage, not just same-sex couples). As Mark pointed out, the New Mexico Supreme Court in Elane Photography appeared to accept the material injury argument as a basis for not granting a religious exemption to the local non-discrimination law, but not the dignitary injury argument. It held that the photographer posting a sign in the studio stating her views about same-sex marriage was permissible, so long as she still made the service available. In other words, the Court appeared to specifically permit the photographer to engage in the conduct which you contend causes the dignitary injury so long as the service was still provided and there was no material injury. Do you disagree with the NM Supreme Court on that point? If not, I think the dignitary injury prong has to be rejected as a rationale to support the argument against religious exemptions to non-discrimination laws. That would leave your argument relying solely on the material injury prong (which is a topic for another thread). Stated another way, I'm having a hard time understanding the dignitary injury argument as anything other than a position that people should not have to hear certain viewpoints with which they disagree, even if goods and services are otherwise being provided. Will Will Esser Charlotte, North Carolina From: Ira Lupu icl...@law.gwu.edu To: Will Esser willes...@yahoo.com Cc: Law Religion Issues for Law Academics religionlaw@lists.ucla.edu Sent: Wednesday, April 1, 2015 10:38 PM Subject: Re: Eugene's Blog Post on Liberals and Exemption Rights The vendor does not have to be respectful of the beliefs of his customers. How would he know the content of those beliefs? But he cannot be disrespectful of the class of people to which the customers belong, or the class to which he thinks the customers belong, If those classes are protected by the antidiscrimination law. They are entitled to the full and equal enjoyment of the goods he is selling, without any selectivity based on their race, religion, etc. A bookstore owner can sell anti-Christian books, but he must offer to sell them to Christians and non-Christians alike. Sent from my iPhone On Apr 1, 2015, at 9:41 PM, Will Esser willes...@yahoo.com wrote: 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
Dignitary Injury as an argument against religious exemptions to non-discrimination laws
Chip, Your example misses my point, so let me restate. Here is a recap of where I think we are: 1. You argue against religious exemptions to non-discrimination laws on two grounds, i.e. because of (a) material injury and (b) dignitary injury.2. The material injury is the lost opportunity to receive the good or service at the price or quality offered by a particular business.3. The dignitary injury is (in your example) the wound to the dignity of the couple by having to hear a viewpoint from the business owner which they find offensive or with which they disagree. I'm pushing back, because I'm not sure that both of these prongs can be used to support your argument. Let's assume the material injury prong is ABSENT in each situation so that we can just test the sufficiency of the dignitary injury prong (i.e. the wedding photographer WILL in fact provide photography services for both opposite and same-sex weddings, and the bookseller will sell anti-Christian books to everyone). Let's go a step further and say that the speech which wounds the dignity of the couple is present in EVERY situation (i.e. the photographer notifies ALL her customers regarding her belief about the morality of same-sex marriage, not just same-sex couples). As Mark pointed out, the New Mexico Supreme Court in Elane Photography appeared to accept the material injury argument as a basis for not granting a religious exemption to the local non-discrimination law, but not the dignitary injury argument. It held that the photographer posting a sign in the studio stating her views about same-sex marriage was permissible, so long as she still made the service available. In other words, the Court appeared to specifically permit the photographer to engage in the conduct which you contend causes the dignitary injury so long as the service was still provided and there was no material injury. Do you disagree with the NM Supreme Court on that point? If not, I think the dignitary injury prong has to be rejected as a rationale to support the argument against religious exemptions to non-discrimination laws. That would leave your argument relying solely on the material injury prong (which is a topic for another thread). Stated another way, I'm having a hard time understanding the dignitary injury argument as anything other than a position that people should not have to hear certain viewpoints with which they disagree, even if goods and services are otherwise being provided. Will Will Esser Charlotte, North Carolina From: Ira Lupu icl...@law.gwu.edu To: Will Esser willes...@yahoo.com Cc: Law Religion Issues for Law Academics religionlaw@lists.ucla.edu Sent: Wednesday, April 1, 2015 10:38 PM Subject: Re: Eugene's Blog Post on Liberals and Exemption Rights The vendor does not have to be respectful of the beliefs of his customers. How would he know the content of those beliefs? But he cannot be disrespectful of the class of people to which the customers belong, or the class to which he thinks the customers belong, If those classes are protected by the antidiscrimination law. They are entitled to the full and equal enjoyment of the goods he is selling, without any selectivity based on their race, religion, etc. A bookstore owner can sell anti-Christian books, but he must offer to sell them to Christians and non-Christians alike. Sent from my iPhone On Apr 1, 2015, at 9:41 PM, Will Esser willes...@yahoo.com wrote: 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
Re: Dignitary Injury as an argument against religious exemptions to non-discrimination laws
Chip, Thanks for that clarification. For consistency then, does your position run both ways regardless of the viewpoint expressed? For instance, given your view of dignitary injury, would it apply to prohibit the business owner who supports same-sex marriage from posting a sign that says: I believe that all marriage is equal and that same-sex sexual activity is every bit as good, moral and right as opposite same-sex sexual activity. An evangelical Christian or Catholic upon seeing such a sign could very easily argue that such a statement disrespected their religion (which taught the opposite) and therefore they had suffered a dignitary injury based on the posting of the sign, thereby adversely affecting their equal enjoyment of the goods and services . . . .without discrimination on the basis of religion. (The same is true of my example with the photographer who proudly displays the Serano Piss Christ photograph in their studio. It's hard to see how that would not constitute a dignitary injury to Christians which could affect their equal enjoyment of the goods and services provided by the photographer). Where do you draw the line on what viewpoints can be expressed and which cannot by the business owner? Will Will Esser Charlotte, North Carolina From: Ira Lupu icl...@law.gwu.edu To: Will Esser willes...@yahoo.com Cc: Law Religion Issues for Law Academics religionlaw@lists.ucla.edu Sent: Thursday, April 2, 2015 7:38 AM Subject: Re: Dignitary Injury as an argument against religious exemptions to non-discrimination laws I disagree with the New Mexico Supreme Court. Telling some customers that their business is unwelcome represents a denial of equal enjoyment of the goods and services . . . without discrimination on the basis of race, gender, sexual orientation, et cetera. Sent from my iPhone On Apr 2, 2015, at 7:15 AM, Will Esser willes...@yahoo.com wrote: Chip, Your example misses my point, so let me restate. Here is a recap of where I think we are: 1. You argue against religious exemptions to non-discrimination laws on two grounds, i.e. because of (a) material injury and (b) dignitary injury.2. The material injury is the lost opportunity to receive the good or service at the price or quality offered by a particular business.3. The dignitary injury is (in your example) the wound to the dignity of the couple by having to hear a viewpoint from the business owner which they find offensive or with which they disagree. I'm pushing back, because I'm not sure that both of these prongs can be used to support your argument. Let's assume the material injury prong is ABSENT in each situation so that we can just test the sufficiency of the dignitary injury prong (i.e. the wedding photographer WILL in fact provide photography services for both opposite and same-sex weddings, and the bookseller will sell anti-Christian books to everyone). Let's go a step further and say that the speech which wounds the dignity of the couple is present in EVERY situation (i.e. the photographer notifies ALL her customers regarding her belief about the morality of same-sex marriage, not just same-sex couples). As Mark pointed out, the New Mexico Supreme Court in Elane Photography appeared to accept the material injury argument as a basis for not granting a religious exemption to the local non-discrimination law, but not the dignitary injury argument. It held that the photographer posting a sign in the studio stating her views about same-sex marriage was permissible, so long as she still made the service available. In other words, the Court appeared to specifically permit the photographer to engage in the conduct which you contend causes the dignitary injury so long as the service was still provided and there was no material injury. Do you disagree with the NM Supreme Court on that point? If not, I think the dignitary injury prong has to be rejected as a rationale to support the argument against religious exemptions to non-discrimination laws. That would leave your argument relying solely on the material injury prong (which is a topic for another thread). Stated another way, I'm having a hard time understanding the dignitary injury argument as anything other than a position that people should not have to hear certain viewpoints with which they disagree, even if goods and services are otherwise being provided. Will Will Esser Charlotte, North Carolina From: Ira Lupu icl...@law.gwu.edu To: Will Esser willes...@yahoo.com Cc: Law Religion Issues for Law Academics religionlaw@lists.ucla.edu Sent: Wednesday, April 1, 2015 10:38 PM Subject: Re: Eugene's Blog Post on Liberals and Exemption Rights The vendor does not have to be respectful of the beliefs of his customers. How would he know the content of those beliefs? But he cannot be disrespectful of the class of people to which the customers belong, or the class to which he
Re: Text of Indiana RFRA Fix; Video of Hearing
I agree with Doug that this academic discussion is and will be overtaken by much more powerful political and social forces. Even so, I'm curious about how he and other would draw the lines he's proposing. What are those few cases where religious exemptions make sense? Only cases that somehow implicate matters going to the core of [the vendors'] identity? Would that be the test? (presumably not, since I can't imagine Doug wanting judges to adjudicate what's a religious core). Only discrimination on the basis of sexual orientation, but not other prohibited grounds? (If so, why?) Only cases raising the sorts of free *speech *claims that others have been discussing? If one moves from the generalities of a RFRA-ish test, and if one does not draft the exemption along some sort of *institutional *line (e.g., nonprofits with some sort of described religious character), it turns out to be awfully difficult for any of us, let alone a consensus of legislators, to describe the specific cases that should and should not be exempted, beyond the exemptions that everyone approves, such as ministers' involvement in religious ceremonies. On Thu, Apr 2, 2015 at 2:40 PM, Doug Laycock dlayc...@virginia.edu wrote: Things are moving much too fast in Indiana for a group of sixteen to take any position on the fix. And heavy duty political forces are now in play on both sides that render academic information pretty much irrelevant. I agree with Tom that a far better fix would be a strong gay-rights law with religious exemptions. Those could be provided under a state RFRA, or better yet, specifically negotiated to cover only those few cases where religious exemptions make sense. Then we wouldn’t have to argue about whether the general language of a RFRA might some day be interpreted to create an exemption that went too far. The Utah law is a step in the right direction, but it doesn’t cover all the ground. But we apparently can’t negotiate that deal, because the two sides are too far apart, too polarized, and too mistrustful. Much of the conservative religious community doesn’t want any gay rights law at all, and they apparently can’t enact one in Indiana. And much of the gay rights community increasingly appears to oppose any exemption of any kind, except for the clergy officiating at the wedding. If the two sides would acknowledge that folks on the other side deserve liberty with respect to matters going to the core of their identity, solutions would be possible. But that prerequisite appears to be missing. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Berg, Thomas C. *Sent:* Thursday, April 02, 2015 1:11 PM *To:* Law Religion issues for Law Academics *Subject:* RE: Text of Indiana RFRA Fix; Video of Hearing The fix preserves the ability of nonprofit religious institutions to have their claims heard under the state RFRA, which in my view is correct. Of course that will not be a stable resolution in blue states now, and many on the list would oppose allowing those claims to be raised. In my view, the best fix would have been to provide statewide anti-discrimination protection based on sexual orientation, and let claims continue to be raised under the state RFRA. That would do far more for same-sex couples, especially in rural areas where they face the most prejudice, than this does. And as we predicted in our original letter, the only commercial claims with even a possibility of being granted would be the small wedding vendors (and those would be doubtful). But I gather Republicans did not support expanding the anti-discrimination law, and I assume Democrats wouldn’t have taken the deal either. The focus has been on the state RFRA even though, as to commercial discrimination cases, its effect is largely symbolic. This episode could work to hamper the strategy of addressing this conflict through exemptions from anti-discrimination laws. But that’s not going to do much to get anti-discrimination laws passed in red states in the first place. - Thomas C. Berg James L. Oberstar Professor of Law and Public Policy University of St. Thomas School of Law MSL 400, 1000 LaSalle Avenue Minneapolis, MN 55403-2015 Phone: (651) 962-4918 Fax: (651) 962-4996 E-mail: tcb...@stthomas.edu SSRN: http://ssrn.com/author=261564 Weblog: http://www.mirrorofjustice.blogs.com http://www.mirrorofjustice.blogs.com/mirrorofjustice *From:* religionlaw-boun...@lists.ucla.edu [ mailto:religionlaw-boun...@lists.ucla.edu religionlaw-boun...@lists.ucla.edu] *On Behalf Of *James Oleske *Sent:* Thursday, April 02, 2015
Re: Text of Indiana RFRA Fix; Video of Hearing
After lots of testimony in favor of the fix by members of the business community, Advance America's Eric Miller made the case against the fix at length, repeatedly citing the letter signed by 16 law professors in favor of the Indiana RFRA. I'm guessing that, while many of those law professors think the fix is unnecessary, some of them might not join Miller in actively opposing the fix. Miller has championed RFRA for the very specific reason that he believes it would provide clear protection to businesses that refuse to provide marriage-related services to same-sex couples, but the law-professor letter he invokes does not portray that protection as clearly forthcoming under RFRA (But whatever one thinks of the arguments for and against exempting such individuals, it is not at all clear that the proposed Indiana RFRA would lead courts to recognize such an exemption [E]ven had the New Mexico RFRA applied [to the claim in Elane Photography], the New Mexico Supreme Court ... would likely have held that enforcement of the anti-discrimination laws served a compelling interest by the least restrictive means.). As some of the professors who supported the original Indiana RFRA are list participants, I'm wondering if they think my perception is correct. Are any planning to actively support or oppose the fix? We also have list participants who signed a letter opposing the original Indiana RFRA, and it would be interesting to hear from them whether they plan to actively support or oppose the fix. - Jim On Thu, Apr 2, 2015 at 7:33 AM, James Oleske jole...@lclark.edu wrote: The text of the fix is here: http://t.co/58d1K81D1L It provides that the RFRA does not: (1) authorize a provider to refuse to offer or provide services, facilities, use of public accommodations, goods, employment, or housing to any member or members of the general public on the basis of race, color, religion, ancestry, age, national origin, disability, sex, sexual orientation, gender identity, or United States military service; (2) establish a defense to a civil action or criminal prosecution for refusal by a provider to offer or provide services, facilities, use of public accommodations, goods, employment, or housing to any member or members of the general public on the basis of race, color, religion, ancestry, age, national origin, disability, sex, sexual orientation, gender identity, or United States military service” The measure exempts tax-exempt churches, non profit religious organizations and societies, including church affiliated schools, as well as ministers of churches or nonprofit religious organizations. The hearing on the fix is streaming live here: http://iga.in.gov/legislative/2015/session/senate_video_archive/ ___ 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
Dear Nelson, I don't see that the Hobby Lobby Court reaffirmed the principle against burden-shifting in religion accommodations or that Justice Kennedy made it central to his vote if by principle here you mean the argument -- which, of course, you and several others have very ably developed and expounded -- that the Establishment Clause rules out (all?) legislative accommodations that involve or impose third-party costs (on specific, identifiable third parties). (I ask about all because my recollection is that you have said that the accommodation at issue in Amos was / is permissible.) Justice Ginsburg notes in a footnote that the government’s license to grant religion-based exemptions from generally applicable laws is constrained by the Establishment Clause but, it seems to me, she did not rely on this point in her dissent, which seemed to me to be more about RFRA's particular elements. Justice Kennedy says, in his penultimate paragraph, [y]et neither may that same exercise unduly restrict other persons, such as employees, in protecting their own interests, interests the law deems compelling[,] but he seems to be doing so in the context of applying what he and the Court call RFRA's stringent test and not necessarily to be invoking an Establishment Clause constraint. And, Justice Alito does not mention the Establishment Clause at all. I also continue to think -- although the conversation about the rule you and other leading scholars propose is very important -- that it is not quite the case that the case law in both areas is lopsided in favor of the principle -- again, if the principle is the fairly strong Establishment Clause constraint you all have proposed -- but . . . disagreement among colleagues helps make life interesting and I guess we just understand Caldor and Cutter differently. Marc DeGirolami's discussion (here: http://mirrorofjustice.blogs.com/mirrorofjustice/2013/12/exemptions-from-the-mandate-do-not-violate-the-establishment-clause.html) and Eugene Volokh's (here: http://volokh.com/2013/12/04/3b-granting-exemption-employer-mandate-violate-establishment-clause/) were, for me, helpful. With respect to your (and others') Establishment Clause argument, I do have a quick question. (I am sorry if I am forgetting an answer that you have already presented in your scholarship!) Do you think we should think of the no-burden-shifting rule as applying, in a sense, only *after* we have identified whatever limits on government regulation the First Amendment might require (e.g., the ministerial exception), and as applying only as a constraint on discretionary accommodations, or should we think of the rule as kicking in earlier, and as helping to fix the point where the First Amendment rights of, say, Hosanna-Tabor school end? Or does it not matter? Again, please feel free just to refer me to something else. All the best, Rick Richard W. Garnett Professor of Law and Concurrent Professor of Political Science Director, Program on Church, State Society Notre Dame Law School P.O. Box 780 Notre Dame, Indiana 46556-0780 574-631-6981 (w) 574-276-2252 (cell) rgarn...@nd.edu To download my scholarly papers, please visit my SSRN page http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=342235 Blogs: Prawfsblawg http://prawfsblawg.blogs.com/ Mirror of Justice http://mirrorofjustice.blogs.com/ Twitter: @RickGarnett https://twitter.com/RickGarnett On Wed, Apr 1, 2015 at 7:07 PM, Nelson Tebbe nelson.te...@brooklaw.edu wrote: 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.edu wrote: I appreciate your point, Nelson. And I think the principle that private citizens should not have to bear the costs associated with
Text of Indiana RFRA Fix; Video of Hearing
The text of the fix is here: http://t.co/58d1K81D1L It provides that the RFRA does not: (1) authorize a provider to refuse to offer or provide services, facilities, use of public accommodations, goods, employment, or housing to any member or members of the general public on the basis of race, color, religion, ancestry, age, national origin, disability, sex, sexual orientation, gender identity, or United States military service; (2) establish a defense to a civil action or criminal prosecution for refusal by a provider to offer or provide services, facilities, use of public accommodations, goods, employment, or housing to any member or members of the general public on the basis of race, color, religion, ancestry, age, national origin, disability, sex, sexual orientation, gender identity, or United States military service” The measure exempts tax-exempt churches, non profit religious organizations and societies, including church affiliated schools, as well as ministers of churches or nonprofit religious organizations. The hearing on the fix is streaming live here: http://iga.in.gov/legislative/2015/session/senate_video_archive/ ___ 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: Dignitary Injury as an argument against religious exemptions to non-discrimination laws
Thanks Chip. Looks like your last post to me was not copied to the list, so I've copied here for the benefit of all. Your point about permissible legislative decisions on opt-outs is a good one, and the concept of allowing religious opt-outs conditioned on posting a sign notifying the public about the religious opt-out in order to avoid dignitary injury issues seems like a fair compromise position. It certainly seems like it would remove the dignitary injury issue from the equation, and could represent the legislature's determination that the material injury by itself was not significant enough (given the general availability of goods and services in the marketplace otherwise) to negate the importance of religious exemptions. I haven't seen that particular compromise proposed in any of the discussed legislation, but it is a concept worth further thought. Same best wishes to you and yours. May all those with strong feelings on these topics be willing to rationally debate the issues in the same manner as those on this list and focus on arriving at a resolution which respects the interests of all involved in our diverse society. Will Will Esser Charlotte, North Carolina From: Ira Lupu icl...@law.gwu.edu To: Will Esser willes...@yahoo.com Sent: Thursday, April 2, 2015 9:28 AM Subject: Re: Dignitary Injury as an argument against religious exemptions to non-discrimination laws That's a good question, Will. Before I answer, let me clarify that the legislature can permit the disclaiming sign (We serve all, but we are opposed to same sex marriage.) The legislature can also permit religious opt-outs from serving all, on the condition that a sign be posted, so as to spare same sex couples the embarrassment and dignitary injury of walking in and then being turned away. These are discretionary legislative decisions, neither required not forbidden by the First A. Where to draw the line about vendor expression in the workplace? Certainly not over the goods that are being sold -- ham or kosher meat; Piss Christ copies or reverent Christmas cards. That's what is for sale, for all who want to purchase. So we're left with the cases of messages (not goods for sale) that express borderline hostility to some customers, and now the line is hard to draw - Confederate flags on the wall? Quasi-pornographic photos of women? No easy answers here, any more than there are in borderline hostile environment cases of sexual harassment in the workplace. I would suggest something like if the reasonable customer would be made to feel unwelcome, on the basis of race, etc, by the message(s) [NOT by the goods for sale], then the message is inconsistent with a law of non-discrimination. I know that will leave grey areas and uncertainty. But that doesn't bother me, because this is speech zoning -- the same vendor can fly Confederate flags at home, speak out in political fora against same sex marriage, etc. I can't do better than this in the abstract. I don't expect to persuade you. But I do think that the argument that people have a right to bring their religion into their business (by all means, sell Christmas ornaments and Passover Matzoh; close on your Sabbath) can be blocked with an argument that says not if the expression of their religion to customers is in effect an attempt to deny equal access to goods and services to a class of people protected by civil rights laws. Passover, Good Friday, and Easter Sunday coming up -- peace, hope, and freedom to all on the list, whether or not you recognize or celebrate any of those holidays. On Thu, Apr 2, 2015 at 8:30 AM, Will Esser willes...@yahoo.com wrote: Chip, Thanks for that clarification. For consistency then, does your position run both ways regardless of the viewpoint expressed? For instance, given your view of dignitary injury, would it apply to prohibit the business owner who supports same-sex marriage from posting a sign that says: I believe that all marriage is equal and that same-sex sexual activity is every bit as good, moral and right as opposite same-sex sexual activity. An evangelical Christian or Catholic upon seeing such a sign could very easily argue that such a statement disrespected their religion (which taught the opposite) and therefore they had suffered a dignitary injury based on the posting of the sign, thereby adversely affecting their equal enjoyment of the goods and services . . . .without discrimination on the basis of religion. (The same is true of my example with the photographer who proudly displays the Serano Piss Christ photograph in their studio. It's hard to see how that would not constitute a dignitary injury to Christians which could affect their equal enjoyment of the goods and services provided by the photographer). Where do you draw the line on what viewpoints can be expressed and which cannot by the business owner? Will Will Esser Charlotte, North
RE: Text of Indiana RFRA Fix; Video of Hearing
The fix preserves the ability of nonprofit religious institutions to have their claims heard under the state RFRA, which in my view is correct. Of course that will not be a stable resolution in blue states now, and many on the list would oppose allowing those claims to be raised. In my view, the best fix would have been to provide statewide anti-discrimination protection based on sexual orientation, and let claims continue to be raised under the state RFRA. That would do far more for same-sex couples, especially in rural areas where they face the most prejudice, than this does. And as we predicted in our original letter, the only commercial claims with even a possibility of being granted would be the small wedding vendors (and those would be doubtful). But I gather Republicans did not support expanding the anti-discrimination law, and I assume Democrats wouldn’t have taken the deal either. The focus has been on the state RFRA even though, as to commercial discrimination cases, its effect is largely symbolic. This episode could work to hamper the strategy of addressing this conflict through exemptions from anti-discrimination laws. But that’s not going to do much to get anti-discrimination laws passed in red states in the first place. - Thomas C. Berg James L. Oberstar Professor of Law and Public Policy University of St. Thomas School of Law MSL 400, 1000 LaSalle Avenue Minneapolis, MN 55403-2015 Phone: (651) 962-4918 Fax: (651) 962-4996 E-mail: tcb...@stthomas.edumailto:tcb...@stthomas.edu SSRN: http://ssrn.com/author=261564 Weblog: http://www.mirrorofjustice.blogs.comhttp://www.mirrorofjustice.blogs.com/mirrorofjustice From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of James Oleske Sent: Thursday, April 02, 2015 10:31 AM To: Law Religion issues for Law Academics Subject: Re: Text of Indiana RFRA Fix; Video of Hearing After lots of testimony in favor of the fix by members of the business community, Advance America's Eric Miller made the case against the fix at length, repeatedly citing the letter signed by 16 law professors in favor of the Indiana RFRA. I'm guessing that, while many of those law professors think the fix is unnecessary, some of them might not join Miller in actively opposing the fix. Miller has championed RFRA for the very specific reason that he believes it would provide clear protection to businesses that refuse to provide marriage-related services to same-sex couples, but the law-professor letter he invokes does not portray that protection as clearly forthcoming under RFRA (But whatever one thinks of the arguments for and against exempting such individuals, it is not at all clear that the proposed Indiana RFRA would lead courts to recognize such an exemption [E]ven had the New Mexico RFRA applied [to the claim in Elane Photography], the New Mexico Supreme Court ... would likely have held that enforcement of the anti-discrimination laws served a compelling interest by the least restrictive means.). As some of the professors who supported the original Indiana RFRA are list participants, I'm wondering if they think my perception is correct. Are any planning to actively support or oppose the fix? We also have list participants who signed a letter opposing the original Indiana RFRA, and it would be interesting to hear from them whether they plan to actively support or oppose the fix. - Jim On Thu, Apr 2, 2015 at 7:33 AM, James Oleske jole...@lclark.edumailto:jole...@lclark.edu wrote: The text of the fix is here: http://t.co/58d1K81D1L It provides that the RFRA does not: (1) authorize a provider to refuse to offer or provide services, facilities, use of public accommodations, goods, employment, or housing to any member or members of the general public on the basis of race, color, religion, ancestry, age, national origin, disability, sex, sexual orientation, gender identity, or United States military service; (2) establish a defense to a civil action or criminal prosecution for refusal by a provider to offer or provide services, facilities, use of public accommodations, goods, employment, or housing to any member or members of the general public on the basis of race, color, religion, ancestry, age, national origin, disability, sex, sexual orientation, gender identity, or United States military service” The measure exempts tax-exempt churches, non profit religious organizations and societies, including church affiliated schools, as well as ministers of churches or nonprofit religious organizations. The hearing on the fix is streaming live here: http://iga.in.gov/legislative/2015/session/senate_video_archive/ ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password,
Re: Eugene's Blog Post on Liberals and Exemption Rights
Rick, In Hobby Lobby, the majority says: It is certainly true that in applying RFRA “courts must take adequate account of the burdens a requested accommodation may impose on nonbeneficiaries.” Cutter v. Wilkinson, 544 U. S. 709, 720 (2005) (applying RLUIPA). That sentence quoted from Cutter relies on Caldor. These are both Establishment Clauses cases articulating a limit on permissive accommodations. We can argue about the scope of that limit, but as Nelson said earlier, it is surprising to see such resistance to even the general form of it. Micah On Apr 2, 2015, at 10:33 AM, Rick Garnett rgarn...@nd.edu wrote: Dear Nelson, I don't see that the Hobby Lobby Court reaffirmed the principle against burden-shifting in religion accommodations or that Justice Kennedy made it central to his vote if by principle here you mean the argument -- which, of course, you and several others have very ably developed and expounded -- that the Establishment Clause rules out (all?) legislative accommodations that involve or impose third-party costs (on specific, identifiable third parties). (I ask about all because my recollection is that you have said that the accommodation at issue in Amos was / is permissible.) Justice Ginsburg notes in a footnote that the government’s license to grant religion-based exemptions from generally applicable laws is constrained by the Establishment Clause but, it seems to me, she did not rely on this point in her dissent, which seemed to me to be more about RFRA's particular elements. Justice Kennedy says, in his penultimate paragraph, [y]et neither may that same exercise unduly restrict other persons, such as employees, in protecting their own interests, interests the law deems compelling[,] but he seems to be doing so in the context of applying what he and the Court call RFRA's stringent test and not necessarily to be invoking an Establishment Clause constraint. And, Justice Alito does not mention the Establishment Clause at all. I also continue to think -- although the conversation about the rule you and other leading scholars propose is very important -- that it is not quite the case that the case law in both areas is lopsided in favor of the principle -- again, if the principle is the fairly strong Establishment Clause constraint you all have proposed -- but . . . disagreement among colleagues helps make life interesting and I guess we just understand Caldor and Cutter differently. Marc DeGirolami's discussion (here: http://mirrorofjustice.blogs.com/mirrorofjustice/2013/12/exemptions-from-the-mandate-do-not-violate-the-establishment-clause.html) and Eugene Volokh's (here: http://volokh.com/2013/12/04/3b-granting-exemption-employer-mandate-violate-establishment-clause/) were, for me, helpful. With respect to your (and others') Establishment Clause argument, I do have a quick question. (I am sorry if I am forgetting an answer that you have already presented in your scholarship!) Do you think we should think of the no-burden-shifting rule as applying, in a sense, only *after* we have identified whatever limits on government regulation the First Amendment might require (e.g., the ministerial exception), and as applying only as a constraint on discretionary accommodations, or should we think of the rule as kicking in earlier, and as helping to fix the point where the First Amendment rights of, say, Hosanna-Tabor school end? Or does it not matter? Again, please feel free just to refer me to something else. All the best, Rick Richard W. Garnett Professor of Law and Concurrent Professor of Political Science Director, Program on Church, State Society Notre Dame Law School P.O. Box 780 Notre Dame, Indiana 46556-0780 574-631-6981 (w) 574-276-2252 (cell) rgarn...@nd.edu To download my scholarly papers, please visit my SSRN page Blogs: Prawfsblawg Mirror of Justice Twitter: @RickGarnett On Wed, Apr 1, 2015 at 7:07 PM, Nelson Tebbe nelson.te...@brooklaw.edu wrote: 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
RE: Text of Indiana RFRA Fix; Video of Hearing
Things are moving much too fast in Indiana for a group of sixteen to take any position on the fix. And heavy duty political forces are now in play on both sides that render academic information pretty much irrelevant. I agree with Tom that a far better fix would be a strong gay-rights law with religious exemptions. Those could be provided under a state RFRA, or better yet, specifically negotiated to cover only those few cases where religious exemptions make sense. Then we wouldn’t have to argue about whether the general language of a RFRA might some day be interpreted to create an exemption that went too far. The Utah law is a step in the right direction, but it doesn’t cover all the ground. But we apparently can’t negotiate that deal, because the two sides are too far apart, too polarized, and too mistrustful. Much of the conservative religious community doesn’t want any gay rights law at all, and they apparently can’t enact one in Indiana. And much of the gay rights community increasingly appears to oppose any exemption of any kind, except for the clergy officiating at the wedding. If the two sides would acknowledge that folks on the other side deserve liberty with respect to matters going to the core of their identity, solutions would be possible. But that prerequisite appears to be missing. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Berg, Thomas C. Sent: Thursday, April 02, 2015 1:11 PM To: Law Religion issues for Law Academics Subject: RE: Text of Indiana RFRA Fix; Video of Hearing The fix preserves the ability of nonprofit religious institutions to have their claims heard under the state RFRA, which in my view is correct. Of course that will not be a stable resolution in blue states now, and many on the list would oppose allowing those claims to be raised. In my view, the best fix would have been to provide statewide anti-discrimination protection based on sexual orientation, and let claims continue to be raised under the state RFRA. That would do far more for same-sex couples, especially in rural areas where they face the most prejudice, than this does. And as we predicted in our original letter, the only commercial claims with even a possibility of being granted would be the small wedding vendors (and those would be doubtful). But I gather Republicans did not support expanding the anti-discrimination law, and I assume Democrats wouldn’t have taken the deal either. The focus has been on the state RFRA even though, as to commercial discrimination cases, its effect is largely symbolic. This episode could work to hamper the strategy of addressing this conflict through exemptions from anti-discrimination laws. But that’s not going to do much to get anti-discrimination laws passed in red states in the first place. - Thomas C. Berg James L. Oberstar Professor of Law and Public Policy University of St. Thomas School of Law MSL 400, 1000 LaSalle Avenue Minneapolis, MN 55403-2015 Phone: (651) 962-4918 Fax: (651) 962-4996 E-mail: tcb...@stthomas.edu mailto:tcb...@stthomas.edu SSRN: http://ssrn.com/author=261564 Weblog: http://www.mirrorofjustice.blogs.com http://www.mirrorofjustice.blogs.com/mirrorofjustice From: religionlaw-boun...@lists.ucla.edu mailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of James Oleske Sent: Thursday, April 02, 2015 10:31 AM To: Law Religion issues for Law Academics Subject: Re: Text of Indiana RFRA Fix; Video of Hearing After lots of testimony in favor of the fix by members of the business community, Advance America's Eric Miller made the case against the fix at length, repeatedly citing the letter signed by 16 law professors in favor of the Indiana RFRA. I'm guessing that, while many of those law professors think the fix is unnecessary, some of them might not join Miller in actively opposing the fix. Miller has championed RFRA for the very specific reason that he believes it would provide clear protection to businesses that refuse to provide marriage-related services to same-sex couples, but the law-professor letter he invokes does not portray that protection as clearly forthcoming under RFRA (But whatever one thinks of the arguments for and against exempting such individuals, it is not at all clear that the proposed Indiana RFRA would lead courts to recognize such an exemption [E]ven had the New Mexico RFRA applied [to the claim in Elane Photography], the New Mexico Supreme Court ... would likely have held that enforcement of the anti-discrimination laws served a compelling interest by
RE: Dignitary Injury as an argument against religious exemptions to non-discrimination laws
Will and Chip’s exchange ended on such a thoughtful and positive note (which I greatly appreciate) that I hesitate to add another post to this thread out of fear it might break the spell. I agree with Will and Chip’s discussion about when and whether speech by itself constitutes discrimination for the purposes of civil rights laws. When we are talking about exemptions from anti-discrimination laws, however, the core issue isn’t dignitary harms that result from a proprietor’s speech. It is dignitary harms that result from the proprietor’s conduct. (I assume we all agree that a discriminatory refusal to serve a customer or to hire a job applicant is conduct and not speech.) And while both speech and conduct can cause dignitary harms, we typically don’t equate the two and excuse the latter because we would tolerate the former. I may have no recourse if someone insults me because I’m a Jew. Indeed, the person insulting has a First Amendment right to express anti-Semitic statements. But if he spits on my shirt or knocks my yarmulke off my head (which given my bald head takes very little force), I may not be able to get a pound of flesh for redress, but I can sue the person for battery – even though my injuries are essentially dignitary harms. Similarly, a Nazi can parade up and down the street with a sign with a swastika on it in front of my synagogue. But if he draws the swastika on my synagogue’s wall, it is trespass and vandalism and possible a hate crime. Again, the primary affront is a dignitary harm, but we draw a sharp distinction between dignitary harms caused by speech alone and dignitary harms caused by conduct or caused by messages expressed through conduct. Indeed, part of the way I understand the sharpness of this distinction is that we protect hurtful speech – even though we have real concerns about the harm the speech causes -- because we mistrust government and value unfettered public debate. But we tell people whose conduct inflicts dignitary harms on others: Do not misunderstand our tolerance of your speech. We do care about dignitary harms. We allow you to cause them because of the importance of freedom of speech – not because we doubt the injury caused by dignitary harm. Accordingly, if you move outside of the sphere of protected speech and engage in conduct that causes dignitary harm, you can be sanctioned for doing so. Under this analysis, it would be a mistake to argue that the affront and insult to dignity experienced by people who are discriminated against by being denied service in a place of public accommodation cannot justify the government prohibiting such discrimination because a similar affront to their dignity would be tolerated (indeed, arguably protected) if it was communicated through speech alone. And let me join Will and Chip in wishing everyone who celebrates Easter a Happy Easter, everyone who celebrates Passover a Happy Passover and everyone who celebrates neither a Happy Spring. Alan From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Will Esser Sent: Thursday, April 02, 2015 6:58 AM To: Ira Lupu; Law Religion Issues for Law Academics Subject: Re: Dignitary Injury as an argument against religious exemptions to non-discrimination laws Thanks Chip. Looks like your last post to me was not copied to the list, so I've copied here for the benefit of all. Your point about permissible legislative decisions on opt-outs is a good one, and the concept of allowing religious opt-outs conditioned on posting a sign notifying the public about the religious opt-out in order to avoid dignitary injury issues seems like a fair compromise position. It certainly seems like it would remove the dignitary injury issue from the equation, and could represent the legislature's determination that the material injury by itself was not significant enough (given the general availability of goods and services in the marketplace otherwise) to negate the importance of religious exemptions. I haven't seen that particular compromise proposed in any of the discussed legislation, but it is a concept worth further thought. Same best wishes to you and yours. May all those with strong feelings on these topics be willing to rationally debate the issues in the same manner as those on this list and focus on arriving at a resolution which respects the interests of all involved in our diverse society. Will Will Esser Charlotte, North Carolina From: Ira Lupu icl...@law.gwu.edumailto:icl...@law.gwu.edu To: Will Esser willes...@yahoo.commailto:willes...@yahoo.com Sent: Thursday, April 2, 2015 9:28 AM Subject: Re: Dignitary Injury as an argument against religious exemptions to non-discrimination laws That's a good question, Will. Before I answer, let me clarify that the legislature can permit the disclaiming sign (We serve all, but we are opposed to same sex
Re: Eugene's Blog Post on Liberals and Exemption Rights
Let's see what Chip and I seem to agree on, and then I'll express my strong disagreement on one point. We seem to agree that the wedding photographer creates art. It is hard to see how visual portrayals of an event can convey a message of beauty and authenticity and not be called art. Indeed it would seem to be celebratory art, as I've been saying all along, if it deals with beauty and authenticity. We seem to agree that the wedding photographer (if she can be required to photograph the same sex ceremony) cannot (as a colleague put it off list) sabotage the photography, by intentionally portraying the ceremony as ugly or false (in the sense that the two persons are insincere or that the ceremony doesn't have whatever legal effect the law provides). I suppose I'd go further and say that the photographer has to use the same high-quality equipment that she normally would use, has to take photos from the normal angles, and has to fix red-eye problems and similar problems before sending the proofs to the clients for their selection. I can't agree that the photographer can be required to create visual works that portray the ceremony as beautiful (or authentic, if that means posing the couple so as to bring out their sincere commitment to each other). The state may be able to require her to photograph the ceremony, but it can't require her to express the view that the ceremony is beautiful. The state has no business deciding what is beautiful or requiring people to create expressive works that carry a message of beauty, any more than it can require people to express the view that the state is good and the laws just. The state may not prescribe orthodoxy as to the beautiful, the true, or the good; any other view takes us a step on the road to tyranny (or, in the extreme, to totalitarianism) which Chip obviously would not endorse). With regard to Ollie's Barbecue, we may disagree about the ways in which Ollie may express his political and social views, but surely he can't intentionally spoil the food, just as the photographer can't intentionally spoil the photos. A key difference for other purposes is that Ollie is not in the business of creating expressive works; the requirement that he sell food of the same quality to all comers doesn't raise compelled speech issues. He has much less need to express his political and social views in the restaurant to avoid becoming the state's mouthpiece, because he isn't being required to say anything that would appear to be his own speech. (He could be required to post a sign saying that the state requires all customers to be served, without respect to race etc., but that would identify the message as coming from the state.) Nor is Ollie required to be involved personally in the intimate lives of his customers, the way a wedding photographer (or wedding planner) ordinarily is with the couple. That raises separate free exercise issues in the wedding photography case for a photographer who believes it is wrong (as a matter of conventional religion or its equivalent per the Seeger case) to facilitate a same-sex marriage. And perhaps it creates a hybrid rights situation per Smith. Of course it's also easier for the state to tell whether Ollie burns the food or includes noxious ingredients than it is for the state to determine whether a photographer has sufficiently expressed the state's (or the clients') views as to beauty and truth. That implicates not only practical concerns but also the degree of vagueness of the law and the degree of discretion given to officials who would police the photographer's use of her First Amendment rights. Mark Mark S. Scarberry Pepperdine University School of Law Sent from my iPad On Apr 1, 2015, at 6:03 PM, Ira Lupu icl...@law.gwu.edumailto:icl...@law.gwu.edu wrote: 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.edumailto: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.edumailto:religionlaw-boun...@lists.ucla.edu
Re: Eugene's Blog Post on Liberals and Exemption Rights
Micah, nobody I know who is resisting the third party Establishment Clause theory that you, Nelson, and others have created based on “the general form” of a constitutional limit on religious accommodation. RFRA incorporates the general form of such a limit. Marc From: Micah Schwartzman mj...@virginia.edumailto:mj...@virginia.edu Reply-To: Law Religion issues for Law Academics religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Date: Thursday, April 2, 2015 at 1:40 PM To: Law Religion issues for Law Academics religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Subject: Re: Eugene's Blog Post on Liberals and Exemption Rights Rick, In Hobby Lobby, the majority says: It is certainly true that in applying RFRA “courts must take adequate account of the burdens a requested accommodation may impose on nonbeneficiaries.” Cutter v. Wilkinson, 544 U. S. 709http://www.law.cornell.edu/supremecourt//text/544/709, 720 (2005) (applying RLUIPA). That sentence quoted from Cutter relies on Caldor. These are both Establishment Clauses cases articulating a limit on permissive accommodations. We can argue about the scope of that limit, but as Nelson said earlier, it is surprising to see such resistance to even the general form of it. Micah On Apr 2, 2015, at 10:33 AM, Rick Garnett rgarn...@nd.edumailto:rgarn...@nd.edu wrote: Dear Nelson, I don't see that the Hobby Lobby Court reaffirmed the principle against burden-shifting in religion accommodations or that Justice Kennedy made it central to his vote if by principle here you mean the argument -- which, of course, you and several others have very ably developed and expounded -- that the Establishment Clause rules out (all?) legislative accommodations that involve or impose third-party costs (on specific, identifiable third parties). (I ask about all because my recollection is that you have said that the accommodation at issue in Amos was / is permissible.) Justice Ginsburg notes in a footnote that the government’s license to grant religion-based exemptions from generally applicable laws is constrained by the Establishment Clause but, it seems to me, she did not rely on this point in her dissent, which seemed to me to be more about RFRA's particular elements. Justice Kennedy says, in his penultimate paragraph, [y]et neither may that same exercise unduly restrict other persons, such as employees, in protecting their own interests, interests the law deems compelling[,] but he seems to be doing so in the context of applying what he and the Court call RFRA's stringent test and not necessarily to be invoking an Establishment Clause constraint. And, Justice Alito does not mention the Establishment Clause at all. I also continue to think -- although the conversation about the rule you and other leading scholars propose is very important -- that it is not quite the case that the case law in both areas is lopsided in favor of the principle -- again, if the principle is the fairly strong Establishment Clause constraint you all have proposed -- but . . . disagreement among colleagues helps make life interesting and I guess we just understand Caldor and Cutter differently. Marc DeGirolami's discussion (here: http://mirrorofjustice.blogs.com/mirrorofjustice/2013/12/exemptions-from-the-mandate-do-not-violate-the-establishment-clause.html) and Eugene Volokh's (here: http://volokh.com/2013/12/04/3b-granting-exemption-employer-mandate-violate-establishment-clause/) were, for me, helpful. With respect to your (and others') Establishment Clause argument, I do have a quick question. (I am sorry if I am forgetting an answer that you have already presented in your scholarship!) Do you think we should think of the no-burden-shifting rule as applying, in a sense, only *after* we have identified whatever limits on government regulation the First Amendment might require (e.g., the ministerial exception), and as applying only as a constraint on discretionary accommodations, or should we think of the rule as kicking in earlier, and as helping to fix the point where the First Amendment rights of, say, Hosanna-Tabor school end? Or does it not matter? Again, please feel free just to refer me to something else. All the best, Rick Richard W. Garnett Professor of Law and Concurrent Professor of Political Science Director, Program on Church, State Society Notre Dame Law School P.O. Box 780 Notre Dame, Indiana 46556-0780 574-631-6981 (w) 574-276-2252 (cell) rgarn...@nd.edumailto:rgarn...@nd.edu To download my scholarly papers, please visit my SSRN pagehttp://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=342235 Blogs: Prawfsblawghttp://prawfsblawg.blogs.com/ Mirror of Justicehttp://mirrorofjustice.blogs.com/ Twitter: @RickGarnetthttps://twitter.com/RickGarnett On Wed, Apr 1, 2015 at 7:07 PM, Nelson Tebbe nelson.te...@brooklaw.edumailto:nelson.te...@brooklaw.edu wrote: Thanks, Alan. Speaking again only
