RE: Definition of discrimination.
A sad and disturbing story. I'd say that, yes, it was discrimination from the outset and virulently so. Verbal antagonism is a form of discrimination, when it is based on a person's identity, as it obviously was here (and in my hypothetical as well). Whether what Jean experienced was or should be actionable as a matter of law, and at what point the discriminatory conduct changed from offensive speech to illegal threat (when the introduction of legal constraint is most justified), does not change the overall nature of the conduct as discrimination. As despicable as may be expression, we appreciate that the law is not the right response to every such situation and that empowering the government to police emotional harms -- without in any way depreciating the reality and impact of emotional harms -- may be intrusive into expression and may invite overreaching of governmental coercion that endangers freedom for all. Denying public goods and services based on identity is discrimination to be sure, but so is what my hypothetical Christian evangelists suffered. In the end, whether the law should prohibit any particular form of discrimination should turn on whether a concrete economic harm or danger to safety is established, not simply on characterization of behavior as discriminatory. Expectations of decency and civility call for all of us as neighbors, friends, members of a community to speak out and reject hateful words and intolerant behavior (while protecting always genuine differences of opinion). We cannot shirk this moral duty by delegating it to government, and given the dangers of government power, we should not. Greg Sisk From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Jean Dudley [jean.dud...@gmail.com] Sent: Saturday, March 01, 2014 7:05 AM To: Law Religion issues for Law Academics Subject: Definition of discrimination. On Feb 28, 2014, at Fri, Feb 28, 7:11 PM, Sisk, Gregory C. gcs...@stthomas.edumailto:gcs...@stthomas.edu wrote: Now what these two evangelical Christians experienced was plainly “discrimination.” I’m not sure it was. While I’m not an attorney of any stripe or ilk, I’d say that what those evangelists experienced was (verbal) antagonism. And while it was indeed vile and despicable, it is protected under free speech, if I’m not mistaken, provided no one actively threatened them with bodily harm. Discrimination would have occurred if the Jewish shop owner had indeed refused to serve them because they were evangelists, or at least discrimination in the legal sense, if I understand it. If someone had begun beating them while yelling anti-evangelist epithets, that would have been a hate crime or possibly religiously motivated assault, certainly? Discrimination is difficult to pin down; but certainly denying publicly offered goods and services for reasons other than an inability to pay is discrimination, isn’t it? Once, while leaving the local lesbian watering hole in Providence, RI, a car full of (I suspect rather drunk) young men yelled “Fucking dyke!” at me. My immediate response was “I’m a walking dyke. I do my fucking at home!” At that point one of them threw a glass bottle which smashed many yards away from me. Discrimination? They didn’t deny me from using public roads, but assault? Maybe. That bottle was more threat than assault, I think. Was I scared, in fear of my life? You better believe it, in spite of my rare quick response to their taunt. Luckily they sped off, and I was able to get to my car and go home without any physical damage. But common self preservation told me that drunk young men are dangerous; that is a lesson I learned from Matthew Sheppard. My prescience was justified by the badly-aimed glass bottle. So tell me, list members, was I “discriminated” against? Was I assaulted? At what point did their behavior cross from protected speech to criminal activity? Did it? I never did tell my story to the police. I’d already been told that the Providence police turned a blind eye on such things, and even worse things routinely. How could I get justice when I didn’t even have a license plate number or descriptions of the men? All the best, Jean. ___ 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: Definition of discrimination.
Yes, a sad and disturbing story that Jean tells (perhaps a threat of assault, or some other crime). Likewise, a sad story about the evangelists that Greg S. tells (rudeness and worse). But neither story is about discrimination as the law understands it, because passersby had no legal duty to engage in any way with the people they mistreated. We are all free to ignore or interact (peacefully) with strangers on the street, whatever their political or religious cause, personal appearance, etc. And we are all selective in how and when we do engage -- so we discriminate in that sense, like we discriminate when we order from a menu. This is NOT the context of wedding vendor exemptions or marriage license clerk exemptions from anti-discrimination norms. Those norms impose a duty to serve without selectivity based on race. religion, etc. And those kinds of laws are built on a sense that certain groups are vulnerable to widespread exclusion from opportunities -- employment, housing, and (where the law so provides) the right to purchase goods and services from those who hold themselves out to the public as providing such services. So, please, let's not get sidetracked with poor analogies to highly sympathetic but legally quite different situations. To Greg S. - your concern for conscription of creative artists (photographers?) seems quite legitimate. Perhaps such people should just not be covered by anti-discrimination laws at all. But we would have to be very careful to define creative artists quite narrowly -- wine vendors, caterers, bakers, and most others who serve in the wedding industry should NOT fall under that category. To all list members who signed that letter to Gov. Brewer -- it would have been a whole lot better if you had brought that letter to the list's attention yourselves. Whether or not you had a duty to disclose it (in light of your postings on the subject), norms of professional courtesy and candor certainly pointed that way. I'm disappointed that you failed to do so. On Sat, Mar 1, 2014 at 10:09 AM, Sisk, Gregory C. gcs...@stthomas.eduwrote: A sad and disturbing story. I'd say that, yes, it was discrimination from the outset and virulently so. Verbal antagonism is a form of discrimination, when it is based on a person's identity, as it obviously was here (and in my hypothetical as well). Whether what Jean experienced was or should be actionable as a matter of law, and at what point the discriminatory conduct changed from offensive speech to illegal threat (when the introduction of legal constraint is most justified), does not change the overall nature of the conduct as discrimination. As despicable as may be expression, we appreciate that the law is not the right response to every such situation and that empowering the government to police emotional harms -- without in any way depreciating the reality and impact of emotional harms -- may be intrusive into expression and may invite overreaching of governmental coercion that endangers freedom for all. Denying public goods and services based on identity is discrimination to be sure, but so is what my hypothetical Christian evangelists suffered. In the end, whether the law should prohibit any particular form of discrimination should turn on whether a concrete economic harm or danger to safety is established, not simply on characterization of behavior as discriminatory. Expectations of decency and civility call for all of us as neighbors, friends, members of a community to speak out and reject hateful words and intolerant behavior (while protecting always genuine differences of opinion). We cannot shirk this moral duty by delegating it to government, and given the dangers of government power, we should not. Greg Sisk From: religionlaw-boun...@lists.ucla.edu [ religionlaw-boun...@lists.ucla.edu] on behalf of Jean Dudley [ jean.dud...@gmail.com] Sent: Saturday, March 01, 2014 7:05 AM To: Law Religion issues for Law Academics Subject: Definition of discrimination. On Feb 28, 2014, at Fri, Feb 28, 7:11 PM, Sisk, Gregory C. gcs...@stthomas.edumailto:gcs...@stthomas.edu wrote: Now what these two evangelical Christians experienced was plainly discrimination. I'm not sure it was. While I'm not an attorney of any stripe or ilk, I'd say that what those evangelists experienced was (verbal) antagonism. And while it was indeed vile and despicable, it is protected under free speech, if I'm not mistaken, provided no one actively threatened them with bodily harm. Discrimination would have occurred if the Jewish shop owner had indeed refused to serve them because they were evangelists, or at least discrimination in the legal sense, if I understand it. If someone had begun beating them while yelling anti-evangelist epithets, that would have been a hate crime or possibly religiously motivated assault, certainly? Discrimination is difficult to pin
Re: Definition of discrimination.
Maybe I’ve been wrong about the complicity theory after all. Those who are condemning homosexuality know that at least some people are prone to act in a violent way against gays and so by condemning homosexuality they are complicit in incidents (and far, far worse) of violence against gays. So, to avoid being complicit, they should not state their views, right? If they are being consistent about the complicity with sin problem. Huh. Who knew. No. The complicity theory is not legally tenable, whatever stature it may have among philosophers and religious moral theoreticians. Steve -- Prof. Steven D. Jamar vox: 202-806-8017 Director of International Programs, Institute for Intellectual Property and Social Justice http://iipsj.org Howard University School of Law fax: 202-806-8567 http://iipsj.com/SDJ/ I do not at all resent criticism, even when, for the sake of emphasis, it for a time parts company with reality. Winston Churchill, speech to the House of Commons, 1941 On Mar 1, 2014, at 8:05 AM, Jean Dudley jean.dud...@gmail.com wrote: On Feb 28, 2014, at Fri, Feb 28, 7:11 PM, Sisk, Gregory C. gcs...@stthomas.edu wrote: Now what these two evangelical Christians experienced was plainly “discrimination.” I’m not sure it was. While I’m not an attorney of any stripe or ilk, I’d say that what those evangelists experienced was (verbal) antagonism. And while it was indeed vile and despicable, it is protected under free speech, if I’m not mistaken, provided no one actively threatened them with bodily harm. Discrimination would have occurred if the Jewish shop owner had indeed refused to serve them because they were evangelists, or at least discrimination in the legal sense, if I understand it. If someone had begun beating them while yelling anti-evangelist epithets, that would have been a hate crime or possibly religiously motivated assault, certainly? Discrimination is difficult to pin down; but certainly denying publicly offered goods and services for reasons other than an inability to pay is discrimination, isn’t it? Once, while leaving the local lesbian watering hole in Providence, RI, a car full of (I suspect rather drunk) young men yelled “Fucking dyke!” at me. My immediate response was “I’m a walking dyke. I do my fucking at home!” At that point one of them threw a glass bottle which smashed many yards away from me. Discrimination? They didn’t deny me from using public roads, but assault? Maybe. That bottle was more threat than assault, I think. Was I scared, in fear of my life? You better believe it, in spite of my rare quick response to their taunt. Luckily they sped off, and I was able to get to my car and go home without any physical damage. But common self preservation told me that drunk young men are dangerous; that is a lesson I learned from Matthew Sheppard. My prescience was justified by the badly-aimed glass bottle. So tell me, list members, was I “discriminated” against? Was I assaulted? At what point did their behavior cross from protected speech to criminal activity? Did it? I never did tell my story to the police. I’d already been told that the Providence police turned a blind eye on such things, and even worse things routinely. How could I get justice when I didn’t even have a license plate number or descriptions of the men? All the best, Jean. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Definition of discrimination.
Ira, unless I missed an earlier post, aren't Greg evangelists merely hypothetical? It may be sad, but it is only a story as opposed to Jean's retelling of a history or the facts of the florist who would not serve gay customers. I think Ira is absolutely right that we have to be very careful about how we use the term art in this context. The art claim is someone bogus for a commercial photographer or a commercial artist. We are all artists in some old fashioned sense (look at old apprenticeship contracts). But when you are advertising your profession to the general public you are not usually an artist in the way we generally understand it. I know wedding photographers who are also artists -- but the enterprises are separate. Is my dentist and artist when he fills my teeth? Or the art work of the plumber fixing my pipes? I don't think so. Could an architect say he will not design a house for a gay couple because he is an artist? Or the house painter refuse to paint the house for the same reason? Paul Finkelman Justice Pike Hall, Jr. Visiting Professor of Law LSU Law Center 110 Union Square Bldg. 1 East Campus Drive Louisiana State University Baton Rouge, LA 70803-0106 518 605 0296 (mobile) From: Ira Lupu icl...@law.gwu.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Saturday, March 1, 2014 10:37 AM Subject: Re: Definition of discrimination. Yes, a sad and disturbing story that Jean tells (perhaps a threat of assault, or some other crime). Likewise, a sad story about the evangelists that Greg S. tells (rudeness and worse). But neither story is about discrimination as the law understands it, because passersby had no legal duty to engage in any way with the people they mistreated. We are all free to ignore or interact (peacefully) with strangers on the street, whatever their political or religious cause, personal appearance, etc. And we are all selective in how and when we do engage -- so we discriminate in that sense, like we discriminate when we order from a menu. This is NOT the context of wedding vendor exemptions or marriage license clerk exemptions from anti-discrimination norms. Those norms impose a duty to serve without selectivity based on race. religion, etc. And those kinds of laws are built on a sense that certain groups are vulnerable to widespread exclusion from opportunities -- employment, housing, and (where the law so provides) the right to purchase goods and services from those who hold themselves out to the public as providing such services. So, please, let's not get sidetracked with poor analogies to highly sympathetic but legally quite different situations. To Greg S. - your concern for conscription of creative artists (photographers?) seems quite legitimate. Perhaps such people should just not be covered by anti-discrimination laws at all. But we would have to be very careful to define creative artists quite narrowly -- wine vendors, caterers, bakers, and most others who serve in the wedding industry should NOT fall under that category. To all list members who signed that letter to Gov. Brewer -- it would have been a whole lot better if you had brought that letter to the list's attention yourselves. Whether or not you had a duty to disclose it (in light of your postings on the subject), norms of professional courtesy and candor certainly pointed that way. I'm disappointed that you failed to do so. On Sat, Mar 1, 2014 at 10:09 AM, Sisk, Gregory C. gcs...@stthomas.edu wrote: A sad and disturbing story. I'd say that, yes, it was discrimination from the outset and virulently so. Verbal antagonism is a form of discrimination, when it is based on a person's identity, as it obviously was here (and in my hypothetical as well). Whether what Jean experienced was or should be actionable as a matter of law, and at what point the discriminatory conduct changed from offensive speech to illegal threat (when the introduction of legal constraint is most justified), does not change the overall nature of the conduct as discrimination. As despicable as may be expression, we appreciate that the law is not the right response to every such situation and that empowering the government to police emotional harms -- without in any way depreciating the reality and impact of emotional harms -- may be intrusive into expression and may invite overreaching of governmental coercion that endangers freedom for all. Denying public goods and services based on identity is discrimination to be sure, but so is what my hypothetical Christian evangelists suffered. In the end, whether the law should prohibit any particular form of discrimination should turn on whether a concrete economic harm or danger to safety is established, not simply on characterization of behavior as discriminatory. Expectations of decency and civility call for all of us as neighbors
Re: Definition of discrimination.
Creative artists/non-creative is a trap, and courts are scarcely more competent to parse the difference between true art and mere commerce than they are the details of what Christian principles are. A chef-owner at any fine dining establishment is is total creative and expressive control over the restaurant. Maybe the baker isn't all that creative, except in chemistry, but the cake decorator, employed by said baker, certainly is. If we're going to avoid conscripting artists into doing art they don't want to do, the artists themselves need to stop holding themselves out to the public as a business serving the general public. Professor Brownstien's hypothetical Orthodox caterer for example, might solve her problem by making it clear she is in the business of preparing food in accordance to an Orthodox understanding of halakhah, and only at Orthodox-approved events and gatherings, and the courts could accommodate her by reading the definition of public accommodation narrowly. Civil rights law is far outside of my expertise, but I don't see this as a stretch. Likewise, we can sort through the photographers, bakers, hall lessors and other wedding vendors by understanding that some of them are more like professionals: doctors, lawyers, accountants, who are, as Professor Laycock put it, necessarily involved in personal provision of services. These people are (or ought to be) ethically bound to consider whether or not they *can* provide adequate services over their strong convictions, and *avoid* impressing their own beliefs onto that of their clients/patrons, as well explained in *Ward v.* *Polite.* -Kevin Chen On Sat, Mar 1, 2014 at 10:53 AM, Steven Jamar stevenja...@gmail.com wrote: Maybe I've been wrong about the complicity theory after all. Those who are condemning homosexuality know that at least some people are prone to act in a violent way against gays and so by condemning homosexuality they are complicit in incidents (and far, far worse) of violence against gays. So, to avoid being complicit, they should not state their views, right? If they are being consistent about the complicity with sin problem. Huh. Who knew. No. The complicity theory is not legally tenable, whatever stature it may have among philosophers and religious moral theoreticians. Steve -- Prof. Steven D. Jamar vox: 202-806-8017 Director of International Programs, Institute for Intellectual Property and Social Justice http://iipsj.org Howard University School of Law fax: 202-806-8567 http://iipsj.com/SDJ/ I do not at all resent criticism, even when, for the sake of emphasis, it for a time parts company with reality. Winston Churchill, speech to the House of Commons, 1941 On Mar 1, 2014, at 8:05 AM, Jean Dudley jean.dud...@gmail.com wrote: On Feb 28, 2014, at Fri, Feb 28, 7:11 PM, Sisk, Gregory C. gcs...@stthomas.edu wrote: Now what these two evangelical Christians experienced was plainly discrimination. I'm not sure it was. While I'm not an attorney of any stripe or ilk, I'd say that what those evangelists experienced was (verbal) antagonism. And while it was indeed vile and despicable, it is protected under free speech, if I'm not mistaken, provided no one actively threatened them with bodily harm. Discrimination would have occurred if the Jewish shop owner had indeed refused to serve them because they were evangelists, or at least discrimination in the legal sense, if I understand it. If someone had begun beating them while yelling anti-evangelist epithets, that would have been a hate crime or possibly religiously motivated assault, certainly? Discrimination is difficult to pin down; but certainly denying publicly offered goods and services for reasons other than an inability to pay is discrimination, isn't it? Once, while leaving the local lesbian watering hole in Providence, RI, a car full of (I suspect rather drunk) young men yelled Fucking dyke! at me. My immediate response was I'm a walking dyke. I do my fucking at home! At that point one of them threw a glass bottle which smashed many yards away from me. Discrimination? They didn't deny me from using public roads, but assault? Maybe. That bottle was more threat than assault, I think. Was I scared, in fear of my life? You better believe it, in spite of my rare quick response to their taunt. Luckily they sped off, and I was able to get to my car and go home without any physical damage. But common self preservation told me that drunk young men are dangerous; that is a lesson I learned from Matthew Sheppard. My prescience was justified by the badly-aimed glass bottle. So tell me, list members, was I discriminated against? Was I assaulted? At what point did their behavior cross from protected speech to criminal activity? Did it? I never did tell my story to the police. I'd already been told that the Providence police turned a blind eye on such
Re: Definition of discrimination.
Wow! So now all list members who engage in advocacy -- or in the case of the letter mostly providing information to a public official to remedy public misinformation -- without informing the list, lack candor and professional courtesy? Even if public disclosure was somehow required, the letter was posted publicly and was the subject of press reports. The high level of emotion on this issue has begun to affect even the fairest and most level-headed of our colleagues. Mark Mark S. Scarberry Pepperdine University School of Law Sent from my iPad On Mar 1, 2014, at 7:38 AM, Ira Lupu icl...@law.gwu.edumailto:icl...@law.gwu.edu wrote: Yes, a sad and disturbing story that Jean tells (perhaps a threat of assault, or some other crime). Likewise, a sad story about the evangelists that Greg S. tells (rudeness and worse). But neither story is about discrimination as the law understands it, because passersby had no legal duty to engage in any way with the people they mistreated. We are all free to ignore or interact (peacefully) with strangers on the street, whatever their political or religious cause, personal appearance, etc. And we are all selective in how and when we do engage -- so we discriminate in that sense, like we discriminate when we order from a menu. This is NOT the context of wedding vendor exemptions or marriage license clerk exemptions from anti-discrimination norms. Those norms impose a duty to serve without selectivity based on race. religion, etc. And those kinds of laws are built on a sense that certain groups are vulnerable to widespread exclusion from opportunities -- employment, housing, and (where the law so provides) the right to purchase goods and services from those who hold themselves out to the public as providing such services. So, please, let's not get sidetracked with poor analogies to highly sympathetic but legally quite different situations. To Greg S. - your concern for conscription of creative artists (photographers?) seems quite legitimate. Perhaps such people should just not be covered by anti-discrimination laws at all. But we would have to be very careful to define creative artists quite narrowly -- wine vendors, caterers, bakers, and most others who serve in the wedding industry should NOT fall under that category. To all list members who signed that letter to Gov. Brewer -- it would have been a whole lot better if you had brought that letter to the list's attention yourselves. Whether or not you had a duty to disclose it (in light of your postings on the subject), norms of professional courtesy and candor certainly pointed that way. I'm disappointed that you failed to do so. ___ 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: Definition of discrimination.
Chip, I have posted very little to the list this week, and I have felt no obligation to post anything. The letter we sent to Gov. Brewer was hardly a secret; I got press calls about it from DC to Los Angeles. It was a busy week, and the list has become pointless, at least on the current topic. We are hearing lots of repetition, lots of invective, lots of exaggeration, lots of ridicule and personal attacks. There are exceptions, of course, and the exceptions are on both sides of the issue. There is plenty of anti-gay bigotry in the country, but I have heard little of that on this list. I have heard a fair amount of anti-religious bigotry. I have heard in many posts a complete and utter unwillingness to give any weight to conscience, or any weight to the believer's sense that he is violating God's will and disrupting his relationship with God -- a complete and utter unwillingness to try to understand how the world looks from the other side. There are still people who view gays and lesbians with similar contempt, and even worse, as Jean's story illustrates. But those people are not on this list. I do not, and have not, vouched for the motives of Arizona Republicans, or for the Alliance Defending Freedom, or for any other religious group. I defend their rights, not their views. The letter to Gov. Brewer was a straightforward legal analysis of the bill, and I stand by it. Both issues addressed by the bill have been litigated elsewhere in cases not involving gay rights, most obviously in Hobby Lobby. There is a clear circuit split on whether RFRA provides a defense to suits by private citizens; the New Mexico case on that issue involved gay rights, but all or most of the others did not. I am going to respond to Mr. Green, and then I hope to resume my silence. There are many tasks that appear more productive than posting to the list in its current mood. And no, I am not going to name names or cite particular posts as examples of the characterizations above. On Sat, 1 Mar 2014 10:37:02 -0500 Ira Lupu icl...@law.gwu.edu wrote: Yes, a sad and disturbing story that Jean tells (perhaps a threat of assault, or some other crime). Likewise, a sad story about the evangelists that Greg S. tells (rudeness and worse). But neither story is about discrimination as the law understands it, because passersby had no legal duty to engage in any way with the people they mistreated. We are all free to ignore or interact (peacefully) with strangers on the street, whatever their political or religious cause, personal appearance, etc. And we are all selective in how and when we do engage -- so we discriminate in that sense, like we discriminate when we order from a menu. This is NOT the context of wedding vendor exemptions or marriage license clerk exemptions from anti-discrimination norms. Those norms impose a duty to serve without selectivity based on race. religion, etc. And those kinds of laws are built on a sense that certain groups are vulnerable to widespread exclusion from opportunities -- employment, housing, and (where the law so provides) the right to purchase goods and services from those who hold themselves out to the public as providing such services. So, please, let's not get sidetracked with poor analogies to highly sympathetic but legally quite different situations. To Greg S. - your concern for conscription of creative artists (photographers?) seems quite legitimate. Perhaps such people should just not be covered by anti-discrimination laws at all. But we would have to be very careful to define creative artists quite narrowly -- wine vendors, caterers, bakers, and most others who serve in the wedding industry should NOT fall under that category. To all list members who signed that letter to Gov. Brewer -- it would have been a whole lot better if you had brought that letter to the list's attention yourselves. Whether or not you had a duty to disclose it (in light of your postings on the subject), norms of professional courtesy and candor certainly pointed that way. I'm disappointed that you failed to do so. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 ___ 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: Definition of discrimination.
I think the larger sadness of my account is that it and much worse are so very common. I still think that discrimination has to be described in terms of a denial of my rights, and that the vulgarity shouted at me in fact didn't deny me anything tangible. I suppose an argument could be made that I was denied being able to feel safe on a public road at night, but to be fair I'd say that just about every woman in America would be fearful for her safety in the jewelry district of Providence at night. Do I really have a right to expect safety? I don't think I do. I think Mr. Finkleman rebutted your hypothetical wronged evangelists much better than I could, Mr. Sisk. From my position here listening at the windowsill of the Ivory Tower Of Law, it seems to me there is a distinct difference between closing the doors of business in order to fulfill sincerely held religious beliefs and telling a potential customer begone, foul faggot, and darken my door no more! While other customers more to the keeper's liking enjoy the wares proffered within. On a final note, in my youth I was an evangelist. Perhaps it was because I went door to door in the bucolic and somnolent town of Salinas, Ca, that I never once faced the sort of disparagement those hypothetical missionaries did. Even the worst sinners would simply say they were busy, or that they had no desire to hear the gospel. Maybe if I'd tried my luck in the infamously callous streets of New York I would have had to endure worse insults. But then it would have only triggered my sense of martyrdom, I supposed, and I would have rejoiced that I was such a good Christian in spite of men's mocking of my efforts. I have since repented of my youthful folly and count myself among the godless atheists now. On Mar 1, 2014, at 9:09 AM, Sisk, Gregory C. gcs...@stthomas.edu wrote: A sad and disturbing story. I'd say that, yes, it was discrimination from the outset and virulently so. Verbal antagonism is a form of discrimination, when it is based on a person's identity, as it obviously was here (and in my hypothetical as well). Whether what Jean experienced was or should be actionable as a matter of law, and at what point the discriminatory conduct changed from offensive speech to illegal threat (when the introduction of legal constraint is most justified), does not change the overall nature of the conduct as discrimination. As despicable as may be expression, we appreciate that the law is not the right response to every such situation and that empowering the government to police emotional harms -- without in any way depreciating the reality and impact of emotional harms -- may be intrusive into expression and may invite overreaching of governmental coercion that endangers freedom for all. Denying public goods and services based on identity is discrimination to be sure, but so is what my hypothetical Christian evangelists suffered. In the end, whether the law should prohibit any particular form of discrimination should turn on whether a concrete economic harm or danger to safety is established, not simply on characterization of behavior as discriminatory. Expectations of decency and civility call for all of us as neighbors, friends, members of a community to speak out and reject hateful words and intolerant behavior (while protecting always genuine differences of opinion). We cannot shirk this moral duty by delegating it to government, and given the dangers of government power, we should not. Greg Sisk From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Jean Dudley [jean.dud...@gmail.com] Sent: Saturday, March 01, 2014 7:05 AM To: Law Religion issues for Law Academics Subject: Definition of discrimination. On Feb 28, 2014, at Fri, Feb 28, 7:11 PM, Sisk, Gregory C. gcs...@stthomas.edumailto:gcs...@stthomas.edu wrote: Now what these two evangelical Christians experienced was plainly “discrimination.” I’m not sure it was. While I’m not an attorney of any stripe or ilk, I’d say that what those evangelists experienced was (verbal) antagonism. And while it was indeed vile and despicable, it is protected under free speech, if I’m not mistaken, provided no one actively threatened them with bodily harm. Discrimination would have occurred if the Jewish shop owner had indeed refused to serve them because they were evangelists, or at least discrimination in the legal sense, if I understand it. If someone had begun beating them while yelling anti-evangelist epithets, that would have been a hate crime or possibly religiously motivated assault, certainly? Discrimination is difficult to pin down; but certainly denying publicly offered goods and services for reasons other than an inability to pay is discrimination, isn’t it? Once, while leaving the local lesbian watering hole in
RE: Definition of discrimination.
No, the story I told about the abuse directed at Christian evangelists was not just a hypothetical. It was an observed event. And I venture that multiple participants on the list have observed similar responses to street ministers of various kinds over the years. (The extension of the discussion in response to Greg Lipper's hypothetical -- about going in the bakery, etc., was hypothetical.) Greg Sisk From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Paul Finkelman [paul.finkel...@yahoo.com] Sent: Saturday, March 01, 2014 9:51 AM To: Law Religion issues for Law Academics Subject: Re: Definition of discrimination. Ira, unless I missed an earlier post, aren't Greg evangelists merely hypothetical? It may be sad, but it is only a story as opposed to Jean's retelling of a history or the facts of the florist who would not serve gay customers. I think Ira is absolutely right that we have to be very careful about how we use the term art in this context. The art claim is someone bogus for a commercial photographer or a commercial artist. We are all artists in some old fashioned sense (look at old apprenticeship contracts). But when you are advertising your profession to the general public you are not usually an artist in the way we generally understand it. I know wedding photographers who are also artists -- but the enterprises are separate. Is my dentist and artist when he fills my teeth? Or the art work of the plumber fixing my pipes? I don't think so. Could an architect say he will not design a house for a gay couple because he is an artist? Or the house painter refuse to paint the house for the same reason? Paul Finkelman Justice Pike Hall, Jr. Visiting Professor of Law LSU Law Center 110 Union Square Bldg. 1 East Campus Drive Louisiana State University Baton Rouge, LA 70803-0106 518 605 0296 (mobile) From: Ira Lupu icl...@law.gwu.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Saturday, March 1, 2014 10:37 AM Subject: Re: Definition of discrimination. Yes, a sad and disturbing story that Jean tells (perhaps a threat of assault, or some other crime). Likewise, a sad story about the evangelists that Greg S. tells (rudeness and worse). But neither story is about discrimination as the law understands it, because passersby had no legal duty to engage in any way with the people they mistreated. We are all free to ignore or interact (peacefully) with strangers on the street, whatever their political or religious cause, personal appearance, etc. And we are all selective in how and when we do engage -- so we discriminate in that sense, like we discriminate when we order from a menu. This is NOT the context of wedding vendor exemptions or marriage license clerk exemptions from anti-discrimination norms. Those norms impose a duty to serve without selectivity based on race. religion, etc. And those kinds of laws are built on a sense that certain groups are vulnerable to widespread exclusion from opportunities -- employment, housing, and (where the law so provides) the right to purchase goods and services from those who hold themselves out to the public as providing such services. So, please, let's not get sidetracked with poor analogies to highly sympathetic but legally quite different situations. To Greg S. - your concern for conscription of creative artists (photographers?) seems quite legitimate. Perhaps such people should just not be covered by anti-discrimination laws at all. But we would have to be very careful to define creative artists quite narrowly -- wine vendors, caterers, bakers, and most others who serve in the wedding industry should NOT fall under that category. To all list members who signed that letter to Gov. Brewer -- it would have been a whole lot better if you had brought that letter to the list's attention yourselves. Whether or not you had a duty to disclose it (in light of your postings on the subject), norms of professional courtesy and candor certainly pointed that way. I'm disappointed that you failed to do so. On Sat, Mar 1, 2014 at 10:09 AM, Sisk, Gregory C. gcs...@stthomas.edumailto:gcs...@stthomas.edu wrote: A sad and disturbing story. I'd say that, yes, it was discrimination from the outset and virulently so. Verbal antagonism is a form of discrimination, when it is based on a person's identity, as it obviously was here (and in my hypothetical as well). Whether what Jean experienced was or should be actionable as a matter of law, and at what point the discriminatory conduct changed from offensive speech to illegal threat (when the introduction of legal constraint is most justified), does not change the overall nature of the conduct as discrimination. As despicable as may be expression, we appreciate that the law is not the right response to every
Re: Definition of discrimination.
I take the last sentence of Mark's post as a compliment. Thank you. As to disclosure -- in the ordinary course, I would not have such an expectation. Doug Laycock and others consistently write public letters in support of RFRA's, and in support of wedding vendor exemptions from non-discrimination laws. Others who post on the list write public letters on the other side. I have done so once myself (Illinois same sex marriage legislation), and I felt no obligation to post that to the list. We weren't discussing the matter at the time. Several things made AZ different -- the Kansas episode immediately preceding this made the issue white-hot, and the AZ amendments (all in the wake of a series of judicial decisions in various red states, in favor of a federal constitutional right to same sex marriage) certainly appeared to be an attempt to establish statutory rights to claim similar exemptions. The letter clarified some points, of course, but gave no hint of how difficult it might/would be to satisfy the compelling interest standard. In a state like AZ, with no state laws protecting gays and lesbians from discrimination, compelling interest to protect them (by local laws, for example) might be very hard to show. In any event, would it not have been better to disclose the letter than to wait for the inevitable disclosure from someone who was really angry about it? (I'm sure it was public, but I only learned about from an off-list private e-mail.) On Sat, Mar 1, 2014 at 1:31 PM, Scarberry, Mark mark.scarbe...@pepperdine.edu wrote: Wow! So now all list members who engage in advocacy -- or in the case of the letter mostly providing information to a public official to remedy public misinformation -- without informing the list, lack candor and professional courtesy? Even if public disclosure was somehow required, the letter was posted publicly and was the subject of press reports. The high level of emotion on this issue has begun to affect even the fairest and most level-headed of our colleagues. Mark Mark S. Scarberry Pepperdine University School of Law Sent from my iPad On Mar 1, 2014, at 7:38 AM, Ira Lupu icl...@law.gwu.edu wrote: Yes, a sad and disturbing story that Jean tells (perhaps a threat of assault, or some other crime). Likewise, a sad story about the evangelists that Greg S. tells (rudeness and worse). But neither story is about discrimination as the law understands it, because passersby had no legal duty to engage in any way with the people they mistreated. We are all free to ignore or interact (peacefully) with strangers on the street, whatever their political or religious cause, personal appearance, etc. And we are all selective in how and when we do engage -- so we discriminate in that sense, like we discriminate when we order from a menu. This is NOT the context of wedding vendor exemptions or marriage license clerk exemptions from anti-discrimination norms. Those norms impose a duty to serve without selectivity based on race. religion, etc. And those kinds of laws are built on a sense that certain groups are vulnerable to widespread exclusion from opportunities -- employment, housing, and (where the law so provides) the right to purchase goods and services from those who hold themselves out to the public as providing such services. So, please, let's not get sidetracked with poor analogies to highly sympathetic but legally quite different situations. To Greg S. - your concern for conscription of creative artists (photographers?) seems quite legitimate. Perhaps such people should just not be covered by anti-discrimination laws at all. But we would have to be very careful to define creative artists quite narrowly -- wine vendors, caterers, bakers, and most others who serve in the wedding industry should NOT fall under that category. To all list members who signed that letter to Gov. Brewer -- it would have been a whole lot better if you had brought that letter to the list's attention yourselves. Whether or not you had a duty to disclose it (in light of your postings on the subject), norms of professional courtesy and candor certainly pointed that way. I'm disappointed that you failed to do so. ___ 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 (202)994-7053 Co-author (with Professor Robert Tuttle) of Secular Government, Religious People
Re: Definition of discrimination.
It must be nice to live in Professor's Laycock's world where anti-gay discrimination has been eclipsed by anti-religious bigotry but as a gay man, I don't have the that luxury. I won't waste the lists time by pointing out the blinding privilege it takes to make such a comparison but it happens quite often on this list with little objection. ---Jimmy Green On Sat, Mar 1, 2014 at 2:02 PM, Douglas Laycock dlayc...@virginia.eduwrote: Chip, I have posted very little to the list this week, and I have felt no obligation to post anything. The letter we sent to Gov. Brewer was hardly a secret; I got press calls about it from DC to Los Angeles. It was a busy week, and the list has become pointless, at least on the current topic. We are hearing lots of repetition, lots of invective, lots of exaggeration, lots of ridicule and personal attacks. There are exceptions, of course, and the exceptions are on both sides of the issue. There is plenty of anti-gay bigotry in the country, but I have heard little of that on this list. I have heard a fair amount of anti-religious bigotry. I have heard in many posts a complete and utter unwillingness to give any weight to conscience, or any weight to the believer's sense that he is violating God's will and disrupting his relationship with God -- a complete and utter unwillingness to try to understand how the world looks from the other side. There are still people who view gays and lesbians with similar contempt, and even worse, as Jean's story illustrates. But those people are not on this list. I do not, and have not, vouched for the motives of Arizona Republicans, or for the Alliance Defending Freedom, or for any other religious group. I defend their rights, not their views. The letter to Gov. Brewer was a straightforward legal analysis of the bill, and I stand by it. Both issues addressed by the bill have been litigated elsewhere in cases not involving gay rights, most obviously in Hobby Lobby. There is a clear circuit split on whether RFRA provides a defense to suits by private citizens; the New Mexico case on that issue involved gay rights, but all or most of the others did not. I am going to respond to Mr. Green, and then I hope to resume my silence. There are many tasks that appear more productive than posting to the list in its current mood. And no, I am not going to name names or cite particular posts as examples of the characterizations above. On Sat, 1 Mar 2014 10:37:02 -0500 Ira Lupu icl...@law.gwu.edu wrote: Yes, a sad and disturbing story that Jean tells (perhaps a threat of assault, or some other crime). Likewise, a sad story about the evangelists that Greg S. tells (rudeness and worse). But neither story is about discrimination as the law understands it, because passersby had no legal duty to engage in any way with the people they mistreated. We are all free to ignore or interact (peacefully) with strangers on the street, whatever their political or religious cause, personal appearance, etc. And we are all selective in how and when we do engage -- so we discriminate in that sense, like we discriminate when we order from a menu. This is NOT the context of wedding vendor exemptions or marriage license clerk exemptions from anti-discrimination norms. Those norms impose a duty to serve without selectivity based on race. religion, etc. And those kinds of laws are built on a sense that certain groups are vulnerable to widespread exclusion from opportunities -- employment, housing, and (where the law so provides) the right to purchase goods and services from those who hold themselves out to the public as providing such services. So, please, let's not get sidetracked with poor analogies to highly sympathetic but legally quite different situations. To Greg S. - your concern for conscription of creative artists (photographers?) seems quite legitimate. Perhaps such people should just not be covered by anti-discrimination laws at all. But we would have to be very careful to define creative artists quite narrowly -- wine vendors, caterers, bakers, and most others who serve in the wedding industry should NOT fall under that category. To all list members who signed that letter to Gov. Brewer -- it would have been a whole lot better if you had brought that letter to the list's attention yourselves. Whether or not you had a duty to disclose it (in light of your postings on the subject), norms of professional courtesy and candor certainly pointed that way. I'm disappointed that you failed to do so. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 ___ 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
Re: Definition of discrimination.
Tznkai said: If we're going to avoid conscripting artists into doing art they don't want to do, the artists themselves need to stop holding themselves out to the public as a business serving the general public. I can offer another perspective from beyond the ivory walls of academia. I am an artist, and photography is my medium. I've only photographed one wedding, as a favor to the married couple who are friends of mine. I've made portraits of people, captured iconic landscapes, and documented geological wonders. But I will not submit my work to agencies because I cannot control how my images will be used once they are licensed, and I object to them being used either for religious or certain political agendas. Oddly, that didn't stop Tyndale house publisher from stealing one of my images from my website and using it on the cover of a Christian novel without so much as a by-your-leave or thank you, much less an offer of payment. In the end they paid for a new camera once I confronted them. To be fair, I offer at cost prints or free license to public school teacher who want to use them to teach science. I also have donated images to the national park service for use in ranger talks and publications. I'm assuming that since I haven't made a business from my art, what discrimination I practice is legal. I think my ethics are as valid as any religious objection to complicity with sinful behavior. And so I have withdrawn my art from the sphere of public commerce. Surely Christian artists can do the same. On Mar 1, 2014, at 11:48 AM, tznkai tzn...@gmail.com wrote: If we're going to avoid conscripting artists into doing art they don't want to do, the artists themselves need to stop holding themselves out to the public as a business serving the general public. ___ 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: Definition of discrimination.
I think the saddest thing on the list is that most of us are closer to one another than we think, if we can still reason together and extend good faith to one another. I understand that strongly held views and difficult experiences make such a dialogue difficult. And I do not that my own clumsiness in expression slows the progress toward understanding. But I was expressing my agreement with you, Jean. And in the hypotheticals that I was posing, and will expand tomorrow, I was working toward drawing the very kinds of lines that you describe as outlining a distinct difference. Still, what I agree should be regarded as a distinct difference is not so clearly drawn in the arguments that some have been making about the need for and appropriate reach of anti-discrimination laws. And I suspect we would have some differences as well on those differences. But we have to get there by dialogue, finding what falls on which side of the line. And in doing so, being human, we will fumble on our way there. In sum, I think most of us continue to talk past each other in many of these posts and responses. Those who advocate a robust religious liberty exception are not contending that discrimination is a good thing or denying the pain of discrimination or even opposing general application of discrimination laws. Indeed, I haven't heard anyone argue that no discrimination laws at all are justified or even that such anti-discrimination laws should exclude sexual orientation or that religious liberty exceptions should broadly permit denial of goods and services. We may differ on scope and application, as we differ on the underlying justifications for legal intervention in particular sectors and circumstances. But I do think there is less divergence on that underlying point that some of our back-and-forth interjections would suggest. So, again, advocates for religious liberty exceptions should not be painted ast opponents of anti-discrimination laws. Rather, many are arguing for a fundamental liberty interest and asking that it be part of the balance in applying a government policy on discrimination. Differences on how to weigh that balance are not the equivalent of sharp differences on the policy itself. By way of similar example, I have long been something of an absolutist on free speech under the First Amendment, sometimes to the chagrin of my conservative and liberal friends who support restraints on speech (although different restraints). I am deeply suspicious of any attempt by government to regulate speech and strongly supportive of a wide sphere of protected expression. But whether one agrees with my support for a very broad read of free speech rights, it would not be fair to say that I then must be an admirer of pornographers or a cheerleader for those who wish to burn the American flag. Likewise, I am a vigorous advocate in both my scholarship and the courts for the strengthening the right to effective assistance of counsel for criminal defendants, including strict protections of confidentiality. But it would not be fair to then characterize me as a coddler of criminals or harboring ill thoughts toward victims of crime. Here too, we can debate whether my views strengthen due process or instead undermine legitimate prosecution. But we are not disagreeing about the general problem of crime. Greg Sisk From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Jean Dudley [jean.dud...@gmail.com] Sent: Saturday, March 01, 2014 1:23 PM To: Law Religion issues for Law Academics Subject: Re: Definition of discrimination. I think the larger sadness of my account is that it and much worse are so very common. I still think that discrimination has to be described in terms of a denial of my rights, and that the vulgarity shouted at me in fact didn't deny me anything tangible. I suppose an argument could be made that I was denied being able to feel safe on a public road at night, but to be fair I'd say that just about every woman in America would be fearful for her safety in the jewelry district of Providence at night. Do I really have a right to expect safety? I don't think I do. I think Mr. Finkleman rebutted your hypothetical wronged evangelists much better than I could, Mr. Sisk. From my position here listening at the windowsill of the Ivory Tower Of Law, it seems to me there is a distinct difference between closing the doors of business in order to fulfill sincerely held religious beliefs and telling a potential customer begone, foul faggot, and darken my door no more! While other customers more to the keeper's liking enjoy the wares proffered within. On a final note, in my youth I was an evangelist. Perhaps it was because I went door to door in the bucolic and somnolent town of Salinas, Ca, that I never once faced the sort of disparagement those hypothetical
