Regarding Eugene's second point, I suspect the narrow scope of Title
Two of the 1964 CRA speaks more to what was politically possible in
1964 than to a judgment that, with only narrow exceptions, businesses
should be free to inflict dignitary harm by engaging in purposeful
racial or religious discrimination.
Almost thirty years later, when Congress enacted the Americans With
Disabilities Act, it defined public accommodations far more broadly in
section 12181 to both prohibit intentional discrimination on the basis
of disability and to require public accommodations to reasonably
accommodate at their expense individuals with disabilities.
Once Runyon v. McCrary held that 42 U.S.C. 1981 broadly prohibited
private racial discrimination in the making of contracts, and
Al-Khazraji and Shaare Tefila held that the nineteenth century
understanding of race meant that race encompassed national origin and
religion, section 1981 became the more significant vehicle for
challenging private contractual discrimination. When the Court
reopened the question of section 1981's application to private
transactions by setting Patterson v. McLean Credit Union for
reargument, Congress amended section 1981 to settle the question and
further expanded its scope in the Civil Rights Act of 1991.
Section 1981 and the ADA both appear to apply to cab drivers,
professional photographers, and pharmacies.
Mike
Michael R. Masinter 3305 College Avenue
Professor of Law Fort Lauderdale, FL 33314
Nova Southeastern University 954.262.6151 (voice)
masin...@nova.edu 954.262.3835 (fax)
Quoting "Volokh, Eugene" <vol...@law.ucla.edu>:
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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