The problem of conflicting fundamental rights is not so easy nor so fraught with danger as some on this list would make it seem, especially Prof. Volokh's slippery slope argument. As another pointed out this hill has two sides-- if we allow exclusion of n----rs because someone just doesn't like them, then we are back on the road to apartheid, exclusion, and lynchings. And if we allow them to be excluded just because someone says their religion requires the adherent to treat blacks like monkeys, or worse, the we have started down that side of the hill on the slippery slope toward exclusion not just for religious reasons, but for conscience, values, belief, just because -- and as history proves, we are then on the downward trend toward Jim Crow, apartheid, and the Final Solution.
The line today is essentially between private associations -- clubs on the one hand, and places privately owned but serving the public on the other. This seems to me to be not a bad place to draw the line. Of course it is hard at times to apply it in some instances -- when is something a private club and when is it a public accommodation? And there are and should be exclusions and exceptions from the general line -- federal law reaches only business of a certain size, for instance, and religion is treated differently by statute as well. Shopkeepers can still exclude anyone at all from their businesses for no reason whatsoever or for any number of legal reasons (no shirt, no shoes, no service), but we have constrained their ability to exclude people based on certain characteristics that we collectively think should not be the basis of exclusion and that excluding on that basis causes societal harm and makes a lie of our foundational proclamation that all are created equal and are to be treated with equal dignity and respect just by virtue of their being human. While I have difficulty drawing the line with the photographer who refuses to photograph a gay marriage on religious grounds, it is hard to find a principle on which to distinguish that personal service from other personal services. What about no Catholic weddings? Or Jewish? Or Muslim? Or blacks? Or "mixed"? Or what about restricting the business to only marriages performed by a non-clergy person? The photographer is still free to say "no" on all sorts of non-pretextual grounds: "I'm busy" "I'm not working that day" "I've met you and I don't like you" "I don't like filming in that venue" "Too far away" "Ugly dresses" and so on. Finally, what about the religious-objectionist to treating gays equally working to get the religious exclusion in the statute? Or is there something that bars them from exercising their political rights in the representative democracy? Not all of these hard and close issues need to be or even should be solved on a hard-edged, constitutional, all-or-nothing rights basis. Steve -- Prof. Steven Jamar Howard University School of Law
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