Marie A. Failinger
mfailing at PIPER.HAMLINE.EDU
Mon Aug 10 12:07:10 PDT 1998
On the question of defining private discrimination, wouldn't it make some
difference what kinds of constitutional values one
wanted to import into religious discrimination law aimed at private
parties? Would we want to import such concerns subtly, even if the law
was not written to import then directly?
If one wants use the Establishment Clause as an analogy, if a key
factor is "secular intent" then encouraging/discouraging people from going
to church would be a discriminatory intent, while a Free Exercise analogy
would suggest that only an aim to harm non-religious people would be a
problem.By contrast, trying to get church-goers to go to the game instead
of going home after church (especially if church-goers were
underrepresented as customers) would not be discriminatory (as "secular"),
as would "encouraging people of good character to come to the ballgame."
(Which leads me to wonder, if one used traditional tort-type
analysis for claims of religious discrimination in public accomodation,
would there really be sufficient harm to trigger a legal claim? The
ticket difference does not classify by status (i.e., Christians only) but
by action (i.e., can you find and bring in a bulletin.)
This action under an EC analogy would be problematical because of its
symbolic effect of endorsing church, i.e., under O'Connor's analysis,
creating insiders/outsiders based on religious belief (although would a
civic/social outsider status be on the same par as political outsider
status?, while under a typical FE harm
analysis, there is no substantial burden to attendees. The non-symbolic
harm is pretty minimal--a few more bucks for a seat, or going by some
church to pick up a bulletin; no coercion or choice between following
religious beliefs or legal rules is required.
Other than concern about invasion of individual liberties (of private
owners) what concerns would counsel for the adoption of just some or all
of these concerns?
On Sat, 8 Aug 1998, Mark Scarberry wrote:
> Suppose the Suns' owner announced that 25% of the gate receipts from a particular
> night's game would be given to the Christian churches in the area (split equally,
> with Christian defined the way the owner sees it). Could non-Christian attendees
> claim that this was illegal religious discrimination? My analysis would be that
> each attendee is charged the same--thus no discrimination--and what the owner
> wants to do with his money is his business. I suppose his right to contribute to
> churches as he sees fit is protected free exercise. Agreed?
> Mark S. Scarberry
> Ed Darrell wrote:
> > I've read several articles about these promotions in other places. Does
> > anyone else remember the other cases?
> > I am particularly curious about the college team with a noon, Sunday broadcast
> > slot on ESPN (if I remember the tale correctly), who offered discounts or free
> > admission to anyone showing up with a church bulletin. It only took someone
> > who could tell time to realize that, since churches get out about noon, people
> > who took advantage of the offer would have had to have skipped the service.
> > Could that team argue as a defense against a claim of discrimination, that
> > their offer actually encouraged people to stay away from churches?
> > I tend to agree with J. E. McNeil that the offense is one of just not
> > thinking, and being unconsciously inhospitable.
> > Ed Darrell
> > Dallas, Texas
Marie A. Failinger
Hamline University School of Law
mfailing at piper.hamline.edu
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