Antidiscrimination laws

[Eugene Volokh]

Marc Stern writes:

> It is telling that Eugene whho believes thta whatever religious
> liberty protection should be enacted shouldexempt civil rights laws,apparently
> would be perfectly ahppy to exempt hate sppech from his general strong support
> forfreedom of speech.

    What does it tell?  I would certainly not exempt "hate speech"
(whatever that is) from my general strong support for freedom of
speech, where the government is acting as sovereign.  But I think
it's often quite proper for the government to restrict rude or
offensive speech -- whether "hate speech" in the sense of being
bigoted against group, or simply nasty to individuals, or brutish in
its tone -- when the government is acting as employer or as conductor
of a ceremony.  The government may properly fire government employees
for being rude to customers, even though it can't outlaw rudeness.
Likewise, the government may properly insist that graduation speakers
speak politely.

    I think the government can even properly insist that graduation
speakers stay away from certain controversial subjects or even
certain viewpoints.  The government may, if it wishes, act as editor,
cf. Forbes v. Arkansas Educational Television, presenting speakers
who take a particular view -- though I don't think it did so in Doe.
But I don't think the government has an obligation to insist that the
speakers stay away from expressing religious viewpoints.

    Finally, I think it's quite reasonable for legislatures to exempt
antidiscrimination laws from their proposed RFRAs (except as to
discrimination in hiring of clergy and certain other church
employees, which is protected by the Free Exercise Clause in any
event).  I do not think that legislatures necessarily *should* do
this; I don't think that, for instance, the interest in shielding
people from housing discrimination based on marital status is
particularly strong.  Rather, I think that deciding whether an
exemption should be granted from any particular law -- deciding how
the strength of a particular interest -- is a normative and practical
judgment that legislatures should make themselves, rather than just
punting it to the courts.

---------------------------------------------------------------------
Eugene Volokh, UCLA Law School, (310) 206-3926  fax -7010
               405 Hilgard Ave., L.A., CA 90095