Conflicts between religious exercise and gay rights
Religious beliefs can serve as justifications for many types of conduct that we condemn, e.g., slavery, wife-beating, concubinage, genocide. Discrimination, be it based on race, ethnicity, gender, sexual preference, or other irrelevant personal status, is to be condemned. No one forces service providers to run and operate places of public accommodation. Choosing to do so, when it flies in the face of one's religious beliefs, is self-selected conflict. The individual discriminated again is not in a similar choice position. And telling victims of discrimination that they should look for alternatives -- non-discriminatory service providers -- is not a proper solution. That's reminiscent of black Americans facing Jim Crow practices being told we don't serve blacks here and having to look for and ultimately find alternative services where such practices weren't in use. Service providers with discriminatory religious beliefs don't face any restriction on their beliefs from public accommodations laws. They're just barred from engaging in unlawful conduct, i.e., refusing to provide a non-religious service they willingly provide to others not in the class at issue. This isn't about whether you have to ordain women or allow people in the class to participate in religious activities in ways that impinge on religious beliefs. This is about whether providers of non-religious services (public accommodations) should be permitted to engage in the unlawful conduct of discrimination. SJE Sheri J Engelken Gonzaga University School of Law PO Box 3528; 721 N Cincinnati Spokane, WA 99220 509 313 5891 [EMAIL PROTECTED] From: [EMAIL PROTECTED] on behalf of Brownstein, Alan Sent: Mon 8/4/2008 5:06 PM To: Law Religion issues for Law Academics Subject: RE: Conflicts between religious exefcise and gay rights and cudgels As someone who, in times long past, has had the decidedly miserable experience of looking unsuccessfully for jobs and housing for significant periods of time, I do not think for a moment that people can always find alternative jobs or quality places to live from other providers if they are subject to discrimination. Both jobs and housing can often be hard to find - even when you are not the victim of discrimination. But when alternative services are clearly available, I think Art is correct that what is at issue here is a clash of protected liberty and equality rights that cause somewhat analogous harms. As Vik Amar and I wrote recently, Just as it makes no sense to tell a gay person who has been living with his partner for 20 years to end his relationship, or to stop being gay and enter into a heterosexual relationship, it makes no sense to tell a devout religious individual to set his or her convictions about homosexual conduct aside and adopt a new religion. Neither the gay person nor the religious adherent can reasonably be asked to change who they are. Our laws should reflect that reality in both circumstances. Alan Brownstein From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of [EMAIL PROTECTED] Sent: Monday, August 04, 2008 4:35 PM To: religionlaw@lists.ucla.edu Subject: Re: Conflicts between religious exefcise and gay rights and cudgels Marty Lederman writes: I would respectfully dissent from [the] suggestion that ... gays and lesbians really suffer much harm by being denied services or jobs or housing on the basis of their sexual orientation because they could get such services -- often at a higher quality -- just fine from lots of other providers. ... With all respect, I think this sort of standard libertarian skepticism about the need for antidiscrimination laws significantly trivializes very serious harms. - I don't doubt that some people suffer very serious harms from being denied goods and services based on their race, religion, sexual orientation, etc., even if they could easily obtain the same goods and services elsewhere. - Nor, however, do I doubt that some people suffer very serious harms from being forced to serve certain other people in certain ways, when providing such service contravenes their sincerely-held religious or moral beliefs. - And it seems to me that the harms in these two cases are essentially identical: some combination of emotional distress and moral outrage. - So is there any reason (other than where our personal sympathies happen to lie) to assume that the harm in case #1 is categorically greater than the harm in case #2, or that the harm in case #2 is categorically greater than the harm in case #1? - Given that equal protection and religious freedom are both constitutional values, is there any reason why the legal system should categorically favor the person suffering harm in case #1 over the person suffering harm in case #2, or the person suffering harm in case #2 over the person suffering harm in case #1? Art Spitzer
Are religious accommodations regimes inapplicable to people selling their goods or services?
That's a great argument for Smith, and under Smith. But I don't see how it works under RFRA or other Sherbert/Yoder-type regimes. Sherbert makes clear that even when the government is giving unemployment benefits, it must pass strict scrutiny when it requires behavior that violates religious beliefs as condition of those benefits. I would think the substantial burden is even clearer when the government requires behavior that violates religious beliefs as a condition of someone's use of his own property. Assume, for instance, that the government requires certain businesses (say, gasoline filling stations) to be open Saturdays, and Adele Sherbert -- who went into this line of business -- objects, claiming that the law violates her obligation to keep her business closed on the Sabbath. Would we say that there's no RFRA claim because no one forces [Sherbert] to run and operate [a gas station], and that the law imposes a self-selected conflict? I don't think so; after all, no-one forced Sherbert to apply for unemployment, either. The same, I think, is true as to someone who is required by the law to allow her property (or, in the New Mexico photographer's case, her services) to be used for behavior that her religious beliefs forbid her to assist in. Now one could argue that antidiscrimination law does pass strict scrutiny, though I'm not sure why requiring Elane Huguenin to photograph same-sex weddings -- or interfaith weddings or interracial weddings or whatever else -- is necessary to serve a compelling government interest. But I think one has to get into the strict scrutiny analysis; one can't just avoid it by saying that Huguenin or Sherbert or whoever else could quit her profession or refuse to apply for unemployment benefits. Eugene From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Engelken, Sheri Sent: Tuesday, August 05, 2008 9:03 AM To: Law Religion issues for Law Academics Subject: Conflicts between religious exercise and gay rights Religious beliefs can serve as justifications for many types of conduct that we condemn, e.g., slavery, wife-beating, concubinage, genocide. Discrimination, be it based on race, ethnicity, gender, sexual preference, or other irrelevant personal status, is to be condemned. No one forces service providers to run and operate places of public accommodation. Choosing to do so, when it flies in the face of one's religious beliefs, is self-selected conflict. The individual discriminated again is not in a similar choice position. And telling victims of discrimination that they should look for alternatives -- non-discriminatory service providers -- is not a proper solution. That's reminiscent of black Americans facing Jim Crow practices being told we don't serve blacks here and having to look for and ultimately find alternative services where such practices weren't in use. Service providers with discriminatory religious beliefs don't face any restriction on their beliefs from public accommodations laws. They're just barred from engaging in unlawful conduct, i.e., refusing to provide a non-religious service they willingly provide to others not in the class at issue. This isn't about whether you have to ordain women or allow people in the class to participate in religious activities in ways that impinge on religious beliefs. This is about whether providers of non-religious services (public accommodations) should be permitted to engage in the unlawful conduct of discrimination. SJE Sheri J Engelken Gonzaga University School of Law PO Box 3528; 721 N Cincinnati Spokane, WA 99220 509 313 5891 [EMAIL PROTECTED] From: [EMAIL PROTECTED] on behalf of Brownstein, Alan Sent: Mon 8/4/2008 5:06 PM To: Law Religion issues for Law Academics Subject: RE: Conflicts between religious exefcise and gay rights and cudgels As someone who, in times long past, has had the decidedly miserable experience of looking unsuccessfully for jobs and housing for significant periods of time, I do not think for a moment that people can always find alternative jobs or quality places to live from other providers if they are subject to discrimination. Both jobs and housing can often be hard to find - even when you are not the victim of discrimination. But when alternative services are clearly available, I think Art is correct that what is at issue here is a clash of protected liberty and equality rights that cause somewhat analogous harms. As Vik Amar and I wrote recently, Just as it makes no sense to tell a gay person who has been living with his partner for 20 years to end his relationship, or to stop being gay and enter into a heterosexual relationship, it makes no
Re: Conflicts between religious exercise and gay rights
On Aug 5, 2008, at Tue, Aug 5, 9:02 AM, Engelken, Sheri wrote: Religious beliefs can serve as justifications for many types of conduct that we condemn, e.g., slavery, wife-beating, concubinage, genocide. Discrimination, be it based on race, ethnicity, gender, sexual preference, or other irrelevant personal status, is to be condemned. No one forces service providers to run and operate places of public accommodation. Choosing to do so, when it flies in the face of one's religious beliefs, is self-selected conflict. The individual discriminated again is not in a similar choice position. And telling victims of discrimination that they should look for alternatives -- non-discriminatory service providers -- is not a proper solution. That's reminiscent of black Americans facing Jim Crow practices being told we don't serve blacks here and having to look for and ultimately find alternative services where such practices weren't in use. Service providers with discriminatory religious beliefs don't face any restriction on their beliefs from public accommodations laws. They're just barred from engaging in unlawful conduct, i.e., refusing to provide a non-religious service they willingly provide to others not in the class at issue. This isn't about whether you have to ordain women or allow people in the class to participate in religious activities in ways that impinge on religious beliefs. This is about whether providers of non-religious services (public accommodations) should be permitted to engage in the unlawful conduct of discrimination. SJE Sheri J Engelken Gonzaga University School of Law PO Box 3528; 721 N Cincinnati Spokane, WA 99220 509 313 5891 [EMAIL PROTECTED] Devil's advocate: It could be counter-argued that people seeking public services aren't forced to do so, either. Why shouldn't customers be told to seek alternate services? Non-devil's advocate: I can see a few exceptions; The woman who is prescribed oral contraceptives to treat a medical condition, and the only pharmacist in the county refuses to dispense because of his religious beliefs. ___ 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.
Re: Conflicts between religious exercise and gay rights
Well, yes, but this operates on the presumption that there is agreement on, among other things, what constitutes discrimination and what constitutes public accomodation. But it seems that those are precisely the issues at stake here. We can't simply say the law defines these terms, though, because the law defined them under Jim Crow, too, and we rightly abandoned that system.Richard Dougherty -Original Message- From: Engelken, Sheri [EMAIL PROTECTED] Sent 8/5/2008 11:02:50 AM To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Subject: Conflicts between religious exercise and gay rightsReligious beliefs can serve as justifications for many types of conduct that we condemn, e.g., slavery, wife-beating, concubinage, genocide. Discrimination, be it based on race, ethnicity, gender, sexual preference, or other irrelevant personal status, is to be condemned. No one forces service providers to run and operate places of public accommodation. Choosing to do so, when it flies in the face of one's religious beliefs, is self-selected conflict. The individual discriminated again is not in a similar choice position. And telling victims of discrimination that they should look for alternatives -- non-discriminatory service providers -- is not a proper solution. That's reminiscent of black Americans facing Jim Crow practices being told we don't serve blacks here and having to look for and ultimately find alternative services where such practices weren't in use. Service providers with discriminatory religious beliefs don't face any restriction on their beliefs from public accommodations laws. They're just barred from engaging in unlawful conduct, i.e., refusing to provide a non-religious service they willingly provide to others not in the class at issue. This isn't about whether you have to ordain women or allow people in the class to participate in religious activities in ways that impinge on religious beliefs. This is about whether providers of non-religious services (public accommodations) should be permitted to engage in the unlawful conduct of discrimination. SJE Sheri J Engelken Gonzaga University School of Law PO Box 3528; 721 N Cincinnati Spokane, WA 99220 509 313 5891 [EMAIL PROTECTED] From: [EMAIL PROTECTED] on behalf of Brownstein, Alan Sent: Mon 8/4/2008 5:06 PM To: Law Religion issues for Law Academics Subject: RE: Conflicts between religious exefcise and gay rights and cudgels As someone who, in times long past, has had the decidedly miserable experience of looking unsuccessfully for jobs and housing for significant periods of time, I do not think for a moment that people can always find alternative jobs or quality places to live from other providers if they are subject to discrimination. Both jobs and housing can often be hard to find - even when you are not the victim of discrimination. But when alternative services are clearly available, I think Art is correct that what is at issue here is a clash of protected liberty and equality rights that cause somewhat analogous harms. As Vik Amar and I wrote recently, Just as it makes no sense to tell a gay person who has been living with his partner for 20 years to end his relationship, or to stop being gay and enter into a heterosexual relationship, it makes no sense to tell a devout religious individual to set his or her convictions about homosexual conduct aside and adopt a new religion. Neither the gay person nor the religious adherent can reasonably be asked to change who they are. Our laws should reflect that reality in both circumstances. Alan Brownstein From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of [EMAIL PROTECTED] Sent: Monday, August 04, 2008 4:35 PM To: religionlaw@lists.ucla.edu Subject: Re: Conflicts between religious exefcise and gay rights and cudgels Marty Lederman writes: I would respectfully dissent from [the] suggestion that ... gays and lesbians really suffer much harm by being denied services or jobs or housing on the basis of their sexual orientation because they could get such services -- often at a higher quality -- just fine from lots of other providers. ... With all respect, I think this sort of standard libertarian skepticism about the need for antidiscrimination laws significantly trivializes very serious harms. - I don't doubt that some people suffer very serious harms from being denied goods and services based on their race, religion, sexual orientation, etc., even if they could easily obtain the same goods and services elsewhere. - Nor, however, do I doubt that some people suffer very serious harms from being forced to serve certain other people in certain ways, when providing such service contravenes their sincerely-held religious or moral beliefs. - And it seems to me that the harms in these two cases are essentially identical: some combination of emotional distress and moral outrage. - So is there any reason (other than where our personal
RE: Conflicts between religious exefcise and gay rights and cudgels
Let me note, by the way, how this illustrates why people worry about the slippery slope. In 1964, federal civil rights law covered a narrow set of categories -- race, religion, national origin, sex -- and a relatively narrow zone of behaviors. What's more, while the law undoubtedly interfered with our freedom from the government's telling us whom to deal with, the law was carefully drafted to minimize this interference. Covered public accommodations were distinctly limited, and excluded personal services. Covered employers were limited to large ones, and excluded small businesses in which people often had to work more closely together. I speak here not of a constitutional right, but just of the traditionally recognized ability of people in a free society not to have the government tell them whom to work with, whom to sell to, whom to buy from, and so on. Over the years, all these constraints have been relaxed, and the common argument now assumes that this freedom from government constraint is just valueless -- not just trumped by compelling interests, but not important at all. The common argument is we ban race discrimination in all these other areas, why not ban this other form of discrimination here. The sense is not that freedom to choose, without government interference, whom to deal with was important but was overcome by the compelling interest in dismantling Jim Crow and its legacy. Rather, it's that this freedom to choose one's business partners without government interference just doesn't matter. That didn't happen overnight, I think, nor did it happen just because of changes in social attitudes as such. Rather, this was the attitude-altering effect of antidiscrimination law: Legal inroads (for very powerful reasons) into the freedom to choose one's business relationships without government mandate or prohibition happened one at a time, and over time these legal constraints helped bring about an assumption that the right just doesn't exist. Now antidiscrimination law is being urged not just to trump the traditional but constitutionally unprotected freedom to choose one's business relationships, but the freedom of expressive association, the freedom of speech, and (most relevant to this thread) religious accommodation regimes. Even standing on its own, this seems troubling. But in broader perspective, it seems to me to be yet another step down the slope. Of course, if we should be at the bottom of the slope, with all sorts of decisions -- a photographer's choices of what to photograph, a movie director's choices of which race actors to cast, a person's choices of which roommates to select, a scouting organization's choices of whether to accept gays, the irreligious (like me), or girls, and so on -- being subject to government-imposed antidiscrimination mandates, then we should cheer on the slippage, rather than worrying about it. But it seems to me this is one area where slippage is quite a real risk. And this in turn leads me to wonder whether people should feel so secure with Marty's and others' assurances that there won't be further slippage, for instance to Bob-Jones-like denials of tax exemptions for religions that dare to discriminate based on sexual orientation (alongside the many denials of other generally available benefits that such organizations are finding in many other contexts). And this is especially so if the argument is (cf. Marty's post, Mark Tushnet's post, and others) expressly linked to the analogy to race discrimination; if that argument prevails in one context, why shouldn't it end up being adopted in other contexts, suh as the Bob Jones tax exemption context? Eugene -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] Sent: Monday, August 04, 2008 10:09 AM To: Law Religion issues for Law Academics; Law Religion issues for Law Academics Cc: Volokh, Eugene Subject: Re: Conflicts between religious exefcise and gay rights and cudgels Well, I'm surely not trying to pooh-pooh the religious concerns -- merely to try to probe what, exactly, they are, and how much these conflicts differ from those we saw several decades ago. Eugene helpfully identifies two sorts of cases: 1. Businesses and property owners being required to treat gays and straights alike. OK, I suppose I must concede that I'm not very moved by these cases, nor do I see how those requirements impose much of a burden on religious exercise. Do they require some business owners (and employees) to do things they find distasteful -- often due to religiously inspired moral beliefs? Surely. And that's something to be regretted. But that's true of race-discrimination laws, as well -- and of basic laws prohibiting discrimination against unmarried couples, and on the basis of sexual orientation in the provision of commercial services. There are many, many shopkeepers, landlords,
RE: Conflicts between religious exefcise and gay rights and cudgels
On a related note, several groups have threatened to boycott this January's AALS meeting because of the main convention hotel owner's anti-same sex marriage political activities (a sizeable contribution to the Calif. Prop 8 campaign). See http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202423529779. The impulse is strong not to tolerate dissent from what is believed to be justified expansion of antidiscrimination principles. That impulse decreases the coefficient of friction, creating, as Eugene argues, a rather slippery slope. Mark S. Scarberry Pepperdine University School of Law -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Tuesday, August 05, 2008 11:26 AM To: Law Religion issues for Law Academics Subject: RE: Conflicts between religious exefcise and gay rights and cudgels Let me note, by the way, how this illustrates why people worry about the slippery slope. In 1964, federal civil rights law covered a narrow set of categories -- race, religion, national origin, sex -- and a relatively narrow zone of behaviors. What's more, while the law undoubtedly interfered with our freedom from the government's telling us whom to deal with, the law was carefully drafted to minimize this interference. Covered public accommodations were distinctly limited, and excluded personal services. Covered employers were limited to large ones, and excluded small businesses in which people often had to work more closely together. I speak here not of a constitutional right, but just of the traditionally recognized ability of people in a free society not to have the government tell them whom to work with, whom to sell to, whom to buy from, and so on. Over the years, all these constraints have been relaxed, and the common argument now assumes that this freedom from government constraint is just valueless -- not just trumped by compelling interests, but not important at all. The common argument is we ban race discrimination in all these other areas, why not ban this other form of discrimination here. The sense is not that freedom to choose, without government interference, whom to deal with was important but was overcome by the compelling interest in dismantling Jim Crow and its legacy. Rather, it's that this freedom to choose one's business partners without government interference just doesn't matter. That didn't happen overnight, I think, nor did it happen just because of changes in social attitudes as such. Rather, this was the attitude-altering effect of antidiscrimination law: Legal inroads (for very powerful reasons) into the freedom to choose one's business relationships without government mandate or prohibition happened one at a time, and over time these legal constraints helped bring about an assumption that the right just doesn't exist. Now antidiscrimination law is being urged not just to trump the traditional but constitutionally unprotected freedom to choose one's business relationships, but the freedom of expressive association, the freedom of speech, and (most relevant to this thread) religious accommodation regimes. Even standing on its own, this seems troubling. But in broader perspective, it seems to me to be yet another step down the slope. Of course, if we should be at the bottom of the slope, with all sorts of decisions -- a photographer's choices of what to photograph, a movie director's choices of which race actors to cast, a person's choices of which roommates to select, a scouting organization's choices of whether to accept gays, the irreligious (like me), or girls, and so on -- being subject to government-imposed antidiscrimination mandates, then we should cheer on the slippage, rather than worrying about it. But it seems to me this is one area where slippage is quite a real risk. And this in turn leads me to wonder whether people should feel so secure with Marty's and others' assurances that there won't be further slippage, for instance to Bob-Jones-like denials of tax exemptions for religions that dare to discriminate based on sexual orientation (alongside the many denials of other generally available benefits that such organizations are finding in many other contexts). And this is especially so if the argument is (cf. Marty's post, Mark Tushnet's post, and others) expressly linked to the analogy to race discrimination; if that argument prevails in one context, why shouldn't it end up being adopted in other contexts, suh as the Bob Jones tax exemption context? Eugene -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] Sent: Monday, August 04, 2008 10:09 AM To: Law Religion issues for Law Academics; Law Religion issues for Law Academics Cc: Volokh, Eugene Subject: Re: Conflicts between religious exefcise and gay rights and cudgels Well, I'm surely not trying to pooh-pooh the religious concerns -- merely to try to probe what,
RE: Conflicts between religious exefcise and gay rights and cudgels
With respect to the notion that, before the dreaded 1964 Civil Rights Act, everyone enjoyed the traditionally recognized ability of people in a free society not to have the government tell them whom to work with, whom to sell to, whom to buy from, and so on: It is not a warranted assumption of our civilization that a lunch-counter proprietor will practice a general choosiness about his customers, or that the law is expected to leave him alone in this regard. If the equal protection clause limits his freedom of choice, it limits something which people in his position do not ordinarily think about until the Negro comes in, and something which has frequently been limited by other kinds of law. [FN: It remains a wonder that so much emotion about the sacred right to choose one's customers could be generated and maintained in communities where segregation laws and ordinances, drastically limiting freedom to choose customers as well as other associates, were so long a matter of course. A good night's sleep after the Brown case, and one woke to find that a restaurant was just like a home.] If the equal protection clause were held to apply to his dinner-list at home, it would be breaking in upon a process of discriminating selective! ness wh ich has the flesh-tones of real life; it would be doing so in a manner quite unknown to prior law and astounding to his expectations as to the ambit of law, constitutional and otherwise, in our society. It seems to me that considerations such as these would fully warrant the development, if cases ever arise, of the suggested 'rule of reason.' The social reality of the general distinction projected also vouches for the feasibility of its being drawn. Charles L. Black, Jr., FOREWORD: STATE ACTION, EQUAL PROTECTION, AND CALIFORNIA'S PROPOSITION 14, 81 Harv. L. Rev. 69, 102-103 (1967). -- Original message -- From: Volokh, Eugene [EMAIL PROTECTED] Let me note, by the way, how this illustrates why people worry about the slippery slope. In 1964, federal civil rights law covered a narrow set of categories -- race, religion, national origin, sex -- and a relatively narrow zone of behaviors. What's more, while the law undoubtedly interfered with our freedom from the government's telling us whom to deal with, the law was carefully drafted to minimize this interference. Covered public accommodations were distinctly limited, and excluded personal services. Covered employers were limited to large ones, and excluded small businesses in which people often had to work more closely together. I speak here not of a constitutional right, but just of the traditionally recognized ability of people in a free society not to have the government tell them whom to work with, whom to sell to, whom to buy from, and so on. Over the years, all these constraints have been relaxed, and the common argument now assumes that this freedom from government constraint is just valueless -- not just trumped by compelling interests, but not important at all. The common argument is we ban race discrimination in all these other areas, why not ban this other form of discrimination here. The sense is not that freedom to choose, without government interference, whom to deal with was important but was overcome by the compelling interest in dismantling Jim Crow and its legacy. Rather, it's that this freedom to choose one's business partners without government interference just doesn't matter. That didn't happen overnight, I think, nor did it happen just because of changes in social attitudes as such. Rather, this was the attitude-altering effect of antidiscrimination law: Legal inroads (for very powerful reasons) into the freedom to choose one's business relationships without government mandate or prohibition happened one at a time, and over time these legal constraints helped bring about an assumption that the right just doesn't exist. Now antidiscrimination law is being urged not just to trump the traditional but constitutionally unprotected freedom to choose one's business relationships, but the freedom of expressive association, the freedom of speech, and (most relevant to this thread) religious accommodation regimes. Even standing on its own, this seems troubling. But in broader perspective, it seems to me to be yet another step down the slope. Of course, if we should be at the bottom of the slope, with all sorts of decisions -- a photographer's choices of what to photograph, a movie director's choices of which race actors to cast, a person's choices of which roommates to select, a scouting organization's choices of whether to accept gays, the irreligious (like me), or girls, and so on -- being subject to government-imposed antidiscrimination mandates, then we should cheer on the slippage, rather than worrying about it. But it seems to me this is one area where
RE: Conflicts between religious exefcise and gay rights and cudgels
Well, it's true that there were limits -- clearly unconstitutional limits -- on this right, in the form of Jim Crow laws and the like. But it seems to me that people have long cherished their right to choose whom to deal with. This is true even at lunch counters, where I suspect many proprietors like to exclude patrons whom they see as disruptive, or whom they dislike for some reason. Consider the case from a couple of decades ago where the owner of a German restaurant in L.A. kicked out four patrons for wearing Nazi lapel pins (and was ultimately held liable under California's unusually broad public accommodation discrimination law). Of course proprietors rarely exercise this right, but it doesn't mean that the right isn't treasured precisely for the freedom that it provides. But surely this is even more so when we're talking not just about goods, but about personal services, like a wedding photographer's. What ground is there to pooh-pooh the notion that a photographer, whose job it is to provide a sympathetic, emotionally warm portrayal of events -- in an investment of many hours of labor -- might cherish her right to choose what she'll photograph and what she won't? Perhaps the law there has indeed gone far beyond the rule of reason that Prof. Black was advocating. And more broadly, how would we feel if we were told that, as consumers, we had an obligation not to discriminate in our choice of providers of goods and services? The Legal Writing Institute (perhaps including others) is boycotting a hotel owner on the grounds that the owner contributed to the anti-same-sex-marriage initiative. How would we feel if the law barred such action (even setting aside the calls for the boycott, which might be speech, unless they were found to be incitement, and focusing on the action) and required everyone not to discriminate in choice of hotel based on the hotel owner's political activities, or the hotel owner's religion, or anything else? Even if the law would very rarely be enforced, wouldn't we rightly bristle at the notion that we were being told by the government to do business with service providers whom we otherwise didn't want to do business with? Nor is it sound, it seems to me, to say that somehow consumers' actions don't deprive anyone of a likelihood while business owners' do. A business owner may often suffer more from loss of patrons -- especially in a coordinated boycott -- than a particular same-sex couple would from not being able to hire a particular wedding photographer (and a wedding photographer who probably isn't emotionally in sync enough with their planned event to do a good job in any case). Now perhaps on balance this freedom to choose -- without government coercion -- whom to do business with should indeed yield to compelling (or even not-so-compelling) government interests. But I don't think we can just casually dismiss this freedom as something that no-one thinks about until the Negro comes in. Eugene -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] Sent: Tuesday, August 05, 2008 12:04 PM To: Law Religion issues for Law Academics; Law Religion issues for Law Academics Cc: Volokh, Eugene Subject: RE: Conflicts between religious exefcise and gay rights and cudgels With respect to the notion that, before the dreaded 1964 Civil Rights Act, everyone enjoyed the traditionally recognized ability of people in a free society not to have the government tell them whom to work with, whom to sell to, whom to buy from, and so on: It is not a warranted assumption of our civilization that a lunch-counter proprietor will practice a general choosiness about his customers, or that the law is expected to leave him alone in this regard. If the equal protection clause limits his freedom of choice, it limits something which people in his position do not ordinarily think about until the Negro comes in, and something which has frequently been limited by other kinds of law. [FN: It remains a wonder that so much emotion about the sacred right to choose one's customers could be generated and maintained in communities where segregation laws and ordinances, drastically limiting freedom to choose customers as well as other associates, were so long a matter of course. A good night's sleep after the Brown case, and one woke to find that a restaurant was just like a home.] If the equal protection clause were held to apply to his dinner-list at home, it would be breaking in upon a process of discriminating selective! ness wh ich has the flesh-tones of real life; it would be doing so in a manner quite unknown to prior law and astounding to his expectations as to the ambit of law, constitutional and otherwise, in our society. It seems to me that considerations such as these would fully warrant the development, if cases ever arise, of the suggested 'rule of
RE: Conflicts between religious exefcise and gay rights and cudgels
Well, historically, the impulse has also been strong to stifle dissent from what was believed to be the justified maintenance of discriminatory principles and policies. Boycotts and far worse has been done to people who challenged discriminatory regimes. I wonder if there is a slippery slope here too. The acceptance of discriminatory policies directed at one group defined by race, nationality, religion, sex or sexual orientation over tine weakens society's commitment to prohibit discrimination against other groups as well. If there is an anti-discrimination slippery slope, is there a pro-discrimination slippery slope as well -- depending on the cultural momentum of a given society at a given time. Alan Brownstein -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Scarberry, Mark Sent: Tuesday, August 05, 2008 11:58 AM To: Law Religion issues for Law Academics Subject: RE: Conflicts between religious exefcise and gay rights and cudgels On a related note, several groups have threatened to boycott this January's AALS meeting because of the main convention hotel owner's anti-same sex marriage political activities (a sizeable contribution to the Calif. Prop 8 campaign). See http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202423529779. The impulse is strong not to tolerate dissent from what is believed to be justified expansion of antidiscrimination principles. That impulse decreases the coefficient of friction, creating, as Eugene argues, a rather slippery slope. Mark S. Scarberry Pepperdine University School of Law -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Tuesday, August 05, 2008 11:26 AM To: Law Religion issues for Law Academics Subject: RE: Conflicts between religious exefcise and gay rights and cudgels Let me note, by the way, how this illustrates why people worry about the slippery slope. In 1964, federal civil rights law covered a narrow set of categories -- race, religion, national origin, sex -- and a relatively narrow zone of behaviors. What's more, while the law undoubtedly interfered with our freedom from the government's telling us whom to deal with, the law was carefully drafted to minimize this interference. Covered public accommodations were distinctly limited, and excluded personal services. Covered employers were limited to large ones, and excluded small businesses in which people often had to work more closely together. I speak here not of a constitutional right, but just of the traditionally recognized ability of people in a free society not to have the government tell them whom to work with, whom to sell to, whom to buy from, and so on. Over the years, all these constraints have been relaxed, and the common argument now assumes that this freedom from government constraint is just valueless -- not just trumped by compelling interests, but not important at all. The common argument is we ban race discrimination in all these other areas, why not ban this other form of discrimination here. The sense is not that freedom to choose, without government interference, whom to deal with was important but was overcome by the compelling interest in dismantling Jim Crow and its legacy. Rather, it's that this freedom to choose one's business partners without government interference just doesn't matter. That didn't happen overnight, I think, nor did it happen just because of changes in social attitudes as such. Rather, this was the attitude-altering effect of antidiscrimination law: Legal inroads (for very powerful reasons) into the freedom to choose one's business relationships without government mandate or prohibition happened one at a time, and over time these legal constraints helped bring about an assumption that the right just doesn't exist. Now antidiscrimination law is being urged not just to trump the traditional but constitutionally unprotected freedom to choose one's business relationships, but the freedom of expressive association, the freedom of speech, and (most relevant to this thread) religious accommodation regimes. Even standing on its own, this seems troubling. But in broader perspective, it seems to me to be yet another step down the slope. Of course, if we should be at the bottom of the slope, with all sorts of decisions -- a photographer's choices of what to photograph, a movie director's choices of which race actors to cast, a person's choices of which roommates to select, a scouting organization's choices of whether to accept gays, the irreligious (like me), or girls, and so on -- being subject to government-imposed antidiscrimination mandates, then we should cheer on the slippage, rather than worrying about it. But it seems to me this is one area where slippage is quite a real risk. And this in turn leads me to wonder whether people should feel so secure with Marty's and others' assurances that there
