Re: Eugene Volokh's comment about delivery to businesses rather than individuals, the public accommodations statute in California, the Unruh Civil Rights Act, defines "person" expansively, to include businesses. Thus, in California, Adobe's requirement that to obtain a non profit discount on its popular products, the non profit must sign a statement that it does not discriminate [and I don't have the exact terms, but it is some form of LGBT/ same sex marriage provision] -- such a requirement arguably violates Unruh with respect to non profit religious organizations that have a religious objection to signing such a statement.
I believe other state's public accommodations laws may be drawn more narrowly. But if public accommodations laws are to be implemented expansively to protect against discrimination, then it would seem only fair to equally protect religious observers in the marketplace, as well. A recent blog in Economist suggested that in conservative states, exchanging religious exemptions for expansive public accommodations protections should be a no brainer, since that would protect LGBT rights in the vast majority of circumstances. Alan J. Reinach, Esq. Executive Director Church State Council Westlake Village, CA 91361 www.churchstate.org ajrein...@churchstate.org -----Original Message----- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of religionlaw-requ...@lists.ucla.edu Sent: Saturday, August 15, 2015 12:00 PM To: religionlaw@lists.ucla.edu Subject: Religionlaw Digest, Vol 137, Issue 7 Send Religionlaw mailing list submissions to religionlaw@lists.ucla.edu To subscribe or unsubscribe via the World Wide Web, visit http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw or, via email, send a message with subject or body 'help' to religionlaw-requ...@lists.ucla.edu You can reach the person managing the list at religionlaw-ow...@lists.ucla.edu When replying, please edit your Subject line so it is more specific than "Re: Contents of Religionlaw digest..." Today's Topics: 1. Re: Colorado Cakeshop decision (Finkelman, Paul) 2. Re: Colorado Cakeshop decision (Scarberry, Mark) ---------------------------------------------------------------------- Message: 1 Date: Fri, 14 Aug 2015 21:15:22 +0000 From: "Finkelman, Paul" <paul.finkel...@albanylaw.edu> To: "Volokh, Eugene" <vol...@law.ucla.edu>, Paul Finkelman <paul.finkel...@yahoo.com>, Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu> Subject: Re: Colorado Cakeshop decision Message-ID: <qb0n8or7fblt11evk14n9qp3.1439586292...@email.lge.com> Content-Type: text/plain; charset="windows-1252" I am not trying to obtuse here or argumentative. My point is this: if we allow a relugious exemption for common carriers, businesses of public accommodation, and businesses that are open to the public then we allow racial, ethnic, gender, reigious and other kinds of discrimination for anyone willing to say, as Bob Jones university did, that God requires me to discriminate in this way and so i am free to do so and disregard civil rights law. That seems to me to be the logical outcome of Eugene's position since he would not allow the courts to ever question religious sincerity. Sent from my T-Mobile 4G LTE device ------ Original message------ From: Volokh, Eugene Date: Fri, Aug 14, 2015 10:45 AM To: Paul Finkelman;Law & Religion issues for Law Academics; Cc: Subject:RE: Colorado Cakeshop decision I?m not sure I understand how Prof. Finkelman can be misunderstanding me on this. This is an argument about religious exemptions. It is not an argument about whether the law should be repealed altogether ? any more than arguments about exemptions in O Centro and Smith were about whether peyote or hoasca laws should be repealed altogether. It?s not our job to figure out whether a claimant is right or wrong, reasonable or unreasonable, smart or foolish in deciding that his religion requires him to use peyote, or bars him from selling to abortion clinics, or bars him from making wedding cakes. If the claimant has a religious objection to the law, and a Sherbert/Yoder-like religious exemption regime exists, then the question is whether denying the exemption is narrowly tailored to a compelling government interest. It may well be that denying the exemption from some antidiscrimination laws is indeed narrowly tailored to such an interest, based on the arguments that I quite clearly acknowledged in my earlier posts. But one can?t just reject the argument on the grounds that ?that is what a common carrier does,? just as one can?t reject the peyote/hoasca users? claims on the grounds that ?barring drugs is what drug law does.? In any event, if anyone else really does misunderstand this argument, or would like to engage that argument, I?m happy to answer them. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Paul Finkelman Sent: Friday, August 14, 2015 11:28 AM To: Law & Religion issues for Law Academics Subject: Re: Colorado Cakeshop decision Because, that is what a common carrier does. Put it another way, if the common carrier can refuse to pick up people then we are back to 1963. Cabs don't have to stop for blacks because the drivers believe God made a mistake in making black people; hotels don't have to rent to blacks, or people with Jewish names, or people who look Jewish, or men with turbans, or anyone else they do not like. You raise the "inappropriate" argument and then say that it is not "our job" to figure out what is in appropriate. So, in fact, you are not interested in the "inappropriate use" (the pillow case for the KKK mask), but rather you are arguing that licensed businesses are free to discriminate for whatever reason they want, as long as they "mask" it in religious values. Is that what you are saying here? If so, they why not come out from behind the curtain and just argue for the repeal of the 1964 Civil Rights Act. That is, after all, what you are arguing for, masked in religious language. If I am misreading you, please forgive me and explain why this is a misreading of the *result* you are arguing for. ****************** Paul Finkelman, Ph.D. Senior Fellow Penn Program on Democracy, Citizenship, and Constitutionalism University of Pennsylvania and Scholar-in-Residence National Constitution Center Philadelphia, Pennsylvania 518-439-7296 (w) 518-605-0296 (c) paul.finkel...@yahoo.com<mailto:paul.finkel...@yahoo.com> www.paulfinkelman.com<http://www.paulfinkelman.com/> ________________________________ From: "Volokh, Eugene" <vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>> To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>> Sent: Friday, August 14, 2015 11:13 AM Subject: RE: Colorado Cakeshop decision I don?t think it?s any our job to figure out the inappropriate use of the Deli?s sandwiches than it is to figure out what?s ?inappropriate? about eating chicken with cream sauce. The Deli owners thought it was religiously wrong for them to let any of their products be used by anyone working at a company that, in the owners? views, was committing mass murder. Likewise, I imagine there are religious pacifists who for religious reasons won?t sell any product (even food) to the military or military contractors, or people who wouldn?t sell any products to South African companies (or to companies that do business with South Africa), and so on. That we don?t see anything inappropriate about either the companies or the use to which the products are put is irrelevant. If they believe it is religiously wrong for them to sell anything to a company, that?s enough to get in the door under a religious exemption regime ? not just my view, of course, but also that of the ! Minnesota Court of Appeals. Now whether these religious exemption claims should be trumped by some government interest, such as the interest in preventing discrimination based on race, or religion, or political affiliation, or business practices, is a separate matter ? that goes to whether denying the exemption is necessary to serve a compelling government interest. But, as I said, I would have thought that my view was entirely orthodox. ?[I]t is not for us to say that the line [religious objectors draw between what they view as religiously permissible or religiously impermissible] was an unreasonable one.? If devout Jews interpret the Torah as barring not just the seething of a kid in its mother?s milk, but also mixing chicken meat with cow milk, it?s not for us to parse their reasoning, or to suggest that their thinking is inconsistent with what we think sound thinking would be (or for that matter with their own thinking in other areas). Likewise if someone feels that it?s inappropriate for him to provide any support, however indirect, for abortion providers or for the military or for killers of animals or for the South African regime. Eugene From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Finkelman, Paul Sent: Friday, August 14, 2015 10:32 AM To: Law & Religion issues for Law Academics Subject: Re: Colorado Cakeshop decision Eugene: I am trying to figure out what would be the "inappropriate" use of the Deli's sandwiches? Is it feeding doctors who perform abortion? Are you arguing that the pillow case maker can refuse to sell pillow cases to members of the KKK who use them for pillows? That is, can your refuse to do business with people if you don't like them or like what they do for a living? So, if the product -- a sandwich -- is being used properly -- that is it is being eaten, then how could it possibly be used inappropriately? Or, are you that the Deli owner can refuse to sell to the clinic because the clinic does things the owner does not like? So, he won't sell to the clinic because he does not think doctors who work there should eat food? And the KKK owner of a clothing store will not sell to blacks or Jews or Catholics (and many more groups) because he does not think those people should ever be seen in public so they don't need clothing? Your widget maker simply would not compete for the military contract. No one forces him to do so. At the end of this post you migrate from illegitimate use, to illegitimate user. That is, you don't want your product being sold in a South Africa because you are opposed to the regime. So you won't sell to a 2nd party, who sells it to 3rd party, who sells it to South Africa? Assuming this is a retail business, then I am guessing you would say that a racist who believes that blacks are inferior and made to be slaves of whites, it would be ok for that person to refuse to sell retain good to blacks? It is worth noting that most southern ministers believed that in the 19th century and I have had some students tell me they have heard similar things i their churches. So, we have a "racist" church. Are you arguing the member of that church can refuse to seat a black at his restaurant, refuse to serve and interracial couple, or refuse to rent a room to a black? ************************************************* Paul Finkelman Senior Fellow Penn Program on Democracy, Citizenship, and Constitutionalism University of Pennsylvania and Scholar-in-Residence National Constitution Center Philadelphia, Pennsylvania 518-439-7296 (p) 518-605-0296 (c) paul.finkel...@albanylaw.edu<mailto:paul.finkel...@albanylaw.edu> www.paulfinkelman.com<http://www.paulfinkelman.com/> ************************************************* ________________________________ From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> <religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>> on behalf of Volokh, Eugene <vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>> Sent: Thursday, August 13, 2015 7:51 PM To: Law & Religion issues for Law Academics Subject: RE: Colorado Cakeshop decision 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> [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<mailto: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> [mailto: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<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<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. -------------- next part -------------- An HTML attachment was scrubbed... URL: <http://lists.ucla.edu/pipermail/religionlaw/attachments/20150814/db7ebd8c/attachment-0001.html> ------------------------------ Message: 2 Date: Fri, 14 Aug 2015 14:27:20 -0700 From: "Scarberry, Mark" <mark.scarbe...@pepperdine.edu> To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu> Subject: Re: Colorado Cakeshop decision Message-ID: <832b0f4d-ed5b-4cbb-b95e-87e4d827a...@pepperdine.edu> Content-Type: text/plain; charset="utf-8" I used the term "common carrier." I think those of us who've used that term meant to say "public accommodation" or "place of public accommodation." (I did.) Mark Mark S. Scarberry Pepperdine University School of Law Sent from my iPad On Aug 14, 2015, at 9:10 AM, "Scarberry, Mark" <mark.scarbe...@pepperdine.edu<mailto:mark.scarbe...@pepperdine.edu>> wrote: There is also the question of the meaning of "common carrier." If we think it's particularly important for common carriers to serve all comers but then think that a business is a common carrier simply because the law currently requires it to take all comers, we're engaged in a circular argument. The only function of the term would be to evoke historical notions or feelings that it was important that certain kinds of businesses serve all comers. I've argued before that "common carrier" has been expanded far beyond its historical meaning -- in California the Boys Clubs organization was brought within that term by the courts and forced to become the Boys and Girls Clubs -- but it was suggested that the common carrier category was not as limited historically as I thought. (I don't recall whose work was cited for that point.) Mark Mark S. Scarberry Pepperdine University School of Law Sent from my iPad On Aug 14, 2015, at 8:29 AM, "Volokh, Eugene" <vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>> wrote: I still don?t quite understand. ?No hoasca? means that the ordinary right of citizens to ingest what they please is eliminated ? but RFRA says otherwise. ?You must serve on a jury? means that the ordinary right of citizens to decide where to go and what to do with their time is eliminated ? but religious exemption regimes say otherwise. What?s magical about common carrier law that somehow immunizes it from religious exemption regimes, while other laws are deliberately covered by those regimes? (I set aside the possibility that common carrier law, like drug law and other laws, would often be justifiable under strict scrutiny, since I take it that isn?t Sandy?s argument.) As people on this list know, I?m not a religious exemption maximalist. Once upon a time, I was one of the very few First Amendment people who supported Employment Division v. Smith, though I notice that the tide has turned on that in recent years. I support state RFRAs, but precisely because they are trumpable by legislatures (which could, if they choose, carve out drug laws or common carriers or antidiscrimination law from the state RFRAs); I also would have preferred it if RFRAs had used looser standards than strict scrutiny. But if we?re talking about the actual religious exemption model under RFRAs and the state constitutional religious exemption regimes, I just don?t see how assumptions about what ?common carrier? ?just means? resolve the religious exemption analysis. Eugene From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Levinson, Sanford V Sent: Friday, August 14, 2015 11:16 AM To: Law & Religion issues for Law Academics Subject: RE: Colorado Cakeshop decision I suppose I?m like the na?ve first-year student who begins with the assumption that ?common carrier? just means that the ordinary right of the seller to pick and choose among customers is eliminated (at least so long as the purchaser can pay the regular price or, in the cases of innkeepers, is behaving properly). Would an English innkeeper at common law been able to say to a Catholic ?we don?t like your kind here? and turned him/her away (perhaps on Christmas Eve)? I thought the essence of ?common carrier? law (about which I know extremely little, obviously) is that it refers to a category of businesses?inns, moving companies, telephone companies, etc.?and not to that subset of companies that can be described as ?monopolists.? The duties we impose on monopolists rest, presumably, on a different analysis than the duties we impose on Ollie?s Barbecue to stop being a bigot. sandy From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Friday, August 14, 2015 10:06 AM To: Law & Religion issues for Law Academics Subject: RE: Colorado Cakeshop decision Sandy: Why exactly should we all agree that anyone covered by ?common carrier? law could not refuse to provide service to an abortion center ? or a KKK delegation or what have you? After all, we don?t agree that everyone covered by drug laws couldn?t get a religious exemption, or that everyone covered by the duty to serve as a juror couldn?t get a religious exemption, etc. The whole point of religious exemption regimes is to give religious exemptions even to (some) people covered by generally applicable laws. Now if the common carrier is a monopolist, then one could make a good argument that denying the exemption is necessary to serve a compelling interest in making sure that everyone gets access to this service (e.g., electricity). But if the common carrier is not a monopolist ? say, a taxicab driver who refuses to drive a Klansman in Klan regalia, in a situation where the Klansman can easily get a different cab ? I don?t see why common carrier status as such would categorically preclude application of religious exemption law. Finally, as to antidiscrimination law, I think there would be two issues: (1) If the government interest is in making sure that everyone has reasonable access to the good at issue, would granting the exemption really undermine that interest, or would there be dozens of other providers happy to take the customer?s money? (2) If the government interest is in precluding every single instance of discrimination, regardless of its tangible consequences, is that interest compelling enough to overcome the religious exemption claim? Again, that was much discussed in the housing marital status discrimination religious exemption cases. Eugene From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Levinson, Sanford V Sent: Friday, August 14, 2015 10:41 AM To: Law & Religion issues for Law Academics Subject: Re: Colorado Cakeshop decision I suppose one might argue that businesses can refuse to sell to anyone they please, in the absence of relevant public accommodations laws. So I assume we all agree that anyone covered by "common carrier" law could not, for example, refuse to provide service to an abortion center, regardless of religious objections. Ditto re service to members of racial or ethnic minorities, thanks to the Civil Rights Act. I assume that the baker could not refuse to sell the unembellished cupcake to an interracial couple or to a person who announced that it would be consumed at an interracial party, as against, say, a person who said it would be eaten at the Bernie Sanders or Rand Paul campaign headquarters. So the legal issue is when and where sexual orientation has become protected against discrimination. I gather the Colorado decision involves state, and not federal, law. Sandy Sent from my iPhone _______________________________________________ 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. -------------- next part -------------- An HTML attachment was scrubbed... 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