"Christian" Skating Time

[Volokh, Eugene]

	I'm not sure there is a difference between a store owner's
having a theme that expresses pro-Confederate ideas (whether the theme
is musical or visual, as with prominent displays of the flag),
pro-Satanist ideas, pro-Christian ideas, pro-Irish ideas, pro-white
ideas, pro-black ideas, girl-power ideas, or whatever else, even when
these pro-X ideas are also in some measure implicitly anti-Y ideas.  It
seems to me that the expression of all these ideas must be
constitutionally protected.

	If the store owner only admits members of certain groups, that
would probably not be constitutionally protected, unless the requirement
that he admit people without regard to race, religion, sex, or what have
you substantially burdens the owner's ability to express his views
(which I suspect would be pretty rare in a skating rink).  But a
restriction on the store owner's ability to have a certain theme, and to
describe the theme as supportive of a particular race, ethnicity,
religion, or sex surely would be a substantial (and viewpoint-based)
burden on his ability to express his views.  And this is so even if the
owner's theme would be disproportionately offensive (whether
deliberately or otherwise) to people of certain races, religions, sexes,
sexual orientations, or whatever else.

	Eugene

> -----Original Message-----
> From: religionlaw-bounces at lists.ucla.edu 
> [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Mark Tushnet
> Sent: Monday, July 03, 2006 10:23 AM
> To: Law & Religion issues for Law Academics; David Cruz
> Cc: Law & Religion issues for Law Academics
> Subject: Re: "Christian" Skating Time
> 
> 
> This is a puzzlement about the whole thread, not David's 
> posting.  How -- legally -- is the skating rink's position 
> different from one that featured a "Celebrate Being White" 
> night (or, to give a precise parallel in advertising, a 
> "White Night at the Rink"), advertising that there'd be music 
> from identifiably white performers and no rap or hip-hop 
> (which I in my ignorance will assume are roughly correlated 
> with non-white performers, Eminem to the contrary 
> notwithstanding)?  Is the thought that the proprietor in that 
> case would indeed have just as strong a constitutional claim 
> (a right of expressive association claim, I would think) as 
> the proprietor here?  Or that the state's interest in 
> addressing perceived racial discrimination is demonstrably 
> greater than its interest in addressing perceived religious 
> discrimination (on the assumption, which seems correct, that 
> in neither case would non-Christians or non-whites 
> respectively be denied entry were they to show up)?  If the 
> latter, what's the warrant for a court's displacement of the 
> legislative judgment that both forms of perceived 
> discrimination are worth legal response?  (Or, if you don't 
> like "the legislative judgment" in that sentence, substitute 
> a version that invokes Chevron-like deference to legal 
> interpretations proferred by administrative
> agencies.)
> -- 
> Mark Tushnet
> William Nelson Cromwell Professor of Law
> Harvard Law School
> Areeda 223
> Cambridge, MA  02138
> 
> 
> Quoting David Cruz <dcruz at law.usc.edu>:
> 
> >
> >
> > On Mon, 3 Jul 2006, Paul Finkelman wrote:
> >
> > > [snip]
> > > The other difference, of course, is that one IS religious and the 
> > > other is not. It was not "Catholic night" at the ball 
> park and I bet 
> > > there were few priests bringing their sunday school class in for 
> > > "Polish Catholic" night.
> >
> > If Paul's point is that religious sense's (or realities) of 
> exclusion 
> > are different from non-religious ones, that's contestable.  
> Legally, 
> > however, exclusion based on Polishness could well be ancestry or 
> > national origin discrimination prohibited by some publica 
> > accommodations laws.
> >
> > In California, in order to make their Mother's Day 
> promotions survive 
> > state public accommodations law, baseball stadia have taken 
> to noting 
> > in fine print that the frilly pink Mother's Day tote would be 
> > available to the first X number of patrons not just 
> mothers.  And one 
> > of the ACLU state affiliates argued that a business owner 
> had a First 
> > Amendment right to put of a clearly exclusionary message as 
> long as he 
> > did not actually discriminate on that basis.
> >
> > David B. Cruz
> > Professor of Law
> > University of Southern California Gould School of Law
> > Los Angeles, CA 90089-0071
> >
> > _______________________________________________
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