Good questions, Will. Let me start with the last point and work backwards. I have no doubt that actions can be extremely expressive. And the action of not obeying what one considers to be an unjust law can send a very powerful message. But for free speech purposes, these actions are not protected speech. The draft resister who refused induction to protest the Viet Nam war goes to jail. The religious person who refuses to pay taxes to support what he or she considers to be immoral conduct may be sending a message too but they are still subject to sanction. The religious proponent of segregation who refuses to serve an African-American patron in his restaurant to express his commitment to racial hierarchy can be sued for doing so. If any of these people communicated their message of opposing the government’s policies with speech, but did not refuse to comply with a legal obligation, they would be protected by the First Amendment.
As you say, in the wedding photography case, the dignitary harm is tied to the reason the wedding photographer is refusing to provide services to the same-sex couple. But the defendant’s motive is often an important component of a law that protects people against dignitary harm and it will clearly be relevant to the sentence or damage award. Not all contact between one person and another constitutes a battery, for example. Intent is necessary and the reason why the contact occurs will often help to determine whether it is offensive or not. I understand that my examples involve affirmative conduct that causes dignitary harm. I think one can argue discrimination in operating a place of public accommodation is affirmative conduct as well. If the base line is serving everyone, singling out members of a particular class for less satisfactory service or no service has an affirmative conduct dimension to it. But I take your point that refusing to serve a gay man or an African-American woman is a decision not to engage in conduct. But I’m not sure why this distinction makes a difference. I appreciate the religious liberty value assigned to the wedding photographer’s decision, but I have never differentiated between religious obligations that prohibit a person from doing something (don’t work on the Sabbath) and religious obligations that require a person to do something (smoke peyote in a religious ritual). I can come up with hypotheticals where the dignitary harm caused by a refusal to so something is greater than the dignitary harm resulting from affirmative conduct. If both are unlawful and both cause dignitary harm, why should we differentiate between the two or treat a claim for religious exemption more favorably in one case than the other. Alan From: Will Esser [mailto:willes...@yahoo.com] Sent: Thursday, April 02, 2015 2:19 PM To: Law & Religion issues for Law Academics; Alan E Brownstein Subject: Re: "Dignitary Injury" as an argument against religious exemptions to non-discrimination laws 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<mailto:aebrownst...@ucdavis.edu>> To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu<mailto: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 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> [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. _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu<mailto: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.
