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, constraining a landlord’s
choice about who lives in the other half of a duplex in which she lives may
burden her privacy rights, constitutional or otherwise. Not so for a landlord
who owns a large apartment building. This doesn’t directly affect the
religious exemption claim, of course, but it does highlight why the wedding
photographer example may need to be treated differently.
Given these differences, it seems to me quite unsurprising that
the caselaw rejecting religious exemptions to employment discrimination claims
wouldn’t necessarily fully extend to claims of housing discrimination based on
marital status (to give an example of a religious exemption claim that some
courts have accepted), and wouldn’t be particularly helpful as to claimed
exemptions from common carrier obligations or professional regulations.
Eugene
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of b...@jmcenter.org
Sent: Friday, June 15, 2012 12:19 PM
To: Law & Religion issues for Law Academics
Subject: RE: Religious exemptions in ND
Chris,
While you would be willing to grant a child safety exception to appease Marci,
I presume that in your view (and correct me if I'm wrong) that "burden" type
RFRAs (like the North Dakota proposal) would permit the following examples of
discrimination?
1. A pharmacist refusing to dispense Plan B.
2. A Muslim taxi cab driver refusing to transport a person with a bottle of
wine in a grocery bag.
3. A professional photographer refusing to photograph an LGBT civil ceremony.
4. A landlord refusing to rent to an atheist.
If yes, are these acts of discrimination less a "compelling governmental
interest" than anti-discrimination provisions of the Civil Rights Act?
Bob Ritter
On June 15, 2012 at 10:31 AM Christopher Lund
<l...@wayne.edu<mailto:l...@wayne.edu>> wrote:
Obviously the sexual abuse of children is tragic and criminal. But I still am
not getting how state RFRAs have protected it or encouraged it.
State RFRA cases are more boring than those opposed to Measure 3 might think.
Plaintiffs generally lose their claims; they sometimes win, but they have not
won anything remotely like what NARAL was fearing. (In that South Dakota
piece—which is a bit dated now—I slog through the cases and provide citations,
to the extent people are interested.)
I counted somewhere around 25 Florida state RFRA cases, for example. Of those
25, plaintiffs won 1 on state RFRA grounds. That case involved a church that
wanted to feed the homeless in a public park, despite a city rule saying that
parks could not be used for social-service purposes. The church didn’t win the
right to use the park of its choosing, but the trial judge enjoined the city to
let them use some park at some time. The case is Abbott v. City of Fort
Lauderdale, 783 So.2d 1213 (Fla. App.—4 Dist. 2001).
Of course, plaintiffs sometimes ask for things they can’t possibly get under
state RFRAs—the right to use marijuana while driving, for example, keeps coming
up. But that’s a frivolous claim by a desperate criminal defendant, and it
simply loses. State RFRAs have been asserted as defenses in some of the sex
abuse cases. But usually such claims don’t even get separate analysis, and
they certainly don’t win.
If people like Marci will be more comfortable with a state RFRA with a child
safety exception, I’d gladly do it. Not because I think it’s necessary, but
because I think it isn’t: A state RFRA with a child safety exception will be
treated exactly like a state RFRA without one. Children will be protected in
any event.
It’s also important to keep in mind that the protection of state RFRAs can
always be legislatively narrowed—and that has happened. Concerned with a
pending suit by a Muslim to claim a drivers’ license without having to take off
her headscarf, Florida statutorily (and retroactively) removed such claims from
the protection of Florida’s RFRA. Judging by Florida’s reaction to it, that
apparently is the most threatening state RFRA claim that has ever been brought.
I leave it to the listserv to evaluate how bad it really is, but it is
certainly less scary than what Measure 3 opponents feared.
Best, Chris
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