The federal government would disagree, and label it sex-trafficking under 18 USC 1591, which was enacted in part under the Commerce Clause and the 13th Amendment.
-----Original Message----- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Graber, Mark Sent: Saturday, February 14, 2015 12:27 PM To: Law & Religion issues for Law Academics Subject: RE: Can someone be legally obligated to have sex with people she's unwilling to have sex with? Yes. To quote EV it is just a business. ________________________________________ From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Volokh, Eugene [vol...@law.ucla.edu] Sent: Saturday, February 14, 2015 12:19 PM To: Law & Religion issues for Law Academics Subject: Can someone be legally obligated to have sex with people she's unwilling to have sex with? Mark: So do I understand correctly that you think it's OK for the government to say: As a condition of your being able to earn a living in your chosen occupation [here, prostitution], you are legally obligated to have sex with people you're unwilling to have sex with. That surprises me, but I'd love to hear more about it. Eugene > -----Original Message----- > From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- > boun...@lists.ucla.edu] On Behalf Of Graber, Mark > Sent: Saturday, February 14, 2015 2:49 AM > To: Law & Religion issues for Law Academics > Subject: RE: The racist prostitute hypothetical > > I confess that I get off at the second paragraph (or the first > substantive paragraph). > > My spouse is an excellent breadbaker and therapist. For a while, she > just bakes for friends and only comforts friends and does so for > friendship. Turns out all our friends are of the same race, religion, > sexual orientation, etc. I presume these choices are constitutionally > protected. One day, after receiving numerous comments of the sort, > "you really ought to go into business," she does. The first person > who orders bread and asks for therapy is of a different race, > religion, sexual orientation, etc. I take it this can be regulated. > The first amendment does protect some activities, even when done > commercially, but at the very least those activities cannot be > described as Eugene does below as "just business." If it is "just > business" (and that is not what a clergy person thinks they are doing when > they marry someone), then it ought to be subject to anti- discrimination law. > ________________________________ > From: religionlaw-boun...@lists.ucla.edu > [religionlaw-boun...@lists.ucla.edu] > on behalf of Volokh, Eugene [vol...@law.ucla.edu] > Sent: Saturday, February 14, 2015 12:01 AM > To: Law & Religion issues for Law Academics > (religionlaw@lists.ucla.edu) > Subject: The racist prostitute hypothetical > > I've been thinking about a little thought experiment, > and I thought I'd run it past this list to see whether people see it as > helpful. > > Imagine a state in which prostitution is legalized. A > prostitute offers her services to the general public (perhaps through > a web site, which as I understand it is not uncommon). She is > generally not very selective, because it's just business. But she > doesn't like black people. A black would-be customer feels > understandably insulted by this, so he sues her for discrimination in > public accommodations. And the state law does cover all businesses, > bricks and mortar or not, that provide goods or services to the > general public. (That, after all, is the sort of law that covers > bakers, wedding photographers, and perhaps ministers who charge for > their services.) > > My inclination is that the prostitute should have an > absolute right to discriminate on any basis she wants, whether it's > race, religion, marital status, age, or whatever else. And that is > true even though she charges money, and generally provides her > services to everyone. (I say "she" and "he" in this example, but of > course the same would apply regardless of the sex or sexual > orientation of the parties.) The choice of whom to have sex with is a > personal choice, even when done commercially, and no-one should have > to have sex with someone they don't want to have sex with - on pain of > either facing a fine or having to quit one's chosen line of business - no > matter how many for-pay partners they might have. Are people on this list > with me so far? > > Now the next step: I think that, while sexual conduct > should involve a right to choose for particular reasons having to do > with bodily autonomy, some other conduct should involve a similar right to > choose for other reasons. > Religious autonomy, intellectual/expressive autonomy, and > personal/familial autonomy are examples of that. Forcing a member of > the clergy to perform a marriage he views as unholy, on pain of having > to surrender his livelihood (or even a major outside source of income) > strikes me as wrong in a way similar to forcing a prostitute to engage > in a sexual transaction that she views as repulsive (even if we don't > at all share her judgment about the repulsiveness). Naturally, the > similarity is distinctly limited: but it is present in the way > important here, which is that people should remain autonomous in their > religious behavior as well as their sexual behavior. > > I would say the same about, for instance, a freelance > writer who is willing to serve most customers, but who refuses to > write press releases for the Church of Scientology (notwithstanding a > ban on religious discrimination in public accommodations), or a singer > who refuses to sing songs praising a same- sex married couple, or a > wedding photographer who refuses to create photographs that portray as > beautiful and sacred something she views as sinful. > Again, there should be a zone of intellectual/expressive autonomy in > which people should be free to choose what expressive works to create > and what not to create (and for whom), even if they do it for a > living. And I would say the same about certain zones of personal and > family life, such as choosing whom to rent a room in one's apartment > (see the Ninth Circuit Roommates.com case) or whom to hire as a nanny for > one's children. > > Naturally, I agree that people may have different views > of where that zone of autonomy and choice should end. Some might, for > instance, say that it applies to sexual autonomy but not religious, > intellectual, or family/housemate autonomy. Or some might say that it > applies to some kinds of intellectual autonomy (e.g., the writer and > maybe the singer) but not others (e.g., the photographer), because > some forms of creation of speech are more intellectually significant than > others. > > But if I'm right about the racist prostitute, then the > one thing that we can't say is that, just because one opens up a > business in which one generally serves all members of the public who are > willing to pay, one is necessarily > subject to antidiscrimination law (even as to race discrimination). And if > I'm > right that choices about engaging in religious ceremonies are as > significant - albeit significant in a different way - as choices about > engaging in sexual transactions, then the Coeur d'Alene City > Attorney's position is mistaken. Does that make sense? > > 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. _______________________________________________ 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. _______________________________________________ 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. _______________________________________________ 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.
