Philosophically, I see two issues. First, a prostitute, by definition, is almost always "having sex with someone he or she doesn't want to," because, absent payment, he or she would not be doing that. I imagine the clients are of the worst that this sort of business can provide as far as attractiveness goes, so that adopting a racial preference would hardly be rational. One wants to say: they aren't having sex with the person, they are merely involved in a monetary transaction. It's just work.
But at the same time, it is quite tempting to say that a person should have autonomy over his or her intimacy preferences. Otherwise, why not say that they would have to accept people of the same or different gender, else it would be "discrimination." I don't think discrimination could ever touch upon who you wanted to have sex with, even if it became monetarized and sold. But I confess that this issues seems best left to sociologists and to pragmatism, not to philosophers or lawyers. We would be the LAST to see the answer. Sent from my iPad > On Feb 14, 2015, at 12:19 PM, Volokh, Eugene <vol...@law.ucla.edu> wrote: > > 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.
