Tom,
Again, I can't speak for others, but I think I was pretty clear in my
message below that I was only talking about the for-profit-commercial
context when I suggested using the race example as a tool for
distinguishing between businesses that should be covered by state public
accommodations laws and businesses that should not ("central concern ...
for-profit commercial realm ... commercial businesses ... bakery"). But in
case not, let me be explicit: I was only making an argument about
regulation in the for-profit-commercial realm.
American law has traditionally treated the nonprofit-religious-organization
context very differently than the for-profit-commercial context, and it has
allowed many more exemptions in the former context than the latter. If a
given federal or state law allows nonprofit religious organizations to
discriminate on all typically proscribed grounds except race, I could see
an argument that sexual-orientation discrimination should be treated like
sex discrimination and religious discrimination and allowed rather than
race discrimination and disallowed. I would be troubled, however, if
exemptions were adopted to allow discrimination in the nonprofit realm
uniquely on the basis of sexual-orientation (e.g., nonprofit wedding venue
can't discriminate against interfaith couple or couple including a divorced
person, but can discriminate against a same-sex couple). And when it comes
to the for-profit commercial context, where I do not believe there is any
tradition of federal and state public accommodations laws making exemptions
that allow businesses to discriminate on all typically proscribed grounds
except race, it seems to me that the race example can be a helpful tool for
identifying the proper scope of the public accommodations laws when
libertarian arguments are made for limiting their scope.
- Jim
On Thu, Apr 2, 2015 at 2:35 PM, Berg, Thomas C. <tcb...@stthomas.edu> wrote:
> Well, those list members, and activist groups, who wanted civil-rights
> claims excluded altogether want religious nonprofits not to be able to
> bring them either. And if the test is "where we would allow discrimination
> based on race," religious nonprofits have almost never been exempted from
> race discrimination laws, except with respect to churches and ministers.
> So treating sexual-orientation claims exactly the same would mean a huge
> number of religious exemptions in existing state laws should be eliminated,
> and a vast number of actions brought against nonprofit institutions such as
> colleges and schools--evangelical, Catholic, Orthodox Jewish, Muslim,
> etc.--who should also lose their tax exemptions.
>
> The NCAA and other business critics are happy with the Indiana fix, and
> that may indicate that the for-profit/non-profit line appeals to a lot of
> people who generally want to respect both gay rights and religious
> liberty. But the wave that worked against the Indiana law won't stop at
> that line.
>
> -----------------------------------------
>
> Thomas C. Berg
>
> James L. Oberstar Professor of Law and Public Policy
>
> University of St. Thomas School of Law
>
> MSL 400, 1000 LaSalle Avenue
>
> Minneapolis, MN 55403-2015
>
> Phone: 651 962 4918
>
> Fax: 651 962 4881
>
> E-mail: tcb...@stthomas.edu
> <https://mail.stthomas.edu/owa/redir.aspx?C=6b610058a5ad42118976395f869e05d3&URL=mailto%3atcberg%40stthomas.edu>
>
> SSRN: http://ssrn.com/author='261564
> <https://mail.stthomas.edu/owa/redir.aspx?C=6b610058a5ad42118976395f869e05d3&URL=http%3a%2f%2fssrn.com%2fauthor%3d'261564>
>
> Weblog: http://www.mirrorofjustice.blogs.com
>
>
> ----------------------------------------------------------------------------
> ------------------------------
> *From:* religionlaw-boun...@lists.ucla.edu [
> religionlaw-boun...@lists.ucla.edu] on behalf of James Oleske [
> jole...@lclark.edu]
> *Sent:* Thursday, April 02, 2015 3:30 PM
> *To:* Law & Religion issues for Law Academics
> *Subject:* Re: Text of Indiana RFRA "Fix"; Video of Hearing
>
> The Indiana House just passed the fix 66-30.
>
> Thanks to Tom, Doug, and Marty for their responses.
>
> As Doug notes, things are moving to fast to expect either of the
> law-professor groups who weighed in earlier on the Indiana RFRA to
> formulate a new group position on the fix, and I didn't meant to be asking
> for group positions. I merely meant to be asking if individual members of
> the list who had signed letters on either side might be supportive or not
> supportive of the proposed fix. And I should have mentioned that I am
> supportive of the fix, which seems to me to deliver at least 99% of the
> religious liberty protection that academic proponents of RFRA want, while
> excluding the 1% of cases that so concern the LGBT community.
>
> With regard to Tom's prediction that many list members would oppose
> allowing nonprofit religious institutions to make RFRA claims, and speaking
> only for myself: Although I'm not a fan of RFRA's strict scrutiny standard
> in general,* I would not actively oppose legislation that allows religious
> institutions to bring RFRA claims. My central concern about the latest
> round of RFRA advocacy has been the move to extend exemption rights into
> the for-profit commercial realm, particularly in the context of LGBT
> rights. I don't think religious exemptions in the LGBT context should be
> any broader than they have traditionally been with respect to the other
> classes covered under state antidiscrimination laws, and we have not had a
> tradition of granting religious exemptions to commercial businesses.
> Florists, bakers, caterers, and wedding venues that are open to the public
> have never been exempted from state laws that preclude discrimination
> against interracial couples, interfaith couples, or couples involving
> divorced individuals, and I don't think we should change that approach to
> allow discrimination against same-sex couples. I'm open to libertarian
> arguments for limiting the reach of state public accommodations laws so
> they don't reach certain truly intimate or core expressive services, and
> the test I would apply is whether we would allow those services to
> discriminate on the basis of race. I'm pretty sure we wouldn't pass a law
> letting a bakery refuse to provide a wedding cake for an interracial
> couple, but perhaps there are spheres beyond Mrs. Murphy boarding houses
> where consensus could be achieved that proprietors should have absolute
> discretion to select customers (e.g., freelance writers).
>
> * I would prefer that the Court revisit Smith and apply modestly
> heightened scrutiny to incidental burdens as a constitutional matter, not
> unlike it does to incidental burdens on speech; in the absence of that, I
> would support "reasonable accommodation" statutes at the state level
> resulting in modestly heightened scrutiny of incidental burdens on
> religious practices.
>
> - Jim
>
> On Thu, Apr 2, 2015 at 12:34 PM, Doug Laycock <dlayc...@virginia.edu>
> wrote:
>
>> Sexual orientation and religious faith go to the core of identity. That
>> is a reason for protecting them; it is obviously not an operational test.
>>
>>
>>
>> I would protect the religious organizations themselves.
>>
>>
>>
>> I would exempt marriage counselors; it is in no one’s interest to force
>> them to counsel couples whose relationship they think is fundamentally
>> wrong.
>>
>>
>>
>> I would exempt very small businesses in the wedding industry, where the
>> owner has to be personally involved in providing the services, if similar
>> services are readily available elsewhere. Weddings are special because the
>> religious side understands them as inherently religious events, creating a
>> religious relationship – even if the couple is secular and thinking only of
>> civil marriage. And all those who assist with a wedding are expected to
>> help make it the best and most memorable wedding it can be; they are
>> promoting this religious ceremony that some believe to be religiously
>> prohibited.
>>
>>
>>
>> I would not exempt beyond that. And so far, no one has won even that
>> under a RFRA standard — not in a single case.
>>
>>
>>
>> I have been inundated this week and gotten almost nothing else done; I
>> will have very little to say as this very interesting discussion continues.
>>
>>
>>
>> Douglas Laycock
>>
>> Robert E. Scott Distinguished Professor of Law
>>
>> University of Virginia Law School
>>
>> 580 Massie Road
>>
>> Charlottesville, VA 22903
>>
>> 434-243-8546
>>
>>
>>
>> *From:* religionlaw-boun...@lists.ucla.edu [mailto:
>> religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Marty Lederman
>> *Sent:* Thursday, April 02, 2015 3:00 PM
>> *To:* Law & Religion issues for Law Academics
>> *Subject:* Re: Text of Indiana RFRA "Fix"; Video of Hearing
>>
>>
>>
>> I agree with Doug that this academic discussion is and will be overtaken
>> by much more powerful political and social forces. Even so, I'm curious
>> about how he and other would draw the lines he's proposing. What are "those
>> few cases where religious exemptions make sense"? Only cases that somehow
>> implicate "matters going to the core of [the vendors'] identity"? Would
>> that be the test? (presumably not, since I can't imagine Doug wanting
>> judges to adjudicate what's a religious "core"). Only discrimination on
>> the basis of sexual orientation, but not other prohibited grounds? (If so,
>> why?) Only cases raising the sorts of free *speech *claims that others
>> have been discussing?
>>
>>
>>
>> If one moves from the generalities of a RFRA-ish test, and if one does
>> not draft the exemption along some sort of *institutional *line (e.g.,
>> nonprofits with some sort of described religious character), it turns out
>> to be awfully difficult for any of us, let alone a consensus of
>> legislators, to describe the specific cases that should and should not be
>> exempted, beyond the exemptions that everyone approves, such as ministers'
>> involvement in religious ceremonies.
>>
>>
>>
>> On Thu, Apr 2, 2015 at 2:40 PM, Doug Laycock <dlayc...@virginia.edu>
>> wrote:
>>
>> Things are moving much too fast in Indiana for a group of sixteen to
>> take any position on the fix. And heavy duty political forces are now in
>> play on both sides that render academic information pretty much irrelevant.
>>
>>
>>
>> I agree with Tom that a far better fix would be a strong gay-rights law
>> with religious exemptions. Those could be provided under a state RFRA, or
>> better yet, specifically negotiated to cover only those few cases where
>> religious exemptions make sense. Then we wouldn’t have to argue about
>> whether the general language of a RFRA might some day be interpreted to
>> create an exemption that went too far. The Utah law is a step in the right
>> direction, but it doesn’t cover all the ground.
>>
>>
>>
>> But we apparently can’t negotiate that deal, because the two sides are
>> too far apart, too polarized, and too mistrustful. Much of the conservative
>> religious community doesn’t want any gay rights law at all, and they
>> apparently can’t enact one in Indiana. And much of the gay rights community
>> increasingly appears to oppose any exemption of any kind, except for the
>> clergy officiating at the wedding. If the two sides would acknowledge that
>> folks on the other side deserve liberty with respect to matters going to
>> the core of their identity, solutions would be possible. But that
>> prerequisite appears to be missing.
>>
>>
>>
>>
>>
>>
>>
>> Douglas Laycock
>>
>> Robert E. Scott Distinguished Professor of Law
>>
>> University of Virginia Law School
>>
>> 580 Massie Road
>>
>> Charlottesville, VA 22903
>>
>> 434-243-8546
>>
>>
>>
>> *From:* religionlaw-boun...@lists.ucla.edu [mailto:
>> religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Berg, Thomas C.
>> *Sent:* Thursday, April 02, 2015 1:11 PM
>> *To:* Law & Religion issues for Law Academics
>> *Subject:* RE: Text of Indiana RFRA "Fix"; Video of Hearing
>>
>>
>>
>> The fix preserves the ability of nonprofit religious institutions to have
>> their claims heard under the state RFRA, which in my view is correct. Of
>> course that will not be a stable resolution in blue states now, and many on
>> the list would oppose allowing those claims to be raised.
>>
>>
>>
>> In my view, the best fix would have been to provide statewide
>> anti-discrimination protection based on sexual orientation, and let claims
>> continue to be raised under the state RFRA. That would do far more for
>> same-sex couples, especially in rural areas where they face the most
>> prejudice, than this does. And as we predicted in our original letter, the
>> only commercial claims with even a possibility of being granted would be
>> the small wedding vendors (and those would be doubtful). But I gather
>> Republicans did not support expanding the anti-discrimination law, and I
>> assume Democrats wouldn’t have taken the deal either. The focus has been on
>> the state RFRA even though, as to commercial discrimination cases, its
>> effect is largely symbolic.
>>
>>
>>
>> This episode could work to hamper the strategy of addressing this
>> conflict through exemptions from anti-discrimination laws. But that’s not
>> going to do much to get anti-discrimination laws passed in red states in
>> the first place.
>>
>>
>>
>> -----------------------------------------
>>
>> Thomas C. Berg
>>
>> James L. Oberstar Professor of Law and Public Policy
>>
>> University of St. Thomas School of Law
>>
>> MSL 400, 1000 LaSalle Avenue
>>
>> Minneapolis, MN 55403-2015
>>
>> Phone: (651) 962-4918
>>
>> Fax: (651) 962-4996
>>
>> E-mail: tcb...@stthomas.edu
>>
>> SSRN: http://ssrn.com/author=261564
>>
>> Weblog: http://www.mirrorofjustice.blogs.com
>> <http://www.mirrorofjustice.blogs.com/mirrorofjustice>
>>
>>
>> ----------------------------------------------------------------------------
>>
>>
>>
>> *From:* religionlaw-boun...@lists.ucla.edu [
>> mailto:religionlaw-boun...@lists.ucla.edu
>> <religionlaw-boun...@lists.ucla.edu>] *On Behalf Of *James Oleske
>> *Sent:* Thursday, April 02, 2015 10:31 AM
>> *To:* Law & Religion issues for Law Academics
>> *Subject:* Re: Text of Indiana RFRA "Fix"; Video of Hearing
>>
>>
>>
>> After lots of testimony in favor of the fix by members of the business
>> community, Advance America's Eric Miller made the case against the fix at
>> length, repeatedly citing the letter signed by 16 law professors in favor
>> of the Indiana RFRA.
>>
>> I'm guessing that, while many of those law professors think the fix is
>> unnecessary, some of them might not join Miller in actively opposing the
>> fix. Miller has championed RFRA for the very specific reason that he
>> believes it would provide clear protection to businesses that refuse to
>> provide marriage-related services to same-sex couples, but the
>> law-professor letter he invokes does not portray that protection as clearly
>> forthcoming under RFRA ("But whatever one thinks of the arguments for and
>> against exempting such individuals, it is not at all clear that the
>> proposed Indiana RFRA would lead courts to recognize such an exemption....
>> [E]ven had the New Mexico RFRA applied [to the claim in Elane Photography],
>> the New Mexico Supreme Court ... would likely have held that enforcement of
>> the anti-discrimination laws served a compelling interest by the least
>> restrictive means.").
>>
>> As some of the professors who supported the original Indiana RFRA are
>> list participants, I'm wondering if they think my perception is correct.
>> Are any planning to actively support or oppose the fix?
>>
>> We also have list participants who signed a letter opposing the original
>> Indiana RFRA, and it would be interesting to hear from them whether they
>> plan to actively support or oppose the fix.
>>
>>
>>
>> - Jim
>>
>>
>>
>> On Thu, Apr 2, 2015 at 7:33 AM, James Oleske <jole...@lclark.edu> wrote:
>>
>> The text of the fix is here:
>> http://t.co/58d1K81D1L
>>
>> It provides that the RFRA "does not:
>>
>> (1) authorize a provider to refuse to offer or provide services,
>> facilities, use of public accommodations, goods, employment, or housing to
>> any member or members of the general public on the basis of race, color,
>> religion, ancestry, age, national origin, disability, sex, sexual
>> orientation, gender identity, or United States military service;
>>
>>
>> (2) establish a defense to a civil action or criminal prosecution for
>> refusal by a provider to offer or provide services, facilities, use of
>> public accommodations, goods, employment, or housing to any member or
>> members of the general public on the basis of race, color, religion,
>> ancestry, age, national origin, disability, sex, sexual orientation, gender
>> identity, or United States military service”
>>
>>
>>
>> The measure exempts tax-exempt churches, non profit religious
>> organizations and societies, including church affiliated schools, as well
>> as ministers of churches or nonprofit religious organizations.
>>
>> The hearing on the fix is streaming live here:
>> http://iga.in.gov/legislative/2015/session/senate_video_archive/
>>
>>
>>
>>
>>
>>
>> _______________________________________________
>> To post, send message to Religionlaw@lists.ucla.edu
>> 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
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>>
>>
>>
>> _______________________________________________
>> To post, send message to Religionlaw@lists.ucla.edu
>> 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.
>>
>
>
> _______________________________________________
> 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.
>
_______________________________________________
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To subscribe, unsubscribe, change options, or get password, see
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