Well, both the Equal Protection Clause jurisprudence and
antidiscrimination law requires figuring out whether the defendant deliberately
treated people differently based on race, sex, religion, etc.
But I don't think we ever ask whether a private citizen's
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
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
And treatment of disapproval of same sex marriage as pernicious is counter to
the assurances of respect in Obergefel. It treats those assurances as
window-dressing, which I imagine many list members consider them to be.
Mark Scarberry Pepperdine University School of Law
Eric is talking about disparate impact; Eugene was talking about disparate
treatment.
If someone deliberately acts on the basis of sex, race, etc., motive is
generally irrelevant. If government acts on some neutral criterion that has
disparate impact on the basis of race, sex, etc., there is
I'm not sure it is that easy Doug because often the difference between a
disparate impact and disparate treatment case turns on the motives/intent of
the decision-makers.
Mark, it is true that many of us feel that, in the context of the current
debates over SSM, hostility to allowing gays the
It's true that sometimes we aren't sure what the defendant did. Did he fire the
plaintiff because of race or because of bad performance? Then we have to
inquire into motive in order to establish disparate treatment.
But there is no such ambiguity when there is a policy of disparate treatment.
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
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
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
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
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
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?
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
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
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
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
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