Thanks Chip. Looks like your last post to me was not copied to the list, so
I've copied here for the benefit of all.
Your point about permissible legislative decisions on opt-outs is a good one,
and the concept of allowing religious opt-outs conditioned on posting a sign
notifying the public about the religious opt-out in order to avoid dignitary
injury issues seems like a fair compromise position. It certainly seems like
it would remove the dignitary injury issue from the equation, and could
represent the legislature's determination that the material injury by itself
was not significant enough (given the general availability of goods and
services in the marketplace otherwise) to negate the importance of religious
exemptions.
I haven't seen that particular compromise proposed in any of the discussed
legislation, but it is a concept worth further thought.
Same best wishes to you and yours. May all those with strong feelings on these
topics be willing to rationally debate the issues in the same manner as those
on this list and focus on arriving at a resolution which respects the interests
of all involved in our diverse society.
Will
Will Esser
Charlotte, North Carolina From: Ira Lupu <icl...@law.gwu.edu>
To: Will Esser <willes...@yahoo.com>
Sent: Thursday, April 2, 2015 9:28 AM
Subject: Re: "Dignitary Injury" as an argument against religious exemptions to
non-discrimination laws
That's a good question, Will. Before I answer, let me clarify that the
legislature can permit the disclaiming sign ("We serve all, but we are opposed
to same sex marriage.") The legislature can also permit religious opt-outs
from serving all, on the condition that a sign be posted, so as to spare same
sex couples the embarrassment and dignitary injury of walking in and then being
turned away. These are discretionary legislative decisions, neither required
not forbidden by the First A.
Where to draw the line about vendor expression in the workplace? Certainly not
over the goods that are being sold -- ham or kosher meat; "Piss Christ" copies
or reverent Christmas cards. That's what is for sale, for all who want to
purchase.
So we're left with the cases of messages (not goods for sale) that express
borderline hostility to some customers, and now the line is hard to draw -
Confederate flags on the wall? Quasi-pornographic photos of women? No easy
answers here, any more than there are in borderline "hostile environment" cases
of sexual harassment in the workplace. I would suggest something like "if the
reasonable customer would be made to feel unwelcome, on the basis of race, etc,
by the message(s) [NOT by the goods for sale], then the message is inconsistent
with a law of non-discrimination." I know that will leave grey areas and
uncertainty. But that doesn't bother me, because this is speech zoning -- the
same vendor can fly Confederate flags at home, speak out in political fora
against same sex marriage, etc. I can't do better than this in the abstract.
I don't expect to persuade you. But I do think that the argument that people
have a right to bring their religion into their business (by all means, sell
Christmas ornaments and Passover Matzoh; close on your Sabbath) can be blocked
with an argument that says "not if the expression of their religion to
customers is in effect an attempt to deny equal access to goods and services to
a class of people protected by civil rights laws."
Passover, Good Friday, and Easter Sunday coming up -- peace, hope, and freedom
to all on the list, whether or not you recognize or celebrate any of those
holidays.
On Thu, Apr 2, 2015 at 8:30 AM, Will Esser <willes...@yahoo.com> wrote:
Chip,
Thanks for that clarification. For consistency then, does your position run
both ways regardless of the viewpoint expressed? For instance, given your view
of "dignitary injury", would it apply to prohibit the business owner who
supports same-sex marriage from posting a sign that says: "I believe that all
marriage is equal and that same-sex sexual activity is every bit as good, moral
and right as opposite same-sex sexual activity." An evangelical Christian or
Catholic upon seeing such a sign could very easily argue that such a statement
disrespected their religion (which taught the opposite) and therefore they had
suffered a "dignitary injury" based on the posting of the sign, thereby
adversely affecting their "equal enjoyment of the goods and services . . .
.without discrimination on the basis of religion."
(The same is true of my example with the photographer who proudly displays the
Serano "Piss Christ" photograph in their studio. It's hard to see how that
would not constitute a "dignitary injury" to Christians which could affect
their "equal enjoyment of the goods and services" provided by the
photographer).
Where do you draw the line on what viewpoints can be expressed and which cannot
by the business owner?
Will Will Esser Charlotte, North Carolina
From: Ira Lupu <icl...@law.gwu.edu>
To: Will Esser <willes...@yahoo.com>
Cc: Law & Religion Issues for Law Academics <religionlaw@lists.ucla.edu>
Sent: Thursday, April 2, 2015 7:38 AM
Subject: Re: "Dignitary Injury" as an argument against religious exemptions to
non-discrimination laws
I disagree with the New Mexico Supreme Court. Telling some customers that their
business is unwelcome represents a denial of "equal enjoyment of the goods and
services . . . without discrimination on the basis of race, gender, sexual
orientation, et cetera."
Sent from my iPhone
On Apr 2, 2015, at 7:15 AM, Will Esser <willes...@yahoo.com> wrote:
Chip,
Your example misses my point, so let me restate. Here is a recap of where I
think we are:
1. You argue against religious exemptions to non-discrimination laws on two
grounds, i.e. because of (a) "material injury" and (b) "dignitary injury".2.
The "material injury" is the lost opportunity to receive the good or service at
the price or quality offered by a particular business.3. The "dignitary
injury" is (in your example) the wound to the dignity of the couple by having
to hear a viewpoint from the business owner which they find offensive or with
which they disagree.
I'm pushing back, because I'm not sure that both of these prongs can be used to
support your argument. Let's assume the "material injury" prong is ABSENT in
each situation so that we can just test the sufficiency of the "dignitary
injury" prong (i.e. the wedding photographer WILL in fact provide photography
services for both opposite and same-sex weddings, and the bookseller will sell
anti-Christian books to everyone). Let's go a step further and say that the
speech which wounds the dignity of the couple is present in EVERY situation
(i.e. the photographer notifies ALL her customers regarding her belief about
the morality of same-sex marriage, not just same-sex couples).
As Mark pointed out, the New Mexico Supreme Court in Elane Photography appeared
to accept the "material injury" argument as a basis for not granting a
religious exemption to the local non-discrimination law, but not the "dignitary
injury" argument. It held that the photographer posting a sign in the studio
stating her views about same-sex marriage was permissible, so long as she still
made the service available. In other words, the Court appeared to specifically
permit the photographer to engage in the conduct which you contend causes the
"dignitary injury" so long as the service was still provided and there was no
"material injury".
Do you disagree with the NM Supreme Court on that point? If not, I think the
"dignitary injury" prong has to be rejected as a rationale to support the
argument against religious exemptions to non-discrimination laws. That would
leave your argument relying solely on the "material injury" prong (which is a
topic for another thread).
Stated another way, I'm having a hard time understanding the "dignitary injury"
argument as anything other than a position that people should not have to hear
certain viewpoints with which they disagree, even if goods and services are
otherwise being provided.
Will
Will Esser
Charlotte, North Carolina From: Ira Lupu <icl...@law.gwu.edu>
To: Will Esser <willes...@yahoo.com>
Cc: Law & Religion Issues for Law Academics <religionlaw@lists.ucla.edu>
Sent: Wednesday, April 1, 2015 10:38 PM
Subject: Re: Eugene's Blog Post on Liberals and Exemption Rights
The vendor does not have to be respectful of the beliefs of his customers. How
would he know the content of those beliefs? But he cannot be disrespectful of
the class of people to which the customers belong, or the class to which he
thinks the customers belong, If those classes are protected by the
antidiscrimination law. They are entitled to the full and equal enjoyment of
the goods he is selling, without any selectivity based on their race, religion,
etc. A bookstore owner can sell anti-Christian books, but he must offer to sell
them to Christians and non-Christians alike.
Sent from my iPhone
On Apr 1, 2015, at 9:41 PM, Will Esser <willes...@yahoo.com> wrote:
Chip,
Thanks for the explanation, which is helpful. But I want to push a little
farther on this concept of "dignitary injury."
You state that the "dignitary injury is more serious" because it has "wounded
the couple with this disrespect." But how far can that argument really go?
Are you saying that public non-discrimination laws not only require the
provisions of goods and services to all comers, but also require that those
services be provided in a way that will be viewed as "respectful" of the
particular beliefs of the customers?
If that is the case, does the photographer who has the "Piss Christ" photograph
by Andres Serrano hanging on the wall of their shop (i.e. a photograph which
very clearly singles out Christians for disrespect and "dignitary injury") also
run afoul of public non-discrimination laws even if the photographer is
otherwise willing to perform photography services for Christians? Or use the
same example but substitute in the cover of the Charlie Hebdo magazine
depicting the Prophet Muhammad?
Mark pointed it out in several of his later posts, but I'm troubled about how
this concept of "dignitary injury" logically plays out and whether your
argument essentially means that anyone involved in businesses which provide
public services are required to check their free speech and opinions at the
door. There are, after all, many categories of things that a business owner
could say which would be gravely disrespectful and injure the dignity of
customers (e.g. "My are you fat." "You are so ugly I can't stand to look at
you" etc.). The marketplace (particularly in this age of social media) would
quickly penalize such disrespect in an economic manner, but I had never viewed
it as within the purview of non-discrimination laws to protect citizens from
speech that they found disrespectful.
I welcome your thoughts.
Will
Will Esser
Charlotte, North Carolina
From: Ira Lupu <icl...@law.gwu.edu>
To: Will Esser <willes...@yahoo.com>; Law & Religion issues for Law Academics
<religionlaw@lists.ucla.edu>
Sent: Wednesday, April 1, 2015 6:35 PM
Subject: Re: Eugene's Blog Post on Liberals and Exemption Rights
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 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
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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)994-7053Co-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
--
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
_______________________________________________
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