Eugene, it's interesting to me that you don't find religious discrimination in particularly in #1 (pharmacist/Plan B) and #2 (Muslim taxi cab driver/passenger with alcohol). I understand your view and obviously it is the prevailing view.
If I may say, tho, both the pharmacist's and the taxi cab driver's (religious) worldviews prohibit them from dispensing Plan B and transporting a passenger with alcohol, respectively. Thus, there discriminatory acts are religious based. On the other side, the customer and passenger's worldviews permit purchasing Plan B and possession of alcohol, respectively. My analysis is, I admit, not the traditional legal analysis such as yours and so I offer it as an alternative legal theory. The balance of interests in the photographer/LGBT case probably favors the photographer because he/she is performing a personal service where a positive relationship between the photographer and the wedding party is necessary for optimal results. However, I should point out (rather assume) that the photographer advertised to the public as a wedding photographer. Refusing to take pictures of an LGBT ceremony may run afoul of some local nondiscrimination ordinances. I didn't include in my list a situation within the past year where an atheist/humanist organization sought to run a video ad in a movie theater and was turned down altho the theater ran a church's ad. I have also been told of a number of situations where land owners and/or media companies refused to put up atheist/humanist billboard ads. I'm aware that there isn't much that can be done to remedy these invidious acts of discrimination -- and so only offer them as evidence of the "war" going on in America in the name of religion. Bob Ritter On June 15, 2012 at 3:50 PM "Volokh, Eugene" <vol...@law.ucla.edu> wrote: > 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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