Re: state RFRA's and local anti-discrimination laws

[William B. Kelley]

At least in the case of the new Indiana law, it refers to a "compelling 
governmental interest," not a "compelling state interest," and it says 
it will apply to local ordinances as well as state legislation. Unlike 
some recent legislative efforts elsewhere, it doesn't say it preempts 
local antidiscrimination ordinances.


Is it a fair conclusion that any arguments the state might make for a 
compelling interest and least restrictive means in regard to preventing 
discrimination under any of its state legislation would be equally 
salient when supporting a municipal ordinance's application within a 
given municipality? It might not be a matter of defeating the state RFRA 
or defeating the state RFRA defense, but only a matter of applying the 
state RFRA to either state or local legislation as the case may be, and 
as the statute seems to contemplate.


Bill Kelley


William B. Kelley
2012 West Estes Avenue
Chicago, Illinois   60645-2404
(773) 907-9266


On 3/30/2015 12:44 PM, Ira Lupu wrote:
One very important question I have never seen discussed is the 
relationship between a state RFRA (say, Texas or Indiana) and a local 
anti-discrimination ordinance (say, San Antonio or Indianapolis) that 
covers public accommodations and protects the LGBT population.  This 
is a common configuration; most RFRA states do NOT have state-wide 
LGBT laws re: public accommodations, but many have cities or counties 
with such laws.  So, when the local wedding vendor refuses to sell to 
a same sex couple and is cited by the local Human Rights Commission 
for violating the public accommodations law, and the defense is state 
RFRA, how will the arguments play?  Can a local law ever present a 
"compelling interest" sufficient to defeat a state religious freedom 
law? If not, the outcome of these conflicts is pre-ordained; the 
vendor will win.  Or can the local interest be sufficiently compelling 
in that community to defeat the state RFRA defense? Does this depend 
on state-to-state generic principles of local government law?


All thoughts welcome.
--
Ira C. Lupu
F. Elwood & Eleanor Davis Professor of Law, Emeritus
George Washington University Law School
2000 H St., NW
Washington, DC 20052
(202)994-7053
Co-author (with Professor Robert Tuttle) of "Secular Government, 
Religious People" ( Wm. B. Eerdmans Pub. Co., 2014))

My SSRN papers are here:
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg


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Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses

[William B. Kelley]

Prof. Laycock makes interesting points, as usual, but as to the 
mirror-image one: Arizona actually does have laws on sexual-orientation 
discrimination in employment. They're local laws, but they cover some 
35% of Arizonans (i.e., around 2.3 million) in the cities of Phoenix, 
Tucson, Flagstaff, and Scottsdale. The pending Arizona bill would have 
an impact on such ordinances.


In truth, of course, most if not all states are speckled rather than 
just red or blue.


Bill Kelley, Chicago



William B. Kelley
Attorney at Law
2012 West Estes Avenue
Chicago, Illinois   60645-2404
(773) 907-9266
w...@wbkelley.com



On 2/26/2014 1:22 PM, Douglas Laycock wrote:


Many state laws on sexual-orientation discrimination, and most laws on 
same-sex marriage, have exemptions for religious organizations. Some 
are broad; some are narrow. Some are well drafted; some are a mess. 
But they are mostly there.


Apart from marriage, there is no reason to have religious exemptions 
for businesses from laws on sexual-orientation discrimination. No one 
in the groups I have been part of has ever suggested such exemptions. 
Not even the Kansas bill provides such exemptions.


Chip is correct that no state has explicitly exempted small businesses 
in the wedding industry, or in marriage counseling, from its same-sex 
marriage legislation. All those laws so far have been in blue states. 
The absurd overreach in the Kansas bill, and the resulting political 
reaction to the radically different Arizona bill, and some bills 
caught in the fire elsewhere with less publicity, may indicate that 
such exemptions will be hard to enact even in red states. Or maybe 
not, if someone offers a well drafted, narrowly targeted bill when or 
after same-sex marriage becomes the law in those states.


I agree with Alan Brownstein that part of the problem in red states is 
that they want to protect religious conservatives without protecting 
gays and lesbians. Not only does Arizona not have same-sex marriage; 
it doesn't have a law on sexual-orientation discrimination. The blue 
states are mostly the mirror image. More and more they want to protect 
gays and lesbians but not religious conservatives. Hardly any 
political actors appear to be interested in protecting the liberty of 
both sides.


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 *Ira Lupu

*Sent:* Wednesday, February 26, 2014 11:34 AM
*To:* Law & Religion issues for Law Academics
*Subject:* Re: Subject: Re: Kansas/Arizona statutes protecting 
for-profit businesses


That is my understanding, Hillel.  If Doug, Rick, Tom, or others know 
of counterexamples, I'm sure they will bring them forward to the list.


On Wed, Feb 26, 2014 at 11:28 AM, Hillel Y. Levin 
mailto:hillelle...@gmail.com>> wrote:


Chip:

Thanks for the cite! I will take a look.

And just so I understand: are you asserting that /none/ have
adopted the broader exceptions (wedding vendors, etc)?

On Wed, Feb 26, 2014 at 11:23 AM, Ira Lupu mailto:icl...@law.gwu.edu>> wrote:

Hillel:

The same sex marriage laws to which you refer do have
"exceptions," for clergy, houses of worship, and (sometimes)
for religious charities and social services.  Bob Tuttle and I
analyze and collect some of that here:

http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1055&context=njlsp.
 There is plenty of other literature on the subject.

What has happened in other states since we wrote that piece is
quite consistent with the pattern we described.  These laws do
NOT contain exceptions for wedding vendors (bakers, caterers,
etc.) or public employees like marriage license clerks.  Those
are the efforts that have failed, over and over.

Chip (not Ira, please)

On Wed, Feb 26, 2014 at 11:13 AM, Hillel Y. Levin
mailto:hillelle...@gmail.com>> wrote:

Ira:

You say that these bills have failed over and over again.
If I'm not mistaken, several states that recognize
same-sex marriage and/or have non-discrimination laws
protecting gays and lesbians /do/ have religious
exceptions (as does the ENDA that passed the senate not
long ago, only to die in the House). Am I mistaken? Do you
(or anyone else here!) know of any literature that
canvasses the laws in this context?

Many thanks.



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Ple

Re: Posner on oral advocacy in religion case

[William B. Kelley]

Pardon the bad send.

Bill Kelley, Chicago


On 2/14/2014 7:57 PM, William B. Kelley wrote:

I meant to say "interested list lurker."

Bill Kelley, Chicago


On 2/14/2014 9:10 AM, Douglas Laycock wrote:


I haven't listened to the tape and don't intend to. From the short 
written story, probably they should both be embarrassed.  The lawyer 
behaved badly, and Posner over reacted.


Big firm lawyers sometimes expect special deference from lower court 
judges. Sometimes they get it. Maybe he thought he should/would be 
allowed to interrupt or equivocate. But Posner was the wrong judge to 
try that on.


Back in Neolithic times, when I clerked at the Seventh Circuit, we 
had an antitrust case with a complicated statutory interpretation 
question -- complicated principally because the statute wasn't very 
well drafted. The facts were simple. In those days vertical price 
fixing was a per se violation, but there was an exception for state 
fair trade laws, and the question was which state's law applies.


A partner from Sherman & Stearling came out from New York to argue 
the case, and seemed to think he was visiting the less educated 
provinces. He drew a panel of Stevens, Cummings, and Sprecher, which 
was about as good a three-judge panel as you could draw anywhere in 
the country in those days. And Stevens had been an antitrust lawyer.


But the guy was completely condescending. He brought an easel with an 
outline map of Missouri and Arkansas, showing a wholesaler in one 
state and a retailer in the other, so that they could understand this 
complicated choice of law problem. He went way over his time. His 
tone and demeanor was condescending. Cummings was a soft touch 
presiding and let him get away with it.


Posner obviously would not -- not in that case and not in Notre 
Dame's either. Jones Day should have been able to learn that with the 
tiniest bit of homework. Wyzanski was worse; he would berate and 
humiliate lawyers who didn't meet his standards.


The only safe thing for lawyers is to play by the usual rules. But if 
you think you can create an exception, you have to know what judge 
you are talking to.


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 *Steven Jamar

*Sent:* Friday, February 14, 2014 7:47 AM
*To:* CONLAWPROFS professors; Law Religion & Law List
*Subject:* Posner on oral advocacy in religion case

Judge Posner gives 1L lesson on oral advocacy to Notre Dame's lawyer 
on oral in freedom of religion case.  Pretty basic 1L stuff. 
 Embarrassing for the attorney --- and his firm and school.


http://www.abajournal.com/news/article/Posner_tells_BigLaw_chief_stop_babbling_threatens_to_end_7th_Circuit_arg/?utm_source=maestro&utm_medium=email&utm_campaign=weekly_email

--

Prof. Steven D. Jamar  vox:  202-806-8017

Director of International Programs, Institute for Intellectual 
Property and Social Justice http://iipsj.org


Howard University School of Law  fax:  202-806-8567

http://iipsj.com/SDJ/

"Enduring high school is not the same as growing up Jewish in Prague 
or fighting in the French Resistance. I had no solid basis for being 
cool in that existential motorcycle James Dean absurdist 
chain-smoking hero sort of way, so I gave up being cool and settled 
for being pleasant."


Garrison Keillor





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Re: Posner on oral advocacy in religion case

[William B. Kelley]

I meant to say "interested list lurker."

Bill Kelley, Chicago


On 2/14/2014 9:10 AM, Douglas Laycock wrote:


I haven't listened to the tape and don't intend to. From the short 
written story, probably they should both be embarrassed.  The lawyer 
behaved badly, and Posner over reacted.


Big firm lawyers sometimes expect special deference from lower court 
judges. Sometimes they get it. Maybe he thought he should/would be 
allowed to interrupt or equivocate. But Posner was the wrong judge to 
try that on.


Back in Neolithic times, when I clerked at the Seventh Circuit, we had 
an antitrust case with a complicated statutory interpretation question 
-- complicated principally because the statute wasn't very well 
drafted. The facts were simple. In those days vertical price fixing 
was a per se violation, but there was an exception for state fair 
trade laws, and the question was which state's law applies.


A partner from Sherman & Stearling came out from New York to argue the 
case, and seemed to think he was visiting the less educated provinces. 
He drew a panel of Stevens, Cummings, and Sprecher, which was about as 
good a three-judge panel as you could draw anywhere in the country in 
those days. And Stevens had been an antitrust lawyer.


But the guy was completely condescending. He brought an easel with an 
outline map of Missouri and Arkansas, showing a wholesaler in one 
state and a retailer in the other, so that they could understand this 
complicated choice of law problem. He went way over his time. His tone 
and demeanor was condescending. Cummings was a soft touch presiding 
and let him get away with it.


Posner obviously would not -- not in that case and not in Notre Dame's 
either. Jones Day should have been able to learn that with the tiniest 
bit of homework. Wyzanski was worse; he would berate and humiliate 
lawyers who didn't meet his standards.


The only safe thing for lawyers is to play by the usual rules. But if 
you think you can create an exception, you have to know what judge you 
are talking to.


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 *Steven Jamar

*Sent:* Friday, February 14, 2014 7:47 AM
*To:* CONLAWPROFS professors; Law Religion & Law List
*Subject:* Posner on oral advocacy in religion case

Judge Posner gives 1L lesson on oral advocacy to Notre Dame's lawyer 
on oral in freedom of religion case.  Pretty basic 1L stuff. 
 Embarrassing for the attorney --- and his firm and school.


http://www.abajournal.com/news/article/Posner_tells_BigLaw_chief_stop_babbling_threatens_to_end_7th_Circuit_arg/?utm_source=maestro&utm_medium=email&utm_campaign=weekly_email

--

Prof. Steven D. Jamar  vox:  202-806-8017

Director of International Programs, Institute for Intellectual 
Property and Social Justice http://iipsj.org


Howard University School of Law  fax:  202-806-8567

http://iipsj.com/SDJ/

"Enduring high school is not the same as growing up Jewish in Prague 
or fighting in the French Resistance. I had no solid basis for being 
cool in that existential motorcycle James Dean absurdist chain-smoking 
hero sort of way, so I gave up being cool and settled for being pleasant."


Garrison Keillor





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Anyone can subscribe to the list and read messages that are posted; people can 
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Checked by AVG - www.avg.com 
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