The Passion Movie - religious identity check at box offic e

Scarberry, Mark Mark.Scarberry at pepperdine.edu
Thu Mar 4 09:36:41 PST 2004 

	Michael's point is well taken. The theater owner would seem not to
have the right to exclude patrons on the basis of religion. 

	However, I'm not sure that was what the theater owner was doing. It
is possible that the intent was not to prohibit non-Christians from
attending the showing, but rather to warn them that Christian religious
activities (in the form of prayer) would take place during the showing of
the film. Thus it was a showing for Christians in the sense that others
might feel uncomfortable or might think the religious activities would
interfere with their experiencing the film. 

	That leads to the question, dear to our moderator's heart, whether
the theater could be prohibited, on religious harassment grounds, from
allowing religious expression during a public commercial showing of the
film. I'd think the First Amendment would protect a theater owner who wanted
to cooperate with a religious organization and in effect combine a religious
service with a showing of the film. 

	This is not quite the same as a restaurant owner deciding to run a
Christian-themed restaurant that bombards patrons with sermons while they
eat. Whether or not a restaurant owner would have a First Amendment right to
do so, the theater owner here was engaging in core First Amendment activity
by showing the film, and the theater owner should have the right to
supplement Mel Gibson's First Amendment expression (or exercise of religion)
with the theater owner's own. The heart of the theater's business, contrary
to that of the restaurant, is to engage in First Amendment activity.
 
	Consider whether an "adult" theater (that shows nonobscene but
pornographic films) could be held to have violated a law against sexual
harassment because patrons might be offended. Theater owners have a right to
offend patrons. That should be especially clear where the theater owner
gives notice to patrons that they may be offended; and that is perhaps all
that the ticket seller was doing by informing attendees that it was a
showing for Christians.
 
	But again, I'd want to know more facts. 

Mark S. Scarberry
Pepperdine University School of Law
 

-----Original Message-----
From: Michael MASINTER [mailto:masinter at nova.edu] 
Sent: Thursday, March 04, 2004 7:44 AM
To: wasserma at fiu.edu
Cc: conlawprof at lists.ucla.edu
Subject: Re: RE: The Passion Movie - religious identity check at box office

Absent state action, isn't the exclusions of nonchristians, however
defined, lawful unless forbidden by statute, and if forbidden by statue,
unlawful unless the statute is unconstitutional as applied?  There is a
statute that forbids religious discrimination in theaters; Title Two of
the Civil Rights Act of 1964, 42 U.S.C. 2000a states:

(a) Equal access
      All persons shall be entitled to the full and equal enjoyment of
    the goods, services, facilities, privileges, advantages, and
    accommodations of any place of public accommodation, as defined in
    this section, without discrimination or segregation on the ground
    of race, color, religion, or national origin.
*****
(b) Each of the following establishments which serves the public is a
    place of public accommodation within the meaning of this subchapter
    if its operations affect commerce, or if discrimination or
    segregation by it is supported by State action:
       *****
        (3) any motion picture house, theater, concert hall, sports arena,
            stadium or any other place of exhibition or entertainment....
*****
(c) Operations affecting commerce; criteria; ''commerce'' defined
      The operations of an establishment affect commerce within the
    meaning of this subchapter if ...(3) in the case of an establishment 
    described in paragraph (3) of subsection (b) of this section, it
customarily
    presents films, performances, athletic teams, exhibitions, or other
    sources of entertainment which move in commerce....

Title Two could not be more specific; why would it be unconstitutional as
applied to the owner of a commercial movie theater?  I know of no
colorable argument that the owner could make that he qualifies for the
exemption in subsection (e) for a private establishment.

What am I missing?

Michael R. Masinter			3305 College Avenue
Nova Southeastern University		Fort Lauderdale, FL 33314
Shepard Broad Law Center		(954) 262-6151
masinter at nova.edu			Chair, ACLU of Florida Legal Panel

On Thu, 4 Mar 2004 wasserma at fiu.edu wrote:

> Could there be a meaningful difference in the First Amendment analysis 
> because the Passion incident involved exclusion by the actual owner/
> operator of the public accommodation.  By contrast, all the cases Eugene 
> cites involve private associations, such as the Nation of Islam or KKK, 
> utilizing someone else's public or private property for their own private 
> expressive events.
> 
> 
> Howard Wasserman
> FIU College of Law
> 
> 
> 
> > 
> > From: "Volokh, Eugene" <VOLOKH at law.ucla.edu>
> > Date: 2004/03/03 Wed PM 07:15:28 EST
> > To: "'conlawprof at lists.ucla.edu'" <conlawprof at lists.ucla.edu>
> > Subject: RE: The Passion Movie - religious identity check at box office
> > 
> > 	Very interesting.  The cases that I know of on this subject are In
> > re Minoo Southgate v. United African Movement, 1997 WL 1051933 
> (N.Y. Comm'n
> > on Human Rts.) (limiting, despite a First Amendment objection, the 
> UAM's
> > right to let only nonwhites into lectures that they conduct); City of
> > Cleveland v. Nation of Islam, 922 F.Supp. 56 (N.D. Ohio 1995) 
> (holding that
> > the Nation of Islam had a First Amendment right to hold a men-only 
> event,
> > even in a City-owned arena that the Nation had rented); Donaldson v.
> > Farrakhan, 436 Mass. 94 (Mass. 2002) (likewise, though as to event on
> > private property).  
> > 
> > 	See also NAACP v. Thompson, 648 F.Supp. 195 (D. Md. 1986) 
> (holding
> > that the county was *constitutionally barred* from allowing the KKK to 
> run a
> > whites-only program, even on private property); Invisible Empire of 
> the
> > Knights of the KKK v. Mayor, 700 F.Supp. 281 (D. Md. 1988) (holding 
> that the
> > KKK was entitled to exclude blacks and Jews from marching in its 
> parade
> > conducted on public streets, though the KKK wasn't trying to exclude 
> blacks
> > and Jews from the *audience*).  Thompson strikes me as singularly 
> badly
> > reasoned in its state action analysis.
> > 
> > 	Eugene
> > 
> > > -----Original Message-----
> > > From: Virginia E Hench [mailto:hench at hawaii.edu] 
> > > Sent: Wednesday, March 03, 2004 3:33 PM
> > > To: Ilya Somin
> > > Cc: Jonathan Miller; Volokh, Eugene; 'conlawprof at lists.ucla.edu'
> > > Subject: The Passion Movie - religious identity check at box office
> > > 
> > > 
> > > Hello all - 
> > > 
> > > I received a phone call yesterday from a recent law grad. who is 
> > > finishing up her Ph.D. in history.  She went to see the Passion 
> > > yesterday to see what all the fuss was about -- the movie was 
> playing 
> > > at a large multiplex here in Honolulu.  As the box office, the ticket 
> > > seller asked her "Are you Christian?"  
> > > 
> > > She was surprised but answered that she is Catholic.  The 
> > > ticket seller 
> > > then explained that the reason for the question was that the 
> > > particular 
> > > showing was "for Christians only" and that there would be 
> > > prayer during 
> > > the showing.
> > > 
> > > She went ahead and entered, and reported that indeed, there 
> > > was prayer 
> > > during the showing.
> > > 
> > > Just to clarify - this was not a case in which some group bought out 
> > > the house for a private showing - as far as I or the recent 
> > > grad could 
> > > determine, it was simply a public showing, but for 
> > > "Christians only." The student notified the state Civil 
> > > Rights commission and the ACLU.
> > > 
> > > I told her I would let the list know. Any comments?
> > > 
> > > Virginia Hench
> > > Assoc. Professor
> > > U of Hawai`i -- Law
> > > 2515 Dole Street
> > > Honolulu HI 96822
> > > hench at hawaii.edu 
> > > 
> > _______________________________________________
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