Can someone be legally obligated to have sex with people she's unwilling to have sex with?
Mark: So do I understand correctly that you think it's OK for the government to say: As a condition of your being able to earn a living in your chosen occupation [here, prostitution], you are legally obligated to have sex with people you're unwilling to have sex with. That surprises me, but I'd love to hear more about it. Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Graber, Mark Sent: Saturday, February 14, 2015 2:49 AM To: Law Religion issues for Law Academics Subject: RE: The racist prostitute hypothetical I confess that I get off at the second paragraph (or the first substantive paragraph). My spouse is an excellent breadbaker and therapist. For a while, she just bakes for friends and only comforts friends and does so for friendship. Turns out all our friends are of the same race, religion, sexual orientation, etc. I presume these choices are constitutionally protected. One day, after receiving numerous comments of the sort, you really ought to go into business, she does. The first person who orders bread and asks for therapy is of a different race, religion, sexual orientation, etc. I take it this can be regulated. The first amendment does protect some activities, even when done commercially, but at the very least those activities cannot be described as Eugene does below as just business. If it is just business (and that is not what a clergy person thinks they are doing when they marry someone), then it ought to be subject to anti- discrimination law. From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Volokh, Eugene [vol...@law.ucla.edu] Sent: Saturday, February 14, 2015 12:01 AM To: Law Religion issues for Law Academics (religionlaw@lists.ucla.edu) Subject: The racist prostitute hypothetical I've been thinking about a little thought experiment, and I thought I'd run it past this list to see whether people see it as helpful. Imagine a state in which prostitution is legalized. A prostitute offers her services to the general public (perhaps through a web site, which as I understand it is not uncommon). She is generally not very selective, because it's just business. But she doesn't like black people. A black would-be customer feels understandably insulted by this, so he sues her for discrimination in public accommodations. And the state law does cover all businesses, bricks and mortar or not, that provide goods or services to the general public. (That, after all, is the sort of law that covers bakers, wedding photographers, and perhaps ministers who charge for their services.) My inclination is that the prostitute should have an absolute right to discriminate on any basis she wants, whether it's race, religion, marital status, age, or whatever else. And that is true even though she charges money, and generally provides her services to everyone. (I say she and he in this example, but of course the same would apply regardless of the sex or sexual orientation of the parties.) The choice of whom to have sex with is a personal choice, even when done commercially, and no-one should have to have sex with someone they don't want to have sex with - on pain of either facing a fine or having to quit one's chosen line of business - no matter how many for-pay partners they might have. Are people on this list with me so far? Now the next step: I think that, while sexual conduct should involve a right to choose for particular reasons having to do with bodily autonomy, some other conduct should involve a similar right to choose for other reasons. Religious autonomy, intellectual/expressive autonomy, and personal/familial autonomy are examples of that. Forcing a member of the clergy to perform a marriage he views as unholy, on pain of having to surrender his livelihood (or even a major outside source of income) strikes me as wrong in a way similar to forcing a prostitute to engage in a sexual transaction that she views as repulsive (even if we don't at all share her judgment about the repulsiveness). Naturally, the similarity is distinctly limited: but it is present in the way important here, which is that people should remain autonomous in their religious behavior as well as their sexual behavior. I would say the same about, for instance, a freelance writer who is willing to serve most customers, but who refuses to write press releases for the Church of Scientology (notwithstanding a ban on religious discrimination in public accommodations), or a singer who refuses to sing songs praising a same- sex married couple, or a wedding photographer who refuses to create photographs that portray as beautiful
Re: Can someone be legally obligated to have sex with people she's unwilling to have sex with?
Look at the Nevada law of public accommodations, https://www.leg.state.nv.us/NRS/NRS-651.html#NRS651Sec060. It is focused on places open to the general public, not on particular kinds of work. It covers any bar or restaurant, or any establishment that includes a bar or restaurant. And it includes Any . . .establishment or place to which the public is invited or which is intended for public use. It excludes private clubs or other establishment not in fact open to the public. So it appears that a house of prostitution in Nevada would be covered by the public accommodations law, while a service that sends a prostitute to a residence or hotel room is not. Does this seem surprising? Nevada has legalized the business of prostitution, subject to regulations, and so treats such places of business like any other (including specifically a gymnasium, health spa, bowling alley, golf course or other place of exercise or recreation.) On Sat, Feb 14, 2015 at 12:19 PM, Volokh, Eugene vol...@law.ucla.edu wrote: Mark: So do I understand correctly that you think it's OK for the government to say: As a condition of your being able to earn a living in your chosen occupation [here, prostitution], you are legally obligated to have sex with people you're unwilling to have sex with. That surprises me, but I'd love to hear more about it. Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Graber, Mark Sent: Saturday, February 14, 2015 2:49 AM To: Law Religion issues for Law Academics Subject: RE: The racist prostitute hypothetical I confess that I get off at the second paragraph (or the first substantive paragraph). My spouse is an excellent breadbaker and therapist. For a while, she just bakes for friends and only comforts friends and does so for friendship. Turns out all our friends are of the same race, religion, sexual orientation, etc. I presume these choices are constitutionally protected. One day, after receiving numerous comments of the sort, you really ought to go into business, she does. The first person who orders bread and asks for therapy is of a different race, religion, sexual orientation, etc. I take it this can be regulated. The first amendment does protect some activities, even when done commercially, but at the very least those activities cannot be described as Eugene does below as just business. If it is just business (and that is not what a clergy person thinks they are doing when they marry someone), then it ought to be subject to anti- discrimination law. From: religionlaw-boun...@lists.ucla.edu [ religionlaw-boun...@lists.ucla.edu] on behalf of Volokh, Eugene [vol...@law.ucla.edu] Sent: Saturday, February 14, 2015 12:01 AM To: Law Religion issues for Law Academics (religionlaw@lists.ucla.edu) Subject: The racist prostitute hypothetical I've been thinking about a little thought experiment, and I thought I'd run it past this list to see whether people see it as helpful. Imagine a state in which prostitution is legalized. A prostitute offers her services to the general public (perhaps through a web site, which as I understand it is not uncommon). She is generally not very selective, because it's just business. But she doesn't like black people. A black would-be customer feels understandably insulted by this, so he sues her for discrimination in public accommodations. And the state law does cover all businesses, bricks and mortar or not, that provide goods or services to the general public. (That, after all, is the sort of law that covers bakers, wedding photographers, and perhaps ministers who charge for their services.) My inclination is that the prostitute should have an absolute right to discriminate on any basis she wants, whether it's race, religion, marital status, age, or whatever else. And that is true even though she charges money, and generally provides her services to everyone. (I say she and he in this example, but of course the same would apply regardless of the sex or sexual orientation of the parties.) The choice of whom to have sex with is a personal choice, even when done commercially, and no-one should have to have sex with someone they don't want to have sex with - on pain of either facing a fine or having to quit one's chosen line of business - no matter how many for-pay partners they might have. Are people on this list with me so far? Now the next step: I think that, while sexual conduct should involve a right to choose for particular reasons having to do with bodily autonomy, some other conduct should involve a similar right to choose for other reasons. Religious autonomy, intellectual/expressive
RE: Can someone be legally obligated to have sex with people she's unwilling to have sex with?
Well, I'm quite surprised by that reaction, and I'd love to hear what others say. When the prostitute has sex with others, it's just business in the sense that it's not love or romance or affection or even recreation -- but I would have thought that no law could ever mandate that someone, in business or out, have sex with people she's unwilling to have sex with (on pain of losing her livelihood). Again, I'd love to hear whether it is Mark's or my view that is idiosyncratic here, or whether there's a substantial split of opinion. By the way, returning to the start of this thread, to the extent that others share Mark's view, I assume they would think it even more clearly applicable to clergy who charge for officiating (and who generally officiate for most people who ask them). If that's so, then I'd think that the Oklahoma legislators who voted for the law protecting clergy from such obligations might be less foolish than some suggested: It may well be that in some cities in Oklahoma, people who share Mark's view might indeed be able to get broad public accommodations laws elected and implemented, if not today then as public views change (and they've been changing very quickly on sexual orientation questions). Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Graber, Mark Sent: Saturday, February 14, 2015 9:27 AM To: Law Religion issues for Law Academics Subject: RE: Can someone be legally obligated to have sex with people she's unwilling to have sex with? Yes. To quote EV it is just a business. From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Volokh, Eugene [vol...@law.ucla.edu] Sent: Saturday, February 14, 2015 12:19 PM To: Law Religion issues for Law Academics Subject: Can someone be legally obligated to have sex with people she's unwilling to have sex with? Mark: So do I understand correctly that you think it's OK for the government to say: As a condition of your being able to earn a living in your chosen occupation [here, prostitution], you are legally obligated to have sex with people you're unwilling to have sex with. That surprises me, but I'd love to hear more about it. Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Graber, Mark Sent: Saturday, February 14, 2015 2:49 AM To: Law Religion issues for Law Academics Subject: RE: The racist prostitute hypothetical I confess that I get off at the second paragraph (or the first substantive paragraph). My spouse is an excellent breadbaker and therapist. For a while, she just bakes for friends and only comforts friends and does so for friendship. Turns out all our friends are of the same race, religion, sexual orientation, etc. I presume these choices are constitutionally protected. One day, after receiving numerous comments of the sort, you really ought to go into business, she does. The first person who orders bread and asks for therapy is of a different race, religion, sexual orientation, etc. I take it this can be regulated. The first amendment does protect some activities, even when done commercially, but at the very least those activities cannot be described as Eugene does below as just business. If it is just business (and that is not what a clergy person thinks they are doing when they marry someone), then it ought to be subject to anti- discrimination law. From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Volokh, Eugene [vol...@law.ucla.edu] Sent: Saturday, February 14, 2015 12:01 AM To: Law Religion issues for Law Academics (religionlaw@lists.ucla.edu) Subject: The racist prostitute hypothetical I've been thinking about a little thought experiment, and I thought I'd run it past this list to see whether people see it as helpful. Imagine a state in which prostitution is legalized. A prostitute offers her services to the general public (perhaps through a web site, which as I understand it is not uncommon). She is generally not very selective, because it's just business. But she doesn't like black people. A black would-be customer feels understandably insulted by this, so he sues her for discrimination in public accommodations. And the state law does cover all businesses, bricks and mortar or not, that provide goods or services to the general public. (That, after all, is the sort of law that covers bakers, wedding photographers, and perhaps ministers who charge for their services.) My inclination is that the prostitute should have an absolute right
RE: Can someone be legally obligated to have sex with people she's unwilling to have sex with?
Yes. To quote EV it is just a business. From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Volokh, Eugene [vol...@law.ucla.edu] Sent: Saturday, February 14, 2015 12:19 PM To: Law Religion issues for Law Academics Subject: Can someone be legally obligated to have sex with people she's unwilling to have sex with? Mark: So do I understand correctly that you think it's OK for the government to say: As a condition of your being able to earn a living in your chosen occupation [here, prostitution], you are legally obligated to have sex with people you're unwilling to have sex with. That surprises me, but I'd love to hear more about it. Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Graber, Mark Sent: Saturday, February 14, 2015 2:49 AM To: Law Religion issues for Law Academics Subject: RE: The racist prostitute hypothetical I confess that I get off at the second paragraph (or the first substantive paragraph). My spouse is an excellent breadbaker and therapist. For a while, she just bakes for friends and only comforts friends and does so for friendship. Turns out all our friends are of the same race, religion, sexual orientation, etc. I presume these choices are constitutionally protected. One day, after receiving numerous comments of the sort, you really ought to go into business, she does. The first person who orders bread and asks for therapy is of a different race, religion, sexual orientation, etc. I take it this can be regulated. The first amendment does protect some activities, even when done commercially, but at the very least those activities cannot be described as Eugene does below as just business. If it is just business (and that is not what a clergy person thinks they are doing when they marry someone), then it ought to be subject to anti- discrimination law. From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Volokh, Eugene [vol...@law.ucla.edu] Sent: Saturday, February 14, 2015 12:01 AM To: Law Religion issues for Law Academics (religionlaw@lists.ucla.edu) Subject: The racist prostitute hypothetical I've been thinking about a little thought experiment, and I thought I'd run it past this list to see whether people see it as helpful. Imagine a state in which prostitution is legalized. A prostitute offers her services to the general public (perhaps through a web site, which as I understand it is not uncommon). She is generally not very selective, because it's just business. But she doesn't like black people. A black would-be customer feels understandably insulted by this, so he sues her for discrimination in public accommodations. And the state law does cover all businesses, bricks and mortar or not, that provide goods or services to the general public. (That, after all, is the sort of law that covers bakers, wedding photographers, and perhaps ministers who charge for their services.) My inclination is that the prostitute should have an absolute right to discriminate on any basis she wants, whether it's race, religion, marital status, age, or whatever else. And that is true even though she charges money, and generally provides her services to everyone. (I say she and he in this example, but of course the same would apply regardless of the sex or sexual orientation of the parties.) The choice of whom to have sex with is a personal choice, even when done commercially, and no-one should have to have sex with someone they don't want to have sex with - on pain of either facing a fine or having to quit one's chosen line of business - no matter how many for-pay partners they might have. Are people on this list with me so far? Now the next step: I think that, while sexual conduct should involve a right to choose for particular reasons having to do with bodily autonomy, some other conduct should involve a similar right to choose for other reasons. Religious autonomy, intellectual/expressive autonomy, and personal/familial autonomy are examples of that. Forcing a member of the clergy to perform a marriage he views as unholy, on pain of having to surrender his livelihood (or even a major outside source of income) strikes me as wrong in a way similar to forcing a prostitute to engage in a sexual transaction that she views as repulsive (even if we don't at all share her judgment about the repulsiveness). Naturally, the similarity is distinctly limited: but it is present in the way important here, which is that people should remain autonomous in their religious behavior as well as their sexual behavior. I would say the same about
RE: Can someone be legally obligated to have sex with people she's unwilling to have sex with?
The federal government would disagree, and label it sex-trafficking under 18 USC 1591, which was enacted in part under the Commerce Clause and the 13th Amendment. -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Graber, Mark Sent: Saturday, February 14, 2015 12:27 PM To: Law Religion issues for Law Academics Subject: RE: Can someone be legally obligated to have sex with people she's unwilling to have sex with? Yes. To quote EV it is just a business. From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Volokh, Eugene [vol...@law.ucla.edu] Sent: Saturday, February 14, 2015 12:19 PM To: Law Religion issues for Law Academics Subject: Can someone be legally obligated to have sex with people she's unwilling to have sex with? Mark: So do I understand correctly that you think it's OK for the government to say: As a condition of your being able to earn a living in your chosen occupation [here, prostitution], you are legally obligated to have sex with people you're unwilling to have sex with. That surprises me, but I'd love to hear more about it. Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Graber, Mark Sent: Saturday, February 14, 2015 2:49 AM To: Law Religion issues for Law Academics Subject: RE: The racist prostitute hypothetical I confess that I get off at the second paragraph (or the first substantive paragraph). My spouse is an excellent breadbaker and therapist. For a while, she just bakes for friends and only comforts friends and does so for friendship. Turns out all our friends are of the same race, religion, sexual orientation, etc. I presume these choices are constitutionally protected. One day, after receiving numerous comments of the sort, you really ought to go into business, she does. The first person who orders bread and asks for therapy is of a different race, religion, sexual orientation, etc. I take it this can be regulated. The first amendment does protect some activities, even when done commercially, but at the very least those activities cannot be described as Eugene does below as just business. If it is just business (and that is not what a clergy person thinks they are doing when they marry someone), then it ought to be subject to anti- discrimination law. From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Volokh, Eugene [vol...@law.ucla.edu] Sent: Saturday, February 14, 2015 12:01 AM To: Law Religion issues for Law Academics (religionlaw@lists.ucla.edu) Subject: The racist prostitute hypothetical I've been thinking about a little thought experiment, and I thought I'd run it past this list to see whether people see it as helpful. Imagine a state in which prostitution is legalized. A prostitute offers her services to the general public (perhaps through a web site, which as I understand it is not uncommon). She is generally not very selective, because it's just business. But she doesn't like black people. A black would-be customer feels understandably insulted by this, so he sues her for discrimination in public accommodations. And the state law does cover all businesses, bricks and mortar or not, that provide goods or services to the general public. (That, after all, is the sort of law that covers bakers, wedding photographers, and perhaps ministers who charge for their services.) My inclination is that the prostitute should have an absolute right to discriminate on any basis she wants, whether it's race, religion, marital status, age, or whatever else. And that is true even though she charges money, and generally provides her services to everyone. (I say she and he in this example, but of course the same would apply regardless of the sex or sexual orientation of the parties.) The choice of whom to have sex with is a personal choice, even when done commercially, and no-one should have to have sex with someone they don't want to have sex with - on pain of either facing a fine or having to quit one's chosen line of business - no matter how many for-pay partners they might have. Are people on this list with me so far? Now the next step: I think that, while sexual conduct should involve a right to choose for particular reasons having to do with bodily autonomy, some other conduct should involve a similar right to choose for other reasons. Religious autonomy, intellectual/expressive autonomy, and personal/familial autonomy are examples of that. Forcing a member of the clergy to perform a marriage he views as unholy, on pain of having
RE: Can someone be legally obligated to have sex with people she's unwilling to have sex with?
No time to say more now. It’s Valentine’ Day! (A good day to think about celebratory art and romantic relationships.) Consider: A Stalinist group that wants to rent a hall owned by a Ukrainian immigrant to celebrate Stalin and the Holodomor (and Putin’s invasion of Ukraine). A group that wants to rent a hall owned by a German immigrant who survived the Dresden fire-bombing to celebrate that event, which occurred on Feb. 13, 70 years ago. http://www.bbc.com/news/world-europe-31452693. More to the point: A professional photographer who is an environmentalist and who does not want to do a celebratory photo-shoot of the cutting down of the remaining 12 ancient redwoods in the county and the building of a shopping center on the site (complete with shots showcasing the bravery of the lumberjacks and the vibrant industry of the construction workers, and the joy of shoppers who flock to the new shopping center). I continue to find it hard to understand how wedding photographers can be considered as anything other than creators of copyrightable celebratory art, complete with instructions on posing for pictures, framing of shots, etc. Don’t we all understand that photography is a kind of art? Here is a link to a local wedding photographer’s website: http://www.mariannewilsonphotography.com/. Can anyone doubt that that the photos on the website are celebratory art (though we might differ as to the quality of the art, which is completely irrelevant)? Mark Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law See From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu Sent: Saturday, February 14, 2015 9:38 AM To: Law Religion issues for Law Academics Subject: Re: Can someone be legally obligated to have sex with people she's unwilling to have sex with? Look at the Nevada law of public accommodations, https://www.leg.state.nv.us/NRS/NRS-651.html#NRS651Sec060. It is focused on places open to the general public, not on particular kinds of work. It covers any bar or restaurant, or any establishment that includes a bar or restaurant. And it includes Any . . .establishment or place to which the public is invited or which is intended for public use. It excludes private clubs or other establishment not in fact open to the public. So it appears that a house of prostitution in Nevada would be covered by the public accommodations law, while a service that sends a prostitute to a residence or hotel room is not. Does this seem surprising? Nevada has legalized the business of prostitution, subject to regulations, and so treats such places of business like any other (including specifically a gymnasium, health spa, bowling alley, golf course or other place of exercise or recreation.) On Sat, Feb 14, 2015 at 12:19 PM, Volokh, Eugene vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote: Mark: So do I understand correctly that you think it's OK for the government to say: As a condition of your being able to earn a living in your chosen occupation [here, prostitution], you are legally obligated to have sex with people you're unwilling to have sex with. That surprises me, but I'd love to hear more about it. Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-mailto:religionlaw- boun...@lists.ucla.edumailto:boun...@lists.ucla.edu] On Behalf Of Graber, Mark Sent: Saturday, February 14, 2015 2:49 AM To: Law Religion issues for Law Academics Subject: RE: The racist prostitute hypothetical I confess that I get off at the second paragraph (or the first substantive paragraph). My spouse is an excellent breadbaker and therapist. For a while, she just bakes for friends and only comforts friends and does so for friendship. Turns out all our friends are of the same race, religion, sexual orientation, etc. I presume these choices are constitutionally protected. One day, after receiving numerous comments of the sort, you really ought to go into business, she does. The first person who orders bread and asks for therapy is of a different race, religion, sexual orientation, etc. I take it this can be regulated. The first amendment does protect some activities, even when done commercially, but at the very least those activities cannot be described as Eugene does below as just business. If it is just business (and that is not what a clergy person thinks they are doing when they marry someone), then it ought to be subject to anti- discrimination law. From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu] on behalf of Volokh, Eugene [vol...@law.ucla.edumailto:vol...@law.ucla.edu] Sent: Saturday, February 14, 2015 12:01 AM
Re: Can someone be legally obligated to have sex with people she's unwilling to have sex with?
Philosophically, I see two issues. First, a prostitute, by definition, is almost always having sex with someone he or she doesn't want to, because, absent payment, he or she would not be doing that. I imagine the clients are of the worst that this sort of business can provide as far as attractiveness goes, so that adopting a racial preference would hardly be rational. One wants to say: they aren't having sex with the person, they are merely involved in a monetary transaction. It's just work. But at the same time, it is quite tempting to say that a person should have autonomy over his or her intimacy preferences. Otherwise, why not say that they would have to accept people of the same or different gender, else it would be discrimination. I don't think discrimination could ever touch upon who you wanted to have sex with, even if it became monetarized and sold. But I confess that this issues seems best left to sociologists and to pragmatism, not to philosophers or lawyers. We would be the LAST to see the answer. Sent from my iPad On Feb 14, 2015, at 12:19 PM, Volokh, Eugene vol...@law.ucla.edu wrote: Mark: So do I understand correctly that you think it's OK for the government to say: As a condition of your being able to earn a living in your chosen occupation [here, prostitution], you are legally obligated to have sex with people you're unwilling to have sex with. That surprises me, but I'd love to hear more about it. Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Graber, Mark Sent: Saturday, February 14, 2015 2:49 AM To: Law Religion issues for Law Academics Subject: RE: The racist prostitute hypothetical I confess that I get off at the second paragraph (or the first substantive paragraph). My spouse is an excellent breadbaker and therapist. For a while, she just bakes for friends and only comforts friends and does so for friendship. Turns out all our friends are of the same race, religion, sexual orientation, etc. I presume these choices are constitutionally protected. One day, after receiving numerous comments of the sort, you really ought to go into business, she does. The first person who orders bread and asks for therapy is of a different race, religion, sexual orientation, etc. I take it this can be regulated. The first amendment does protect some activities, even when done commercially, but at the very least those activities cannot be described as Eugene does below as just business. If it is just business (and that is not what a clergy person thinks they are doing when they marry someone), then it ought to be subject to anti- discrimination law. From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Volokh, Eugene [vol...@law.ucla.edu] Sent: Saturday, February 14, 2015 12:01 AM To: Law Religion issues for Law Academics (religionlaw@lists.ucla.edu) Subject: The racist prostitute hypothetical I've been thinking about a little thought experiment, and I thought I'd run it past this list to see whether people see it as helpful. Imagine a state in which prostitution is legalized. A prostitute offers her services to the general public (perhaps through a web site, which as I understand it is not uncommon). She is generally not very selective, because it's just business. But she doesn't like black people. A black would-be customer feels understandably insulted by this, so he sues her for discrimination in public accommodations. And the state law does cover all businesses, bricks and mortar or not, that provide goods or services to the general public. (That, after all, is the sort of law that covers bakers, wedding photographers, and perhaps ministers who charge for their services.) My inclination is that the prostitute should have an absolute right to discriminate on any basis she wants, whether it's race, religion, marital status, age, or whatever else. And that is true even though she charges money, and generally provides her services to everyone. (I say she and he in this example, but of course the same would apply regardless of the sex or sexual orientation of the parties.) The choice of whom to have sex with is a personal choice, even when done commercially, and no-one should have to have sex with someone they don't want to have sex with - on pain of either facing a fine or having to quit one's chosen line of business - no matter how many for-pay partners they might have. Are people on this list with me so far? Now the next step: I think that, while sexual conduct should involve a right to choose for particular reasons having to do with bodily autonomy, some other conduct should involve a similar right to choose for other
RE: Can someone be legally obligated to have sex with people she's unwilling to have sex with?
And with apologies for responding to my own post a second time: The cases are not distinguishable unless religious conscience is entitled to special protection, which would make the case for the religiously motivated photographer stronger. Mark Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law From: Scarberry, Mark Sent: Saturday, February 14, 2015 12:03 PM To: 'Law Religion issues for Law Academics' Subject: RE: Can someone be legally obligated to have sex with people she's unwilling to have sex with? It should go without saying (but I will say it) that I am in no way suggesting that same-sex marriage is like the Holodomor or the fire-bombing of Dresden, except to say that the cases are not distinguishable as a matter of constitutional law. The environmentalist photographer example is not so different, even setting aside legal analysis. Mark Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law From: Scarberry, Mark Sent: Saturday, February 14, 2015 11:58 AM To: Law Religion issues for Law Academics Subject: RE: Can someone be legally obligated to have sex with people she's unwilling to have sex with? No time to say more now. It’s Valentine’ Day! (A good day to think about celebratory art and romantic relationships.) Consider: A Stalinist group that wants to rent a hall owned by a Ukrainian immigrant to celebrate Stalin and the Holodomor (and Putin’s invasion of Ukraine). A group that wants to rent a hall owned by a German immigrant who survived the Dresden fire-bombing to celebrate that event, which occurred on Feb. 13, 70 years ago. http://www.bbc.com/news/world-europe-31452693. More to the point: A professional photographer who is an environmentalist and who does not want to do a celebratory photo-shoot of the cutting down of the remaining 12 ancient redwoods in the county and the building of a shopping center on the site (complete with shots showcasing the bravery of the lumberjacks and the vibrant industry of the construction workers, and the joy of shoppers who flock to the new shopping center). I continue to find it hard to understand how wedding photographers can be considered as anything other than creators of copyrightable celebratory art, complete with instructions on posing for pictures, framing of shots, etc. Don’t we all understand that photography is a kind of art? Here is a link to a local wedding photographer’s website: http://www.mariannewilsonphotography.com/. Can anyone doubt that that the photos on the website are celebratory art (though we might differ as to the quality of the art, which is completely irrelevant)? Mark Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law ___ 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: Can someone be legally obligated to have sex with people she's unwilling to have sex with?
It should go without saying (but I will say it) that I am in no way suggesting that same-sex marriage is like the Holodomor or the fire-bombing of Dresden, except to say that the cases are not distinguishable as a matter of constitutional law. The environmentalist photographer example is not so different, even setting aside legal analysis. Mark Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law From: Scarberry, Mark Sent: Saturday, February 14, 2015 11:58 AM To: Law Religion issues for Law Academics Subject: RE: Can someone be legally obligated to have sex with people she's unwilling to have sex with? No time to say more now. It’s Valentine’ Day! (A good day to think about celebratory art and romantic relationships.) Consider: A Stalinist group that wants to rent a hall owned by a Ukrainian immigrant to celebrate Stalin and the Holodomor (and Putin’s invasion of Ukraine). A group that wants to rent a hall owned by a German immigrant who survived the Dresden fire-bombing to celebrate that event, which occurred on Feb. 13, 70 years ago. http://www.bbc.com/news/world-europe-31452693. More to the point: A professional photographer who is an environmentalist and who does not want to do a celebratory photo-shoot of the cutting down of the remaining 12 ancient redwoods in the county and the building of a shopping center on the site (complete with shots showcasing the bravery of the lumberjacks and the vibrant industry of the construction workers, and the joy of shoppers who flock to the new shopping center). I continue to find it hard to understand how wedding photographers can be considered as anything other than creators of copyrightable celebratory art, complete with instructions on posing for pictures, framing of shots, etc. Don’t we all understand that photography is a kind of art? Here is a link to a local wedding photographer’s website: http://www.mariannewilsonphotography.com/. Can anyone doubt that that the photos on the website are celebratory art (though we might differ as to the quality of the art, which is completely irrelevant)? Mark Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law ___ 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: Can someone be legally obligated to have sex with people she's unwilling to have sex with?
I'm not sure I understand the last paragraph. The legal system has to decide whether to legally obligate someone to have sex with people she's unwilling to have sex with. Seems to me that lawyers and legal scholars should have a thing or two to say about it, whether the question is framed as a constitutional question, a statutory construction question, or a statutory drafting question. Beyond this, the question of when people can be rightly legally required to have sex with someone is, I would think, a moral question -- not just a sociological or pragmati[c] one, whatever that might mean -- on which I would think moral philosophers should also opine. As to the first substantive paragraph, a prostitute likely often has sex with someone she doesn't want to -- just as free-lance press release writers probably often write things they don't want to write, because, absent payment, they'd rather be relaxing. But that hardly tells us whether the law should require prostitutes to have sex with people she is unwilling to have sex with even for money, or whether the law should require the press release writers to write Scientology press releases even if they would happily forgo that contract. Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of seanwilson...@yahoo.com Sent: Saturday, February 14, 2015 11:04 AM To: Law Religion issues for Law Academics Subject: Re: Can someone be legally obligated to have sex with people she's unwilling to have sex with? Philosophically, I see two issues. First, a prostitute, by definition, is almost always having sex with someone he or she doesn't want to, because, absent payment, he or she would not be doing that. I imagine the clients are of the worst that this sort of business can provide as far as attractiveness goes, so that adopting a racial preference would hardly be rational. One wants to say: they aren't having sex with the person, they are merely involved in a monetary transaction. It's just work. But at the same time, it is quite tempting to say that a person should have autonomy over his or her intimacy preferences. Otherwise, why not say that they would have to accept people of the same or different gender, else it would be discrimination. I don't think discrimination could ever touch upon who you wanted to have sex with, even if it became monetarized and sold. But I confess that this issues seems best left to sociologists and to pragmatism, not to philosophers or lawyers. We would be the LAST to see the answer. Sent from my iPad On Feb 14, 2015, at 12:19 PM, Volokh, Eugene vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote: Mark: So do I understand correctly that you think it's OK for the government to say: As a condition of your being able to earn a living in your chosen occupation [here, prostitution], you are legally obligated to have sex with people you're unwilling to have sex with. That surprises me, but I'd love to hear more about it. Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edumailto:boun...@lists.ucla.edu] On Behalf Of Graber, Mark Sent: Saturday, February 14, 2015 2:49 AM To: Law Religion issues for Law Academics Subject: RE: The racist prostitute hypothetical I confess that I get off at the second paragraph (or the first substantive paragraph). My spouse is an excellent breadbaker and therapist. For a while, she just bakes for friends and only comforts friends and does so for friendship. Turns out all our friends are of the same race, religion, sexual orientation, etc. I presume these choices are constitutionally protected. One day, after receiving numerous comments of the sort, you really ought to go into business, she does. The first person who orders bread and asks for therapy is of a different race, religion, sexual orientation, etc. I take it this can be regulated. The first amendment does protect some activities, even when done commercially, but at the very least those activities cannot be described as Eugene does below as just business. If it is just business (and that is not what a clergy person thinks they are doing when they marry someone), then it ought to be subject to anti- discrimination law. From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Volokh, Eugene [vol...@law.ucla.edu] Sent: Saturday, February 14, 2015 12:01 AM To: Law Religion issues for Law Academics (religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu
RE: Can someone be legally obligated to have sex with people she's unwilling to have sex with?
Some state laws indeed might not cover prostitutes who sell only their own services. But New Mexico law – as we saw in the wedding photographer example – applies to service providers, even if they don’t provide a service at a fixed location of their own (such as a bar, restaurant, or brothel). My initial claim in the hypo is that, if a state legalizes prostitution and has a New-Mexico-style law, it ought to exempt prostitutes. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu Sent: Saturday, February 14, 2015 9:38 AM To: Law Religion issues for Law Academics Subject: Re: Can someone be legally obligated to have sex with people she's unwilling to have sex with? Look at the Nevada law of public accommodations, https://www.leg.state.nv.us/NRS/NRS-651.html#NRS651Sec060. It is focused on places open to the general public, not on particular kinds of work. It covers any bar or restaurant, or any establishment that includes a bar or restaurant. And it includes Any . . .establishment or place to which the public is invited or which is intended for public use. It excludes private clubs or other establishment not in fact open to the public. So it appears that a house of prostitution in Nevada would be covered by the public accommodations law, while a service that sends a prostitute to a residence or hotel room is not. Does this seem surprising? Nevada has legalized the business of prostitution, subject to regulations, and so treats such places of business like any other (including specifically a gymnasium, health spa, bowling alley, golf course or other place of exercise or recreation.) On Sat, Feb 14, 2015 at 12:19 PM, Volokh, Eugene vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote: Mark: So do I understand correctly that you think it's OK for the government to say: As a condition of your being able to earn a living in your chosen occupation [here, prostitution], you are legally obligated to have sex with people you're unwilling to have sex with. That surprises me, but I'd love to hear more about it. Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-mailto:religionlaw- boun...@lists.ucla.edumailto:boun...@lists.ucla.edu] On Behalf Of Graber, Mark Sent: Saturday, February 14, 2015 2:49 AM To: Law Religion issues for Law Academics Subject: RE: The racist prostitute hypothetical I confess that I get off at the second paragraph (or the first substantive paragraph). My spouse is an excellent breadbaker and therapist. For a while, she just bakes for friends and only comforts friends and does so for friendship. Turns out all our friends are of the same race, religion, sexual orientation, etc. I presume these choices are constitutionally protected. One day, after receiving numerous comments of the sort, you really ought to go into business, she does. The first person who orders bread and asks for therapy is of a different race, religion, sexual orientation, etc. I take it this can be regulated. The first amendment does protect some activities, even when done commercially, but at the very least those activities cannot be described as Eugene does below as just business. If it is just business (and that is not what a clergy person thinks they are doing when they marry someone), then it ought to be subject to anti- discrimination law. From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu] on behalf of Volokh, Eugene [vol...@law.ucla.edumailto:vol...@law.ucla.edu] Sent: Saturday, February 14, 2015 12:01 AM To: Law Religion issues for Law Academics (religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu) Subject: The racist prostitute hypothetical I've been thinking about a little thought experiment, and I thought I'd run it past this list to see whether people see it as helpful. Imagine a state in which prostitution is legalized. A prostitute offers her services to the general public (perhaps through a web site, which as I understand it is not uncommon). She is generally not very selective, because it's just business. But she doesn't like black people. A black would-be customer feels understandably insulted by this, so he sues her for discrimination in public accommodations. And the state law does cover all businesses, bricks and mortar or not, that provide goods or services to the general public. (That, after all, is the sort of law that covers bakers, wedding photographers, and perhaps ministers who charge for their services.) My inclination is that the prostitute should have an absolute
Re: Can someone be legally obligated to have sex with people she's unwilling to have sex with?
Mark:
I think there might be a difference, in terms of commercial activity between
the artistic photographer, who shoots and sells photos and the commercial
photographer who advertises that he does weddings, confirmations, family
portraits etc. One is essentially an artist, who sometimes takes a commission.
I agree with you that an artists can refuse a commission, just like we can
refuse to write a book when a publisher asks us to.
But, if our business is open to all, then it has to be open to all. The person
photographs people is no different than an auto mechanic or a dentist. The
other has an open business that anyone can walk in off the street and use.
Similarly, while we can decline to write a book, if our class is open to all
students, we cannot refuse to let some in on the grounds that we oppose their
beliefs, faith, color, life style etc.
And, if you can discriminate on the basis of gender then you presumably can for
race or religion.
None of the people who have refused to sell their product to gay people are
arguing they are artists. They are business owners who sell to the general
public. Except when they don't like the general public!
And, if you rent out your theater or lecture hall, you do it for all comers if
that is your business.
To take your hypo further, Mark. If you have a photography studio and you are
an animal rights person, can you refuse to photograph the two hunters who come
in to get their pictures taken in their hunting clothes? And if some state
requires a photo for a fishing or hunting license, can that person refuse to
take the picture?
We can spin hypos all day. We are trained to that. The bottom line is this:
do we allow businesses to discriminate on the basis of race, gender, or
religion? If we do, then we might as well repeal the 1964 Civil Rights Act,
and allow private discrimination across the board; no more black people in your
restaurant or gays or Catholics of Jews or Mormons or Evangelicals, or whoever
you don't like.
Is that where you want to go?
**
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
www.paulfinkelman.com
From: Scarberry, Mark mark.scarbe...@pepperdine.edu
To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu
Sent: Saturday, February 14, 2015 3:36 PM
Subject: RE: Can someone be legally obligated to have sex with people she's
unwilling to have sex with?
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{}#yiv8338140651 And with apologies for responding to my own post a second
time: The cases are not distinguishable unless religious conscience is entitled
to special protection, which would make the case for the religiously motivated
photographer stronger. Mark Mark S. ScarberryProfessor of LawPepperdine Univ.
School of Law
From: Scarberry, Mark
Sent: Saturday, February 14, 2015 12:03 PM
To: 'Law Religion issues for Law Academics'
Subject: RE: Can someone be legally obligated to have sex with people she's
unwilling to have sex with? It should go without saying (but I will say it)
that I am in no way suggesting that same-sex marriage is like the Holodomor or
the fire-bombing of Dresden, except to say that the cases are not
distinguishable as a matter of constitutional law. The environmentalist
photographer example is not so different, even setting aside legal analysis.
Mark Mark S. ScarberryProfessor of LawPepperdine Univ. School of Law
From: Scarberry, Mark
Sent: Saturday, February 14, 2015 11:58 AM
To: Law Religion issues for Law Academics
Subject: RE: Can
