With respect to the notion that, before the dreaded 1964 Civil Rights Act, everyone enjoyed "the traditionally recognized ability of people in a free society not to have the government tell them whom to work with, whom to sell to, whom to buy from, and so on":
It is not a warranted assumption of our civilization that a lunch-counter proprietor will practice a general choosiness about his customers, or that the law is expected to leave him alone in this regard. If the equal protection clause limits his "freedom of choice," it limits something which people in his position do not ordinarily think about until the Negro comes in, and something which has frequently been limited by other kinds of law. [FN: It remains a wonder that so much emotion about the sacred right to choose one's customers could be generated and maintained in communities where segregation laws and ordinances, drastically limiting freedom to choose customers as well as other associates, were so long a matter of course. A good night's sleep after the Brown case, and one woke to find that a restaurant was just like a home.] If the equal protection clause were held to apply to his dinner-list at home, it would be breaking in upon a process of discriminating selective! ness wh ich has the flesh-tones of real life; it would be doing so in a manner quite unknown to prior law and astounding to his expectations as to the ambit of law, constitutional and otherwise, in our society. It seems to me that considerations such as these would fully warrant the development, if cases ever arise, of the suggested 'rule of reason.' The social reality of the general distinction projected also vouches for the feasibility of its being drawn. Charles L. Black, Jr., FOREWORD: "STATE ACTION," EQUAL PROTECTION, AND CALIFORNIA'S PROPOSITION 14, 81 Harv. L. Rev. 69, 102-103 (1967). -------------- Original message ---------------------- From: "Volokh, Eugene" <[EMAIL PROTECTED]> > Let me note, by the way, how this illustrates why people worry > about the slippery slope. In 1964, federal civil rights law covered a > narrow set of categories -- race, religion, national origin, sex -- and > a relatively narrow zone of behaviors. What's more, while the law > undoubtedly interfered with our freedom from the government's telling us > whom to deal with, the law was carefully drafted to minimize this > interference. Covered public accommodations were distinctly limited, > and excluded personal services. Covered employers were limited to large > ones, and excluded small businesses in which people often had to work > more closely together. I speak here not of a constitutional right, but > just of the traditionally recognized ability of people in a free society > not to have the government tell them whom to work with, whom to sell to, > whom to buy from, and so on. > > Over the years, all these constraints have been relaxed, and the > common argument now assumes that this freedom from government constraint > is just valueless -- not just trumped by compelling interests, but not > important at all. The common argument is "we ban race discrimination in > all these other areas, why not ban this other form of discrimination > here." The sense is not that freedom to choose, without government > interference, whom to deal with was important but was overcome by the > compelling interest in dismantling Jim Crow and its legacy. Rather, > it's that this freedom to choose one's business partners without > government interference just doesn't matter. > > That didn't happen overnight, I think, nor did it happen just > because of changes in social attitudes as such. Rather, this was the > attitude-altering effect of antidiscrimination law: Legal inroads (for > very powerful reasons) into the freedom to choose one's business > relationships without government mandate or prohibition happened one at > a time, and over time these legal constraints helped bring about an > assumption that the right just doesn't exist. > > Now antidiscrimination law is being urged not just to trump the > traditional but constitutionally unprotected freedom to choose one's > business relationships, but the freedom of expressive association, the > freedom of speech, and (most relevant to this thread) religious > accommodation regimes. Even standing on its own, this seems troubling. > But in broader perspective, it seems to me to be yet another step down > the slope. > > Of course, if we should be at the bottom of the slope, with all > sorts of decisions -- a photographer's choices of what to photograph, a > movie director's choices of which race actors to cast, a person's > choices of which roommates to select, a scouting organization's choices > of whether to accept gays, the irreligious (like me), or girls, and so > on -- being subject to government-imposed antidiscrimination mandates, > then we should cheer on the slippage, rather than worrying about it. > But it seems to me this is one area where slippage is quite a real risk. > And this in turn leads me to wonder whether people should feel so secure > with Marty's and others' assurances that there won't be further > slippage, for instance to Bob-Jones-like denials of tax exemptions for > religions that dare to discriminate based on sexual orientation > (alongside the many denials of other generally available benefits that > such organizations are finding in many other contexts). And this is > especially so if the argument is (cf. Marty's post, Mark Tushnet's post, > and others) expressly linked to the analogy to race discrimination; if > that argument prevails in one context, why shouldn't it end up being > adopted in other contexts, suh as the Bob Jones tax exemption context? > > Eugene > > > -----Original Message----- > > From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] > > Sent: Monday, August 04, 2008 10:09 AM > > To: Law & Religion issues for Law Academics; Law & Religion > > issues for Law Academics > > Cc: Volokh, Eugene > > Subject: Re: Conflicts between religious exefcise and gay > > rights and "cudgels" > > > > Well, I'm surely not trying to "pooh-pooh" the religious > > concerns -- merely to try to probe what, exactly, they are, > > and how much these conflicts differ from those we saw several > > decades ago. > > > > Eugene helpfully identifies two sorts of cases: > > > > 1. Businesses and property owners being required to treat > > gays and straights alike. OK, I suppose I must concede that > > I'm not very moved by these cases, nor do I see how those > > requirements impose much of a burden on religious exercise. > > Do they require some business owners (and employees) to do > > things they find distasteful -- often due to religiously > > inspired moral beliefs? Surely. And that's something to be > > regretted. But that's true of race-discrimination laws, as > > well -- and of basic laws prohibiting discrimination against > > unmarried couples, and on the basis of sexual orientation in > > the provision of commercial services. There are many, many > > shopkeepers, landlords, employers, restaurants, etc., that > > would rather not deal with gays and lesbians, often because > > of moral objections. (I doubt, in other words, that such > > discrimination is as "relatively infrequent" as Eugene > > assumes in many places in the United States.) Yet if > > legislatures conclude, as I do, that gays an! > > d lesbi > > ans should not be treated as second-class citizens in the > > commercial marketplace, then is there any really compelling > > reason to provide religious exemptions here that are not > > provided for analogous race and sex discrimination? > > > > On this one, by the way, I would respectfully dissent from > > Eugene's suggestion that gays and lesbians are seeking such > > equal treatment as a "cudgel" against religious objectors -- > > that we should question whether gays and lesbians really > > suffer much harm by being denied services or jobs or housing > > on the basis of their sexual orientation because they "could > > get such services -- often at a higher quality -- just fine > > from lots of other providers," suggesting that they are > > insisting upon equal treatment merely in order to commandeer > > objectors to act in ways that offend their sincere beliefs. > > With all respect, I think this sort of standard libertarian > > skepticism about the need for antidiscrimination laws > > significantly trivializes very serious harms. But that's > > obviously a much broader topic, somewhat far afield from > > what's germane to this list. > > > > 2. Loss of tax benefits. Is this a real concern? I assume > > that sexual-orientation-discrimination rules in this context > > will be treated more or less like sex-discrimination rules -- > > i.e., there will be reasonable exemptions for religious > > institutions, roughly in line with the ministerial exemption > > and the title IX exemptions. I can't see much of a prospect > > for a Bob-Jones-like, across-the-board, > > no-religious-exemptions denial of tax benefits here unless > > and until we see the day when discrimination against gays and > > lesbians is as categorically viewed as immoral as race > > discrimination is today. That is to say, not likely in my lifetime. > > > > In any event, I'm grateful to Eugene for making the potential > > conflicts a bit more concrete. > > > > > > -------------- Original message ---------------------- > > From: "Volokh, Eugene" <[EMAIL PROTECTED]> > > > I wonder which way the "cudgel" is being "exploited" > > (or maybe both). > > > It seems to me, for instance, that religiously motivated > > > discrimination in public accommodations against gays is > > likely also a > > > relatively infrequent phenomenon, partly because it's financially > > > costly to the discriminators, and one that is not terribly tangibly > > > harmful (setting aside symbolic offense, which cuts both > > ways) to the target. > > > Yet we see cases in which businesses and property owners > > that provide > > > services are being forced to provide such services to same-sex > > > commitment ceremonies (or being punished by the law for failure to > > > provide such services), even though I suspect that the same-sex > > > couples could get such services -- often at a higher > > quality -- just > > > fine from lots of other providers. Couldn't one equally say that > > > equal rights law is here being exploited as a cudgel > > against religious objectors? > > > > > > Moreover, the very analogy to race discrimination, it > > seems to me, > > > shows why the practical concerns of religious groups that have > > > religious objections to homosexuality are reasonable. Consider how > > > the law has treated even religious groups that engage in race > > > discrimination, for instance in cases such as Bob Jones. > > If the law > > > adopts the proposed analogy between sexual orientation > > discrimination > > > and race discrimination, it seems quite plausible that > > similar threats > > > (e.g., loss of tax exemptions) will manifest themselves. Likewise, > > > we're already seeing some denial of access to generally available > > > benefits to groups that discriminate in their leadership and > > > membership choices based on sexual orientation; if that's adopted, > > > denial of access to benefits in the form of generally available tax > > > exemptions -- a hugely important matter to all nonprofits -- could > > > well follow. Now I should stress that I personally don't share the > > > views of the religious groups that stand to lose from this, and in > > > some situations I condemn their views. But it's a mistake, > > I think, > > > to pooh-pooh their concerns as being about "relatively infrequent > > > phenomen[a]" that (the implication seems to go) shouldn't > > really matter to the groups. > > > > > > I should note that I agree that the concern is about sexual > > > orientation discrimination bans, and not same-sex marriage as such. > > > Still, I think one effect of the elimination of governmental > > > discrimination based on sexual orientation in marriage will > > have is an > > > extra push for enacting and broadening antidiscrimination laws. > > > Again, one could argue that this is a good effect; but it does seem > > > like a likely effect. Another effect may well be to lead to the > > > rejection of religious exemption claims under state RFRAs > > and similar > > > regimes; right now, one can argue -- in, for instance, the > > New Mexico > > > wedding photographer case -- that the state's failure to recognize > > > same-sex marriages undermines the state's compelling > > interest argument > > > for forcing wedding photographers to photograph same-sex > > marriages on > > > equal terms with legally recognized marriages. Once same-sex > > > marriages are legally recognized, that argument will no > > longer be present. > > > > > > Eugene > > > > > > Marty Lederman writes: > > > > > > > I tend to agree with Alan here. Of course there are occasional > > > > conflicts between gay rights laws and religious beliefs -- > > > > principally in the commercial sector, such as in employment and > > > > housing rentals -- but is it really that much of a > > problem? Or is > > > > it a relatively infrequent phenomenon that's being exploited as a > > > > cudgel against gay rights? (A sincere question -- I really am > > > > uncertain of the answer.) > > > > > > > > I'm confident -- given that Doug and Anthony edited it -- > > that the > > > > new volume will be very worthwhile, fair and balanced. > > But I have > > > > some trepidation that it, and similar > > > > endeavors, will unnecessarily add fuel to this fire. > > > > Same-sex *marriage* implicates religious liberty? How so? > > > > It's not as if religious congregations will soon be compelled to > > > > offer membership to gay and lesbian couples, right? Or that > > > > ministers will be legally required to perform same-sex ceremonies. > > > > > > > > Of course, many people are deeply uncomfortable with same-sex > > > > marriage, and such discomfort often derives from (or finds > > > > sustenance in) certain religious moral codes. But that's not the > > > > same as a threat to religious liberty, is it? > > > > > > > > I suppose this is one way of framing my doubts here: Is > > this very > > > > different from the religiously motivated resistance when > > > > race- and sex-discrimination norms began to find favor in > > the law? > > > > Twenty years from now, will today's religiously oriented > > opposition > > > > to gay rights seem as distant and odd to the ReligionLaw list of > > > > 2028 (still administered by Eugene, one can hope!) as the 1960's > > > > resistance to race-and sex-discrimination laws looks to us now? > > > _______________________________________________ > > > 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. _______________________________________________ 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.
