Will and Chip’s exchange ended on such a thoughtful and positive note (which I greatly appreciate) that I hesitate to add another post to this thread out of fear it might break the spell.
I agree with Will and Chip’s discussion about when and whether speech by itself constitutes discrimination for the purposes of civil rights laws. When we are talking about exemptions from anti-discrimination laws, however, the core issue isn’t dignitary harms that result from a proprietor’s speech. It is dignitary harms that result from the proprietor’s conduct. (I assume we all agree that a discriminatory refusal to serve a customer or to hire a job applicant is conduct and not speech.) And while both speech and conduct can cause dignitary harms, we typically don’t equate the two and excuse the latter because we would tolerate the former. I may have no recourse if someone insults me because I’m a Jew. Indeed, the person insulting has a First Amendment right to express anti-Semitic statements. But if he spits on my shirt or knocks my yarmulke off my head (which given my bald head takes very little force), I may not be able to get a pound of flesh for redress, but I can sue the person for battery – even though my injuries are essentially dignitary harms. Similarly, a Nazi can parade up and down the street with a sign with a swastika on it in front of my synagogue. But if he draws the swastika on my synagogue’s wall, it is trespass and vandalism and possible a hate crime. Again, the primary affront is a dignitary harm, but we draw a sharp distinction between dignitary harms caused by speech alone and dignitary harms caused by conduct or caused by messages expressed through conduct. Indeed, part of the way I understand the sharpness of this distinction is that we protect hurtful speech – even though we have real concerns about the harm the speech causes -- because we mistrust government and value unfettered public debate. But we tell people whose conduct inflicts dignitary harms on others: Do not misunderstand our tolerance of your speech. We do care about dignitary harms. We allow you to cause them because of the importance of freedom of speech – not because we doubt the injury caused by dignitary harm. Accordingly, if you move outside of the sphere of protected speech and engage in conduct that causes dignitary harm, you can be sanctioned for doing so. Under this analysis, it would be a mistake to argue that the affront and insult to dignity experienced by people who are discriminated against by being denied service in a place of public accommodation cannot justify the government prohibiting such discrimination because a similar affront to their dignity would be tolerated (indeed, arguably protected) if it was communicated through speech alone. And let me join Will and Chip in wishing everyone who celebrates Easter a Happy Easter, everyone who celebrates Passover a Happy Passover and everyone who celebrates neither a Happy Spring. Alan From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Will Esser Sent: Thursday, April 02, 2015 6:58 AM To: Ira Lupu; Law & Religion Issues for Law Academics Subject: Re: "Dignitary Injury" as an argument against religious exemptions to non-discrimination laws 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<mailto:icl...@law.gwu.edu>> To: Will Esser <willes...@yahoo.com<mailto: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.
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