Chip,
Can you expound on your argument that wedding vendor exemptions from public
accommodations laws "allow material and dignitary injury to potential
customers" and that liberals only oppose "exemptions that impinge on the
welfare of third parties"? It seems that both sides agree that the kosher
butcher deserves a religious exemption, and yet granting that exemption imposes
some cost on third parties (i.e. anyone who wishes to purchase pork must go
elsewhere, which could involve multiple trips to different butchers, or may
mean spending more time and money to go to a butcher further away). So it's
not really that there is no cost to third parties, but perhaps simply a cost
which society is more ready to accept (i.e. "Go buy your pork somewhere else.")
As I understood the "third-party harm" argument in Hobby Lobby, the argument
was that without insurance coverage, female Hobby Lobby employees would be
unable to afford coverage of the particular, objectionable contraceptives and
therefore the third party harm was equivalent to total lack of access.
Given modern changes in societal perspectives, I have not heard the same
argument about a total lack of access when it comes to wedding vendors for
same-sex wedding ceremonies. Under the assumption the goods and services are
otherwise generally available in the marketplace (i.e. there are plenty of
wedding photographers, bakers, etc. who would be happy for the business of
same-sex weddings), what is the distinguishing factor which causes "material
and dignitary injury" in the wedding vendor exemptions scenario but not in the
kosher butcher example? In both, the customers want a service which they can
get in the marketplace (although perhaps not from the exact person or place
they want it). And in both, the reason for not providing the service is the
same (i.e. violation of a sincerely held religious belief).
Thanks in advance for clarification.
Will
Will Esser
Charlotte, North Carolina
From: James Oleske <jole...@lclark.edu>
To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
Sent: Wednesday, April 1, 2015 3:22 PM
Subject: Re: Eugene's Blog Post on Liberals and Exemption Rights
The butcher example Chip gives is why I suggested last spring that the Court
might want to read the Lee language not as an absolute rule, but rather, a
strong presumption against exemptions in the commercial realm that can be
overcome in "the very rare case where the basis for the presumption (a
third-party harm) does not exist." Alas, the Court instead simply discarded the
Lee language wholesale by saying RFRA went further than the pre-Smith law.
- Jim
On Wed, Apr 1, 2015 at 12:09 PM, Ira Lupu <icl...@law.gwu.edu> wrote:
I do not think most liberals oppose exemptions for businesses per se -- imagine
a law that compelled a butcher to carry products in conflict with religious
dietary laws to which the butcher and his customers subscribe. Liberals oppose
exemptions that impinge on the welfare of third parties -- Hobby Lobby (those
female employees still do not have contraceptive coverage) or wedding vendor
exemptions from public accommodations laws (those exemptions allow material and
dignitary injury to potential customers). U.S. v. Lee involved injury to other
family members of Amish employees, as well as others in the social insurance
pool.
On Wed, Apr 1, 2015 at 2:51 PM, Gaubatz, Derek <dgaub...@imb.org> wrote:
“"[l]iberals who opposedSmith 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 opposedSmith 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
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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)994-7053Co-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
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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.
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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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
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