Some state laws indeed might not cover prostitutes who sell only
their own services. But New Mexico law – as we saw in the wedding photographer
example – applies to service providers, even if they don’t provide a service at
a fixed location of their own (such as a bar, restaurant, or brothel). My
initial claim in the hypo is that, if a state legalizes prostitution and has a
New-Mexico-style law, it ought to exempt prostitutes.
Eugene
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Saturday, February 14, 2015 9:38 AM
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?
Look at the Nevada law of public accommodations,
https://www.leg.state.nv.us/NRS/NRS-651.html#NRS651Sec060. It is focused on
places open to the general public, not on particular kinds of work. It covers
any bar or restaurant, or any establishment that includes a bar or restaurant.
And it includes "Any . . .establishment or place to which the public is
invited or which is intended for public use." It excludes "private clubs or
other establishment not in fact open to the public."
So it appears that a house of prostitution in Nevada would be covered by the
public accommodations law, while a service that sends a prostitute to a
residence or hotel room is not. Does this seem surprising? Nevada has
legalized the business of prostitution, subject to regulations, and so treats
such places of business like any other (including specifically a "gymnasium,
health spa, bowling alley, golf course or other place of exercise or
recreation.")
On Sat, Feb 14, 2015 at 12:19 PM, Volokh, Eugene
<vol...@law.ucla.edu<mailto: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>
> [mailto:religionlaw-<mailto:religionlaw->
> boun...@lists.ucla.edu<mailto: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<mailto:religionlaw-boun...@lists.ucla.edu>
> [religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>]
> on behalf of Volokh, Eugene [vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>]
> Sent: Saturday, February 14, 2015 12:01 AM
> To: Law & Religion issues for Law Academics
> (religionlaw@lists.ucla.edu<mailto: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
> _______________________________________________
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_______________________________________________
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Religionlaw@lists.ucla.edu<mailto:Religionlaw@lists.ucla.edu>
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--
Ira C. Lupu
F. Elwood & Eleanor Davis Professor of Law, Emeritus
George Washington University Law School
2000 H St., NW
Washington, DC 20052
(202)994-7053
Co-author (with Professor Robert Tuttle) of "Secular Government, Religious
People" ( Wm. B. Eerdmans Pub. Co., 2014))
My SSRN papers are here:
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg
_______________________________________________
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see
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Please note that messages sent to this large list cannot be viewed as private.
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