Alan,
Thanks for your post. However, both of the examples that you used to
illustrate dignitary harms involve affirmative conduct of the person causing
the harm (i.e. battery and trespass). In the wedding photographer example,
however, the opposite is true. In that example, the alleged dignitary harm is
caused by the decision of the individual not to engage in conduct (i.e. the
wedding photographer says that she is happy to photograph gays and lesbians who
come in to have their pictures taken, but simply wants to abstain from
participating in the same-sex wedding).
And more specifically, the alleged dignitary harm is explicitly tied to the
reason the wedding photographer is refusing to participate. In other words,
the wedding photographer is allowed to refuse to shoot the wedding for a myriad
of non-discriminatory reasons (e.g. I'm on vacation then, I don't shoot
weddings for people with tattoos, etc.) and those do not cause dignitary harm
(or they cause dignitary harm based on unprotected classifications) (e.g. I
don't photograph fat people). So it is in fact, the reason for the refusal to
participate (i.e. the religious viewpoint that participating in a same-sex
wedding ceremony violates religious precepts) which makes the difference under
the relevant non-discrimination law and it is the reason for the refusal which
causes the dignitary harm.
It seems to me that whether there is affirmative action by the viewer versus
simply refusing to participate makes a substantial difference when talking
about dignitary harms.
And on a related point, I'm not so sure that I agree with your initial premise
that the refusal to engage in conduct which the religious believer views as
violating her sincerely held religious beliefs "is conduct and not speech."
After all, "actions speak louder than words" and oftentimes the most expressive
statement someone can make is refusing to participate in conduct. (Not that
I've given this point much prior thought, so I'd welcome anyone pointing me to
cases which elaborate on this distinction about whether the refusal to perform
an action constitutes conduct versus speech).
Will Will Esser Charlotte, North Carolina
From: Alan E Brownstein <aebrownst...@ucdavis.edu>
To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
Sent: Thursday, April 2, 2015 2:48 PM
Subject: RE: "Dignitary Injury" as an argument against religious exemptions to
non-discrimination laws
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{}#yiv9811712642 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>
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.
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