I used the term "common carrier." I think those of us who've used that term
meant to say "public accommodation" or "place of public accommodation." (I did.)
Mark
Mark S. Scarberry
Pepperdine University School of Law
Sent from my iPad
On Aug 14, 2015, at 9:10 AM, "Scarberry, Mark"
mailto:mark
I am not trying to obtuse here or argumentative. My point is this: if we
allow a relugious exemption for common carriers, businesses of public
accommodation, and businesses that are open to the public then we allow racial,
ethnic, gender, reigious and other kinds of discrimination for anyone w
The Massachusetts Supreme Judicial Court--hardly a reactionary body--made the
distinction between small vendor refusals that do and don't harm access
meaningfully, in Attorney General v. Desilets, 636 N.E.2d 233, 240 (Mass.
1994), one of the cases Eugene referred to involving small landlords and
> On Aug 14, 2015, at 6:03 AM, Volokh, Eugene wrote:
>
> 2. The “single grocer in town” hypothetical may be relevant to the
> compelling government interest inquiry – maybe one could argue that the
> government has a compelling interest in making sure that everyone has access
> to food witho
Marty makes a good but not dispositive point. In any event we have to be sure
this doesn't turn into a principle that bars people who belong to a certain
religion from some professions. There are analogous and very disturbing
historical prohibitions, not limited to those the mention of which wou
The burden on religious exercise if you have to give up your business *might
*be quite substantial, especially if means choosing between your religion
and sacrificing many years of work, costs, good will, self-fulfillment,
etc. But not if "giving it up" means "not starting down that path in the
fi
Obviously, my lament is that O'Connor's opinion did NOT replace Scalia's as the
majority opinion in Smith.
Sent from my iPhone
On Aug 14, 2015, at 11:03 AM, Levinson, Sanford V
mailto:slevin...@law.utexas.edu>> wrote:
What Eugene’s argument does is simply reinforce my ever-stronger lament that
There is also the question of the meaning of "common carrier." If we think it's
particularly important for common carriers to serve all comers but then think
that a business is a common carrier simply because the law currently requires
it to take all comers, we're engaged in a circular argument.
I appreciate Marty’s argument, but I’m not sure it quite works.
The burden of giving up your business (if you want to avoid violating your
religious beliefs) strikes me as quite substantial, just as is the burden of
giving up your unemployment compensation (if you want to avoid v
What Eugene's argument does is simply reinforce my ever-stronger lament that
Justice O'Connor's opinion in Smith, which I thought was analytically terrible
insofar as she simply asserted without further argument that Oregon's law met
the strict scrutiny required, had become the majority opinion
Or to put Paul's point in a slightly different, more doctrinal light -- and
one that harkens back to our landlord discussions circa 1998 [you can look
it up!] -- if we're in a RFRA jurisdiction, there is far less of a
"substantial burden" on one's religious exercise if the government
"sanction" is
No, it doesn't, for reasons that I thought were obvious, and
that I thought I have laid out several times already. But I will leave the
conversation with Prof. Finkelman be, though I'm happy to continue it with
others.
Eugene
From: religionlaw-boun...@lists.ucla.
what is "magical" about common carrier is that if you go into the business of
being a common carrier, and you get a license from the state to operate your
business, you have agreed to accept all who come forward with the fee and
behave properly. So the restaurant can require shoes and shirts,
I’m not sure I understand how Prof. Finkelman can be
misunderstanding me on this. This is an argument about religious exemptions.
It is not an argument about whether the law should be repealed altogether – any
more than arguments about exemptions in O Centro and Smith were about
Because, that is what a common carrier does. Put it another way, if the
common carrier can refuse to pick up people then we are back to 1963. Cabs
don't have to stop for blacks because the drivers believe God made a mistake in
making black people; hotels don't have to rent to blacks, or peopl
I still don't quite understand. "No hoasca" means that the
ordinary right of citizens to ingest what they please is eliminated - but RFRA
says otherwise. "You must serve on a jury" means that the ordinary right of
citizens to decide where to go and what to do with their time is
I suppose I'm like the naïve first-year student who begins with the assumption
that "common carrier" just means that the ordinary right of the seller to pick
and choose among customers is eliminated (at least so long as the purchaser can
pay the regular price or, in the cases of innkeepers, is b
I don't think it's any our job to figure out the inappropriate
use of the Deli's sandwiches than it is to figure out what's "inappropriate"
about eating chicken with cream sauce. The Deli owners thought it was
religiously wrong for them to let any of their products be used by any
Sandy: Why exactly should we all agree that anyone covered by
"common carrier" law could not refuse to provide service to an abortion center
- or a KKK delegation or what have you? After all, we don't agree that
everyone covered by drug laws couldn't get a religious exemption, o
The compelling interest of "mandating equal treatment in all situations"
does not depend on the impropriety of the reason on its own. Rather, it is
the harm associated with unequal treatment because of that reason. Suspect
classes are suspect classes (in part) due to the length and scale of the
dis
Sandy, that is mostly correct. I would add, however, that some states have
common law rules that require businesses which choose to open their doors to
the public to serve everyone, unless they have a business-related reason for
excluding a customer. See, e.g., see Uston v. Resorts Intern. Hot
I suppose one might argue that businesses can refuse to sell to anyone they
please, in the absence of relevant public accommodations laws. So I assume we
all agree that anyone covered by "common carrier" law could not, for example,
refuse to provide service to an abortion center, regardless of r
Eugene:
I am trying to figure out what would be the "inappropriate" use of the Deli's
sandwiches? Is it feeding doctors who perform abortion?
Are you arguing that the pillow case maker can refuse to sell pillow cases to
members of the KKK who use them for pillows? That is, can your refuse
My sense is that the answer to Sandy’s question might be different if the
refusals he describes were found to constitute discrimination on the basis of
sexual orientation or gender identity in a jurisdiction that prohibits such
discrimination in public accommodations. For example, in Elane Pho
As I understand the orthodox (with a lower-case "o")
understanding of religious exemption doctrine, religious objectors are entitled
to exemptions from (at least) laws that require them to do things that they
sincerely view as sinful, unless granting the exemption would necessaril
Many years ago , a German style restaurant in California was sued under the
Unruh Act(California's public accommodation law) for
excluding a neo-Nazi group which was seeking to trade on the ethnic cuisine to
enhance its own legitimacy. The restaurant lost at the trial court. I offered
to carry
A famous example of this many years ago involved the issue of whether Dow
Chemical should stop selling napalm to the U.S. government for use in the Viet
Nam War because of the terrible injuries it caused. Some shareholders
attempted to stop the company from continuing to manufacture the product
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