Re: Louisiana Update: Gov. Jindal Will Support Marriage Conscience Act (specific exemption, not a RFRA)
A reporter told me that the sponsor was insisting that the bill has nothing to do with suits by private citizens. Only actions by government. Louisiana has no sexual orientation nondiscrimination law, but the reporter said the New Orleans and Shreveport do. The bill says nothing about local government, and it is not obvious (as it would be in a federal bill) that restrictions on the state include restrictions on local government. My impression is that state legislation usually spells that out. It's a very strange bill -- narrow in some ways and overbroad in others. On Wed, 8 Apr 2015 19:27:06 -0700 James Oleske jole...@lclark.edu wrote: Apologies to my fellow list members -- I dashed off the message below quickly before heading to class without a sufficiently close read of the statutory language. The benefits clause of theadverse action provision in the Louisiana bill is limited to penalties for actions taken or not taken with respect to *employee* benefits, not customer services, and the sponsor has indicated he will be removing the employee-benefits clause. With the employee-benefits provision removed, the relevant language of the Louisiana bill reads: Notwithstanding any other law to the contrary, this state shall not take any adverse action against a person, wholly or partially, on the basis that such person acts in accordance with a religious belief or moral conviction about the institution of marriage [A]n adverse action means any action taken by this state to do any of the following Otherwise discriminate against or disadvantage such person The term person means a natural or juridical person as defined in Civil 19 Code Article 24, and includes any such person regardless of religious affiliation or lack thereof, and regardless of for-profit or nonprofit status. The language would still seem to shield a business that refused to provide marriage-related services for religious reasons from *state* proceedings against it under antidiscrimination laws (which would constitute the state disadvantaging the business for acting in accordance with religious beliefs), but it is less clear whether it would shield a business from being subject to a *private* suit for such a refusal (does a court issuing a monetary judgment in a private suit constitute the state taking adverse action to disadvantage for purposes of the bill?). Meanwhile, the New Orleans Convention Bureau came out against the bill today, and the radio host who interviewed the sponsor reported that senior members of the legislature, including those sympathetic to the bill, were concerned that it would jeopardize difficult budget discussions during the short two-month session. So perhaps the debate won't proceed as far as it seemed it might after the Governor's earlier endorsement. - Jim On Wed, Apr 8, 2015 at 4:08 PM, James Oleske jole...@lclark.edu wrote: In a radio interview moments ago, the sponsor of the Louisiana bill stated that the bill doesn't have anything to do with the provision of goods and services and doesn't have any application at all to private business transactions. This is contrary to how the Catholic Bishops have described the benefits of the federal version of the bill (business owners as well as churches would be protected), and contrary to how legal scholars have described the Louisiana bill so far. Here is the relevant language in the bill: Notwithstanding any other law to the contrary, this state shall not take any adverse action against a person, wholly or partially, on the basis that such person acts in accordance with a religious belief or moral conviction about the institution of marriage [A]n adverse action means any action taken by this state to do any of the following ... cause any tax, penalty, or payment to be assessed against, such person or such person's employees with respect to any benefit provided or not provided by such person to such person's employees, wholly or partially on the basis that the benefit is provided or not provided on account of a religious belief or moral conviction Otherwise discriminate against or disadvantage such person The term person means a natural or juridical person as defined in Civil 19 Code Article 24, and includes any such person regardless of religious affiliation or 20 lack thereof, and regardless of for-profit or nonprofit status. This language would seem to prohibit either an administrative agency or a court from awarding a penalty or civil payment against, or otherwise disadvantaging, a for-profit business (or one of its employees) because it refuses to provide marriage-related services contrary to existing local or future state laws prohibiting LGBT discrimination (in a case involving a same-sex couple) or existing local and state laws prohibiting race discrimination and religious discrimination (in cases involving interracial or interfaith couples). Am I reading that language wrong? If I am, does
Re: Colorado bakery case - No violation of non-discimination laws for refusal to bake cake with anti-gay message
Sandy,
Thanks for your thoughts. Out of curiosity, what would your proposed
protection look like in this case? Stated another way, would it be:
(a) A judicially created exception under the Free Speech clause? or
(b) A legislative exemption built into non-discrimination laws (e.g. No
provider of public goods or services shall be required to engage in any oral or
written speech with which they disagree, and the refusal to engage in such
speech as part of the provision of public goods or services shall not
constitute a violation of applicable non-discrimination laws.)
I'm not familiar with any legislatively enacted speech exceptions to
non-discrimination laws (but perhaps other members of the list are).
Will
Will Esser
Charlotte, North Carolina From: Levinson, Sanford V
slevin...@law.utexas.edu
To: 'Will Esser' willes...@yahoo.com; religionlaw@lists.ucla.edu
religionlaw@lists.ucla.edu
Sent: Wednesday, April 8, 2015 4:09 PM
Subject: RE: Colorado bakery case - No violation of non-discimination laws for
refusal to bake cake with anti-gay message
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{}#yiv4046931561 Most of us no long bother to differentiate “freedom of speech”
from “freedom of expression,” but I think this is an excellent occasion to do
so. I inclined to believe that customers should not have the right to force
bakers to engage in what ordinary language would define as “speech” that
offends them. Thus I’d protect the baker who, while grudgingly conceding the
duty to bake a cake for a reception after a same-sex wedding, refused to write
the word “Congratulations” on top of it. So for me it’s an easy case that the
baker need not write out a repugnant message for the bigot in the Colorado
case. But if the bigot introduced himself as a member of one of the egregious
Identity sects in Idaho who wanted a cake to consume at the monthly meeting,
and did not request that the baker write out the offensive message, then I
would have no difficulty saying that the Identity bigot is entitled to the cake
and that the baker would be liable under a relevantly worded
anti-discrimination law. If, on the other hand, we (extravagantly) view the
cake sans wordage as itself protected “expression,” the analysis might become
more difficult and we have to start balancing, perhaps. But I see no need to
balance anything with regard to an otherwise valid Civil Rights Act that
prevents businesses from engaging in discriminatory business practices. As
Freud might put, sometimes a cake is just a cake. sandy
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu]On Behalf Of Will Esser
Sent: Wednesday, April 08, 2015 12:31 PM
To: religionlaw@lists.ucla.edu
Subject: Colorado bakery case - No violation of non-discimination laws for
refusal to bake cake with anti-gay message There was a reported
story yesterday which begins: The Colorado Civil Rights Division has ruled
that a baker who refused to make cakes with anti-gay messages did not
discriminate.
https://www.yahoo.com/politics/azucar-bakery-did-not-discriminate-by-refusing-to-115703680320.html
It goes on to discuss the following from the ACLU Colorado legal director:
Mark Silverstein, legal director of the ACLU in Colorado, says Jack cited
the same legislation, which forbids discrimination based on race, sexual
orientation, religion or sex, to rail against Azucar Bakery. “This man tried to
claim he also experienced a violation of the public accommodations statute but
he was not discriminated against because he’s Christian,” he said in an
interview with Yahoo News. “They had a policy that they apply across the board;
they are not going to make a cake with such offensive, over-the-top language or
images.” Two points: (1) Does anyone have a copy of the actual ruling (by
letter or opinion) from the Colorado Civil Rights Division? I did a quick
search and could not locate. (2) Part of the recent discussion about the
Indiana RFRA has caused me to think hard about the way in which categories are
being
Re: Louisiana Update: Gov. Jindal Will Support Marriage Conscience Act (specific exemption, not a RFRA)
Thanks much, Doug. I'm definitely not an expert on state treatment of local government law, and certainly not on the specific issue of whether Louisiana law typically treats state actors as including municipal actors for statutory purposes. If it doesn't, the results would indeed be strange -- businesses that refused marriage-related services to interracial or interfaith couples would be shielded from proceedings brought by the Louisiana Commission on Human Rights under state antidiscrimination law, but businesses that refused marriage-related services to same-sex couples would not be shielded from proceedings brought by the Shreveport Human Relations Commission. I think it's fair to say that the sponsor did not intend that result. Perhaps, as the sponsor said today, he doesn't intend for the bill to apply to business transactions at all, but if that's the case, I'm not sure what perceived conflict the bill is intended to resolve. - Jim On Wed, Apr 8, 2015 at 7:50 PM, Douglas Laycock dlayc...@virginia.edu wrote: A reporter told me that the sponsor was insisting that the bill has nothing to do with suits by private citizens. Only actions by government. Louisiana has no sexual orientation nondiscrimination law, but the reporter said the New Orleans and Shreveport do. The bill says nothing about local government, and it is not obvious (as it would be in a federal bill) that restrictions on the state include restrictions on local government. My impression is that state legislation usually spells that out. It's a very strange bill -- narrow in some ways and overbroad in others. On Wed, 8 Apr 2015 19:27:06 -0700 James Oleske jole...@lclark.edu wrote: Apologies to my fellow list members -- I dashed off the message below quickly before heading to class without a sufficiently close read of the statutory language. The benefits clause of theadverse action provision in the Louisiana bill is limited to penalties for actions taken or not taken with respect to *employee* benefits, not customer services, and the sponsor has indicated he will be removing the employee-benefits clause. With the employee-benefits provision removed, the relevant language of the Louisiana bill reads: Notwithstanding any other law to the contrary, this state shall not take any adverse action against a person, wholly or partially, on the basis that such person acts in accordance with a religious belief or moral conviction about the institution of marriage [A]n adverse action means any action taken by this state to do any of the following Otherwise discriminate against or disadvantage such person The term person means a natural or juridical person as defined in Civil 19 Code Article 24, and includes any such person regardless of religious affiliation or lack thereof, and regardless of for-profit or nonprofit status. The language would still seem to shield a business that refused to provide marriage-related services for religious reasons from *state* proceedings against it under antidiscrimination laws (which would constitute the state disadvantaging the business for acting in accordance with religious beliefs), but it is less clear whether it would shield a business from being subject to a *private* suit for such a refusal (does a court issuing a monetary judgment in a private suit constitute the state taking adverse action to disadvantage for purposes of the bill?). Meanwhile, the New Orleans Convention Bureau came out against the bill today, and the radio host who interviewed the sponsor reported that senior members of the legislature, including those sympathetic to the bill, were concerned that it would jeopardize difficult budget discussions during the short two-month session. So perhaps the debate won't proceed as far as it seemed it might after the Governor's earlier endorsement. - Jim On Wed, Apr 8, 2015 at 4:08 PM, James Oleske jole...@lclark.edu wrote: In a radio interview moments ago, the sponsor of the Louisiana bill stated that the bill doesn't have anything to do with the provision of goods and services and doesn't have any application at all to private business transactions. This is contrary to how the Catholic Bishops have described the benefits of the federal version of the bill (business owners as well as churches would be protected), and contrary to how legal scholars have described the Louisiana bill so far. Here is the relevant language in the bill: Notwithstanding any other law to the contrary, this state shall not take any adverse action against a person, wholly or partially, on the basis that such person acts in accordance with a religious belief or moral conviction about the institution of marriage [A]n adverse action means any action taken by this state to do any of the following ... cause any tax, penalty, or payment to be assessed against, such person or such person's employees with respect to
Re: Louisiana Update: Gov. Jindal Will Support Marriage Conscience Act (specific exemption, not a RFRA)
In a radio interview moments ago, the sponsor of the Louisiana bill stated that the bill doesn't have anything to do with the provision of goods and services and doesn't have any application at all to private business transactions. This is contrary to how the Catholic Bishops have described the benefits of the federal version of the bill (business owners as well as churches would be protected), and contrary to how legal scholars have described the Louisiana bill so far. Here is the relevant language in the bill: Notwithstanding any other law to the contrary, this state shall not take any adverse action against a person, wholly or partially, on the basis that such person acts in accordance with a religious belief or moral conviction about the institution of marriage [A]n adverse action means any action taken by this state to do any of the following ... cause any tax, penalty, or payment to be assessed against, such person or such person's employees with respect to any benefit provided or not provided by such person to such person's employees, wholly or partially on the basis that the benefit is provided or not provided on account of a religious belief or moral conviction Otherwise discriminate against or disadvantage such person The term person means a natural or juridical person as defined in Civil 19 Code Article 24, and includes any such person regardless of religious affiliation or 20 lack thereof, and regardless of for-profit or nonprofit status. This language would seem to prohibit either an administrative agency or a court from awarding a penalty or civil payment against, or otherwise disadvantaging, a for-profit business (or one of its employees) because it refuses to provide marriage-related services contrary to existing local or future state laws prohibiting LGBT discrimination (in a case involving a same-sex couple) or existing local and state laws prohibiting race discrimination and religious discrimination (in cases involving interracial or interfaith couples). Am I reading that language wrong? If I am, does anyone know what problem this bill is trying to solve (the interview was not illuminating on that point)? - Jim On Mon, Apr 6, 2015 at 8:37 PM, James Oleske jole...@lclark.edu wrote: Gov. Jindal's office announced today that he will support newly proposed legislation in Louisiana that would give businesses the right to refuse to provide marriage-related services and benefits for religious reasons (see my message below for more details and background on the proposal). Meanwhile, the sponsor of the bill has indicated that he might modify it so it does not apply to employee benefit programs. http://www.nola.com/politics/index.ssf/2015/04/bobby_jindal_will_support_loui.html http://www.nola.com/politics/index.ssf/2015/04/religious_freedom_bill_altered.html At this point, I'm not sure a bill like this would be politically feasible in any state outside the context of a tradeoff (e.g., exemption included in new law prohibiting sexual-orientation discrimination in the marketplace), but if it is, Louisiana would seem to be one of the most promising venues for supporters. Gov. Jindal will be very motivated to make it happen given his target demographic in the Presidential primary, and according to at least one recent poll, the state has the ninth lowest support of same-sex marriage in the nation. It will be interesting to see if the NFL takes a stand on the bill (Louisiana has hosted 10 Super Bowls). - Jim On Sun, Apr 5, 2015 at 11:55 AM, James Oleske jole...@lclark.edu wrote: When asked about the Indiana RFRA on Meet the Press today, Gov. Jindal said the following: Let's remember what this debate was originally all about. This is about business owners that don't wanna have to choose between their Christian faith, their sincerely held religious beliefs, and being able to operate their businesses. Now, what they don't want is the government to force them to participate in wedding ceremonies that contradict their beliefs. http://www.nola.com/politics/index.ssf/2015/04/bobby_jindal_religious_freedom.html Longtime advocates of RFRAs would understandably object to this characterization as ignoring all the many less-controversial religious liberty claims that originally motivated the push for RFRAs, but in terms of the political impetus for the new state RFRAs, Gov. Jindal is undoubtedly correct as to what the debate is all about. Accordingly, it seems appropriate that the coming debate in Louisiana won't be about a new RFRA or new RFRA amendment (like those considered in Indiana and Arizona) that would leave the answer to the wedding vendor cases unclear and subject to future judicial balancing. Rather, the coming debate in Louisiana will be over proposed legislation (introduced Friday) that would clearly give businesses the right to refuse marriage-related services and benefits to same-sex couples. Bill:
Businesses don't really want to be free
Barney Frank was in Austin this evening talking about his new book. Not surprisingly, Indiana and Arkansas came up. Not only did he emphasize the crucial role played by business in pushing back against religious conservatives, but he also made the very shrewd point that businesses often actually prefer to be left without discretion. If they are free to discriminate, then they're guaranteed to make enemies whatever their decision. If, on the other hand, the state bans discrimination, then the decision is out of their hands and people can't really get angry at businesses that are simply obeying the law. What is also clear, of course, is that big businesses no longer think that discrimination is profitable; indeed, the opposite is true (especially, I suspect, for most wedding photographers and wedding cake bakers), but what maximizes profits is not having to pay any potential costs from objecting customers for doing what they (now) want to do anyway. Sandy Sent from my iPhone ___ 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: Businesses don't really want to be free
Sandy's point held true for race discrimination. Many businesses easily integrated when they were told they had to do so, and without much fuss. Many probably were happy to have more business and to no longer have to be bothered by segregation rules (which made things expensive). Equality, in other words, is good for business. ** Paul Finkelman, Ph.D. Senior Fellow Penn Program on Democracy, Citizenship, and Constitutionalism University of Pennsylvania and Scholar-in-Residence National Constitution Center Philadelphia, Pennsylvania 518-439-7296 (w) 518-605-0296 (c) paul.finkel...@yahoo.com www.paulfinkelman.com From: Levinson, Sanford V slevin...@law.utexas.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Wednesday, April 8, 2015 10:53 PM Subject: Businesses don't really want to be free Barney Frank was in Austin this evening talking about his new book. Not surprisingly, Indiana and Arkansas came up. Not only did he emphasize the crucial role played by business in pushing back against religious conservatives, but he also made the very shrewd point that businesses often actually prefer to be left without discretion. If they are free to discriminate, then they're guaranteed to make enemies whatever their decision. If, on the other hand, the state bans discrimination, then the decision is out of their hands and people can't really get angry at businesses that are simply obeying the law. What is also clear, of course, is that big businesses no longer think that discrimination is profitable; indeed, the opposite is true (especially, I suspect, for most wedding photographers and wedding cake bakers), but what maximizes profits is not having to pay any potential costs from objecting customers for doing what they (now) want to do anyway. Sandy Sent from my iPhone ___ 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: Businesses don't really want to be free
I don't doubt that this may be true for many businesses. So what? A person might suggest that it is evidence of the religious sincerity of the lonely business-owner who does not want to be left without discretion. Art Spitzer *Warning* *: this message is subject to monitoring by the NSA.* On Wed, Apr 8, 2015 at 10:53 PM, Levinson, Sanford V slevin...@law.utexas.edu wrote: Barney Frank was in Austin this evening talking about his new book. Not surprisingly, Indiana and Arkansas came up. Not only did he emphasize the crucial role played by business in pushing back against religious conservatives, but he also made the very shrewd point that businesses often actually prefer to be left without discretion. If they are free to discriminate, then they're guaranteed to make enemies whatever their decision. If, on the other hand, the state bans discrimination, then the decision is out of their hands and people can't really get angry at businesses that are simply obeying the law. What is also clear, of course, is that big businesses no longer think that discrimination is profitable; indeed, the opposite is true (especially, I suspect, for most wedding photographers and wedding cake bakers), but what maximizes profits is not having to pay any potential costs from objecting customers for doing what they (now) want to do anyway. Sandy Sent from my iPhone ___ 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: Businesses don't really want to be free
The so what is that accommodating the occasional sincere discriminator (whatever exactly that means) by virtue of a law that could conceivably be cited by every business places great pressures on the latter. One if the reasons I am so sorry that Doug Laycock lost (or, more accurately, had his views rejected by an obtuse majority in Town of Greece) is that now every single city council in the land is vulnerable to pressures generated by militant religious groups who cannot simply be told we're so sorry, but the Supreme Court has ruled that we simply can't allow any sectarian prayers at all. Instead the Court chose to facilitate the ever more acrimonious culture war. Sandy Sent from my iPhone On Apr 8, 2015, at 10:26 PM, Arthur Spitzer artspit...@gmail.commailto:artspit...@gmail.com wrote: I don't doubt that this may be true for many businesses. So what? A person might suggest that it is evidence of the religious sincerity of the lonely business-owner who does not want to be left without discretion. Art Spitzer Warning: this message is subject to monitoring by the NSA. On Wed, Apr 8, 2015 at 10:53 PM, Levinson, Sanford V slevin...@law.utexas.edumailto:slevin...@law.utexas.edu wrote: Barney Frank was in Austin this evening talking about his new book. Not surprisingly, Indiana and Arkansas came up. Not only did he emphasize the crucial role played by business in pushing back against religious conservatives, but he also made the very shrewd point that businesses often actually prefer to be left without discretion. If they are free to discriminate, then they're guaranteed to make enemies whatever their decision. If, on the other hand, the state bans discrimination, then the decision is out of their hands and people can't really get angry at businesses that are simply obeying the law. What is also clear, of course, is that big businesses no longer think that discrimination is profitable; indeed, the opposite is true (especially, I suspect, for most wedding photographers and wedding cake bakers), but what maximizes profits is not having to pay any potential costs from objecting customers for doing what they (now) want to do anyway. Sandy Sent from my iPhone ___ 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.edumailto:Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Colorado bakery case - No violation of non-discimination laws for refusal to bake cake with anti-gay message
If the state requires you to bake a cake, bake two. Matthew 5:41 It is verses like this that make it hard for me to credit the complicity with evil argument underlying all of these religious objections. But I know the first amendment does not protect actual Christianity because there is no such thing — it protects an individual’s particular take on it. But the first amendment freedom of religion, as long ago as Reynolds v. United States, 98 U.S. 45 (1878) distinguished belief from practice and permitted regulation of practice. Since RFRA was a restoration, the court should not have interpreted it as it did in Hobby Lobby. But that is another story. Steve -- Prof. Steven D. Jamar Assoc. Dir. of International Programs Institute for Intellectual Property and Social Justice http://iipsj.org http://sdjlaw.org “Great people are those who make others feel that they, too, can become great.” Mark Twain ___ 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.
Colorado bakery case - No violation of non-discimination laws for refusal to bake cake with anti-gay message
There was a reported story yesterday which begins: The Colorado Civil Rights Division has ruled that a baker who refused to make cakes with anti-gay messages did not discriminate. https://www.yahoo.com/politics/azucar-bakery-did-not-discriminate-by-refusing-to-115703680320.html It goes on to discuss the following from the ACLU Colorado legal director: Mark Silverstein, legal director of the ACLU in Colorado, says Jack cited the same legislation, which forbids discrimination based on race, sexual orientation, religion or sex, to rail against Azucar Bakery.“This man tried to claim he also experienced a violation of the public accommodations statute but he was not discriminated against because he’s Christian,” he said in an interview with Yahoo News. “They had a policy that they apply across the board; they are not going to make a cake with such offensive, over-the-top language or images.” Two points: (1) Does anyone have a copy of the actual ruling (by letter or opinion) from the Colorado Civil Rights Division? I did a quick search and could not locate. (2) Part of the recent discussion about the Indiana RFRA has caused me to think hard about the way in which categories are being drawn, for instance what is included within the various categories of protected classes in non-discrimination statutes. For instance, in the Elane Photography case, the court rejected the photographer's argument that she was not discriminating on the basis of sexual orientation but just on the basis of conduct (i.e. she was fine taking pictures of gay customers, but did not want to participate in a wedding ceremony). The NM Supreme Court rejected that distinction and said that the category of discrimination based on sexual orientation included same-sex weddings. In particular the court stated: The difficulty in distinguishing between status and conduct in the context of sexual orientation discrimination is that people may base their judgment about an individual's sexual orientation on the individual's conduct. To allow discrimination based on conduct so closely correlated with sexual orientation would severely undermine the purpose of the NMHRA. How would that same reasoning apply to the Colorado bakery case? The story describes the particular Colorado message as follows: In March 2014, Jack asked Silva to make him a Bible-shaped cake with anti-gay messages, such as “Homosexuality is a detestable sin. Leviticus 18:22.” He also wanted the cake to include two men holding hands with a large X over them.She agreed to make the dessert in the shape of a book but declined to include the hateful content. What result is reached if we substitute the word religion for sexual orientation and apply the same rationale from Elane Photography (i.e. The difficulty in distinguishing between status and conduct in the context of [religion] is that people may base their judgment about an individual's [religion] on the individual's conduct.)? (Example: I don't discriminate against Jews, just against people who wear yarmulkes. Or I don't discriminate against Catholics, just against people who attend Mass on Sundays). How is a distinction drawn between this ruling and Elane Photography? Does a court have to make a finding regarding how closely correlated particular conduct is to a protected class in order to find that they are essentially synonymous? And if so, how would a court even determine close correlation? Some of this is just initial thoughts and questions on reading the story. I welcome any thoughts or comments. [Note: For discussion sake, let's put aside the issue of whether the person seeking the cake really wanted the cake or just wanted to force the baker to convey a message which the baker did not want to convey. I don't believe the motivation of the person seeking the public good or service is relevant to the inquiry of whether the non-discrimination law was violated, regardless of which side of the aisle the person seeking the cake sits on.] Will Will Esser Charlotte, North Carolina ___ 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: Colorado bakery case - No violation of non-discimination laws for refusal to bake cake with anti-gay message
Most of us no long bother to differentiate “freedom of speech” from “freedom of expression,” but I think this is an excellent occasion to do so. I inclined to believe that customers should not have the right to force bakers to engage in what ordinary language would define as “speech” that offends them. Thus I’d protect the baker who, while grudgingly conceding the duty to bake a cake for a reception after a same-sex wedding, refused to write the word “Congratulations” on top of it. So for me it’s an easy case that the baker need not write out a repugnant message for the bigot in the Colorado case. But if the bigot introduced himself as a member of one of the egregious Identity sects in Idaho who wanted a cake to consume at the monthly meeting, and did not request that the baker write out the offensive message, then I would have no difficulty saying that the Identity bigot is entitled to the cake and that the baker would be liable under a relevantly worded anti-discrimination law. If, on the other hand, we (extravagantly) view the cake sans wordage as itself protected “expression,” the analysis might become more difficult and we have to start balancing, perhaps. But I see no need to balance anything with regard to an otherwise valid Civil Rights Act that prevents businesses from engaging in discriminatory business practices. As Freud might put, sometimes a cake is just a cake. sandy From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Will Esser Sent: Wednesday, April 08, 2015 12:31 PM To: religionlaw@lists.ucla.edu Subject: Colorado bakery case - No violation of non-discimination laws for refusal to bake cake with anti-gay message There was a reported story yesterday which begins: The Colorado Civil Rights Division has ruled that a baker who refused to make cakes with anti-gay messages did not discriminate. https://www.yahoo.com/politics/azucar-bakery-did-not-discriminate-by-refusing-to-115703680320.html It goes on to discuss the following from the ACLU Colorado legal director: Mark Silverstein, legal director of the ACLU in Colorado, says Jack cited the same legislation, which forbids discrimination based on race, sexual orientation, religion or sex, to rail against Azucar Bakery. “This man tried to claim he also experienced a violation of the public accommodations statute but he was not discriminated against because he’s Christian,” he said in an interview with Yahoo News. “They had a policy that they apply across the board; they are not going to make a cake with such offensive, over-the-top language or images.” Two points: (1) Does anyone have a copy of the actual ruling (by letter or opinion) from the Colorado Civil Rights Division? I did a quick search and could not locate. (2) Part of the recent discussion about the Indiana RFRA has caused me to think hard about the way in which categories are being drawn, for instance what is included within the various categories of protected classes in non-discrimination statutes. For instance, in the Elane Photography case, the court rejected the photographer's argument that she was not discriminating on the basis of sexual orientation but just on the basis of conduct (i.e. she was fine taking pictures of gay customers, but did not want to participate in a wedding ceremony). The NM Supreme Court rejected that distinction and said that the category of discrimination based on sexual orientation included same-sex weddings. In particular the court stated: The difficulty in distinguishing between status and conduct in the context of sexual orientation discrimination is that people may base their judgment about an individual's sexual orientation on the individual's conduct. To allow discrimination based on conduct so closely correlated with sexual orientation would severely undermine the purpose of the NMHRA. How would that same reasoning apply to the Colorado bakery case? The story describes the particular Colorado message as follows: In March 2014, Jack asked Silva to make him a Bible-shaped cake with anti-gay messages, such as “Homosexuality is a detestable sinhttp://www.thedenverchannel.com/news/local-news/denvers-azucar-bakery-wins-right-to-refuse-to-make-anti-gay-cake. Leviticus 18:22.” He also wanted the cake to include two men holding hands with a large X over them. She agreed to make the dessert in the shape of a book but declined to include the hateful content. What result is reached if we substitute the word religion for sexual orientation and apply the same rationale from Elane Photography (i.e. The difficulty in distinguishing between status and conduct in the context of [religion] is that people may base their judgment about an individual's [religion] on the individual's conduct.)? (Example: I don't discriminate against Jews, just against people who wear yarmulkes. Or I don't discriminate against Catholics, just against
