I discuss this question -- which is about the merits of the Sherbert-era distinction between commercial and non-commercial, not the existence of the distinction -- in another recent piece:
There was very good reason, however, for the earlier consensus that owners of for-profit businesses must comply with secular laws regardless of their religious beliefs. In the commercial context, religious exemptions will almost always impose burdens on third parties, whether employees, customers, or business competitors. As a result, such exemptions implicate a rule “with a long history in libertarian thought”— that rights are limited by the need for “prevention of tangible harm to specifiable others without their consent.” Even in its pre-*Smith *jurisprudence, which held that exemptions from generally applicable laws were sometimes required, the Supreme Court gave force to this limitation, refusing to exempt an employer from the Social Security system because doing so would “operate[] to impose the employer’s religious faith on the employees.” In so reasoning, the Court was acting in accord with the general principle espoused by Justice Jackson four decades earlier that the “limitations which of necessity bound religious freedom . . . begin to operate whenever activities begin to collide with liberties of others or of the public.” Or as Justice Ginsburg has put it more recently, “with respect to free exercise claims no less than free speech claims, ‘your right to swing your arms ends just where the other man’s nose begins.’” http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2400100 (pp. 39-40) As I discuss in footnote 149 of the same piece, the Court has long made a similar commercial/non-commercial distinction in its free association jurisprudence. - Jim On Wed, Apr 1, 2015 at 11:51 AM, Gaubatz, Derek <dgaub...@imb.org> wrote: > “"[l]iberals who opposed *Smith* in 1990 and supported RFRA in 1993 — > including liberal organizations, professors, and politicians — largely > continue to support religious exemptions for individuals, while opposing > the extension of such exemptions to commercial businesses." > > > > I’m not sure I’m seeing the principled distinction. Do not many > individuals depend for their livelihood on commercial businesses? Why do > liberals see the conscience of individuals like Sherbert or Thomas worthy > of protection, but the conscience of an individual photographer, florist, > baker, or bed and breakfast owner less worthy of protection? Justice > Kagan, at least back in 1996 when she was in the Clinton White House, > appeared to recognize that the consciences of individuals operating small > commercial businesses was worthy of protection under a RFRA regime. > Commenting on the short shrift given to the claim of a Evelyn Smith who, > for religious reasons, did not want to rent one of her units to a > co-habitating couple, Kagan noted that the court’s reasoning was > “outrageous.” She wrote that it was “almost as if a court were to hold > that a state law does not impose a substantial burden on religion because > the complainant is free to move to another state.” > http://www.brookings.edu/research/papers/2010/06/23-kagan-rogers > > > > > > *From:* religionlaw-boun...@lists.ucla.edu [mailto: > religionlaw-boun...@lists.ucla.edu] *On Behalf Of *James Oleske > *Sent:* Wednesday, April 01, 2015 2:25 PM > *To:* Law & Religion issues for Law Academics > *Subject:* Eugene's Blog Post on Liberals and Exemption Rights > > > > Eugene has a new post up on Volokh Conspiracy entitled, "Many liberals’ > (sensible) retreat from the old Justice Brennan/ACLU position on religious > exemptions." The piece is lengthy, and I recommend folks read it in full, > but I want to take issue with the following assertion at the heart of > Eugene's analysis: > > "Yes, religious objectors can use these RFRAs to try to get exemptions > from antidiscrimination laws. But religious objectors could have done the > same under the Sherbert-era Free Exercise Clause that the ACLU had long > championed." > > > > > http://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/04/01/many-liberals-sensible-retreat-from-the-old-justice-brennanaclu-position-on-religious-exemptions/ > > > Insofar as we're talking about discrimination in the commercial > marketplace, which is the context generating almost all of the liberal > concerns about exemptions today, I have to disagree with Eugene's > characterization of the law in the Sherbert era. Indeed, I make precisely > the opposite argument at length in Part II of the following piece: > http://harvardlawreview.org/2015/01/the-born-again-champion-of-conscience/ > ("The Real Issue: The Unprecedented Expansion of Exemption Rights into the > Commercial Realm"). > > Nowhere in his post does Eugene acknowledge either United States v. Lee, > which is the only Sherbert-era case in which the Court explicitly addressed > the issue of commercial exemptions, or Piggie Park, where the Court > dismissed a commercial businesses' claim for an exemption from an > antidiscrimination law as "patently frivolous." Instead, Eugene refers to > Justice Brennan's pre-Sherbert dissenting opinion in Crown. Whatever > Justice Brennan's views in 1961, it is difficult to understand how they are > a better representation of the Sherbert-era law than the following explicit > statement of the Court in Lee, which was joined by Justice Brennan (as was > Piggie Park): > > "When followers of a particular sect enter into commercial activity as a > matter of choice, the limits they accept on their own conduct as a matter > of conscience and faith are not to be superimposed on the statutory schemes > which are binding on others in that activity. Granting an exemption from > social security taxes to an employer operates to impose the employer's > religious faith on the employees." > > > > Accordingly, I don't think the ACLU's current position can be accurately > described as a "retreat" from their support of Sherbert-era exemption > rights. As Eugene notes in his post, the ACLU still opposes Smith and > supports exemption rights outside the commercial context. As I note in my > piece, this is also true of Americans United and the Brennan Center. The > strong opposition of those organizations to extending exemption rights into > the for-profit commercial realm has sometimes been misread as a reversal of > their position on exemption rights in general (indeed, I myself have made > that mistake in the past), but as I detail in the piece cited above, an > examination of the full record shows that "[l]iberals who opposed *Smith* > in 1990 and supported RFRA in 1993 — including liberal organizations, > professors, and politicians — largely continue to support religious > exemptions for individuals, while opposing the extension of such exemptions > to commercial businesses." > > - Jim > > > > _______________________________________________ > 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. >
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