RE: The racist prostitute hypothetical
I think the answer is yes, just like I think the choice of whether to write / photograph / paint / sing something should come within the freedom from compelled speech recognized in Barnette, Wooley, and other cases. But some people, as I understand it, take the view that once one does something for money, and is generally willing to do it for many would-be clients -- whether that something is sex, conducting religious ceremonies, writing press releases, or taking photographs -- one no longer has such a right to privacy, to religious freedom, or to freedom of speech. Eugene > -Original Message- > From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- > boun...@lists.ucla.edu] On Behalf Of Will Linden > Sent: Monday, February 16, 2015 1:54 PM > To: Law & Religion issues for Law Academics > Subject: RE: The racist prostitute hypothetical > > Maybe I am missing something but would not the choice of who to engage > in sex with come under the "right of privacy" doctrine iniitiated by Griswold? > > ___ > To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, > change options, or get password, see http://lists.ucla.edu/cgi- > bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be viewed as private. > Anyone can subscribe to the list and read messages that are posted; people can > read the Web archives; and list members can (rightly or wrongly) forward the > messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: The racist prostitute hypothetical
Maybe I am missing something but would not the choice of who to engage in sex with come under the "right of privacy" doctrine iniitiated by Griswold? ___ 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: The racist prostitute hypothetical
The question isn't so much of whether the behavior is emotionally intimate, but whether it is sufficiently physically (or intellectually) intimate or personal that a person ought to have a right to choose her partners for such behavior. There are prostitutes legally working in Nevada, and of course illegally working throughout the country. They might not view their professional sex as emotionally intimate. But I would think that many of them value greatly their right to decide whom to allow into their bodies -- and that, if they do value it greatly, that is a right that the law must respect. However blasé prostitutes might be about sex with the clients choose, I see no justification for denying them the right to so choose. Eugene > -Original Message- > From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- > boun...@lists.ucla.edu] On Behalf Of Graber, Mark > Sent: Sunday, February 15, 2015 5:27 PM > To: Law & Religion issues for Law Academics > Subject: RE: The racist prostitute hypothetical > > Dear All: > > This goes back in time a bit, but I have had a busy weekend and wanted to > respond to those who wondered why I think the racist prostitute should be > subject to anti-discrimination laws. > > One feature of several rights is that we do not allow people to commodify > them, > or at least commodify them in certain ways. So while people have the right to > vote, and may choose when exercising the right to vote may vote only for > persons of color (or white persons), we do not allow persons to sell their > right to > vote. We think the reason people ought to have a right to vote is justified > by the > same principle that supports forbidding the right to sell the vote. > > Consider sex. One reason we think persons have a right to certain sexual > relationships is that we think government should not ban intimate > relationships. > One reason many people think prostitution should be banned is that intimacy is > not the sort of good that should be bought and sold. But now imagine we live > in > a world in which people have no problem commodifying sex. The best reason > for thinking this is that they do not regard commercial sex as intimate > behavior. > They regard sex as more akin to back rubs, and or ice cream, but of which are > subject to anti-discrimination rights. But if people do not think commercial > sex > is intimate behavior than the main reason why we allow discrimination has been > rejected. > > In short, my claim is that if sex is just business, then sex is not intimate, > and only > intimate relationships and actions should enjoy immunity for > anti-discrimination > rules. > > MAG > ___ > To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, > change options, or get password, see http://lists.ucla.edu/cgi- > bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be viewed as private. > Anyone can subscribe to the list and read messages that are posted; people can > read the Web archives; and list members can (rightly or wrongly) forward the > messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: The racist prostitute hypothetical
Got it -- you are making an argument that the state has a compelling interest in prohibiting discrimination against interracial couples in the commercial marketplace, but does not have a compelling interest in prohibiting discrimination against same-sex couples in the commercial marketplace. Although that is not an argument with which I'd agree on the merits (I'd find a compelling interest in both cases), it is indeed an argument that can be made in states that either follow Sherbert under their state constitution or have a RFRA. And it is an argument that could be made under the federal RFRA in the event that business owners seek exemptions from a future federal LGBT rights law. What confused me was the reference to people "wrongly" making religious liberty claims and the attempted analogy to the treatment of libel and slander under free speech law -- which involves judging the falsity of speech, not the strength of government interests. - Jim On Sun, Feb 15, 2015 at 6:39 PM, Brad Pardee wrote: > You are misunderstanding me. I'm not saying saying that there ar e true > religious objections and false religious objections. I'm saying that, just > as there is speech that is protected as free speech and there is speech > that is not protected, there are religious objections that are (or once > were) protected and there are religious objections that are not protected > (think human sacrifice as an extreme example that I think we would all > agree is not and never has been protected). The Sherbert rule was useful > in distinguishing between them. After Employment Division v Smith > dispensed with the Sherbert rule and any meaningful free exercise > protection, we wind up in a situations such as where we have no idea what > the Court will consider protected and what it will not. Transforming a > guarantee of free exercise into a mere anti-discrimination law undermines > the very principle of religious freedom. Instead, any time anyone says > that a certain law, neutral on its face, places a significant burden on > their free exercise, it can (and often is) dismissed with "People supported > slavery and opposed interracial marriage the same way." That's not free > exercise under any definition that has any meaning. > > > > *From:* religionlaw-boun...@lists.ucla.edu [mailto: > religionlaw-boun...@lists.ucla.edu] *On Behalf Of *James Oleske > *Sent:* Sunday, February 15, 2015 6:20 PM > *To:* Law & Religion issues for Law Academics > *Subject:* Re: The racist prostitute hypothetical > > > > Sorry -- I hit "send" accidentally before finishing my message below. > Here's the omitted paragraph: > > What is clear from comparing the Court's free speech and free exercise > doctrines is that government *can* regulate "false" speech (with limits); > it *cannot* regulate "false" religious beliefs. As a result, Brad's > effort to distinguish between what he believes to be a "true" religious > objection to same-sex marriage and a "false" religious objection to > interracial marriage is a non-starter under Supreme Court doctrine. > > Does anyone other than Brad disagree with this? > > > > On Sun, Feb 15, 2015 at 4:09 PM, James Oleske wrote: > > Brad writes of free speech doctrine: > > "[T]he court isn't determining if a person's words are mistaken . . . when > they say that free speech doesn't cover slander or libel. > > we have long held that actual malice requires material falsity > > *Air Wisconsin Airlines Corp. v. Hoeper*, 134 S. Ct. 852, 861, 187 L. Ed. > 2d 744 *reh'g denied,* 134 S. Ct. 1575, 188 L. Ed. 2d 582 (2014) > > > > > > > On Sun, Feb 15, 2015 at 3:37 PM, Brad Pardee > wrote: > > It's not about the Court saying that beliefs are mistaken, insubstantial, > plausible, logical, or comprehensible. It's about the Court determining > what is covered by the free exercise clause and what is not. Again, to > parallel the free speech guarantees, the court isn't determining if a > person's words are mistaken, insubstantial, plausible, logical, or > comprehensible when they say that free speech doesn't cover slander or > libel. > > > > That was the value of the Sherbert test because it established a way to > determine what exercise of religion is protected and what exercise of > religion is not, without making a determination on the merits of of the > religious beliefs that are the basis of the exercise in question. In my > opinion, the reason why I think Employment Division v Smith ranks right up > with Dred Scott v Sandford among the worst decisions the Supreme Court has > ever issued. > > > > *Fro
RE: The racist prostitute hypothetical
You are misunderstanding me. I'm not saying saying that there ar e true religious objections and false religious objections. I'm saying that, just as there is speech that is protected as free speech and there is speech that is not protected, there are religious objections that are (or once were) protected and there are religious objections that are not protected (think human sacrifice as an extreme example that I think we would all agree is not and never has been protected). The Sherbert rule was useful in distinguishing between them. After Employment Division v Smith dispensed with the Sherbert rule and any meaningful free exercise protection, we wind up in a situations such as where we have no idea what the Court will consider protected and what it will not. Transforming a guarantee of free exercise into a mere anti-discrimination law undermines the very principle of religious freedom. Instead, any time anyone says that a certain law, neutral on its face, places a significant burden on their free exercise, it can (and often is) dismissed with "People supported slavery and opposed interracial marriage the same way." That's not free exercise under any definition that has any meaning. From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of James Oleske Sent: Sunday, February 15, 2015 6:20 PM To: Law & Religion issues for Law Academics Subject: Re: The racist prostitute hypothetical Sorry -- I hit "send" accidentally before finishing my message below. Here's the omitted paragraph: What is clear from comparing the Court's free speech and free exercise doctrines is that government can regulate "false" speech (with limits); it cannot regulate "false" religious beliefs. As a result, Brad's effort to distinguish between what he believes to be a "true" religious objection to same-sex marriage and a "false" religious objection to interracial marriage is a non-starter under Supreme Court doctrine. Does anyone other than Brad disagree with this? On Sun, Feb 15, 2015 at 4:09 PM, James Oleske wrote: Brad writes of free speech doctrine: "[T]he court isn't determining if a person's words are mistaken . . . when they say that free speech doesn't cover slander or libel. we have long held that actual malice requires material falsity Air Wisconsin Airlines Corp. v. Hoeper, 134 S. Ct. 852, 861, 187 L. Ed. 2d 744 reh'g denied, 134 S. Ct. 1575, 188 L. Ed. 2d 582 (2014) On Sun, Feb 15, 2015 at 3:37 PM, Brad Pardee wrote: It's not about the Court saying that beliefs are mistaken, insubstantial, plausible, logical, or comprehensible. It's about the Court determining what is covered by the free exercise clause and what is not. Again, to parallel the free speech guarantees, the court isn't determining if a person's words are mistaken, insubstantial, plausible, logical, or comprehensible when they say that free speech doesn't cover slander or libel. That was the value of the Sherbert test because it established a way to determine what exercise of religion is protected and what exercise of religion is not, without making a determination on the merits of of the religious beliefs that are the basis of the exercise in question. In my opinion, the reason why I think Employment Division v Smith ranks right up with Dred Scott v Sandford among the worst decisions the Supreme Court has ever issued. From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of James Oleske Sent: Saturday, February 14, 2015 10:25 PM To: Law & Religion issues for Law Academics Subject: Re: The racist prostitute hypothetical Brad writes: "[T]he fact that people have wrongly tried [to] make religious freedom claims doesn't mean we disregard all religious freedom claims. We ought to be able to distinguish between the two." Although Brad thinks the law "ought" to be able to distinguish between "wrong" and "correct" religious freedom claims, we can all agree that this view is flatly inconsistent with Supreme Court precedent, correct? "[I]t is not for us to say that their religious beliefs are mistaken or insubstantial. Instead, our 'narrow function . . . in this context is to determine' whether the line drawn reflects 'an honest conviction.' "Repeatedly and in many different contexts, we have warned that courts must not presume to determine . . . the plausibility of a religious claim." "[R]eligious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection" - Jim On Sat, Feb 14, 2015 at 8:03 PM, Brad Pardee wrote: I'ts not an all or nothing. The fact that the freedom of spee
Re: The racist prostitute hypothetical
... thanks for that. It's an interesting distinction. Sent from my iPad > On Feb 15, 2015, at 8:26 PM, Graber, Mark wrote: > > Dear All: > > This goes back in time a bit, but I have had a busy weekend and wanted to > respond to those who wondered why I think the racist prostitute should be > subject to anti-discrimination laws. > > One feature of several rights is that we do not allow people to commodify > them, or at least commodify them in certain ways. So while people have the > right to vote, and may choose when exercising the right to vote may vote only > for persons of color (or white persons), we do not allow persons to sell > their right to vote. We think the reason people ought to have a right to > vote is justified by the same principle that supports forbidding the right to > sell the vote. > > Consider sex. One reason we think persons have a right to certain sexual > relationships is that we think government should not ban intimate > relationships. One reason many people think prostitution should be banned is > that intimacy is not the sort of good that should be bought and sold. But > now imagine we live in a world in which people have no problem commodifying > sex. The best reason for thinking this is that they do not regard commercial > sex as intimate behavior. They regard sex as more akin to back rubs, and or > ice cream, but of which are subject to anti-discrimination rights. But if > people do not think commercial sex is intimate behavior than the main reason > why we allow discrimination has been rejected. > > In short, my claim is that if sex is just business, then sex is not intimate, > and only intimate relationships and actions should enjoy immunity for > anti-discrimination rules. > > MAG > ___ > To post, send message to Religionlaw@lists.ucla.edu > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be viewed as > private. Anyone can subscribe to the list and read messages that are posted; > people can read the Web archives; and list members can (rightly or wrongly) > forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: The racist prostitute hypothetical
Mark, Do I take you to mean that not only do you not distinguish between services once they have been placed into the stream of commerce, you do not distinguish between services and goods? -K On Sun, Feb 15, 2015 at 8:26 PM, Graber, Mark wrote: > Dear All: > > This goes back in time a bit, but I have had a busy weekend and wanted to > respond to those who wondered why I think the racist prostitute should be > subject to anti-discrimination laws. > > One feature of several rights is that we do not allow people to commodify > them, or at least commodify them in certain ways. So while people have the > right to vote, and may choose when exercising the right to vote may vote > only for persons of color (or white persons), we do not allow persons to > sell their right to vote. We think the reason people ought to have a right > to vote is justified by the same principle that supports forbidding the > right to sell the vote. > > Consider sex. One reason we think persons have a right to certain sexual > relationships is that we think government should not ban intimate > relationships. One reason many people think prostitution should be banned > is that intimacy is not the sort of good that should be bought and sold. > But now imagine we live in a world in which people have no problem > commodifying sex. The best reason for thinking this is that they do not > regard commercial sex as intimate behavior. They regard sex as more akin > to back rubs, and or ice cream, but of which are subject to > anti-discrimination rights. But if people do not think commercial sex is > intimate behavior than the main reason why we allow discrimination has been > rejected. > > In short, my claim is that if sex is just business, then sex is not > intimate, and only intimate relationships and actions should enjoy immunity > for anti-discrimination rules. > > MAG > ___ > To post, send message to Religionlaw@lists.ucla.edu > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be viewed as > private. Anyone can subscribe to the list and read messages that are > posted; people can read the Web archives; and list members can (rightly or > wrongly) forward the messages to others. > ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: The racist prostitute hypothetical
Dear All: This goes back in time a bit, but I have had a busy weekend and wanted to respond to those who wondered why I think the racist prostitute should be subject to anti-discrimination laws. One feature of several rights is that we do not allow people to commodify them, or at least commodify them in certain ways. So while people have the right to vote, and may choose when exercising the right to vote may vote only for persons of color (or white persons), we do not allow persons to sell their right to vote. We think the reason people ought to have a right to vote is justified by the same principle that supports forbidding the right to sell the vote. Consider sex. One reason we think persons have a right to certain sexual relationships is that we think government should not ban intimate relationships. One reason many people think prostitution should be banned is that intimacy is not the sort of good that should be bought and sold. But now imagine we live in a world in which people have no problem commodifying sex. The best reason for thinking this is that they do not regard commercial sex as intimate behavior. They regard sex as more akin to back rubs, and or ice cream, but of which are subject to anti-discrimination rights. But if people do not think commercial sex is intimate behavior than the main reason why we allow discrimination has been rejected. In short, my claim is that if sex is just business, then sex is not intimate, and only intimate relationships and actions should enjoy immunity for anti-discrimination rules. MAG ___ 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: The racist prostitute hypothetical
Sorry -- I hit "send" accidentally before finishing my message below. Here's the omitted paragraph: What is clear from comparing the Court's free speech and free exercise doctrines is that government *can* regulate "false" speech (with limits); it *cannot* regulate "false" religious beliefs. As a result, Brad's effort to distinguish between what he believes to be a "true" religious objection to same-sex marriage and a "false" religious objection to interracial marriage is a non-starter under Supreme Court doctrine. Does anyone other than Brad disagree with this? On Sun, Feb 15, 2015 at 4:09 PM, James Oleske wrote: > Brad writes of free speech doctrine: > > "[T]he court isn't determining if a person's words are mistaken . . . when > they say that free speech doesn't cover slander or libel. > > we have long held that actual malice requires material falsity > > *Air Wisconsin Airlines Corp. v. Hoeper*, 134 S. Ct. 852, 861, 187 L. Ed. > 2d 744 *reh'g denied,* 134 S. Ct. 1575, 188 L. Ed. 2d 582 (2014) > > > <http://ssrn.com/author=357864> > > On Sun, Feb 15, 2015 at 3:37 PM, Brad Pardee > wrote: > >> It's not about the Court saying that beliefs are mistaken, insubstantial, >> plausible, logical, or comprehensible. It's about the Court determining >> what is covered by the free exercise clause and what is not. Again, to >> parallel the free speech guarantees, the court isn't determining if a >> person's words are mistaken, insubstantial, plausible, logical, or >> comprehensible when they say that free speech doesn't cover slander or >> libel. >> >> >> >> That was the value of the Sherbert test because it established a way to >> determine what exercise of religion is protected and what exercise of >> religion is not, without making a determination on the merits of of the >> religious beliefs that are the basis of the exercise in question. In my >> opinion, the reason why I think Employment Division v Smith ranks right up >> with Dred Scott v Sandford among the worst decisions the Supreme Court has >> ever issued. >> >> >> >> *From:* religionlaw-boun...@lists.ucla.edu [mailto: >> religionlaw-boun...@lists.ucla.edu] *On Behalf Of *James Oleske >> *Sent:* Saturday, February 14, 2015 10:25 PM >> *To:* Law & Religion issues for Law Academics >> *Subject:* Re: The racist prostitute hypothetical >> >> >> >> Brad writes: >> >> "[T]he fact that people have wrongly tried [to] make religious freedom >> claims doesn't mean we disregard all religious freedom claims. We ought to >> be able to distinguish between the two." >> >> >> >> Although Brad thinks the law "ought" to be able to distinguish between >> "wrong" and "correct" religious freedom claims, we can all agree that this >> view is flatly inconsistent with Supreme Court precedent, correct? >> >> >> "[I]t is not for us to say that their religious beliefs are mistaken or >> insubstantial. Instead, our 'narrow function . . . in this context is to >> determine' whether the line drawn reflects 'an honest conviction.' >> >> "Repeatedly and in many different contexts, we have warned that courts >> must not presume to determine . . . the plausibility of a religious claim." >> >> "[R]eligious beliefs need not be acceptable, logical, consistent, or >> comprehensible to others in order to merit First Amendment protection" >> >> - Jim >> >> On Sat, Feb 14, 2015 at 8:03 PM, Brad Pardee >> wrote: >> >> I'ts not an all or nothing. The fact that the freedom of speech does not >> protect slander and libel doesn't mean we disregard every other freedom of >> speech claim. We are able to distinguish between the two. Similarly, the >> fact that people have wrongly tried make religious freedom claims doesn't >> mean we disregard all religious freedom claims. We ought to be able to >> distinguish between the two. The difference between same sex relationships >> and interracial relationships seems like one of those distinctions. The >> difference between people of different races is not the same between the >> difference between genders. That's why, for instance, the Negro Leagues in >> baseball have gone by the wayside and yet nobody is saying that the players >> of the WNBA should just try to make the teams in the NBA. >> >> >> >> *From:* religionlaw-boun...@lists.uc
Re: The racist prostitute hypothetical
Brad writes of free speech doctrine: "[T]he court isn't determining if a person's words are mistaken . . . when they say that free speech doesn't cover slander or libel. we have long held that actual malice requires material falsity *Air Wisconsin Airlines Corp. v. Hoeper*, 134 S. Ct. 852, 861, 187 L. Ed. 2d 744 *reh'g denied,* 134 S. Ct. 1575, 188 L. Ed. 2d 582 (2014) <http://ssrn.com/author=357864> On Sun, Feb 15, 2015 at 3:37 PM, Brad Pardee wrote: > It's not about the Court saying that beliefs are mistaken, insubstantial, > plausible, logical, or comprehensible. It's about the Court determining > what is covered by the free exercise clause and what is not. Again, to > parallel the free speech guarantees, the court isn't determining if a > person's words are mistaken, insubstantial, plausible, logical, or > comprehensible when they say that free speech doesn't cover slander or > libel. > > > > That was the value of the Sherbert test because it established a way to > determine what exercise of religion is protected and what exercise of > religion is not, without making a determination on the merits of of the > religious beliefs that are the basis of the exercise in question. In my > opinion, the reason why I think Employment Division v Smith ranks right up > with Dred Scott v Sandford among the worst decisions the Supreme Court has > ever issued. > > > > *From:* religionlaw-boun...@lists.ucla.edu [mailto: > religionlaw-boun...@lists.ucla.edu] *On Behalf Of *James Oleske > *Sent:* Saturday, February 14, 2015 10:25 PM > *To:* Law & Religion issues for Law Academics > *Subject:* Re: The racist prostitute hypothetical > > > > Brad writes: > > "[T]he fact that people have wrongly tried [to] make religious freedom > claims doesn't mean we disregard all religious freedom claims. We ought to > be able to distinguish between the two." > > > > Although Brad thinks the law "ought" to be able to distinguish between > "wrong" and "correct" religious freedom claims, we can all agree that this > view is flatly inconsistent with Supreme Court precedent, correct? > > > "[I]t is not for us to say that their religious beliefs are mistaken or > insubstantial. Instead, our 'narrow function . . . in this context is to > determine' whether the line drawn reflects 'an honest conviction.' > > "Repeatedly and in many different contexts, we have warned that courts > must not presume to determine . . . the plausibility of a religious claim." > > "[R]eligious beliefs need not be acceptable, logical, consistent, or > comprehensible to others in order to merit First Amendment protection" > > - Jim > > On Sat, Feb 14, 2015 at 8:03 PM, Brad Pardee > wrote: > > I'ts not an all or nothing. The fact that the freedom of speech does not > protect slander and libel doesn't mean we disregard every other freedom of > speech claim. We are able to distinguish between the two. Similarly, the > fact that people have wrongly tried make religious freedom claims doesn't > mean we disregard all religious freedom claims. We ought to be able to > distinguish between the two. The difference between same sex relationships > and interracial relationships seems like one of those distinctions. The > difference between people of different races is not the same between the > difference between genders. That's why, for instance, the Negro Leagues in > baseball have gone by the wayside and yet nobody is saying that the players > of the WNBA should just try to make the teams in the NBA. > > > > *From:* religionlaw-boun...@lists.ucla.edu [mailto: > religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Hillel Y. Levin > *Sent:* Saturday, February 14, 2015 8:48 PM > *To:* Law & Religion issues for Law Academics > *Subject:* Re: The racist prostitute hypothetical > > > > Brad: > > > > The distinction you see between same-sex relationships and interracial > relationships makes sense to *you*. It surely does not make sense to > someone who opposes interracial marriages on religious grounds. > > > > > ___ > 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: The racist prostitute hypothetical
It's not about the Court saying that beliefs are mistaken, insubstantial, plausible, logical, or comprehensible. It's about the Court determining what is covered by the free exercise clause and what is not. Again, to parallel the free speech guarantees, the court isn't determining if a person's words are mistaken, insubstantial, plausible, logical, or comprehensible when they say that free speech doesn't cover slander or libel. That was the value of the Sherbert test because it established a way to determine what exercise of religion is protected and what exercise of religion is not, without making a determination on the merits of of the religious beliefs that are the basis of the exercise in question. In my opinion, the reason why I think Employment Division v Smith ranks right up with Dred Scott v Sandford among the worst decisions the Supreme Court has ever issued. From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of James Oleske Sent: Saturday, February 14, 2015 10:25 PM To: Law & Religion issues for Law Academics Subject: Re: The racist prostitute hypothetical Brad writes: "[T]he fact that people have wrongly tried [to] make religious freedom claims doesn't mean we disregard all religious freedom claims. We ought to be able to distinguish between the two." Although Brad thinks the law "ought" to be able to distinguish between "wrong" and "correct" religious freedom claims, we can all agree that this view is flatly inconsistent with Supreme Court precedent, correct? "[I]t is not for us to say that their religious beliefs are mistaken or insubstantial. Instead, our 'narrow function . . . in this context is to determine' whether the line drawn reflects 'an honest conviction.' "Repeatedly and in many different contexts, we have warned that courts must not presume to determine . . . the plausibility of a religious claim." "[R]eligious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection" - Jim On Sat, Feb 14, 2015 at 8:03 PM, Brad Pardee wrote: I'ts not an all or nothing. The fact that the freedom of speech does not protect slander and libel doesn't mean we disregard every other freedom of speech claim. We are able to distinguish between the two. Similarly, the fact that people have wrongly tried make religious freedom claims doesn't mean we disregard all religious freedom claims. We ought to be able to distinguish between the two. The difference between same sex relationships and interracial relationships seems like one of those distinctions. The difference between people of different races is not the same between the difference between genders. That's why, for instance, the Negro Leagues in baseball have gone by the wayside and yet nobody is saying that the players of the WNBA should just try to make the teams in the NBA. From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Hillel Y. Levin Sent: Saturday, February 14, 2015 8:48 PM To: Law & Religion issues for Law Academics Subject: Re: The racist prostitute hypothetical Brad: The distinction you see between same-sex relationships and interracial relationships makes sense to you. It surely does not make sense to someone who opposes interracial marriages on religious grounds. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: The racist prostitute hypothetical
If a person is going into a bakery and buying a cake off the shelf without the baker doing anything, that's one thing. But they wouldn't have to talk to the baker for that. It's by talking to the baker, asking for a cake to be specifically created or designed for this specific occasion that is problematic. That's the point where you are asking the baker to become a participant in the preparation of the event that their faith requires that they not participate in. From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Finkelman, Paul Sent: Saturday, February 14, 2015 9:59 PM To: Law & Religion issues for Law Academics Subject: RE: The racist prostitute hypothetical Brad: Tell me why is the wedding cake which I pick up at your bakery and take to my wedding any different than the rental tux I pick up, the flowers I bring to the wedding, or the limo I rent. Or, if I buy the car for the wedding party, how is the cake any different than the car I bought at the dealer. Can the liquor store refuse to sell me wine for the wedding reception? Or for the ceremony itself? If the parties take communion before the ceremony, can the liquor store owner refused to sell wine? * Paul Finkelman Senior Fellow Penn Program on Democracy, Citizenship, and Constitutionalism University of Pennsylvania and Scholar-in-Residence National Constitution Center Philadelphia, Pennsylvania 518-439-7296 (p) 518-605-0296 (c) paul.finkel...@albanylaw.edu www.paulfinkelman.com <http://www.paulfinkelman.com/> * _ From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Brad Pardee [bp51...@windstream.net] Sent: Saturday, February 14, 2015 7:41 PM To: 'Law & Religion issues for Law Academics' Subject: RE: The racist prostitute hypothetical Let me clearer. There is a difference between saying you won't serve certain people and saying you won't be a participant in a certain event. A wedding cake is part and parcel of the event, same as providing the floral settings and taking the photographs, although I realize don't agree with that. That's why the baker, florist, or photographer should have the freedom to choose not to be a part of events that their faith forbids them to take part in. If the condition of their remaining in business is that they abandon the tenets of their faith, then they don't have any religious freedom that has any meaning. The problem with comparing a same sex wedding with an interracial wedding is that the color of a person's skin is no different than the color of a person's hair or the color of a person's eyes. I don't think anybody would say that the difference in genders is a strictly cosmetic distinction. Brad From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of James Oleske Sent: Saturday, February 14, 2015 11:27 AM To: Law & Religion issues for Law Academics Subject: Re: The racist prostitute hypothetical "Refusing to bake a wedding cake for [interracial] couples is about not taking part in a specific event. Refusing to bake bread for someone who is [black] is about not serving a specific type of person. Two very different things." Brad -- with those bracketed alterations, do you stick with what I perceive to be your view that the baker should have a right to refuse to bake the wedding cake? If not, I would suggest that bakers making wedding cakes for the general public do not fall within the intimate sphere of privacy that Eugene is trying to identify with his hypothetical. Like Eugene, I think for-profit ministers and freelance writers present more difficult cases, though I disagree with him that most wedding photographer situations present difficult cases. - Jim ___ 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: The racist prostitute hypothetical
I was trying to avoid the problematic separation of religious and ethnic identities involved with Judaism in particular. In reality of course religion, language, national origin, race and ethnicity all get marvelously complex. Out of curiosity, for those who are of the opinion that anti-discrimination law should/does apply to the baker, the florist and the for profit minister, would it change your opinion if that person, engaged in a for-profit business open to the public, is objecting to providing that commercial service to their own child or other social acquaintance? Should I have the right to, say, force an racist former teacher who moonlights as a wedding minster to perform at my wedding (or face civil liability for not), or my baker mother-in-law-to-be to decorate me a lovely cake? On Sun, Feb 15, 2015 at 11:48 AM, Volokh, Eugene wrote: >I don’t think we have to postulate this, or focus on highly > out-of-the-mainstream religious groups. As I understand it, many a devout > Jew will approve, on religious grounds, of a wedding between an irreligious > ethnic Jew like me and another Jew, without any extra work that I would > have to do to get more devout – but will disapprove of an equally > irreligious person who isn’t ethnically Jewish marrying a Jew, at least > unless the non-Jew goes through a long and cumbersome conversion process. > If the devout Jew doesn’t want to participate in the wedding, whether by > officiating, photographing, or catering, that would therefore constitute > discrimination based on ethnicity, generally treated by American law the > same as race discrimination. > > > >Eugene > > > > *From:* religionlaw-boun...@lists.ucla.edu [mailto: > religionlaw-boun...@lists.ucla.edu] *On Behalf Of *K Chen > *Sent:* Sunday, February 15, 2015 7:53 AM > *To:* Law & Religion issues for Law Academics > *Subject:* Re: The racist prostitute hypothetical > > > > Then we simply postulate that the objection is stated, sincerely, to be on > the objector's religious beliefs. No race, no mere cosmetics, but a deeply > held religious belief on the nature of culture/nation. > > > > On Sat, Feb 14, 2015 at 11:12 PM, Brad Pardee > wrote: > > In the absence of some factor not listed here, I don't see a religious > freedom issue here. > > > > Brad > > > > *From:* religionlaw-boun...@lists.ucla.edu [mailto: > religionlaw-boun...@lists.ucla.edu] *On Behalf Of *K Chen > *Sent:* Saturday, February 14, 2015 8:51 PM > *To:* Law & Religion issues for Law Academics > *Subject:* RE: The racist prostitute hypothetical > > > > > Brad you said: > > "The problem with comparing a same sex wedding with an interracial wedding > is that the color of a person's skin is no different than the color of a > person's hair or the color of a person's eyes. I don't think anybody would > say that the difference in genders is a strictly cosmetic distinction." > > What about, instead of an interracial wedding, the baker/florist/etc. is > objecting to two whites, one an immigrant from, say, South Africa and the > other a multigenerational American? > > Sent on my mobile device. Please Excuse my brevity and typographic errors. > > > ___ > To post, send message to Religionlaw@lists.ucla.edu > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be viewed as > private. Anyone can subscribe to the list and read messages that are > posted; people can read the Web archives; and list members can (rightly or > wrongly) forward the messages to others. > > > > ___ > To post, send message to Religionlaw@lists.ucla.edu > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be viewed as > private. Anyone can subscribe to the list and read messages that are > posted; people can read the Web archives; and list members can (rightly or > wrongly) forward the messages to others. > ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: The racist prostitute hypothetical
I don’t think we have to postulate this, or focus on highly out-of-the-mainstream religious groups. As I understand it, many a devout Jew will approve, on religious grounds, of a wedding between an irreligious ethnic Jew like me and another Jew, without any extra work that I would have to do to get more devout – but will disapprove of an equally irreligious person who isn’t ethnically Jewish marrying a Jew, at least unless the non-Jew goes through a long and cumbersome conversion process. If the devout Jew doesn’t want to participate in the wedding, whether by officiating, photographing, or catering, that would therefore constitute discrimination based on ethnicity, generally treated by American law the same as race discrimination. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of K Chen Sent: Sunday, February 15, 2015 7:53 AM To: Law & Religion issues for Law Academics Subject: Re: The racist prostitute hypothetical Then we simply postulate that the objection is stated, sincerely, to be on the objector's religious beliefs. No race, no mere cosmetics, but a deeply held religious belief on the nature of culture/nation. On Sat, Feb 14, 2015 at 11:12 PM, Brad Pardee mailto:bp51...@windstream.net>> wrote: In the absence of some factor not listed here, I don't see a religious freedom issue here. Brad From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [mailto:religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>] On Behalf Of K Chen Sent: Saturday, February 14, 2015 8:51 PM To: Law & Religion issues for Law Academics Subject: RE: The racist prostitute hypothetical Brad you said: "The problem with comparing a same sex wedding with an interracial wedding is that the color of a person's skin is no different than the color of a person's hair or the color of a person's eyes. I don't think anybody would say that the difference in genders is a strictly cosmetic distinction." What about, instead of an interracial wedding, the baker/florist/etc. is objecting to two whites, one an immigrant from, say, South Africa and the other a multigenerational American? Sent on my mobile device. Please Excuse my brevity and typographic errors. ___ To post, send message to Religionlaw@lists.ucla.edu<mailto:Religionlaw@lists.ucla.edu> To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: The racist prostitute hypothetical
Then we simply postulate that the objection is stated, sincerely, to be on the objector's religious beliefs. No race, no mere cosmetics, but a deeply held religious belief on the nature of culture/nation. On Sat, Feb 14, 2015 at 11:12 PM, Brad Pardee wrote: > In the absence of some factor not listed here, I don't see a religious > freedom issue here. > > > > Brad > > > > *From:* religionlaw-boun...@lists.ucla.edu [mailto: > religionlaw-boun...@lists.ucla.edu] *On Behalf Of *K Chen > *Sent:* Saturday, February 14, 2015 8:51 PM > *To:* Law & Religion issues for Law Academics > *Subject:* RE: The racist prostitute hypothetical > > > > > Brad you said: > > "The problem with comparing a same sex wedding with an interracial wedding > is that the color of a person's skin is no different than the color of a > person's hair or the color of a person's eyes. I don't think anybody would > say that the difference in genders is a strictly cosmetic distinction." > > What about, instead of an interracial wedding, the baker/florist/etc. is > objecting to two whites, one an immigrant from, say, South Africa and the > other a multigenerational American? > > Sent on my mobile device. Please Excuse my brevity and typographic errors. > > ___ > To post, send message to Religionlaw@lists.ucla.edu > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be viewed as > private. Anyone can subscribe to the list and read messages that are > posted; people can read the Web archives; and list members can (rightly or > wrongly) forward the messages to others. > ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: The racist prostitute hypothetical
Brad writes: "[T]he fact that people have wrongly tried [to] make religious freedom claims doesn't mean we disregard all religious freedom claims. We ought to be able to distinguish between the two." Although Brad thinks the law "ought" to be able to distinguish between "wrong" and "correct" religious freedom claims, we can all agree that this view is flatly inconsistent with Supreme Court precedent, correct? "[I]t is not for us to say that their religious beliefs are mistaken or insubstantial. Instead, our 'narrow function . . . in this context is to determine' whether the line drawn reflects 'an honest conviction.' "Repeatedly and in many different contexts, we have warned that courts must not presume to determine . . . the plausibility of a religious claim." "[R]eligious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection" - Jim On Sat, Feb 14, 2015 at 8:03 PM, Brad Pardee wrote: > I'ts not an all or nothing. The fact that the freedom of speech does not > protect slander and libel doesn't mean we disregard every other freedom of > speech claim. We are able to distinguish between the two. Similarly, the > fact that people have wrongly tried make religious freedom claims doesn't > mean we disregard all religious freedom claims. We ought to be able to > distinguish between the two. The difference between same sex relationships > and interracial relationships seems like one of those distinctions. The > difference between people of different races is not the same between the > difference between genders. That's why, for instance, the Negro Leagues in > baseball have gone by the wayside and yet nobody is saying that the players > of the WNBA should just try to make the teams in the NBA. > > > > *From:* religionlaw-boun...@lists.ucla.edu [mailto: > religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Hillel Y. Levin > *Sent:* Saturday, February 14, 2015 8:48 PM > *To:* Law & Religion issues for Law Academics > *Subject:* Re: The racist prostitute hypothetical > > > > Brad: > > > > The distinction you see between same-sex relationships and interracial > relationships makes sense to *you*. It surely does not make sense to > someone who opposes interracial marriages on religious grounds. > > > > ___ > To post, send message to Religionlaw@lists.ucla.edu > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be viewed as > private. Anyone can subscribe to the list and read messages that are > posted; people can read the Web archives; and list members can (rightly or > wrongly) forward the messages to others. > ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: The racist prostitute hypothetical
In the absence of some factor not listed here, I don't see a religious freedom issue here. Brad From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of K Chen Sent: Saturday, February 14, 2015 8:51 PM To: Law & Religion issues for Law Academics Subject: RE: The racist prostitute hypothetical Brad you said: "The problem with comparing a same sex wedding with an interracial wedding is that the color of a person's skin is no different than the color of a person's hair or the color of a person's eyes. I don't think anybody would say that the difference in genders is a strictly cosmetic distinction." What about, instead of an interracial wedding, the baker/florist/etc. is objecting to two whites, one an immigrant from, say, South Africa and the other a multigenerational American? Sent on my mobile device. Please Excuse my brevity and typographic errors. ___ 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: The racist prostitute hypothetical
I'ts not an all or nothing. The fact that the freedom of speech does not protect slander and libel doesn't mean we disregard every other freedom of speech claim. We are able to distinguish between the two. Similarly, the fact that people have wrongly tried make religious freedom claims doesn't mean we disregard all religious freedom claims. We ought to be able to distinguish between the two. The difference between same sex relationships and interracial relationships seems like one of those distinctions. The difference between people of different races is not the same between the difference between genders. That's why, for instance, the Negro Leagues in baseball have gone by the wayside and yet nobody is saying that the players of the WNBA should just try to make the teams in the NBA. From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Hillel Y. Levin Sent: Saturday, February 14, 2015 8:48 PM To: Law & Religion issues for Law Academics Subject: Re: The racist prostitute hypothetical Brad: The distinction you see between same-sex relationships and interracial relationships makes sense to you. It surely does not make sense to someone who opposes interracial marriages on religious grounds. ___ 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: The racist prostitute hypothetical
Brad: Tell me why is the wedding cake which I pick up at your bakery and take to my wedding any different than the rental tux I pick up, the flowers I bring to the wedding, or the limo I rent. Or, if I buy the car for the wedding party, how is the cake any different than the car I bought at the dealer. Can the liquor store refuse to sell me wine for the wedding reception? Or for the ceremony itself? If the parties take communion before the ceremony, can the liquor store owner refused to sell wine? * Paul Finkelman Senior Fellow Penn Program on Democracy, Citizenship, and Constitutionalism University of Pennsylvania and Scholar-in-Residence National Constitution Center Philadelphia, Pennsylvania 518-439-7296 (p) 518-605-0296 (c) paul.finkel...@albanylaw.edu<mailto:paul.finkel...@albanylaw.edu> www.paulfinkelman.com<http://www.paulfinkelman.com/> * From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Brad Pardee [bp51...@windstream.net] Sent: Saturday, February 14, 2015 7:41 PM To: 'Law & Religion issues for Law Academics' Subject: RE: The racist prostitute hypothetical Let me clearer. There is a difference between saying you won't serve certain people and saying you won't be a participant in a certain event. A wedding cake is part and parcel of the event, same as providing the floral settings and taking the photographs, although I realize don't agree with that. That's why the baker, florist, or photographer should have the freedom to choose not to be a part of events that their faith forbids them to take part in. If the condition of their remaining in business is that they abandon the tenets of their faith, then they don't have any religious freedom that has any meaning. The problem with comparing a same sex wedding with an interracial wedding is that the color of a person's skin is no different than the color of a person's hair or the color of a person's eyes. I don't think anybody would say that the difference in genders is a strictly cosmetic distinction. Brad From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of James Oleske Sent: Saturday, February 14, 2015 11:27 AM To: Law & Religion issues for Law Academics Subject: Re: The racist prostitute hypothetical "Refusing to bake a wedding cake for [interracial] couples is about not taking part in a specific event. Refusing to bake bread for someone who is [black] is about not serving a specific type of person. Two very different things." Brad -- with those bracketed alterations, do you stick with what I perceive to be your view that the baker should have a right to refuse to bake the wedding cake? If not, I would suggest that bakers making wedding cakes for the general public do not fall within the intimate sphere of privacy that Eugene is trying to identify with his hypothetical. Like Eugene, I think for-profit ministers and freelance writers present more difficult cases, though I disagree with him that most wedding photographer situations present difficult cases. - Jim ___ 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: The racist prostitute hypothetical
Brad you said: "The problem with comparing a same sex wedding with an interracial wedding is that the color of a person's skin is no different than the color of a person's hair or the color of a person's eyes. I don't think anybody would say that the difference in genders is a strictly cosmetic distinction." What about, instead of an interracial wedding, the baker/florist/etc. is objecting to two whites, one an immigrant from, say, South Africa and the other a multigenerational American? Sent on my mobile device. Please Excuse my brevity and typographic errors. On Feb 14, 2015 7:44 PM, "Brad Pardee" wrote: > Let me clearer. There is a difference between saying you won't serve > certain people and saying you won't be a participant in a certain event. A > wedding cake is part and parcel of the event, same as providing the floral > settings and taking the photographs, although I realize don't agree with > that. That's why the baker, florist, or photographer should have the > freedom to choose not to be a part of events that their faith forbids them > to take part in. If the condition of their remaining in business is that > they abandon the tenets of their faith, then they don't have any religious > freedom that has any meaning. > > > > The problem with comparing a same sex wedding with an interracial wedding > is that the color of a person's skin is no different than the color of a > person's hair or the color of a person's eyes. I don't think anybody would > say that the difference in genders is a strictly cosmetic distinction. > > > > Brad > > > > *From:* religionlaw-boun...@lists.ucla.edu [mailto: > religionlaw-boun...@lists.ucla.edu] *On Behalf Of *James Oleske > *Sent:* Saturday, February 14, 2015 11:27 AM > *To:* Law & Religion issues for Law Academics > *Subject:* Re: The racist prostitute hypothetical > > > > "Refusing to bake a wedding cake for [interracial] couples is about not > taking part in a specific event. Refusing to bake bread for someone who is > [black] is about not serving a specific type of person. Two very > different things." > > > > Brad -- with those bracketed alterations, do you stick with what I > perceive to be your view that the baker should have a right to refuse to > bake the wedding cake? > > If not, I would suggest that bakers making wedding cakes for the general > public do not fall within the intimate sphere of privacy that Eugene is > trying to identify with his hypothetical. Like Eugene, I think for-profit > ministers and freelance writers present more difficult cases, though I > disagree with him that most wedding photographer situations present > difficult cases. > > - Jim > > ___ > To post, send message to Religionlaw@lists.ucla.edu > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be viewed as > private. Anyone can subscribe to the list and read messages that are > posted; people can read the Web archives; and list members can (rightly or > wrongly) forward the messages to others. > ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: The racist prostitute hypothetical
Brad: The distinction you see between same-sex relationships and interracial relationships makes sense to *you*. It surely does not make sense to someone who opposes interracial marriages on religious grounds. On Sat, Feb 14, 2015 at 7:41 PM, Brad Pardee wrote: > Let me clearer. There is a difference between saying you won't serve > certain people and saying you won't be a participant in a certain event. A > wedding cake is part and parcel of the event, same as providing the floral > settings and taking the photographs, although I realize don't agree with > that. That's why the baker, florist, or photographer should have the > freedom to choose not to be a part of events that their faith forbids them > to take part in. If the condition of their remaining in business is that > they abandon the tenets of their faith, then they don't have any religious > freedom that has any meaning. > > > > The problem with comparing a same sex wedding with an interracial wedding > is that the color of a person's skin is no different than the color of a > person's hair or the color of a person's eyes. I don't think anybody would > say that the difference in genders is a strictly cosmetic distinction. > > > > Brad > > > > *From:* religionlaw-boun...@lists.ucla.edu [mailto: > religionlaw-boun...@lists.ucla.edu] *On Behalf Of *James Oleske > *Sent:* Saturday, February 14, 2015 11:27 AM > *To:* Law & Religion issues for Law Academics > *Subject:* Re: The racist prostitute hypothetical > > > > "Refusing to bake a wedding cake for [interracial] couples is about not > taking part in a specific event. Refusing to bake bread for someone who is > [black] is about not serving a specific type of person. Two very > different things." > > > > Brad -- with those bracketed alterations, do you stick with what I > perceive to be your view that the baker should have a right to refuse to > bake the wedding cake? > > If not, I would suggest that bakers making wedding cakes for the general > public do not fall within the intimate sphere of privacy that Eugene is > trying to identify with his hypothetical. Like Eugene, I think for-profit > ministers and freelance writers present more difficult cases, though I > disagree with him that most wedding photographer situations present > difficult cases. > > - Jim > > ___ > 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. > -- Hillel Y. Levin Associate Professor University of Georgia School of Law 120 Herty Dr. Athens, GA 30602 (678) 641-7452 hle...@uga.edu hillelle...@gmail.com SSRN Author Page: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=466645 ___ 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: The racist prostitute hypothetical
Let me clearer. There is a difference between saying you won't serve certain people and saying you won't be a participant in a certain event. A wedding cake is part and parcel of the event, same as providing the floral settings and taking the photographs, although I realize don't agree with that. That's why the baker, florist, or photographer should have the freedom to choose not to be a part of events that their faith forbids them to take part in. If the condition of their remaining in business is that they abandon the tenets of their faith, then they don't have any religious freedom that has any meaning. The problem with comparing a same sex wedding with an interracial wedding is that the color of a person's skin is no different than the color of a person's hair or the color of a person's eyes. I don't think anybody would say that the difference in genders is a strictly cosmetic distinction. Brad From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of James Oleske Sent: Saturday, February 14, 2015 11:27 AM To: Law & Religion issues for Law Academics Subject: Re: The racist prostitute hypothetical "Refusing to bake a wedding cake for [interracial] couples is about not taking part in a specific event. Refusing to bake bread for someone who is [black] is about not serving a specific type of person. Two very different things." Brad -- with those bracketed alterations, do you stick with what I perceive to be your view that the baker should have a right to refuse to bake the wedding cake? If not, I would suggest that bakers making wedding cakes for the general public do not fall within the intimate sphere of privacy that Eugene is trying to identify with his hypothetical. Like Eugene, I think for-profit ministers and freelance writers present more difficult cases, though I disagree with him that most wedding photographer situations present difficult cases. - Jim ___ 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: The racist prostitute hypothetical
A similar hypothetical (but one more legally plausible in states beyond Nevada) would be a racist surrogate. Someone who offers to carry a child in exchange for money, but only if she approves of the race of the parents. A quick Google search shows that discrimination by surrogates has already been an issue: http://www.advocate.com/families/2015/01/14/texas-dads-denied-surrogacy-services-because-marriage-discrimination http://lgbtbar.org/blog/2014/09/11/new-hampshires-revised-surrogacy-law-eliminates-discrimination-lgbtq-community/ http://ilj.law.indiana.edu/articles/9-Carroll1.pdf (These are just the first three Google hits) On Sat, Feb 14, 2015 at 12:01 AM, Volokh, Eugene wrote: >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 and sacred > something she views as sinful. Again, there should be a zone of > intellectual/expressive autonomy in which people should be free to choose > what expressive works to create and what not to create (and for whom), even > if they do it for a living. And I would say the same about certain zones > of personal and family life, such as choosing whom to rent a room in one’s > apartment (see the Ninth Circuit Roommates.com case) or whom to hire as a > nanny for one’s children. > > > >Naturally, I agree that people may have different views of > where that zone of autonomy and choice should end. Some might, for > instance, say that it applies to sexual autonomy but not religious, > intellectual, or family/housemate autonomy. Or some might say that it > applies to some kinds of intellectual autonomy (e.g., the writer and maybe > the singer) but not others (e.g., the photographer), because some forms of > creation of speech are more intellectually significant than others. > > > >But if I’m right about the racist prostitute, then the one > thing that we *can’t *say is that, just because one opens up a business > in which one generally serves all members of the public who are willing to > pay, one is n
Re: The racist prostitute hypothetical
"Refusing to bake a wedding cake for [interracial] couples is about not taking part in a specific event. Refusing to bake bread for someone who is [black] is about not serving a specific type of person. Two very different things." Brad -- with those bracketed alterations, do you stick with what I perceive to be your view that the baker should have a right to refuse to bake the wedding cake? If not, I would suggest that bakers making wedding cakes for the general public do not fall within the intimate sphere of privacy that Eugene is trying to identify with his hypothetical. Like Eugene, I think for-profit ministers and freelance writers present more difficult cases, though I disagree with him that most wedding photographer situations present difficult cases. - Jim On Sat, Feb 14, 2015 at 8:46 AM, Brad Pardee wrote: > There is a problem with the scenarios you present. Baking bread is a far > more context-free activity than baking a wedding cake, for instance. The > baker of the wedding cake is taking part in the preparation of a specific > event that their faith may say not to take part in. The baker of the bread > is taking part in the preparation of breakfast, lunch and supper. Refusing > to bake a wedding cake for same-sex couples is about not taking part in a > specific event. Refusing to bake bread for someone who is gay is about not > serving a specific type of person. Two very different things. > > As far as therapy goes, I can use my own experience. Although I am not a > Catholic, I am seeing a therapist with Catholic Social Services. Right at > the beginning, she said that the counseling would be within the context of > Catholic moral teaching. If I were to ask her for help in working through > the issues that prevent me from divorcing my wife and marrying my mistress > my same-sex lover, she's not going to do it. However, the issues I'm > working through with her don't involve the repudiation of Church teaching > in > any way. Consequently, even though I'm a Protestant who will probably > never > become a Catholic because of some theological disagreements, she still is > able to take me on as a client. (This is, of course, hypothetical as my > wife and I celebrated our 20th anniversary last year and I could no more > stop loving her than I could stop breathing.) > > -Original Message- > From: religionlaw-boun...@lists.ucla.edu > [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Graber, Mark > Sent: Saturday, February 14, 2015 4:49 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. (
RE: The racist prostitute hypothetical
As I've noted before, I agree that bakers and florists generally shouldn't have this sort of right-to-choose exemption from antidiscrimination laws (though query to what extent they do have such an exemption, if they have a religious objection, under RFRA-like regimes). The point of that hypothetical wasn't to draw a link to them, but to the minister. I think there has to be a right to choose (whether constitutional or statutory is a separate matter) when it comes to matters that sufficiently implicate some aspects of one's autonomy, matters that are intimate in several different ways, even when the right is exercised as to commercial behavior. The prostitute example helps illustrate that some such right exists, even in commercial contexts, though it doesn't define the scope of the right. Sexual autonomy is so important that the right of sexual choice should not be interfered with. I think the same is true as to spiritual, expressive, and familial/home life choice as well: a minister's choice of which religious ceremonies to perform, a person's choice of whom to live with (see Roommates.com), a freelance writer's choice of what to write, a photographer's choice of what photographs to take (especially given that those photographs are not merely documentation, but are meant to be expressive of particular emotions and values), a family's choice of whom to hire as a nanny, and so on. One can debate what side of the line the photographer falls on, though I hope people would agree that the freelance writer must have autonomy about what he writes, and I think the photographer is hard to distinguish. And I think the minister's decision about which religious ceremonies to perform is as intimate, personal, and deserving of autonomy and choice in its own way as the (in many ways quite different, but in this way similar) prostitute's decision about whom to have sex with. Eugene > -Original Message- > From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- > boun...@lists.ucla.edu] On Behalf Of Finkelman, Paul > Sent: Saturday, February 14, 2015 8:33 AM > To: Law & Religion issues for Law Academics > Subject: RE: The racist prostitute hypothetical > > One thought is this: How would Eugene's hypothetical differ from a nurse, > doctor, dentist, or undertaker, who said "I don't like touching people of > this or > that race" and so I will not do my job with them? I am not sure what the > difference, once we get over any issues we have about the legality of the > service. > > If there is a difference it is in the nature of the special intimacy of the > prostitution service, and the idea that anyone who engages in that particular > service, male or female, has a right to choose or not choose his/her customers > because of the very close and intimate and special nature of the contact. > > However, that is very different than a baker or florist, or photographer. To > be > blunt about it, a photographer is not intimately part of the same sex wedding > he/she is merely taking pictures of an event. It would be no different if > the > photographer were taking pictures of an accident -- the photographer at the > accident is not handling the bodies or involved in the event. of A baker is > baking > a cake, not feeding the cake to the the participants. I am not sure why > Eugene > thinks that selling cakes in a store is even a personal services business; or > selling > flowers is one. There may be a delivery service and a special name on the > cake, > but is that any different than ordering your car from Ford with a special > radio in > it, as opposed to the standard one? The only "service" in the same sex > marriage > might be the musician or the person officiating. The baker is selling > cakes; the > florist is selling flowers. The dress maker or tailor making the wedding suit > might be closer to service if it is a custom fitted, custom made garment dress > with lots of measurements, but are we going to argue that people in those > professions can refuse to sell dresses/suits to blacks, Hispanics, Jews, > Catholics, > etc. because of their views on religion or race? > > Even the person officiating at the service is not intimately involved in the > service. A Justice of the Peace or Judge might say "you may now kiss the > bride" > or "the groom" but the he/she does not have to kiss anyone himself/herself. > > So, I guess I do not see how Eugene's hypothetical fits with what I assume is > his > goal of trying to justify the refusal of people in businesses to sell their &
Re: The racist prostitute hypothetical
Well, Eugene constructed the hypo cleverly. The state law eliminated the "Mrs. Murphy's boardinghouse" exemption in the 1964 Civil Rights Act. I had a student once who thought that exemption applied to prostitution, then illegal everywhere in the USA. Judy Sent from my iPhone > On Feb 14, 2015, at 10:35 AM, Finkelman, Paul > wrote: > > One thought is this: How would Eugene's hypothetical differ from a nurse, > doctor, dentist, or undertaker, who said "I don't like touching people of > this or that race" and so I will not do my job with them? I am not sure what > the difference, once we get over any issues we have about the legality of the > service. > > If there is a difference it is in the nature of the special intimacy of the > prostitution service, and the idea that anyone who engages in that particular > service, male or female, has a right to choose or not choose his/her > customers because of the very close and intimate and special nature of the > contact. > > However, that is very different than a baker or florist, or photographer. To > be blunt about it, a photographer is not intimately part of the same sex > wedding he/she is merely taking pictures of an event. It would be no > different if the photographer were taking pictures of an accident -- the > photographer at the accident is not handling the bodies or involved in the > event. of A baker is baking a cake, not feeding the cake to the the > participants. I am not sure why Eugene thinks that selling cakes in a store > is even a personal services business; or selling flowers is one. There may > be a delivery service and a special name on the cake, but is that any > different than ordering your car from Ford with a special radio in it, as > opposed to the standard one? The only "service" in the same sex marriage > might be the musician or the person officiating. The baker is selling > cakes; the florist is selling flowers. The dress maker or tailor making the > wedding suit might be closer to service if it is a custom fitted, custom made > garment dress with lots of measurements, but are we going to argue that > people in those professions can refuse to sell dresses/suits to blacks, > Hispanics, Jews, Catholics, etc. because of their views on religion or race? > > > Even the person officiating at the service is not intimately involved in the > service. A Justice of the Peace or Judge might say "you may now kiss the > bride" or "the groom" but the he/she does not have to kiss anyone > himself/herself. > > So, I guess I do not see how Eugene's hypothetical fits with what I assume is > his goal of trying to justify the refusal of people in businesses to sell > their services to gay people (or blacks or Jews or anyone else) > > * > Paul Finkelman > Senior Fellow > Penn Program on Democracy, Citizenship, and Constitutionalism > University of Pennsylvania > and > Scholar-in-Residence > National Constitution Center > Philadelphia, Pennsylvania > > 518-439-7296 (p) > 518-605-0296 (c) > > paul.finkel...@albanylaw.edu > www.paulfinkelman.com > * > > > > > 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
RE: The racist prostitute hypothetical
There is a problem with the scenarios you present. Baking bread is a far more context-free activity than baking a wedding cake, for instance. The baker of the wedding cake is taking part in the preparation of a specific event that their faith may say not to take part in. The baker of the bread is taking part in the preparation of breakfast, lunch and supper. Refusing to bake a wedding cake for same-sex couples is about not taking part in a specific event. Refusing to bake bread for someone who is gay is about not serving a specific type of person. Two very different things. As far as therapy goes, I can use my own experience. Although I am not a Catholic, I am seeing a therapist with Catholic Social Services. Right at the beginning, she said that the counseling would be within the context of Catholic moral teaching. If I were to ask her for help in working through the issues that prevent me from divorcing my wife and marrying my mistress my same-sex lover, she's not going to do it. However, the issues I'm working through with her don't involve the repudiation of Church teaching in any way. Consequently, even though I'm a Protestant who will probably never become a Catholic because of some theological disagreements, she still is able to take me on as a client. (This is, of course, hypothetical as my wife and I celebrated our 20th anniversary last year and I could no more stop loving her than I could stop breathing.) -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Graber, Mark Sent: Saturday, February 14, 2015 4:49 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. Reli
RE: The racist prostitute hypothetical
One thought is this: How would Eugene's hypothetical differ from a nurse, doctor, dentist, or undertaker, who said "I don't like touching people of this or that race" and so I will not do my job with them? I am not sure what the difference, once we get over any issues we have about the legality of the service. If there is a difference it is in the nature of the special intimacy of the prostitution service, and the idea that anyone who engages in that particular service, male or female, has a right to choose or not choose his/her customers because of the very close and intimate and special nature of the contact. However, that is very different than a baker or florist, or photographer. To be blunt about it, a photographer is not intimately part of the same sex wedding he/she is merely taking pictures of an event. It would be no different if the photographer were taking pictures of an accident -- the photographer at the accident is not handling the bodies or involved in the event. of A baker is baking a cake, not feeding the cake to the the participants. I am not sure why Eugene thinks that selling cakes in a store is even a personal services business; or selling flowers is one. There may be a delivery service and a special name on the cake, but is that any different than ordering your car from Ford with a special radio in it, as opposed to the standard one? The only "service" in the same sex marriage might be the musician or the person officiating. The baker is selling cakes; the florist is selling flowers. The dress maker or tailor making the wedding suit might be closer to service if it is a custom fitted, custom made garment dress with lots of measurements, but are we going to argue that people in those professions can refuse to sell dresses/suits to blacks, Hispanics, Jews, Catholics, etc. because of their views on religion or race? Even the person officiating at the service is not intimately involved in the service. A Justice of the Peace or Judge might say "you may now kiss the bride" or "the groom" but the he/she does not have to kiss anyone himself/herself. So, I guess I do not see how Eugene's hypothetical fits with what I assume is his goal of trying to justify the refusal of people in businesses to sell their services to gay people (or blacks or Jews or anyone else) * Paul Finkelman Senior Fellow Penn Program on Democracy, Citizenship, and Constitutionalism University of Pennsylvania and Scholar-in-Residence National Constitution Center Philadelphia, Pennsylvania 518-439-7296 (p) 518-605-0296 (c) paul.finkel...@albanylaw.edu www.paulfinkelman.com * 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 aut
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 and sacred something she views as sinful. Again, there should be a zone of intellectual/expressive autonomy in which people should be free to choose what expressive works to create and what not to create (and for whom), even if they do it for a living. And I would say the same about certain zones of personal and family life, such as choosing whom to rent a room in one’s apartment (see the Ninth Circuit Roommates.com case) or whom to hire as a nanny for one’s children. Naturally, I agree that people may have different views of where that zone of autonomy and choice should end. Some might, for instance, say that it applies to sexual autonomy but not religious, intellectual, o
