RE: Religious exemptions and discrimination

[Rick Garnett]

Friends,

This bounced back, as too long, and so I’m trying again.  Sorry if you receive 
it twice!

Richard W. Garnett
Professor of Law and Associate Dean
Notre Dame Law School
P.O. Box 780
Notre Dame, Indiana 46556-0780

574-631-6981 (w)
574-276-2252 (cell)

SSRN pagehttp://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=342235

Blogs:

Prawfsblawghttp://prawfsblawg.blogs.com/
Mirror of Justicehttp://www.mirrorofjustice.blogs.com/

From: Rick Garnett
Sent: Monday, June 25, 2012 1:47 PM
To: Law  Religion issues for Law Academics
Subject: RE: Religious exemptions and discrimination

Dear colleagues,

I’m coming to this discussion late, and I apologize (and realize that many of 
us are today focused more on immigration and the Eighth Amendment!).  The first 
sentence of Eugene’s response to Bob expresses really well, I think, a key 
point in these debates.  As he says, “discrimination” means many different 
things, and not all of these things are wrong.  Shamelessness alert:  I have a 
chapter in a forthcoming book (which grew out of a really interesting 
conference that Austin Sarat organized at Alabama last year), called “Religious 
Freedom and the Nondiscrimination Norm,” which tries to explore the issue in a 
bit more detail.  Here’s the first paragraph of the abstract:

“Discrimination,” we believe, is wrong. And, because “discrimination” is wrong, 
we believe that governments like ours – secular, liberal, constitutional 
governments – may, and should, take regulatory and other steps to prevent, 
discourage, and denounce it. However, it is not true that “discrimination” is 
always or necessarily wrong. Nor is it the case that governments always or 
necessarily should or may regulate or discourage it even when it is. Some 
wrongs are beyond the authorized reach of government policy; some are too 
difficult or costly to identify, let alone regulate; others are none of the 
government’s business. . . .

The full abstract, and the paper, are available here:  
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2087599

Best,

R

Richard W. Garnett
Professor of Law and Associate Dean
Notre Dame Law School
P.O. Box 780
Notre Dame, Indiana 46556-0780

574-631-6981 (w)
574-276-2252 (cell)

SSRN pagehttp://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=342235

Blogs:

Prawfsblawghttp://prawfsblawg.blogs.com/
Mirror of Justicehttp://www.mirrorofjustice.blogs.com/

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Friday, June 15, 2012 3:50 PM
To: Law  Religion issues for Law Academics
Subject: Religious exemptions and discrimination

I think this is combining under the rubric of “discrimination” 
many different things.  First, item 2 doesn’t involve discrimination based on 
the passenger’s race, religion, sex, and so on which is why businesses 
generally are free to discriminate against patrons with wine, or employees who 
drink wine.  The relevant law here is a sort of “common carrier” rule that 
imposes on a few businesses (and only a few) the obligation to do business with 
pretty much everyone, an obligation that is much broader than that imposed by 
antidiscrimination law.  Relatedly, item 1 doesn’t involve discrimination in 
the antidiscrimination law sense (except insofar as one can argue that such a 
refusal is sex discrimination because only women take Plan B, which I doubt 
will succeed).  Indeed, I take it that all of us would agree that a supermarket 
could choose to refuse to stock condoms (male or female) or over-the-counter 
contraceptives.  Rather, the relevant law is a professional obligation imposed 
on pharmacies to stock either all in-demand pharmaceuticals, or at least to 
stock this particular pharmaceutical.

Second, even true discrimination rules have historically been 
applied more narrowly in some areas than in others, and this reflects (in 
addition to federalism concerns) real differences in the way discrimination 
affects people.  Title II of the Civil Rights Act, for instance, does not 
constrain pharmacies, cab drivers, or professional photographers; indeed, it 
applies to only a narrow range of places of public accommodation.  It does, 
however, affect all businesses with more than a threshold number of employees.  
And this makes sense, because as to many places of public accommodation, the 
chief harm with discrimination is only dignitary:  If Elaine Huguenin refuses 
to photograph a same-sex commitment ceremony, the couple might be annoyed by 
the refusal, but they can probably find another photographer at little cost, at 
least in most places.  (Indeed, the couple may prefer to hire a photographer 
who they feel will see their ceremony as beautiful, and thus be inspired to 
photograph it that way, rather than a photographer who is being forced by law 
to photograph something she disapproves of.)  On the other hand, employment 
discrimination can dramatically affect people’s

Re: Religious exemptions and discrimination

[Michael Masinter]

Regarding Eugene's second point, I suspect the narrow scope of Title  
Two of the 1964 CRA speaks more to what was politically possible in  
1964 than to a judgment that, with only narrow exceptions, businesses  
should be free to inflict dignitary harm by engaging in purposeful  
racial or religious discrimination.


Almost thirty years later, when Congress enacted the Americans With  
Disabilities Act, it defined public accommodations far more broadly in  
section 12181 to both prohibit intentional discrimination on the basis  
of disability and to require public accommodations to reasonably  
accommodate at their expense individuals with disabilities.


Once Runyon v. McCrary held that 42 U.S.C. 1981 broadly prohibited  
private racial discrimination in the making of contracts, and  
Al-Khazraji and Shaare Tefila held that the nineteenth century  
understanding of race meant that race encompassed national origin and  
religion, section 1981 became the more significant vehicle for  
challenging private contractual discrimination.  When the Court  
reopened the  question of section 1981's application to private  
transactions by setting Patterson v. McLean Credit Union for  
reargument, Congress amended section 1981 to settle the question and  
further expanded its scope in the Civil Rights Act of 1991.


Section 1981 and the ADA both appear to apply to cab drivers,  
professional photographers, and pharmacies.


Mike


Michael R. Masinter  3305 College Avenue
Professor of Law Fort Lauderdale, FL 33314
Nova Southeastern University 954.262.6151 (voice)
masin...@nova.edu954.262.3835 (fax)



Quoting Volokh, Eugene vol...@law.ucla.edu:

I think this is combining under the rubric of   
?discrimination? many different things.  First, item 2 doesn?t   
involve discrimination based on the passenger?s race, religion, sex,  
 and so on which is why businesses generally are free to  
discriminate  against patrons with wine, or employees who drink  
wine.  The  relevant law here is a sort of ?common carrier? rule  
that imposes on  a few businesses (and only a few) the obligation to  
do business with  pretty much everyone, an obligation that is much  
broader than that  imposed by antidiscrimination law.  Relatedly,  
item 1 doesn?t  involve discrimination in the antidiscrimination law  
sense (except  insofar as one can argue that such a refusal is sex  
discrimination  because only women take Plan B, which I doubt will  
succeed).   Indeed, I take it that all of us would agree that a  
supermarket  could choose to refuse to stock condoms (male or  
female) or  over-the-counter contraceptives.  Rather, the relevant  
law is a  professional obligation imposed on pharmacies to stock  
either all  in-demand pharmaceuticals, or at least to stock this  
particular  pharmaceutical.


Second, even true discrimination rules have   
historically been applied more narrowly in some areas than in   
others, and this reflects (in addition to federalism concerns) real   
differences in the way discrimination affects people.  Title II of   
the Civil Rights Act, for instance, does not constrain pharmacies,   
cab drivers, or professional photographers; indeed, it applies to   
only a narrow range of places of public accommodation.  It does,   
however, affect all businesses with more than a threshold number of   
employees.  And this makes sense, because as to many places of   
public accommodation, the chief harm with discrimination is only   
dignitary:  If Elaine Huguenin refuses to photograph a same-sex   
commitment ceremony, the couple might be annoyed by the refusal, but  
 they can probably find another photographer at little cost, at  
least  in most places.  (Indeed, the couple may prefer to hire a   
photographer who they feel will see their ceremony as beautiful, and  
 thus be inspired to photograph it that way, rather than a   
photographer who is being forced by law to photograph something she   
disapproves of.)  On the other hand, employment discrimination can   
dramatically affect people?s livelihoods, especially since   
employment is often much less fungible than most commercially   
available services.


Third, different sorts of discrimination rules   
relate differently to other constitutional rights, and liberty   
rights more generally.  Requiring a photographer to photograph   
something she doesn?t want to photograph affects her  First   
Amendment right not to create expressive works that she disapproves   
of.  (Even those who think wedding photography isn?t expressive   
enough to qualify for that purposes might, I think, agree that a   
commercial press release writer should have the right to refuse to   
write press releases for Scientology ? though that?s discriminating   
based on religion ? or to write a glowing account of a same-sex   
ceremony.)  Likewise,