Re: Noteworthy, puzzling scholars' brief in Arlene Flowers

[Nelson Tebbe]

I just read the amicus brief in the Arlene's Flowers case. What struck me, in 
addition to the points already raised, was that the brief did not distinguish 
between religious opposition to the wedding and religious opposition to the 
marriage.

Oftentimes, religious opposition to same-sex weddings is portrayed as limited 
in scope because it only pertains to an event that the vendor considers to be a 
religious sacrament, namely the wedding itself. And that happens at a discrete 
moment in time. Opposition to the marriage could be more impactful because it 
could lead people like Stutzman to refuse to provide flowers for the duration 
of the marriage—in contexts such as anniversaries or Valentine’s Day.

(There is a further distinction between religious opposition to weddings or 
marriages, on the one hand, and objections to same-sex relationships, on the 
other. The brief suggests that Stutzman is not opposed to the latter. But not 
all wedding vendors draw the line in that place. The court in Elane Photography 
cites testimony that the vendors there were also opposed to depicting same-sex 
relationships.)

The brief is ambiguous on whether the opposition is to weddings or marriages. 
Usually it says that Stutzman is opposed to the marriage, but occasionally it 
reports that she refuses to promote the “celebration of the marriage” or the 
event.

I don’t think the distinction matters to the legal outcome, but it does matter 
for the policy argument that the impact on third parties — here, same-sex 
couples — will be minimal because it will be limited to a moment in time. 
Nothing in the logic of the brief reassures the court that Stutzman’s 
opposition will not persist for the duration of the marriage. Moreover, 
religious opposition to supporting a marriage could have implications outside 
wedding vendors. Think of religious adoption agencies, marriage retreat 
centers, or providers of married student housing.

Nelson

NELSON TEBBE

Professor of Law
Brooklyn Law 
School

Visiting Professor of Law
Cornell Law School

Articles available on 
SSRN

Religious Freedom in an Egalitarian 
Age
 (Harvard University Press, forthcoming Jan. 2017)


On Oct 12, 2016, at 5:55 PM, James Oleske 
> wrote:

Agreed on all fronts, Marty.

I would just add this regarding the observation that Stutzman "purportedly 
doesn't care about what Robert Ingersoll's sexual orientation is, or whether he 
has sex with Curt Freed."

Whatever may the source of opposition to same-sex marriage in specific cases, 
the available data would indicate that the vast majority of people who oppose 
legalization of same-sex marriage also believe "gay and lesbian relations" more 
broadly are "morally wrong." See 
http://www.gallup.com/poll/1651/gay-lesbian-rights.aspx (May 2016 results 
showing 37% opposition to same-sex marriage and 37% belief that gay and lesbian 
relations are morally wrong).

See also Justice Scalia in Lawrence, stating that "'preserving the traditional 
institution of marriage' is just a kinder way of describing the State’s moral 
disapproval of same-sex couples."

There may, of course, be exceptions, just as there may be instances of people 
who oppose interracial or interfaith marriage without believing in the 
superiority or inferiority of particular races or religion. But if exemptions 
from the civil rights laws are to be given for such individuals, I don't think 
the way to do it is to interpret [racial discrimination][religious 
discrimination][sexual-orientation discrimination] as not including refusals of 
service to [interracial][interfaith][same-sex] couples.

- Jim


On Wed, Oct 12, 2016 at 2:18 PM, Marty Lederman 
> wrote:
Thanks, Jim.  I'd be very surprised if the Washington Supreme Court decides 
otherwise.  But even apart from the absence of any prospect of success, what's 
so striking about the scholars' amicus brief is that it doesn't even try to 
contend with this Colorado decision, or with most of the Supreme Court and 
other cases cited therein -- let alone offer any analysis of the Washington 
statute at issue.  Instead, it ultimately falls back on the argument that 
Arlene's Flowers doesn't discriminate on the basis of sexual orientation 
because it would also refuse to make arrangements for two heterosexual men who 
chose to marry one another--an argument that doesn't warrant much more of a 
response than the one paragraph (para. 41) the Colorado court gives it, citing 
Bray.

It's also worth noting that the basic argument in the scholars' brief is that 
this is a form of sex discrimination rather than sexual 

Re: Noteworthy, puzzling scholars' brief in Arlene Flowers

[James Oleske]

Agreed on all fronts, Marty.

I would just add this regarding the observation that Stutzman "purportedly
doesn't care about what Robert Ingersoll's sexual orientation is, or
whether he has sex with Curt Freed."

Whatever may the source of opposition to same-sex marriage in specific
cases, the available data would indicate that the vast majority of people
who oppose legalization of same-sex marriage also believe "gay and lesbian
relations" more broadly are "morally wrong." See
http://www.gallup.com/poll/1651/gay-lesbian-rights.aspx (May 2016 results
showing 37% opposition to same-sex marriage and 37% belief that gay and
lesbian relations are morally wrong).

See also Justice Scalia in Lawrence, stating that "'preserving the
traditional institution of marriage' is just a kinder way of describing the
State’s moral disapproval of same-sex couples."

There may, of course, be exceptions, just as there may be instances of
people who oppose interracial or interfaith marriage without believing in
the superiority or inferiority of particular races or religion. But if
exemptions from the civil rights laws are to be given for such individuals,
I don't think the way to do it is to interpret [racial
discrimination][religious discrimination][sexual-orientation
discrimination] as not including refusals of service to
[interracial][interfaith][same-sex] couples.

- Jim


On Wed, Oct 12, 2016 at 2:18 PM, Marty Lederman 
wrote:

> Thanks, Jim.  I'd be *very *surprised if the Washington Supreme Court
> decides otherwise.  But even apart from the absence of any prospect of
> success, what's so striking about the scholars' amicus brief is that it
> doesn't even try to contend with this Colorado decision, or with most of
> the Supreme Court and other cases cited therein -- let alone offer any
> analysis of the Washington statute at issue.  Instead, it ultimately falls
> back on the argument that Arlene's Flowers doesn't discriminate on the
> basis of sexual orientation because it would also refuse to make
> arrangements for two *heterosexual *men who chose to marry one
> another--an argument that doesn't warrant much more of a response than the
> one paragraph (para. 41) the Colorado court gives it, citing *Bray*.
>
> It's also worth noting that the basic argument in the scholars' brief is
> that this is a form of *sex *discrimination rather than *sexual
> orientation* discrimination (Stutzman purportedly doesn't care about what
> Robert Ingersoll's sexual orientation is, or whether he has sex with Curt
> Freed, but "only" about the fact that Freed is the same sex as
> Ingersoll--if Ingersoll were a woman, she'd sell him flower arrangements
> for the marriage to Freed).  But in that case, its coverage under the act
> would be even more self-evident, wouldn't it?
>
> On Wed, Oct 12, 2016 at 4:55 PM, James Oleske  wrote:
>
>> In case it's of interest, I believe the most extensive judicial
>> discussion of this issue to date comes from the Colorado Court of Appeals
>> in the Masterpiece Caskeshop case:
>> https://www.courts.state.co.us/Courts/Court_of_Appeals/Opini
>> on/2015/14CA1351-PD.pdf (pages 12-23).
>>
>> In concluding that a refusal to provide marriage-related services to a
>> same-sex couple constitutes sexual-orientation discrimination under
>> Colorado's civil rights law, the court relies on reasoning in Bob Jones,
>> CLS, Elane Photgraphy, and Obergefell (see pages 15-18 of the decision).
>>
>> The court also rejects the bakery's First Amendment compelled speech and
>> free exercise (selective-exemption theory) arguments, and those issues are
>> the subject of a cert. petition pending with the United States Supreme
>> Court (the Colorado Supreme Court denied cert in the case):
>> http://www.adfmedia.org/files/MasterpieceCertPetition.pdf
>>
>> I think it is unlikely the Court will grant cert. in the Masterpiece
>> Cakeshop case, and I think the compelled speech argument is a very
>> difficult one in light of the Chief's opinion for the Court in Rumsfeld v.
>> FAIR. But I do think the Court will eventually have to take a case to
>> resolve the outstanding questions about the contours of the free-exercise,
>> selective-exemption rule (aka the "Sherbert exception to Smith" or "how
>> much underinclusion makes a law non-generally applicable?"). Three justices
>> recently gave an indication of where they were on that issue in Stormans v.
>> Wiesman (Part III.B. of Justice Alito's dissent from the denial of cert.,
>> joined by the Chief and Justice Thomas).
>>
>> Colorado's brief in opposition to Masterpiece's petition is due on
>> November 29.
>>
>> - Jim
>>
>>
>> On Mon, Oct 10, 2016 at 7:40 AM, Marty Lederman > > wrote:
>>
>>> Some of you may be familiar with the *Washington v. Arlene's Flowers*
>>> case, which will be argued in the Washington Supreme Court next month.
>>> Barronelle Stutzman and her husband are the owners of Arlene’s Flowers,
>>> 

RE: Noteworthy, puzzling scholars' brief in Arlene Flowers

[Eric J Segall]

Ira wrote that “I have no idea how to parse such distinctions among religious 
objections to various types of marriage, and I agree that courts should not try 
to evaluate the respect that one deserves compared to the other (nor label some 
of them as prejudice and others as properly religion-based).”

I want to be clear that the distinction I think courts can make is the 
difference between “prejudice” and “not prejudice” not “prejudice” and 
“religion based.” Outside of the internal employment domains of churches, 
temples, mosques, etc., “prejudice” based on religion and “prejudice” based on 
non-religion should, in my opinion, be treated the same when impacted by 
general laws (which is why I suggested in my last post that this controversial 
position may be behind much of this discussion as it relates to religious 
exemptions).

Best,

Eric


From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Wednesday, October 12, 2016 5:21 PM
To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
Subject: Re: Noteworthy, puzzling scholars' brief in Arlene Flowers

Responding to Eugene's question -- I don't have anything like a theory of how 
compelled speech arguments should work in the anti-discrimination context.  The 
most I have said in print is in a footnote to a recent article (7 Ala. Civ. 
Rts. Civ. Lib. Rev. 1, 52, n. 171).  My intuition is that those in commerce who 
make themselves generally available for all customers, and whose work tends to 
track customer preferences (e.g., the DJ who plays the songs the hosts like 
best; the photographer who takes the standard shots of marrying couple, guests, 
family, etc.) would have a very weak compelled speech claim.  Those who are 
creating different products with their own independent content (e.g., a 
motivational speech, even if tailored to a group) might well have a better 
claim, though I wonder whether those people make themselves "generally 
available."

In any event, I make no sweeping assertion about how this line of argument 
should be resolved across the universe of cases.  When Mitch Berman asked about 
"solicitude" for Fred, I took him to be asking whether Fred's religious 
opposition to inter-religious marriage was more deserving of respect than a 
commercial photographer's religious opposition to same sex marriage.  I have no 
idea how to parse such distinctions among religious objections to various types 
of marriage, and I agree that courts should not try to evaluate the respect 
that one deserves compares to the other (nor label some of them as prejudice 
and others as properly religion-based).


___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
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Re: Noteworthy, puzzling scholars' brief in Arlene Flowers

[Ira Lupu]

Responding to Eugene's question -- I don't have anything like a theory of
how compelled speech arguments should work in the anti-discrimination
context.  The most I have said in print is in a footnote to a recent
article (7 Ala. Civ. Rts. Civ. Lib. Rev. 1, 52, n. 171).  My intuition is
that those in commerce who make themselves generally available for all
customers, and whose work tends to track customer preferences (e.g., the DJ
who plays the songs the hosts like best; the photographer who takes the
standard shots of marrying couple, guests, family, etc.) would have a very
weak compelled speech claim.  Those who are creating different products
with their own independent content (e.g., a motivational speech, even if
tailored to a group) might well have a better claim, though I wonder
whether those people make themselves "generally available."

In any event, I make no sweeping assertion about how this line of argument
should be resolved across the universe of cases.  When Mitch Berman asked
about "solicitude" for Fred, I took him to be asking whether Fred's
religious opposition to inter-religious marriage was more deserving of
respect than a commercial photographer's religious opposition to same sex
marriage.  I have no idea how to parse such distinctions among religious
objections to various types of marriage, and I agree that courts should not
try to evaluate the respect that one deserves compares to the other (nor
label some of them as prejudice and others as properly religion-based).

On Wed, Oct 12, 2016 at 2:56 PM, Volokh, Eugene <vol...@law.ucla.edu> wrote:

>A question about Chip’s “no solicitude” position to the
> compelled speech claim for Fred the photographer or DJ:  Chip, would you
> say the same as to a singer?  A portrait painter?  A calligrapher?
>
>
>
>Antidiscrimination laws ban religious discrimination as
> well as sexual orientation discrimination.  Say a motivational speaker who
> generally speaks to pretty much any group is asked to speak to a Church of
> Scientology gathering, or a press release writer who is generally open for
> business is asked to write a press release for the Scientologists.  Would
> he have a legitimate claim not to be compelled to speak to such an
> audience, or to write such a press release?
>
>
>
>Such laws in some places also ban discrimination based on
> political affiliation.  (D.C. is one example.)  Say someone doesn’t want to
> write a press release for a candidate who belongs to a party he disapproves
> of.  Would that be enough for a compelled speech claim?  Is the line
> between creators of different kinds of speech (photographs vs. portraits
> vs. press releases vs. speeches)?  Or is it that people who
> write/speak/etc. for a living, and who take various contracts, can’t raise
> compelled speech objections in any contexts?
>
>
>
>Eugene
>
>
>
> *From:* religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-bounces@
> lists.ucla.edu] *On Behalf Of *Ira Lupu
> *Sent:* Wednesday, October 12, 2016 11:29 AM
> *To:* Mitchell Berman <mitch...@law.upenn.edu>
> *Cc:* David Bernstein <dbern...@gmu.edu>; Law & Religion issues for Law
> Academics <religionlaw@lists.ucla.edu>; conlawp...@lists.ucla.edu
> *Subject:* Re: Noteworthy, puzzling scholars' brief in Arlene Flowers
>
>
>
> Mitch Berman's good question asks in general terms about how much
> "solicitude" Fred's claim deserves.  But we cannot answer intelligently
> unless we know the forum and the grounds advanced for Fred.  Is he asking
> the state legislature to exempt religious objectors from public
> accommodations law?  Is he raising a compelled speech claim?  A religious
> freedom claim under a RFRA, or a state constitution?  I would give his
> claim no solicitude in any of these contexts, for reasons I have spelled
> out at length on this listserv and in law reviews.  But I can imagine that
> others might well react differently depending on the legal context.
>
> ___
> To post, send message to Religionlaw@lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see
> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
>
> Please note that messages sent to this large list cannot be viewed as
> private.  Anyone can subscribe to the list and read messages that are
> posted; people can read the Web archives; and list members can (rightly or
> wrongly) forward the messages to others.
>



-- 
Ira C. Lupu
F. Elwood & Eleanor Davis Professor of Law, Emeritus
George Washington University Law School
2000 H St., NW
Washington, DC 20052
301-928-9178 (mobile, preferred)
202-994-7053 (office)
Co-author (with Professor Robert T

Re: Noteworthy, puzzling scholars' brief in Arlene Flowers

[Marty Lederman]

Thanks, Jim.  I'd be *very *surprised if the Washington Supreme Court
decides otherwise.  But even apart from the absence of any prospect of
success, what's so striking about the scholars' amicus brief is that it
doesn't even try to contend with this Colorado decision, or with most of
the Supreme Court and other cases cited therein -- let alone offer any
analysis of the Washington statute at issue.  Instead, it ultimately falls
back on the argument that Arlene's Flowers doesn't discriminate on the
basis of sexual orientation because it would also refuse to make
arrangements for two *heterosexual *men who chose to marry one another--an
argument that doesn't warrant much more of a response than the one
paragraph (para. 41) the Colorado court gives it, citing *Bray*.

It's also worth noting that the basic argument in the scholars' brief is
that this is a form of *sex *discrimination rather than *sexual
orientation* discrimination
(Stutzman purportedly doesn't care about what Robert Ingersoll's sexual
orientation is, or whether he has sex with Curt Freed, but "only" about the
fact that Freed is the same sex as Ingersoll--if Ingersoll were a woman,
she'd sell him flower arrangements for the marriage to Freed).  But in that
case, its coverage under the act would be even more self-evident, wouldn't
it?

On Wed, Oct 12, 2016 at 4:55 PM, James Oleske  wrote:

> In case it's of interest, I believe the most extensive judicial discussion
> of this issue to date comes from the Colorado Court of Appeals in the
> Masterpiece Caskeshop case:
> https://www.courts.state.co.us/Courts/Court_of_Appeals/Opini
> on/2015/14CA1351-PD.pdf (pages 12-23).
>
> In concluding that a refusal to provide marriage-related services to a
> same-sex couple constitutes sexual-orientation discrimination under
> Colorado's civil rights law, the court relies on reasoning in Bob Jones,
> CLS, Elane Photgraphy, and Obergefell (see pages 15-18 of the decision).
>
> The court also rejects the bakery's First Amendment compelled speech and
> free exercise (selective-exemption theory) arguments, and those issues are
> the subject of a cert. petition pending with the United States Supreme
> Court (the Colorado Supreme Court denied cert in the case):
> http://www.adfmedia.org/files/MasterpieceCertPetition.pdf
>
> I think it is unlikely the Court will grant cert. in the Masterpiece
> Cakeshop case, and I think the compelled speech argument is a very
> difficult one in light of the Chief's opinion for the Court in Rumsfeld v.
> FAIR. But I do think the Court will eventually have to take a case to
> resolve the outstanding questions about the contours of the free-exercise,
> selective-exemption rule (aka the "Sherbert exception to Smith" or "how
> much underinclusion makes a law non-generally applicable?"). Three justices
> recently gave an indication of where they were on that issue in Stormans v.
> Wiesman (Part III.B. of Justice Alito's dissent from the denial of cert.,
> joined by the Chief and Justice Thomas).
>
> Colorado's brief in opposition to Masterpiece's petition is due on
> November 29.
>
> - Jim
>
>
> On Mon, Oct 10, 2016 at 7:40 AM, Marty Lederman 
> wrote:
>
>> Some of you may be familiar with the *Washington v. Arlene's Flowers*
>> case, which will be argued in the Washington Supreme Court next month.
>> Barronelle Stutzman and her husband are the owners of Arlene’s Flowers,
>> Inc., a closely held for-profit corporation.  Over the course of nine
>> years, Stutzman regularly sold floral arrangements to Robert Ingersoll,
>> knowing that he was gay.  When Ingersoll asked Stutzman to sell him flower
>> arrangements for his wedding to Curt Freed, however, she refused to provide
>> them, even if they were prepared by others in her shop, because doing so,
>> she claimed, would "constitute a demonstration of [her] approval for the
>> wedding," whereas in fact she has religious objections to same-sex
>> marriages.  (She agreed to provide the raw materials for the
>> arrangements--the flowers and such--but not to have her shop do the
>> arranging.)
>>
>> The Washington Attorney General sued Arlene's Flowers, seeking an
>> injunction against such discrimination in the future.  (Ingersoll and Freed
>> also sued, seeking nominal damages for the costs they incurred when
>> Stutzman refused to serve them.)  The principal basis for the suit is a
>> claim of discrimination on the basis of sexual orientation, prohibited by
>> the Washington Law Against Discrimination (WLAD), RCW 49.60.215, which
>> provides that "It shall be an unfair practice for any person or the
>> person's agent or employee to commit an act which *directly or
>> indirectly* results in *any* distinction, restriction, or
>> discrimination, . . . or the refusing or withholding from any person the
>> admission, patronage, *custom*, presence, frequenting, dwelling,
>> staying, or lodging in any place of public resort, accommodation,
>> assemblage, 

Re: Noteworthy, puzzling scholars' brief in Arlene Flowers

[James Oleske]

In case it's of interest, I believe the most extensive judicial discussion
of this issue to date comes from the Colorado Court of Appeals in the
Masterpiece Caskeshop case:
https://www.courts.state.co.us/Courts/Court_of_Appeals/Opini
on/2015/14CA1351-PD.pdf (pages 12-23).

In concluding that a refusal to provide marriage-related services to a
same-sex couple constitutes sexual-orientation discrimination under
Colorado's civil rights law, the court relies on reasoning in Bob Jones,
CLS, Elane Photgraphy, and Obergefell (see pages 15-18 of the decision).

The court also rejects the bakery's First Amendment compelled speech and
free exercise (selective-exemption theory) arguments, and those issues are
the subject of a cert. petition pending with the United States Supreme
Court (the Colorado Supreme Court denied cert in the case):
http://www.adfmedia.org/files/MasterpieceCertPetition.pdf

I think it is unlikely the Court will grant cert. in the Masterpiece
Cakeshop case, and I think the compelled speech argument is a very
difficult one in light of the Chief's opinion for the Court in Rumsfeld v.
FAIR. But I do think the Court will eventually have to take a case to
resolve the outstanding questions about the contours of the free-exercise,
selective-exemption rule (aka the "Sherbert exception to Smith" or "how
much underinclusion makes a law non-generally applicable?"). Three justices
recently gave an indication of where they were on that issue in Stormans v.
Wiesman (Part III.B. of Justice Alito's dissent from the denial of cert.,
joined by the Chief and Justice Thomas).

Colorado's brief in opposition to Masterpiece's petition is due on November
29.

- Jim


On Mon, Oct 10, 2016 at 7:40 AM, Marty Lederman 
wrote:

> Some of you may be familiar with the *Washington v. Arlene's Flowers*
> case, which will be argued in the Washington Supreme Court next month.
> Barronelle Stutzman and her husband are the owners of Arlene’s Flowers,
> Inc., a closely held for-profit corporation.  Over the course of nine
> years, Stutzman regularly sold floral arrangements to Robert Ingersoll,
> knowing that he was gay.  When Ingersoll asked Stutzman to sell him flower
> arrangements for his wedding to Curt Freed, however, she refused to provide
> them, even if they were prepared by others in her shop, because doing so,
> she claimed, would "constitute a demonstration of [her] approval for the
> wedding," whereas in fact she has religious objections to same-sex
> marriages.  (She agreed to provide the raw materials for the
> arrangements--the flowers and such--but not to have her shop do the
> arranging.)
>
> The Washington Attorney General sued Arlene's Flowers, seeking an
> injunction against such discrimination in the future.  (Ingersoll and Freed
> also sued, seeking nominal damages for the costs they incurred when
> Stutzman refused to serve them.)  The principal basis for the suit is a
> claim of discrimination on the basis of sexual orientation, prohibited by
> the Washington Law Against Discrimination (WLAD), RCW 49.60.215, which
> provides that "It shall be an unfair practice for any person or the
> person's agent or employee to commit an act which *directly or indirectly*
> results in *any* distinction, restriction, or discrimination, . . . or
> the refusing or withholding from any person the admission, patronage,
> *custom*, presence, frequenting, dwelling, staying, or lodging in any
> place of public resort, accommodation, assemblage, or amusement."  The
> forms of prohibited discrimination are listed in RCW 49.60.030:  "The right
> to be free from discrimination because of race, creed, color, national
> origin, sex, honorably discharged veteran or military status, *sexual
> orientation*, or the presence of any sensory, mental, or physical
> disability or the use of a trained dog guide or service animal by a person
> with a disability is recognized as and declared to be a civil right. This
> right shall include, but not be limited to: . . . (b) The right *to the
> full enjoyment *of any of the accommodations, advantages, facilities, or
> privileges of any place of public resort, accommodation, assemblage, or
> amusement."
>
> Stutzman defended on both statutory and state and federal constitutional
> (Free Speech and Free Exercise) grounds; but the lower court ruled
> 
> in favor of the Attorney General.  The appeal from that decision is now
> before the Washington Supreme Court, which will hear arguments in about
> five weeks.
>
> A couple of weeks ago, a group of 27 scholars, some of whom are on these
> listservs, filed an amicus brief
>  on behalf of
> Arlene's Flowers.  (According to Rick Garnett, it was written by Steve
> Smith, although he is not listed as counsel.)  That brief does not make a
> 

RE: Noteworthy, puzzling scholars' brief in Arlene Flowers

[Volokh, Eugene]

   On that, I don’t quite agree.  The line I would draw for when 
such mandates become speech compulsions is the same as for content-neutral 
speech restrictions.  If the government can ban an activity or grant a monopoly 
in it, it can generally compel it (again, at least when it does so without 
regard to content) without a First Amendment problem.  Can the government set 
up a monopoly (or a quasi-monopoly “medallion” system) for butchers, bakers, 
florists, or limo drivers?  Yes, because that is not generally expressive 
conduct.  Likewise, compelling people to sell flowers (even in pretty 
arrangements) or cakes (at least without writing) isn’t speech compulsion.

   But can the government limit the number of speakers, singers, 
writers, painters, or photographers in town, even if they speak for a living?  
No, I think, because those activities are expressive.  And compelling people to 
engage in such expression is also a speech compulsion.

   Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Mark Scarberry
Sent: Wednesday, October 12, 2016 3:18 PM
To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
Subject: Re: Noteworthy, puzzling scholars' brief in Arlene Flowers

Outside of this context (in the context of licensing) and before these kinds of 
issues arose, I argued that flower arranging, even by a grocery store employee, 
is speech for 1st Amendment purposes, because the florist is trying to create 
something beautiful and perhaps something that will convey a message of love or 
concern to whoever might get the flowers. I still hold that position.

Mark

Mark S. Scarberry
Professor of Law
Pepperdine University School of Law



On Wed, Oct 12, 2016 at 11:58 AM -0700, "Volokh, Eugene" 
<vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>> wrote:
   A question about Chip’s “no solicitude” position to the 
compelled speech claim for Fred the photographer or DJ:  Chip, would you say 
the same as to a singer?  A portrait painter?  A calligrapher?

   Antidiscrimination laws ban religious discrimination as well as 
sexual orientation discrimination.  Say a motivational speaker who generally 
speaks to pretty much any group is asked to speak to a Church of Scientology 
gathering, or a press release writer who is generally open for business is 
asked to write a press release for the Scientologists.  Would he have a 
legitimate claim not to be compelled to speak to such an audience, or to write 
such a press release?

   Such laws in some places also ban discrimination based on 
political affiliation.  (D.C. is one example.)  Say someone doesn’t want to 
write a press release for a candidate who belongs to a party he disapproves of. 
 Would that be enough for a compelled speech claim?  Is the line between 
creators of different kinds of speech (photographs vs. portraits vs. press 
releases vs. speeches)?  Or is it that people who write/speak/etc. for a 
living, and who take various contracts, can’t raise compelled speech objections 
in any contexts?

   Eugene

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Wednesday, October 12, 2016 11:29 AM
To: Mitchell Berman <mitch...@law.upenn.edu<mailto:mitch...@law.upenn.edu>>
Cc: David Bernstein <dbern...@gmu.edu<mailto:dbern...@gmu.edu>>; Law & Religion 
issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>; 
conlawp...@lists.ucla.edu<mailto:conlawp...@lists.ucla.edu>
Subject: Re: Noteworthy, puzzling scholars' brief in Arlene Flowers

Mitch Berman's good question asks in general terms about how much "solicitude" 
Fred's claim deserves.  But we cannot answer intelligently unless we know the 
forum and the grounds advanced for Fred.  Is he asking the state legislature to 
exempt religious objectors from public accommodations law?  Is he raising a 
compelled speech claim?  A religious freedom claim under a RFRA, or a state 
constitution?  I would give his claim no solicitude in any of these contexts, 
for reasons I have spelled out at length on this listserv and in law reviews.  
But I can imagine that others might well react differently depending on the 
legal context.
___
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Anyone can subscribe to the list and read messages that are posted; people can 
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Re: Noteworthy, puzzling scholars' brief in Arlene Flowers

[Mark Scarberry]

Outside of this context (in the context of licensing) and before these kinds of 
issues arose, I argued that flower arranging, even by a grocery store employee, 
is speech for 1st Amendment purposes, because the florist is trying to create 
something beautiful and perhaps something that will convey a message of love or 
concern to whoever might get the flowers. I still hold that position.
Mark 
Mark S. Scarberry Professor of Law Pepperdine University School of Law 






On Wed, Oct 12, 2016 at 11:58 AM -0700, "Volokh, Eugene" <vol...@law.ucla.edu> 
wrote:




















   A question about Chip’s “no solicitude” position to the 
compelled speech claim for Fred the photographer or DJ:  Chip, would you say 
the same as to a singer? 
 A portrait painter?  A calligrapher?


 


   Antidiscrimination laws ban religious discrimination as well as 
sexual orientation discrimination.  Say a motivational speaker who generally 
speaks to pretty
 much any group is asked to speak to a Church of Scientology gathering, or a 
press release writer who is generally open for business is asked to write a 
press release for the Scientologists.  Would he have a legitimate claim not to 
be compelled to speak to
 such an audience, or to write such a press release?  


 


   Such laws in some places also ban discrimination based on 
political affiliation.  (D.C. is one example.)  Say someone doesn’t want to 
write a press release for
 a candidate who belongs to a party he disapproves of.  Would that be enough 
for a compelled speech claim?  Is the line between creators of different kinds 
of speech (photographs vs. portraits vs. press releases vs. speeches)?  Or is 
it that people who write/speak/etc.
 for a living, and who take various contracts, can’t raise compelled speech 
objections in any contexts?


 


   Eugene


 


From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu]
On Behalf Of Ira Lupu

Sent: Wednesday, October 12, 2016 11:29 AM

To: Mitchell Berman <mitch...@law.upenn.edu>

Cc: David Bernstein <dbern...@gmu.edu>; Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu>; conlawp...@lists.ucla.edu

Subject: Re: Noteworthy, puzzling scholars' brief in Arlene Flowers


 




Mitch Berman's good question asks in general terms about how much "solicitude" 
Fred's claim deserves.  But we cannot answer intelligently unless we know the 
forum and the grounds advanced for
 Fred.  Is he asking the state legislature to exempt religious objectors from 
public accommodations law?  Is he raising a compelled speech claim?  A 
religious freedom claim under a RFRA, or a state constitution?  I would give 
his claim no solicitude in any
 of these contexts, for reasons I have spelled out at length on this listserv 
and in law reviews.  But I can imagine that others might well react differently 
depending on the legal context.










___
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: Noteworthy, puzzling scholars' brief in Arlene Flowers

[Volokh, Eugene]

   A question about Chip’s “no solicitude” position to the 
compelled speech claim for Fred the photographer or DJ:  Chip, would you say 
the same as to a singer?  A portrait painter?  A calligrapher?

   Antidiscrimination laws ban religious discrimination as well as 
sexual orientation discrimination.  Say a motivational speaker who generally 
speaks to pretty much any group is asked to speak to a Church of Scientology 
gathering, or a press release writer who is generally open for business is 
asked to write a press release for the Scientologists.  Would he have a 
legitimate claim not to be compelled to speak to such an audience, or to write 
such a press release?

   Such laws in some places also ban discrimination based on 
political affiliation.  (D.C. is one example.)  Say someone doesn’t want to 
write a press release for a candidate who belongs to a party he disapproves of. 
 Would that be enough for a compelled speech claim?  Is the line between 
creators of different kinds of speech (photographs vs. portraits vs. press 
releases vs. speeches)?  Or is it that people who write/speak/etc. for a 
living, and who take various contracts, can’t raise compelled speech objections 
in any contexts?

   Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Wednesday, October 12, 2016 11:29 AM
To: Mitchell Berman <mitch...@law.upenn.edu>
Cc: David Bernstein <dbern...@gmu.edu>; Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu>; conlawp...@lists.ucla.edu
Subject: Re: Noteworthy, puzzling scholars' brief in Arlene Flowers

Mitch Berman's good question asks in general terms about how much "solicitude" 
Fred's claim deserves.  But we cannot answer intelligently unless we know the 
forum and the grounds advanced for Fred.  Is he asking the state legislature to 
exempt religious objectors from public accommodations law?  Is he raising a 
compelled speech claim?  A religious freedom claim under a RFRA, or a state 
constitution?  I would give his claim no solicitude in any of these contexts, 
for reasons I have spelled out at length on this listserv and in law reviews.  
But I can imagine that others might well react differently depending on the 
legal context.
___
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: Noteworthy, puzzling scholars' brief in Arlene Flowers

[Eric J Segall]

Eugene asks tough questions but of course our entire EP jurisprudence requires 
smoking out pernicious v non-pernicious intent as does post Smith free exercise 
law and much free speech law. I'm of course willing to cede much more to the 
political process than most folks but I'm an outlier. The issue here is not 
whose theology is "accurate" or "correct" but rather hostility to a group based 
on pernicious discrimination is at play. That issue permeates constitutional 
law.

Best,

Eric

Sent from my iPhone

On Oct 12, 2016, at 12:02 PM, Volokh, Eugene 
<vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>> wrote:

   How exactly would courts draw the line between what is really at 
bottom of various religious practices?  Say someone says, “Jews’ objection to 
Jews marrying non-Jews stems from their viewing themselves as God’s Chosen 
People, and other people as not God’s Chosen People.”  Someone else responds, 
as I’ve heard many religious Jews say, “No, it’s not that being Chosen makes us 
better -- it’s just that God has a particular relationship with us that 
involves specific obligations.”  How are courts to tell whose understanding of 
the proper theological interpretation is right?

   Conversely, someone says “Objection to same-sex marriage at 
bottom is hostility to gays receiving equal treatment.”  Someone else says, 
“No, we’re not hostile to gays or to equal treatment generally; we just think 
that marriage is a special sacrament created by God for men and women.”  How 
are courts to tell whose understanding of the proper theological interpretation 
is right?

   Eugene

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Eric J Segall
Sent: Wednesday, October 12, 2016 11:44 AM
To: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Cc: David Bernstein <dbern...@gmu.edu<mailto:dbern...@gmu.edu>>; Mitchell 
Berman <mitch...@law.upenn.edu<mailto:mitch...@law.upenn.edu>>; 
conlawp...@lists.ucla.edu<mailto:conlawp...@lists.ucla.edu>
Subject: Re: Noteworthy, puzzling scholars' brief in Arlene Flowers

I am receptive to trying to draw lines between commercial activities that are 
inherently expressive and those that are not (knowing there will be quite grey 
areas). But I think there is a serious difference in the real world between a 
seller of flowers whose objection to same-sex marriage at bottom is hostility 
to gays receiving equal treatment and a person of faith with no objection to 
Jews or Catholics but feel they shouldn't get married to each other. Thus, 
again, I think we can draw a line b/w requests for religious exemptions based 
on group hostility and claims not based on group hostility, even conceding 
Mitch's typical smart and hard hypo is a hard case.

Best,

Eric

Sent from my iPhone

On Oct 12, 2016, at 11:29 AM, Ira Lupu 
<icl...@law.gwu.edu<mailto:icl...@law.gwu.edu>> wrote:
Mitch Berman's good question asks in general terms about how much "solicitude" 
Fred's claim deserves.  But we cannot answer intelligently unless we know the 
forum and the grounds advanced for Fred.  Is he asking the state legislature to 
exempt religious objectors from public accommodations law?  Is he raising a 
compelled speech claim?  A religious freedom claim under a RFRA, or a state 
constitution?  I would give his claim no solicitude in any of these contexts, 
for reasons I have spelled out at length on this listserv and in law reviews.  
But I can imagine that others might well react differently depending on the 
legal context.

On Tue, Oct 11, 2016 at 2:45 PM, Mitchell Berman 
<mitch...@law.upenn.edu<mailto:mitch...@law.upenn.edu>> wrote:
For what it’s worth, I’d like to add another generally liberal, pluralist voice 
in support of Doug and David.

I don’t have a strong view regarding precisely what the doctrine should be to 
govern cases of this sort, largely because I believe that the adequacy of 
available alternatives will be a critical factor, and I am open to the 
possibility that, due to difficulties of case-by-case inquiry into such 
questions, the law (statutory or judge-made) should adopt prophylactic rules.  
That acknowledged, as a matter of political morality, I also believe that folks 
on my side of the aisle are often insufficiently sensitive to interests of the 
Shlomo Cohens and Barronelle Stutzmans of our nation.

Take this case: in a large city, an observant Jewish photographer or dj, Fred, 
declines to work at an interfaith marriage between a Jew and a Gentile.  Fred 
is happy to take on any other work for Jews or Gentiles, or for both together.  
But he objects to being complicit in a venture—interfaith marriage—that he 
deems wrongful or religiously proscribed.

Marty, Eric: how much so

RE: Noteworthy, puzzling scholars' brief in Arlene Flowers

[Volokh, Eugene]

   How exactly would courts draw the line between what is really at 
bottom of various religious practices?  Say someone says, "Jews' objection to 
Jews marrying non-Jews stems from their viewing themselves as God's Chosen 
People, and other people as not God's Chosen People."  Someone else responds, 
as I've heard many religious Jews say, "No, it's not that being Chosen makes us 
better -- it's just that God has a particular relationship with us that 
involves specific obligations."  How are courts to tell whose understanding of 
the proper theological interpretation is right?

   Conversely, someone says "Objection to same-sex marriage at 
bottom is hostility to gays receiving equal treatment."  Someone else says, 
"No, we're not hostile to gays or to equal treatment generally; we just think 
that marriage is a special sacrament created by God for men and women."  How 
are courts to tell whose understanding of the proper theological interpretation 
is right?

   Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Eric J Segall
Sent: Wednesday, October 12, 2016 11:44 AM
To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
Cc: David Bernstein <dbern...@gmu.edu>; Mitchell Berman 
<mitch...@law.upenn.edu>; conlawp...@lists.ucla.edu
Subject: Re: Noteworthy, puzzling scholars' brief in Arlene Flowers

I am receptive to trying to draw lines between commercial activities that are 
inherently expressive and those that are not (knowing there will be quite grey 
areas). But I think there is a serious difference in the real world between a 
seller of flowers whose objection to same-sex marriage at bottom is hostility 
to gays receiving equal treatment and a person of faith with no objection to 
Jews or Catholics but feel they shouldn't get married to each other. Thus, 
again, I think we can draw a line b/w requests for religious exemptions based 
on group hostility and claims not based on group hostility, even conceding 
Mitch's typical smart and hard hypo is a hard case.

Best,

Eric

Sent from my iPhone

On Oct 12, 2016, at 11:29 AM, Ira Lupu 
<icl...@law.gwu.edu<mailto:icl...@law.gwu.edu>> wrote:
Mitch Berman's good question asks in general terms about how much "solicitude" 
Fred's claim deserves.  But we cannot answer intelligently unless we know the 
forum and the grounds advanced for Fred.  Is he asking the state legislature to 
exempt religious objectors from public accommodations law?  Is he raising a 
compelled speech claim?  A religious freedom claim under a RFRA, or a state 
constitution?  I would give his claim no solicitude in any of these contexts, 
for reasons I have spelled out at length on this listserv and in law reviews.  
But I can imagine that others might well react differently depending on the 
legal context.

On Tue, Oct 11, 2016 at 2:45 PM, Mitchell Berman 
<mitch...@law.upenn.edu<mailto:mitch...@law.upenn.edu>> wrote:
For what it's worth, I'd like to add another generally liberal, pluralist voice 
in support of Doug and David.

I don't have a strong view regarding precisely what the doctrine should be to 
govern cases of this sort, largely because I believe that the adequacy of 
available alternatives will be a critical factor, and I am open to the 
possibility that, due to difficulties of case-by-case inquiry into such 
questions, the law (statutory or judge-made) should adopt prophylactic rules.  
That acknowledged, as a matter of political morality, I also believe that folks 
on my side of the aisle are often insufficiently sensitive to interests of the 
Shlomo Cohens and Barronelle Stutzmans of our nation.

Take this case: in a large city, an observant Jewish photographer or dj, Fred, 
declines to work at an interfaith marriage between a Jew and a Gentile.  Fred 
is happy to take on any other work for Jews or Gentiles, or for both together.  
But he objects to being complicit in a venture-interfaith marriage-that he 
deems wrongful or religiously proscribed.

Marty, Eric: how much solicitude is Fred due?  (And if you choose to answer, I 
ask that you do so without analogizing to interracial marriage; that's not my 
case.)

Mitch Berman


From: 
conlawprof-boun...@lists.ucla.edu<mailto:conlawprof-boun...@lists.ucla.edu> 
[mailto:conlawprof-boun...@lists.ucla.edu<mailto:conlawprof-boun...@lists.ucla.edu>]
 On Behalf Of David Bernstein
Sent: Tuesday, October 11, 2016 10:00 AM
To: Marty Lederman <lederman.ma...@gmail.com<mailto:lederman.ma...@gmail.com>>; 
conlawp...@lists.ucla.edu<mailto:conlawp...@lists.ucla.edu>; Law & Religion 
issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Subject: Re: Noteworthy, puzzling scholars' brief in Arlene Flowers


Unlike Marty, I not only don't find the argumen

Re: Noteworthy, puzzling scholars' brief in Arlene Flowers

[Eric J Segall]

I am receptive to trying to draw lines between commercial activities that are 
inherently expressive and those that are not (knowing there will be quite grey 
areas). But I think there is a serious difference in the real world between a 
seller of flowers whose objection to same-sex marriage at bottom is hostility 
to gays receiving equal treatment and a person of faith with no objection to 
Jews or Catholics but feel they shouldn't get married to each other. Thus, 
again, I think we can draw a line b/w requests for religious exemptions based 
on group hostility and claims not based on group hostility, even conceding 
Mitch's typical smart and hard hypo is a hard case.

Best,

Eric

Sent from my iPhone

On Oct 12, 2016, at 11:29 AM, Ira Lupu 
<icl...@law.gwu.edu<mailto:icl...@law.gwu.edu>> wrote:

Mitch Berman's good question asks in general terms about how much "solicitude" 
Fred's claim deserves.  But we cannot answer intelligently unless we know the 
forum and the grounds advanced for Fred.  Is he asking the state legislature to 
exempt religious objectors from public accommodations law?  Is he raising a 
compelled speech claim?  A religious freedom claim under a RFRA, or a state 
constitution?  I would give his claim no solicitude in any of these contexts, 
for reasons I have spelled out at length on this listserv and in law reviews.  
But I can imagine that others might well react differently depending on the 
legal context.

On Tue, Oct 11, 2016 at 2:45 PM, Mitchell Berman 
<mitch...@law.upenn.edu<mailto:mitch...@law.upenn.edu>> wrote:
For what it’s worth, I’d like to add another generally liberal, pluralist voice 
in support of Doug and David.

I don’t have a strong view regarding precisely what the doctrine should be to 
govern cases of this sort, largely because I believe that the adequacy of 
available alternatives will be a critical factor, and I am open to the 
possibility that, due to difficulties of case-by-case inquiry into such 
questions, the law (statutory or judge-made) should adopt prophylactic rules.  
That acknowledged, as a matter of political morality, I also believe that folks 
on my side of the aisle are often insufficiently sensitive to interests of the 
Shlomo Cohens and Barronelle Stutzmans of our nation.

Take this case: in a large city, an observant Jewish photographer or dj, Fred, 
declines to work at an interfaith marriage between a Jew and a Gentile.  Fred 
is happy to take on any other work for Jews or Gentiles, or for both together.  
But he objects to being complicit in a venture—interfaith marriage—that he 
deems wrongful or religiously proscribed.

Marty, Eric: how much solicitude is Fred due?  (And if you choose to answer, I 
ask that you do so without analogizing to interracial marriage; that’s not my 
case.)

Mitch Berman


From: 
conlawprof-boun...@lists.ucla.edu<mailto:conlawprof-boun...@lists.ucla.edu> 
[mailto:conlawprof-boun...@lists.ucla.edu<mailto:conlawprof-boun...@lists.ucla.edu>]
 On Behalf Of David Bernstein
Sent: Tuesday, October 11, 2016 10:00 AM
To: Marty Lederman <lederman.ma...@gmail.com<mailto:lederman.ma...@gmail.com>>; 
conlawp...@lists.ucla.edu<mailto:conlawp...@lists.ucla.edu>; Law & Religion 
issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Subject: Re: Noteworthy, puzzling scholars' brief in Arlene Flowers


Unlike Marty, I not only don't find the argument in question shocking, I thin 
it's right. I blogged about this at Volokh a couple of years ago, drawing the 
analogy to a caterer who serves Jewish customers, but refuses to cater brises. 
Unusually, the comments section to the post is also mostly worthwhile. 
http://volokh.com/2013/12/14/refusing-provide-commercial-services-circumcision-discrimination-jews/<https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fvolokh.com%2F2013%2F12%2F14%2Frefusing-provide-commercial-services-circumcision-discrimination-jews%2F=01%7C01%7Cmitchberman%40law.upenn.edu%7C13d4c5bc6dad441c0d4008d3f1dee56b%7C6cf568beb84a4e319df6359907586b27%7C1=xFPIZvkJedJKDTBaANgKqcsIaseHFYpKhhyuaqMcRWs%3D=0>.
 Another hypothetical that could arise is an Orthodox Jewish baker who serves 
all customers.




Is Refusing to Provide Commercial Services for a Circumcision Discrimination 
against Jews?
by David 
Bernstein<https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fvolokh.com%2Fauthor%2Fdavidb%2F=01%7C01%7Cmitchberman%40law.upenn.edu%7C13d4c5bc6dad441c0d4008d3f1dee56b%7C6cf568beb84a4e319df6359907586b27%7C1=w6tJ5wXLE3ShHI5NRzGMgOhooyu4HI3kR8XAiqlItQw%3D=0>
 on December 14, 2013 12:46 pm in You Can't Say 
That!<https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fvolokh.com%2Fcategory%2Fyou-cant-say-that%2F=01%7C01%7Cmitchberman%40law.upenn.edu%7C13d4c5bc6dad441c0d4008d3f1dee56b%7C6cf568beb84a4e319df6359907586b27%7C1=3OoPtrJs2Z8ecuN1XrNHCfCL8sn7Y1qcrDDJbQyLNt0

Re: Noteworthy, puzzling scholars' brief in Arlene Flowers

[Ira Lupu]

Mitch Berman's good question asks in general terms about how much
"solicitude" Fred's claim deserves.  But we cannot answer intelligently
unless we know the forum and the grounds advanced for Fred.  Is he asking
the state legislature to exempt religious objectors from public
accommodations law?  Is he raising a compelled speech claim?  A religious
freedom claim under a RFRA, or a state constitution?  I would give his
claim no solicitude in any of these contexts, for reasons I have spelled
out at length on this listserv and in law reviews.  But I can imagine that
others might well react differently depending on the legal context.

On Tue, Oct 11, 2016 at 2:45 PM, Mitchell Berman <mitch...@law.upenn.edu>
wrote:

> For what it’s worth, I’d like to add another generally liberal, pluralist
> voice in support of Doug and David.
>
>
>
> I don’t have a strong view regarding precisely what the doctrine should be
> to govern cases of this sort, largely because I believe that the adequacy
> of available alternatives will be a critical factor, and I am open to the
> possibility that, due to difficulties of case-by-case inquiry into such
> questions, the law (statutory or judge-made) should adopt prophylactic
> rules.  That acknowledged, as a matter of political morality, I also
> believe that folks on my side of the aisle are often insufficiently
> sensitive to interests of the Shlomo Cohens and Barronelle Stutzmans of our
> nation.
>
>
>
> Take this case: in a large city, an observant Jewish photographer or dj,
> Fred, declines to work at an interfaith marriage between a Jew and a
> Gentile.  Fred is happy to take on any other work for Jews or Gentiles, or
> for both together.  But he objects to being complicit in a
> venture—interfaith marriage—that he deems wrongful or religiously
> proscribed.
>
>
>
> Marty, Eric: how much solicitude is Fred due?  (And if you choose to
> answer, I ask that you do so without analogizing to interracial marriage;
> that’s not my case.)
>
>
>
> Mitch Berman
>
>
>
>
>
> *From:* conlawprof-boun...@lists.ucla.edu [mailto:conlawprof-bounces@
> lists.ucla.edu] *On Behalf Of *David Bernstein
> *Sent:* Tuesday, October 11, 2016 10:00 AM
> *To:* Marty Lederman <lederman.ma...@gmail.com>; conlawp...@lists.ucla.edu;
> Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
> *Subject:* Re: Noteworthy, puzzling scholars' brief in Arlene Flowers
>
>
>
> Unlike Marty, I not only don't find the argument in question shocking, I
> thin it's right. I blogged about this at Volokh a couple of years ago,
> drawing the analogy to a caterer who serves Jewish customers, but refuses
> to cater brises. Unusually, the comments section to the post is also mostly
> worthwhile. http://volokh.com/2013/12/14/refusing-provide-
> commercial-services-circumcision-discrimination-jews/
> <https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fvolokh.com%2F2013%2F12%2F14%2Frefusing-provide-commercial-services-circumcision-discrimination-jews%2F=01%7C01%7Cmitchberman%40law.upenn.edu%7C13d4c5bc6dad441c0d4008d3f1dee56b%7C6cf568beb84a4e319df6359907586b27%7C1=xFPIZvkJedJKDTBaANgKqcsIaseHFYpKhhyuaqMcRWs%3D=0>.
> Another hypothetical that could arise is an Orthodox Jewish baker who
> serves all customers.
>
>
>
>
> Is Refusing to Provide Commercial Services for a Circumcision
> Discrimination against Jews?
>
> by *David Bernstein*
> <https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fvolokh.com%2Fauthor%2Fdavidb%2F=01%7C01%7Cmitchberman%40law.upenn.edu%7C13d4c5bc6dad441c0d4008d3f1dee56b%7C6cf568beb84a4e319df6359907586b27%7C1=w6tJ5wXLE3ShHI5NRzGMgOhooyu4HI3kR8XAiqlItQw%3D=0>
>  on December 14, 2013 12:46 pm in *You Can't Say That!*
> <https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fvolokh.com%2Fcategory%2Fyou-cant-say-that%2F=01%7C01%7Cmitchberman%40law.upenn.edu%7C13d4c5bc6dad441c0d4008d3f1dee56b%7C6cf568beb84a4e319df6359907586b27%7C1=3OoPtrJs2Z8ecuN1XrNHCfCL8sn7Y1qcrDDJbQyLNt0%3D=0>
>
> Here’s the hypothetical: Shlomo Cohen has been blessed with a son, but he
> lives in San Francisco, where there is a vocal anti-circumcision movement.
> He emails his neighbor, a photographer, and asks him if he would photograph
> his son’s bris. The photographer responds, “Shlomo, no offense, but I think
> circumcision amounts to genital mutilation, and I can’t participate in
> that.” Next, he approaches his local organic/vegeterian caterer about
> catering the bris. The caterer says, “you know Shlomo, I’ve done brises in
> the past, but I’ve been reading some of the literature put out by the
> anti-circumcision people, and I think circumcisions cause unnecessary pain
> to baby boys. So I don’t do brises anym

Re: Noteworthy, puzzling scholars' brief in Arlene Flowers

[Roger Severino]

The argument that the definition of marriage centers on the sex of the spouses 
and not their sexual orientation was a point that was in fact noticed and 
discussed by the Court.


"CHIEF JUSTICE ROBERTS: Counsel, I'm -- I'm not sure it's necessary to get into 
sexual orientation to resolve the case. I mean, if Sue loves Joe and Tom loves 
Joe, Sue can marry him and Tom can't. And the difference is based upon their 
different sex. Why isn't that a straightforward question of sexual 
discrimination?"


Yes Justice Kennedy dismisses this question out of hand, but that also means 
there is not much, if any, reasoned analysis available for us to examine.



Roger Severino










From: religionlaw-boun...@lists.ucla.edu  
on behalf of Marty Lederman 
Sent: Monday, October 10, 2016 10:40 AM
To: conlawp...@lists.ucla.edu; Law & Religion issues for Law Academics
Subject: Noteworthy, puzzling scholars' brief in Arlene Flowers

Some of you may be familiar with the Washington v. Arlene's Flowers case, which 
will be argued in the Washington Supreme Court next month.  Barronelle Stutzman 
and her husband are the owners of Arlene’s Flowers, Inc., a closely held 
for-profit corporation.  Over the course of nine years, Stutzman regularly sold 
floral arrangements to Robert Ingersoll, knowing that he was gay.  When 
Ingersoll asked Stutzman to sell him flower arrangements for his wedding to 
Curt Freed, however, she refused to provide them, even if they were prepared by 
others in her shop, because doing so, she claimed, would "constitute a 
demonstration of [her] approval for the wedding," whereas in fact she has 
religious objections to same-sex marriages.  (She agreed to provide the raw 
materials for the arrangements--the flowers and such--but not to have her shop 
do the arranging.)

The Washington Attorney General sued Arlene's Flowers, seeking an injunction 
against such discrimination in the future.  (Ingersoll and Freed also sued, 
seeking nominal damages for the costs they incurred when Stutzman refused to 
serve them.)  The principal basis for the suit is a claim of discrimination on 
the basis of sexual orientation, prohibited by the Washington Law Against 
Discrimination (WLAD), RCW 49.60.215, which provides that "It shall be an 
unfair practice for any person or the person's agent or employee to commit an 
act which directly or indirectly results in any distinction, restriction, or 
discrimination, . . . or the refusing or withholding from any person the 
admission, patronage, custom, presence, frequenting, dwelling, staying, or 
lodging in any place of public resort, accommodation, assemblage, or 
amusement."  The forms of prohibited discrimination are listed in RCW 
49.60.030:  "The right to be free from discrimination because of race, creed, 
color, national origin, sex, honorably discharged veteran or military status, 
sexual orientation, or the presence of any sensory, mental, or physical 
disability or the use of a trained dog guide or service animal by a person with 
a disability is recognized as and declared to be a civil right. This right 
shall include, but not be limited to: . . . (b) The right to the full enjoyment 
of any of the accommodations, advantages, facilities, or privileges of any 
place of public resort, accommodation, assemblage, or amusement."

Stutzman defended on both statutory and state and federal constitutional (Free 
Speech and Free Exercise) grounds; but the lower court 
ruled
 in favor of the Attorney General.  The appeal from that decision is now before 
the Washington Supreme Court, which will hear arguments in about five weeks.

A couple of weeks ago, a group of 27 scholars, some of whom are on these 
listservs, filed an amicus 
brief on behalf of 
Arlene's Flowers.  (According to Rick Garnett, it was written by Steve Smith, 
although he is not listed as counsel.)  That brief does not make a 
constitutional argument at all.  Instead, it argues (as I read it) that the 
Court should construe the Washington antidiscrimination statute so as not to 
include Stutzman's refusal as prohibited discriminatory conduct in the first 
place.

The theory of the brief, such as it is, is that Stutzman must not have been 
engaged in discrimination on the basis of sexual orientation, since she was 
willing to make arrangements for Ingersoll--a man who she knew was gay--for 
purposes other than his marriage.  The lower court erred, according to the 
brief, "[i]n erroneously treating the religious conviction Stutzman does have 
as equivalent to a different and more troublesome objection that she does not 
have."  She doesn't discriminate against gays and lesbians -- "only" against 
same-sex marriage.

I, for 

RE: Noteworthy, puzzling scholars' brief in Arlene Flowers

[Laycock, H Douglas (hdl5c)]

Of course many couples weddings are entirely secular; in the very large ARIS 
survey in 2008, 30% of married Americans said that they were not married in a 
religious ceremony.

But to those that believe that marriage is inherently a religious relationship, 
ordained by God and defined by religious rules no matter how the couple or the 
state may think about it, then the wedding that creates that religious 
relationship is inherently a religious ceremony. That is what I understand to 
be the position of objectors like Stutzman. It is religious for her, and 
religiously prohibited, even if it is secular for you.

Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA 22903
434-243-8546

From: Eric J Segall [mailto:eseg...@gsu.edu]
Sent: Monday, October 10, 2016 9:07 PM
To: Laycock, H Douglas (hdl5c) <hd...@virginia.edu>
Cc: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>; 
conlawp...@lists.ucla.edu
Subject: Re: Noteworthy, puzzling scholars' brief in Arlene Flowers

Doug, I think you make a good argument. I have two quibbles. The statement that 
a wedding is an "inherently religious context" does not describe my wedding or 
the weddings of millions of Americans.

We are also in a world where somehow the corporate selling of commercial goods 
by a large company has been deemed a "religious" activity so, even though that 
point is maybe not directly relevant to the issues here, I am quite fearful of 
the slippery slope of exemptions laws.

Best,

Eric

Sent from my iPhone

On Oct 10, 2016, at 8:59 PM, Laycock, H Douglas (hdl5c) 
<hd...@virginia.edu<mailto:hd...@virginia.edu>> wrote:

Eric, I agree that it is discrimination. I thought I was clear about that.



I would grant a free exercise exemption, assuming another vendor is available 
without undue difficulty, principally for two reasons. First, for believers 
like Baronelle Stutzman, a wedding is an inherently religious context, where 
the government's interest is weak and the religious interest is strong. And 
second, because the same-sex couple still gets to live their own lives and 
their own identities by their own deepest values. But if an exemption is 
denied, Stutzman does not get to do that. She must surrender her occupation or 
surrender her religious commitments. I don't begin to share her views, but the 
balance of hardships tips decidedly in her favor.


Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia
580 Massie Road
Charlottesville, VA 22903
434-243-8546

From: Eric J Segall [eseg...@gsu.edu<mailto:eseg...@gsu.edu>]
Sent: Monday, October 10, 2016 6:09 PM
To: Laycock, H Douglas (hdl5c)
Cc: Law & Religion issues for Law Academics; 
conlawp...@lists.ucla.edu<mailto:conlawp...@lists.ucla.edu>
Subject: Re: Noteworthy, puzzling scholars' brief in Arlene Flowers
I fail to understand how "I will sell goods to gays and lesbians but I will not 
sell goods to gays and lesbians for their weddings though I will sell goods to 
the exact same weddings as long as gays are not involved" is not quite serious 
discrimination against gays and lesbians. I might be able to see some artistic 
exception on free speech grounds being possibly applicable but the distinction 
Doug suggests can't be right, as Marty persuasive argued. Discrimination can't 
be a matter of degree.

Best,

Eric

Sent from my iPhone

On Oct 10, 2016, at 5:44 PM, Laycock, H Douglas (hdl5c) 
<hd...@virginia.edu<https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fmail.eservices.virginia.edu%2Fowa%2Fredir.aspx%3FREF%3DzESHIygd7zmlkfgdaIUvM11xLKDn1z7py-OUslR5EL0mebILcfHTCAFtYWlsdG86aGRsNWNAdmlyZ2luaWEuZWR1=01%7C01%7Cesegall%40gsu.edu%7Cdd0aab79e5a44023812708d3f171e337%7C515ad73d8d5e4169895c9789dc742a70%7C0=NTkWVSZKdZNIbVo1cC%2FUUsDNyr47w2Mw%2BiKmuLWRAZs%3D=0>>
 wrote:
I did not sign the scholars' brief, and it is drawing about the reaction I 
expected. But nothing in the brief implies anything like the Ollie's BBQ 
analogy.

The claim in the brief is that discrimination confined to one very narrow 
context, an especially sensitive context with its own legal protections, and 
where the motivation for discriminating is a belief about that special context 
and not any broader hostility to the protected class, should be treated 
differently under the discrimination laws. I agree that the argument would have 
been better made under the Washington constitution. But it does not remotely 
suggest the Ollie's argument, where the discrimination covered the bulk of the 
business, there was no special context with its own legal protections, the 
motive was not a belief about any special context, and the motive could not be 
distinguished from general hostility to the protected class.


Douglas Laycock
Robert E. Scott Distinguished Professor of L

RE: Noteworthy, puzzling scholars' brief in Arlene Flowers

[Laycock, H Douglas (hdl5c)]

Eric, I agree that it is discrimination. I thought I was clear about that.



I would grant a free exercise exemption, assuming another vendor is available 
without undue difficulty, principally for two reasons. First, for believers 
like Baronelle Stutzman, a wedding is an inherently religious context, where 
the government's interest is weak and the religious interest is strong. And 
second, because the same-sex couple still gets to live their own lives and 
their own identities by their own deepest values. But if an exemption is 
denied, Stutzman does not get to do that. She must surrender her occupation or 
surrender her religious commitments. I don't begin to share her views, but the 
balance of hardships tips decidedly in her favor.



Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia
580 Massie Road
Charlottesville, VA 22903
434-243-8546

From: Eric J Segall [eseg...@gsu.edu]
Sent: Monday, October 10, 2016 6:09 PM
To: Laycock, H Douglas (hdl5c)
Cc: Law & Religion issues for Law Academics; conlawp...@lists.ucla.edu
Subject: Re: Noteworthy, puzzling scholars' brief in Arlene Flowers

I fail to understand how "I will sell goods to gays and lesbians but I will not 
sell goods to gays and lesbians for their weddings though I will sell goods to 
the exact same weddings as long as gays are not involved" is not quite serious 
discrimination against gays and lesbians. I might be able to see some artistic 
exception on free speech grounds being possibly applicable but the distinction 
Doug suggests can't be right, as Marty persuasive argued. Discrimination can't 
be a matter of degree.

Best,

Eric

Sent from my iPhone

On Oct 10, 2016, at 5:44 PM, Laycock, H Douglas (hdl5c) 
<hd...@virginia.edu<https://mail.eservices.virginia.edu/owa/redir.aspx?REF=zESHIygd7zmlkfgdaIUvM11xLKDn1z7py-OUslR5EL0mebILcfHTCAFtYWlsdG86aGRsNWNAdmlyZ2luaWEuZWR1>>
 wrote:

I did not sign the scholars’ brief, and it is drawing about the reaction I 
expected. But nothing in the brief implies anything like the Ollie’s BBQ 
analogy.

The claim in the brief is that discrimination confined to one very narrow 
context, an especially sensitive context with its own legal protections, and 
where the motivation for discriminating is a belief about that special context 
and not any broader hostility to the protected class, should be treated 
differently under the discrimination laws. I agree that the argument would have 
been better made under the Washington constitution. But it does not remotely 
suggest the Ollie’s argument, where the discrimination covered the bulk of the 
business, there was no special context with its own legal protections, the 
motive was not a belief about any special context, and the motive could not be 
distinguished from general hostility to the protected class.


Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA 22903
434-243-8546

From: 
conlawprof-boun...@lists.ucla.edu<https://mail.eservices.virginia.edu/owa/redir.aspx?REF=sLJtWQpWvKTsSnR1pxmJPQ68REPP13Prnc_VwJDHV2cmebILcfHTCAFtYWlsdG86Y29ubGF3cHJvZi1ib3VuY2VzQGxpc3RzLnVjbGEuZWR1>
 
[mailto:conlawprof-boun...@lists.ucla.edu<https://mail.eservices.virginia.edu/owa/redir.aspx?REF=sLJtWQpWvKTsSnR1pxmJPQ68REPP13Prnc_VwJDHV2cmebILcfHTCAFtYWlsdG86Y29ubGF3cHJvZi1ib3VuY2VzQGxpc3RzLnVjbGEuZWR1>]
 On Behalf Of Samuel Bagenstos
Sent: Monday, October 10, 2016 5:15 PM
To: John Q. Barrett 
<barre...@stjohns.edu<https://mail.eservices.virginia.edu/owa/redir.aspx?REF=d8lsaeEdZ4BK2eRtsL7wnt95qAqma7nsJ0LyFb1kzA8mebILcfHTCAFtYWlsdG86YmFycmV0dGpAc3Rqb2hucy5lZHU.>>
Cc: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<https://mail.eservices.virginia.edu/owa/redir.aspx?REF=_BIjchWfs954joVrDmYtQdpUfySntuATY8OxyYKvkZgmebILcfHTCAFtYWlsdG86cmVsaWdpb25sYXdAbGlzdHMudWNsYS5lZHU.>>;
 
conlawp...@lists.ucla.edu<https://mail.eservices.virginia.edu/owa/redir.aspx?REF=dFcKBu5EdujZuee_qeykYx2BOOR8OVNXCJ-LEl5EQdUmebILcfHTCAFtYWlsdG86Y29ubGF3cHJvZkBsaXN0cy51Y2xhLmVkdQ..>
Subject: Re: Noteworthy, puzzling scholars' brief in Arlene Flowers

In other words, if Ollie sells BBQ to black customers at a takeout window and 
refuses to serve them inside because he doesn’t believe in celebrating indoor 
racial integration/because that is against his religious beliefs, he wins?—I 
think and hope not.

As I'm sure you know, those were basically the facts in McClung itself.

___
To post, send message to 
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Re: Noteworthy, puzzling scholars' brief in Arlene Flowers

[Marty Lederman]

I assume Doug was referring to Arlene's Flowers' free exercise claim under
Art. I, section 11 of the Washington Constitution, which the state court
has construed in Sherbert/RFRA-like fashion.  Although I don't think the
religious exercise claim should prevail in this commercial context, I do
think that the constitutional argument is at least arguable, unlike the
amicus brief's statutory construction argument.

I won't presume to speak for Doug, but I assume the free exercise argument
for drawing the line at exemptions in the context of same-sex *marriages*
would depend on (i) the notion, which Doug has articulated and with which I
generally agree, that the *Sherbert *test, in practice, tends to be more of
a balancing test than a series of "yes/no" questions; and (ii) although
Washington might have a compelling interest in prohibiting discrimination
in *both* contexts, the state has a much *stronger *interest in prohibiting
the broader "we don't serve gays" form of discrimination, and thus the
balance against the burden on free exercise tips more strongly against an
exemption in that context.  As I said, I think the state should win in both
cases, but at least I see the basic logic of the free exercise argument for
the distinction--unlike the statutory argument in the amicus brief, which
would have the court hold that the refusal to sell arrangements for the
marriage is not prohibited discrimination at all, regardless of religious
burden, state interest, etc.

On Mon, Oct 10, 2016 at 6:09 PM, Eric J Segall <eseg...@gsu.edu> wrote:

> I fail to understand how "I will sell goods to gays and lesbians but I
> will not sell goods to gays and lesbians for their weddings though I will
> sell goods to the exact same weddings as long as gays are not involved" is
> not quite serious discrimination against gays and lesbians. I might be able
> to see some artistic exception on free speech grounds being possibly
> applicable but the distinction Doug suggests can't be right, as Marty
> persuasive argued. Discrimination can't be a matter of degree.
>
> Best,
>
> Eric
>
> Sent from my iPhone
>
> On Oct 10, 2016, at 5:44 PM, Laycock, H Douglas (hdl5c) <
> hd...@virginia.edu> wrote:
>
> I did not sign the scholars’ brief, and it is drawing about the reaction I
> expected. But nothing in the brief implies anything like the Ollie’s BBQ
> analogy.
>
>
>
> The claim in the brief is that discrimination confined to one very narrow
> context, an especially sensitive context with its own legal protections,
> and where the motivation for discriminating is a belief about that special
> context and not any broader hostility to the protected class, should be
> treated differently under the discrimination laws. I agree that the
> argument would have been better made under the Washington constitution. But
> it does not remotely suggest the Ollie’s argument, where the discrimination
> covered the bulk of the business, there was no special context with its own
> legal protections, the motive was not a belief about any special context,
> and the motive could not be distinguished from general hostility to the
> protected class.
>
>
>
>
>
> Douglas Laycock
>
> Robert E. Scott Distinguished Professor of Law
>
> University of Virginia Law School
>
> 580 Massie Road
>
> Charlottesville, VA 22903
>
> 434-243-8546
>
>
>
> *From:* conlawprof-boun...@lists.ucla.edu [mailto:conlawprof-bounces@
> lists.ucla.edu <conlawprof-boun...@lists.ucla.edu>] *On Behalf Of *Samuel
> Bagenstos
> *Sent:* Monday, October 10, 2016 5:15 PM
> *To:* John Q. Barrett <barre...@stjohns.edu>
> *Cc:* Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>;
> conlawp...@lists.ucla.edu
> *Subject:* Re: Noteworthy, puzzling scholars' brief in Arlene Flowers
>
>
>
> *In other words, if Ollie sells BBQ to black customers at a takeout window
> and refuses to serve them inside because he doesn’t believe in celebrating
> indoor racial integration*/because that is against his religious beliefs,
> he wins?—I think and hope not.
>
>
>
> As I'm sure you know, those were basically the facts in McClung itself.
>
>
>
> ___
> To post, send message to conlawp...@lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see
> https://na01.safelinks.protection.outlook.com/?url=
> http%3A%2F%2Flists.ucla.edu%2Fcgi-bin%2Fmailman%
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> 7C468b81adfc8941d2e9f308d3f156ac0d%7C515ad73d8d5e4169895c9789dc74
> 2a70%7C0=ahk1zsoknJBCgWilQItnUna3sr2NWH9JY1AXft0VAy4%3D=0
>
> Please note that messages sent to this large list cannot be viewed as
> private.  List me

RE: Noteworthy, puzzling scholars' brief in Arlene Flowers

[Laycock, H Douglas (hdl5c)]

I did not sign the scholars’ brief, and it is drawing about the reaction I 
expected. But nothing in the brief implies anything like the Ollie’s BBQ 
analogy.

The claim in the brief is that discrimination confined to one very narrow 
context, an especially sensitive context with its own legal protections, and 
where the motivation for discriminating is a belief about that special context 
and not any broader hostility to the protected class, should be treated 
differently under the discrimination laws. I agree that the argument would have 
been better made under the Washington constitution. But it does not remotely 
suggest the Ollie’s argument, where the discrimination covered the bulk of the 
business, there was no special context with its own legal protections, the 
motive was not a belief about any special context, and the motive could not be 
distinguished from general hostility to the protected class.


Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA 22903
434-243-8546

From: conlawprof-boun...@lists.ucla.edu 
[mailto:conlawprof-boun...@lists.ucla.edu] On Behalf Of Samuel Bagenstos
Sent: Monday, October 10, 2016 5:15 PM
To: John Q. Barrett <barre...@stjohns.edu>
Cc: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>; 
conlawp...@lists.ucla.edu
Subject: Re: Noteworthy, puzzling scholars' brief in Arlene Flowers

In other words, if Ollie sells BBQ to black customers at a takeout window and 
refuses to serve them inside because he doesn’t believe in celebrating indoor 
racial integration/because that is against his religious beliefs, he wins?—I 
think and hope not.

As I'm sure you know, those were basically the facts in McClung itself.

On Mon, Oct 10, 2016 at 4:58 PM, John Q. Barrett 
<barre...@stjohns.edu<mailto:barre...@stjohns.edu>> wrote:
Marty,

Many thanks – I was not familiar with this brief.

It concedes, laudably, that general refusals to serve gay customers – here, to 
sell them flower arrangements – are legally “troublesome” and “dubious.”

Given that, I don’t see why it changes anything as a legal matter when would-be 
customers want to buy flower arrangements for use at a lawful, indeed a 
constitutionally-protected, wedding.  The brief, by using the word “celebrate” 
so much and citing Wooley v. Maynard, claims that the sales would be 
unconstitutionally compelled speech, but really they’re only floral 
arrangements/this is conduct/this is commerce.  So too Justice Kennedy’s line 
in Obergefell, quoted three times in the brief, that he and the Court were not 
disparaging those who believe same-sex marriage to be wrong—that was about 
personal belief (what’s in one’s heart), not about public commerce (who get 
served in one’s store).

The amici argue that because Ms. S. serves  (gay, straight, black, 
Catholic, etc.) customers sometimes in some ways, she may [why?/based on 
what?—of course the idea is the Free Exercise Clause, but the brief doesn’t say 
that] refuse to serve them other times and in other ways, when she believes 
it’s connected to something she doesn’t like or believe in, religiously.  In 
other words, if Ollie sells BBQ to black customers at a takeout window and 
refuses to serve them inside because he doesn’t believe in celebrating indoor 
racial integration/because that is against his religious beliefs, he wins?—I 
think and hope not.

Finally, the brief’s claims about public division/impending civil war seem 
overblown to me.  We all have our experiences and anecdotes, but mine involve 
devoutly Christian, anti-same-sex marriage caterers, etc. in upstate New York 
who now are okay and better with new same-sex wedding business while holding 
onto, but perhaps with warmer hearts, their same beliefs.  To me, those seem 
the two halves of what the law protects, in the “balanced” way that the brief 
claims to desire.

Best,

John

Professor John Q. Barrett
St. John's University School of Law
www.stjohns.edu/academics/bio/john-q-barrett<http://www.stjohns.edu/academics/bio/john-q-barrett>

"Jackson List" archive site (searchable):
http://thejacksonlist.com<http://thejacksonlist.com/>

From: 
conlawprof-boun...@lists.ucla.edu<mailto:conlawprof-boun...@lists.ucla.edu> 
[mailto:conlawprof-boun...@lists.ucla.edu<mailto:conlawprof-boun...@lists.ucla.edu>]
 On Behalf Of Marty Lederman
Sent: Monday, October 10, 2016 10:40 AM
To: conlawp...@lists.ucla.edu<mailto:conlawp...@lists.ucla.edu>; Law & Religion 
issues for Law Academics
Subject: Noteworthy, puzzling scholars' brief in Arlene Flowers

Some of you may be familiar with the Washington v. Arlene's Flowers case, which 
will be argued in the Washington Supreme Court next month.  Barronelle Stutzman 
and her husband are the owners of Arlene’s Flowers, Inc., a closely held 
for-profit corporation.  Over the course of nine years, Stutzman regularly sold 

RE: Noteworthy, puzzling scholars' brief in Arlene Flowers

[Sisk, Gregory C.]

[The following is a hypothetical only, as I don’t pretend to know everything 
about the parties and their views.]

Suppose that you are a solo law practitioner in the town where Arlene’s Flowers 
is located.  You have long known that Barronelle Stutzman has strong 
traditionalist religious views, viewing marriage as a lifelong commitment 
between a man and a woman, that sexuality should only be expressed in marriage 
that is open to life, etc., and thus is religiously opposed to divorce, 
contraception, abortion, and same-sex marriage.

Although your own religious views are very different and indeed you vehemently 
disagree with Barronelle, you have a policy of not discriminating on the basis 
of religious and so have represented her on more than one legal matter, 
including drafting wills for her and her husband, reviewing a contract that she 
had with a company who supplied florist materials to her, etc.

Now she has come to you and reported that the Attorney General is suing 
Arlene’s Flowers because she declined to apply her florist professional skills 
to create a flower arrangement for a same-sex marriage ceremony, as she did not 
agree with the message of approval conveyed by her professional services.  She 
asks you to represent her in defending against the Attorney General’s suit by 
asserting her First Amendment religious liberty.

If you refuse to represent her in a religious liberty defense, arguing that you 
don’t want to apply your legal professional skills to promote a message with 
which you disagree, should that choice be regarded as the equivalent of 
invidious religious discrimination?  Isn’t your decision not to apply your 
legal professional skills to advance a message with which you disagree really 
the same in substance to her decision not to apply her florist professional 
skills to a ceremony with which she disagrees?

Gregory Sisk
Laghi Distinguished Chair in Law
University of St. Thomas School of Law (Minnesota)
MSL 400, 1000 LaSalle Avenue
Minneapolis, MN  55403-2005
651-962-4923
gcs...@stthomas.edu
http://personal.stthomas.edu/GCSISK/sisk.html
Publications:  http://ssrn.com/author=44545

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Monday, October 10, 2016 9:40 AM
To: conlawp...@lists.ucla.edu; Law & Religion issues for Law Academics 

Subject: Noteworthy, puzzling scholars' brief in Arlene Flowers

Some of you may be familiar with the Washington v. Arlene's Flowers case, which 
will be argued in the Washington Supreme Court next month.  Barronelle Stutzman 
and her husband are the owners of Arlene’s Flowers, Inc., a closely held 
for-profit corporation.  Over the course of nine years, Stutzman regularly sold 
floral arrangements to Robert Ingersoll, knowing that he was gay.  When 
Ingersoll asked Stutzman to sell him flower arrangements for his wedding to 
Curt Freed, however, she refused to provide them, even if they were prepared by 
others in her shop, because doing so, she claimed, would "constitute a 
demonstration of [her] approval for the wedding," whereas in fact she has 
religious objections to same-sex marriages.  (She agreed to provide the raw 
materials for the arrangements--the flowers and such--but not to have her shop 
do the arranging.)

The Washington Attorney General sued Arlene's Flowers, seeking an injunction 
against such discrimination in the future.  (Ingersoll and Freed also sued, 
seeking nominal damages for the costs they incurred when Stutzman refused to 
serve them.)  The principal basis for the suit is a claim of discrimination on 
the basis of sexual orientation, prohibited by the Washington Law Against 
Discrimination (WLAD), RCW 49.60.215, which provides that "It shall be an 
unfair practice for any person or the person's agent or employee to commit an 
act which directly or indirectly results in any distinction, restriction, or 
discrimination, . . . or the refusing or withholding from any person the 
admission, patronage, custom, presence, frequenting, dwelling, staying, or 
lodging in any place of public resort, accommodation, assemblage, or 
amusement."  The forms of prohibited discrimination are listed in RCW 
49.60.030:  "The right to be free from discrimination because of race, creed, 
color, national origin, sex, honorably discharged veteran or military status, 
sexual orientation, or the presence of any sensory, mental, or physical 
disability or the use of a trained dog guide or service animal by a person with 
a disability is recognized as and declared to be a civil right. This right 
shall include, but not be limited to: . . . (b) The right to the full enjoyment 
of any of the accommodations, advantages, facilities, or privileges of any 
place of public resort, accommodation, assemblage, or amusement."

Stutzman defended on both statutory and state and federal constitutional (Free