Friends, This bounced back, as too long, and so I’m trying again. Sorry if you receive it twice!
Richard W. Garnett Professor of Law and Associate Dean Notre Dame Law School P.O. Box 780 Notre Dame, Indiana 46556-0780 574-631-6981 (w) 574-276-2252 (cell) SSRN page<http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=342235> Blogs: Prawfsblawg<http://prawfsblawg.blogs.com/> Mirror of Justice<http://www.mirrorofjustice.blogs.com/> From: Rick Garnett Sent: Monday, June 25, 2012 1:47 PM To: Law & Religion issues for Law Academics Subject: RE: Religious exemptions and discrimination Dear colleagues, I’m coming to this discussion late, and I apologize (and realize that many of us are today focused more on immigration and the Eighth Amendment!). The first sentence of Eugene’s response to Bob expresses really well, I think, a key point in these debates. As he says, “discrimination” means many different things, and not all of these things are wrong. Shamelessness alert: I have a chapter in a forthcoming book (which grew out of a really interesting conference that Austin Sarat organized at Alabama last year), called “Religious Freedom and the Nondiscrimination Norm,” which tries to explore the issue in a bit more detail. Here’s the first paragraph of the abstract: “Discrimination,” we believe, is wrong. And, because “discrimination” is wrong, we believe that governments like ours – secular, liberal, constitutional governments – may, and should, take regulatory and other steps to prevent, discourage, and denounce it. However, it is not true that “discrimination” is always or necessarily wrong. Nor is it the case that governments always or necessarily should or may regulate or discourage it even when it is. Some wrongs are beyond the authorized reach of government policy; some are too difficult or costly to identify, let alone regulate; others are none of the government’s business. . . . The full abstract, and the paper, are available here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2087599 Best, R Richard W. Garnett Professor of Law and Associate Dean Notre Dame Law School P.O. Box 780 Notre Dame, Indiana 46556-0780 574-631-6981 (w) 574-276-2252 (cell) SSRN page<http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=342235> Blogs: Prawfsblawg<http://prawfsblawg.blogs.com/> Mirror of Justice<http://www.mirrorofjustice.blogs.com/> From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Friday, June 15, 2012 3:50 PM To: Law & Religion issues for Law Academics Subject: Religious exemptions and discrimination 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
_______________________________________________ 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.
