The compelling interest of "mandating equal treatment in all situations" does not depend on the impropriety of the reason on its own. Rather, it is the harm associated with unequal treatment because of that reason. Suspect classes are suspect classes (in part) due to the length and scale of the discrimination against the class. The goal isn't, or shouldn't be at least, to punish bad reasons for discrimination, it is to protect the class from the effects of discrimination. Thus, the interest is more or less compelling proportional to the ease with which a member of the class can find an alternate public accommodation. The irony of course being that sexual orientation protections spring up faster in places where discrimination is comparatively minimal, however noxious.
On Fri, Aug 14, 2015 at 9:03 AM, Volokh, Eugene <vol...@law.ucla.edu> wrote: > As I understand the orthodox (with a lower-case “o”) > understanding of religious exemption doctrine, religious objectors are > entitled to exemptions from (at least) laws that require them to do things > that they sincerely view as sinful, unless granting the exemption would > necessarily substantially undermine a compelling government interest. > > > > 1. If this is so, then I don’t think that it matters > whether the sin is providing materials that one sincerely believes are used > in killing human beings, or providing materials that one sincerely believes > are used in other sinful things. If a Muslim or Jewish supplier doesn’t > want to sell products to a pork farm (I’m not sure that this is standard > Muslim or Jewish doctrine, but imagine someone who takes that view), I > don’t see why he should be denied an exemption that the pacifist widget > maker or the anti-abortion deli owner is granted. Likewise if someone > doesn’t want to sell products that would be used in a Black Mass or in a > wedding of a divorced person or in a same-sex wedding. > > > > 2. The “single grocer in town” hypothetical may be > relevant to the compelling government interest inquiry – maybe one could > argue that the government has a compelling interest in making sure that > everyone has access to food without having to drive to the next town, and > therefore requiring the grocer to sell to the KKK sympathizers, or for that > matter to sell food that he knows will be used at the KKK picnic. But in > the much more typical town in which there are many grocers, most of which > are quite happy to sell to anyone who has the money, denying the exemption > isn’t necessary to serve the government interest. > > > > 3. Of course, there is also the argument that there is a > compelling interest in making sure that no customer is ever rejected by any > provider for what one sees as improper reasons. I’m not sure I’m persuaded > by this argument as a general matter, but I understand it. Still, that’s a > question of what compelling interests trump and when. If the issue is, “is > there any model that would justify refusing to sell an in embellished > product--say a cupcake--to someone whose potential use--at a same sex > wedding, at a tryst with one's heterosexual lover, or whatever--you > disapproved of on religious grounds?,” I would think that the orthodox > model would eminently justify it, unless one thinks there is this sort of > compelling interest in mandating equal treatment in all situations. > > > > This is also related, of course, to the 1990s litigation > over landlord refusals to rent to unmarried couples, which led to different > results in different states. > > > > Eugene > > > > *From:* religionlaw-boun...@lists.ucla.edu [mailto: > religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Levinson, Sanford V > *Sent:* Thursday, August 13, 2015 10:58 PM > > *To:* Law & Religion issues for Law Academics > *Subject:* Re: Colorado Cakeshop decision > > > > This is an interesting example. (And I thank Eugene for his typically > thoughtful answer.) Can one distinguish between the illegitimate direct > use of the product (to kill human beings) and the mere fact that the > cupcake will be eaten at a wedding (or trust)? Would we be comfortable if > the single grocer in town refused to sell food to someone known to > sympathize with the KKK? I assume, though, that the civil rights laws was > prohibits discriminating on grounds of race etc., and this should hold for > sexual orientation as well. > > > > Sandy > > Sent from my iPhone > > > On Aug 13, 2015, at 7:25 PM, K Chen <tzn...@gmail.com> wrote: > > The various pharmaceutical companies refusing to sell certain drugs to > death penalty states come to mind. > > > > -Kevin Chen > > > > On Thu, Aug 13, 2015 at 7:51 PM, Volokh, Eugene <vol...@law.ucla.edu> > wrote: > > Sure, why not? Say a grape grower refuses to sell to > winemakers, or a pacifist widget maker refuses to sell to military > contractors, or a restaurant refuses to deliver to abortion clinics? See > *Rasmussen > v. Glass* (Minn. Ct. App. 1993), > https://scholar.google.com/scholar_case?case=648897692635049631, which > holds that, even if a city ordinance banning discrimination based on > “creed” required restaurants to deliver to abortion clinics, there had to > be a religious exemption from such an ordinance. “Under the provisions of > the Minneapolis ordinance, relator Glass [owner of the Beach Club Deli] has > two choices. He can either associate with an entity that engages in conduct > which he finds to be morally offensive [delivering to abortion clinics], > thus compromising his conscience, or he can refuse and be found guilty of > discrimination and fined.” > > > > Now these have to do with objections to sales to > businesses, not sales to individuals – but I can’t see why they would be > different for RFRA / state Free Exercise Clause purposes. As to how the > information would be obtained, I take it that many a business wouldn’t work > very hard to investigate the matter, but when it learned that its products > were used by a customer in ways it disapproved of, might stop selling them > to that customer. > > > > Isn’t that how many of us would act if we were > businesspeople, and we learned that some of our customers were using our > products in ways we strongly disapproved of? Want to buy our pillowcases? > Go right ahead. Oh, wait, you’re the KKK and you want to use them for your > hoods; sorry, your business isn’t welcome here. Same if you learn your > customers are using your products to kill animals (if you object to that), > resell them to South Africa (if you objected to that back in the 1980s), > and so on. Some people take a “Hey, the product is out of our hands, none > of our business” attitude, which I think is just fine. But other people > care more about the behavior of their customers (and for that matter of > their suppliers) – indeed, many who praise “corporate social > responsibility” support that general approach. And when the business feels > a religious objection in such a situation, any existing religious exemption > regime would be implicated, wouldn’t it be? > > > > Eugene > > > > *From:* religionlaw-boun...@lists.ucla.edu [mailto: > religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Levinson, Sanford V > *Sent:* Thursday, August 13, 2015 7:20 PM > *To:* Law & Religion issues for Law Academics > *Subject:* Re: Colorado Cakeshop decision > > > > A non-rhetorical question: is there any model that would justify refusing > to sell an in embellished product--say a cupcake--to someone whose > potential use--at a same sex wedding, at a tryst with one's heterosexual > lover, or whatever--you disapproved of on religious grounds? An obvious > question, of course, is how such information would be obtained. Could a > sign indicate the exclusive list of cupcake-eligible customers and include, > in addition to payment and appropriate demeanor, "adherence to the baker's > views of sexual propriety"? > > > > Sandy > > Sent from my iPhone > > > On Aug 13, 2015, at 4:27 PM, Volokh, Eugene <vol...@law.ucla.edu> wrote: > > I should add that it also concludes that the Colorado > Constitution’s religious freedom guarantee follows the Smith model rather > than the Sherbert/Yoder model, something that was less clear before. > > > > Eugene > > > > *From:* religionlaw-boun...@lists.ucla.edu [ > mailto:religionlaw-boun...@lists.ucla.edu > <religionlaw-boun...@lists.ucla.edu>] *On Behalf Of *Marty Lederman > *Sent:* Thursday, August 13, 2015 5:06 PM > *To:* Law & Religion issues for Law Academics > *Subject:* Colorado Cakeshop decision > > > > > https://www.courts.state.co.us/Courts/Court_of_Appeals/Opinion/2015/14CA1351-PD.pdf > > > > Fairly straightforward. Rejects free speech and free exercise claims. > (The case does not involve a refusal to bake a cake displaying any > particular "content" -- the bakery refused to bake *any* cake for a > same-sex wedding.) > > _______________________________________________ > 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. > > > _______________________________________________ > 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. > > > > _______________________________________________ > 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. > > > _______________________________________________ > 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. >
_______________________________________________ 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.
