Thanks for the question, Will. If the kosher butcher gets that exemption, he will sell pork to no one. He never has and never will carry pork in his shop. He also does not sell soda, cars, or wedding cakes. If you want that stuff, you must go elsewhere. Is that a "cost to third parties?'' No more than that imposed by any (that is, every) other merchant who sells less than everything.
Compare that to a discriminatory refusal to sell. Baker A does sell wedding cakes, but not to same sex couples. Two injuries -- material and dignitary. The material injury is the lost opportunity to buy a cake at the quality and price offered by that baker. Maybe you can do as well or better elsewhere, nearby, or maybe not. The dignitary injury is more serious -- the couple is seeking goods to celebrate one of the most important and special days of their lives. And the baker says, in effect, "I do not respect your marriage as a marriage. In my belief system, it is not a marriage at all, because you are of the same sex." (The baker might also think or say that in his view the relationship is disordered, or an abomination, and/or against God's plan, but let's assume he says nothing like that all.) The baker has wounded the couple with this disrespect, and done so in regard to a day that has significant meaning in their lives. Those are the focused, third party harms in the refusal to sell goods or services to some that you sell to others, especially (though not only) for a wedding reception. On Wed, Apr 1, 2015 at 4:38 PM, Will Esser <willes...@yahoo.com> wrote: > 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 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. > > > > > -- > 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 > 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. > -- 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 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.
