Sodomy, discrimination, and religious freedom

[Volokh, Eugene]

                Well, it seems to me that the question, even under Prof.
Salamanca's analysis, isn't economic vs. noneconomic conduct; the
question is conduct that has a "profound impact on many [other] people"
vs. conduct that "affect[s] only a small circle of people, most of whom
have a role in making the decision."  Lots of economic conduct has an
effect on only a few people; lots of nonecomic conduct has an effect on
many others (cf., e.g., Jacobson v. Massachusetts' upholding compulsory
vaccinations).  More generally, I think Prof. Salamanca is hinting at a
harm-to-others vs. no-harm-to-others distinction.

                Unfortunately, I'm not sure that even this distinction
ultimately works, in part because lots of conduct that is protected is
protected *despite* its impact on others.  The decision to bear
children, for instance, is fraught with huge externalities, often
negative ones, both to the future children (who have no say in the
matter) and to the rest of society.  Likewise for free speech; likewise,
I'd say, for most other rights.  The interesting question that we should
ask, I think, is when behavior is protected *despite* the harm it causes
to others, or, in Prof. Salamanca's words, its "profound impact on many
[other] people."  (I think there are lots of areas where behavior should
indeed be protected even when it harms others in certain ways; I just
think that the religiosity of the motivation for the behavior isn't by
itself enough to justify such harm.)

                But in any event, I don't think the
commercial/noncommercial line tells us much about this, and it certainly
doesn't tell us much in the Free Exercise Clause context.  As I
mentioned, Sherbert is an economic case; Ballard may have been, too; so
was NLRB v. Catholic Bishop and the lower court cases that have held
that churches may discriminate in choice of clergy.  The reason that
there was no general exception to Title VII for all religiously
motivated discrimination is that lower courts concluded (and Bob Jones
seemed to support this) that the "harm" this discrimination caused
others was sufficient to justify trumping the exemption claim.



        Paul Salamanca writes:

>         I do not squarely disagree with your argument.  I just have
> trouble
> getting my mind around it, in light of its ramifications.  If you're
> right,
> then Title VII violates the Free Exercise Clause to the extent people
> have
> sincere religious grounds for discriminatory employment practices.
>
>         I am persuaded that most people are constituted in significant
> part
> by their economic activities.  For example, people who cherish working
> with
> their hands would be poorly constituted were they required to push
> papers
> all day.  McCloskey argued this terrifically in 1962 S.Ct.Rev.  But
> public
> regulation has to start somewhere.  Economic activities, particularly
> those
> of a leader, have profound impact on many people, whereas such
> decisions as
> whether or not to use contraceptives affect only a small circle of
> people,
> most of whom have a role in making the decision.  I repeat my
> reference to
> Munn.  How the shoemaker stitches shoes may be a matter of individual
> conscience, but whether a major corporation refuses to hire
> homosexuals is,
> I would argue, a legitimate matter of public interest.  I concede that
> the
> line is difficult to draw, but I submit that there is a difference
> between
> the practices of the butcher or baker with a small shop and the
> mid-level
> manager in a Fortune 500 company.
>