"Christian" Skating Time

Wed Jul 5 07:04:01 PDT 2006

New York has generally read its public accommodations law very broadly
as to the scope of covered entities, so there is no doubt that a skating
ring would be within the scope of the statue's prohibitions if it
explicitly chose to exclude non-Christians. From what I can tell from
this thread, the owned of the rink intended to exclude no one. The
advertising (not written by a lawyer worrying about the Human Rights
Law) might be taken to suggest that only Christians were admitted during
these sessions, but that is easily corrected. Surely, the State Division
would be acting correctly to insist that the ads did not inadvertently
suggest intent to exclude noon-Christians.
New York apparently reads its public accommodation law to include a ban
on both intentional discrimination and impact discrimination, see North
Shore University Hospital v. Rosa, 86 NY2D 413 (1995) (See also Levin v.
Yeshiva University).Thus, the question might be posed whether playing
Christian music has the effect of excluding non-Christians.(One could as
easily ask if playing sexually suggestive popular music has the effect
of excluding conservative Christians ,orthodox Jews, Catholics and
others).Although context will matter, it is worth noting that in
Pittsburgh Press while banning the newspaper from publishing sex
segregated help want ads, the Court made completely plain that the First
Amendment protected the newspapers ability to criticize the law or
called for segregating jobs by gender. However, the Ninth Circuit's
recent decision in Harper v. Poway School District suggests that free
speech to oppose homosexuality must yield to the claims of gay students
to feel secure, claims supported by the equal protection clause. On the
other hand the Massachusetts Supreme Court held that a not for profit
group associated with Minister Farrakhan could limit attendance at a
meeting held in a rented theater by gender under the guarantee of
freedom of association. 
Query: would Pittsburgh Press allow an employer to post a notice saying
that we comply with the non-discrimination law only because under
compulsion of law, but noting the employers' own belief that
discrimination of some sort is morally just and the law unjust?
Marc Stern

-----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 8:38 PM
To: Law & Religion issues for Law Academics; Volokh, Eugene
Cc: Law & Religion issues for Law Academics
Subject: RE: "Christian" Skating Time

This isn't an area of my speciality, but it seems to me that, simply as
a matter
of positive law, the relevant decided cases -- that is, the decided
cases
dealing more or less directly with the asserted conflict between free
speech
and antidiscrimination law -- weigh strongly against Eugene's assertion.

(After all, he's written quite a few articles pointing out how wrong the
lower
courts are.)  Maybe the law should be as Eugene describes it -- although
on
that see below -- but it's not at all clear to me that it "is" that.
(And, as
a jurisprudential matter, it seems to me, one ought to take decided
cases into
account, along with general principles of course, in figuring out what
the law
is and what it should be.  The common lawyer in me thinks that judges
with
responsibility for deciding actual cases might develop principles more
attuned
to the problems they see before them than they -- or we -- would by
reflecting
on First Amendment generalities.  Common lawyers, as Louis Henkin put
it, draw
lines all the time -- principled lines -- informed by the particulars of
the
cases before them without degenerating into making ad hoc rulings on the
basis
of those particulars.)

And, on a more normative note, I would think that a position, which
seems to me
Eugene's, that Lester Maddox had a valid First Amendment right to refuse
service to African Americans at his restaurant (because the law
requiring him
to provide such service would place a substantial burden, and for
viewpoint
related reasons, on his right to express his deeply held racist views by
means
of expressive conduct) says something very bad about the state of the
First
Amendment law as Eugene would construct it.
-- 
Mark Tushnet
William Nelson Cromwell Professor of Law
Harvard Law School
Areeda 223
Cambridge, MA  02138

Quoting "Volokh, Eugene" <VOLOKH at law.ucla.edu>:

> 	Well, if Mark is right, doesn't that say something very bad
> about the current state of First Amendment law?  Given that for-profit
> speakers and speech presenters are fully protected by the First
> Amendment (see, e.g, the New York Times, CNN, etc.), isn't it quite
> clear that for-profit presentations of Christian music, racist music
> (whether white or black racist), anti-gay music,
> anti-fundamentalist-Christian music, anti-Catholic music, or whatever
> else should be entirely constitutionally protected, at least under
> current Supreme Court precedents?
>
> > -----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 11:37 AM
> > To: Law & Religion issues for Law Academics; Scarberry, Mark
> > Cc: Law & Religion issues for Law Academics
> > Subject: RE: "Christian" Skating Time
> >
> > Let me express my doubts about this assertion -- "No one
> > would doubt that a Christian music concert could be held (and
> > advertised)" -- where the presenter is a for-profit business.
> >  (A genuine question:  How do for-profit concert promoters
> > advertise concerts by Christian rock groups?)
> > --
> > Mark Tushnet
> > William Nelson Cromwell Professor of Law Harvard Law School
> > Areeda 223 Cambridge, MA  02138
> >
> >
> > Quoting "Scarberry, Mark" <Mark.Scarberry at pepperdine.edu>:
> >
> > > The music is a substantial part of the skating experience.
> > No one would
> > > doubt that a Christian music concert could be held (and
advertised).
> > > Does the combination of a physical activity (skating) with
> > the playing
> > > of music deprive the business owner of the free speech rights that
a
> > > concert promoter would have?
> > >
> > > Suppose the owner of the rink decided to have a "global
> > warming" evening
> > > featuring the audio from Vice President Gore's movie. Would that
be
> > > permitted, even though a lot of people would choose not to
> > come to the
> > > rink in order to avoid what they would perceive as propaganda? If
it
> > > would be permitted, then doesn't the NY law discriminate against
> > > religious speech?
> > >
> > > And if, as I think someone suggested, a "spiritual" evening would
be
> > > permitted, so long as it was inclusive by not focusing on
> > any particular
> > > religious tradition, then isn't this a matter of viewpoint
> > > discrimination?
> > >
> > > Mark S. Scarberry
> > > Pepperdine University School of Law
> > > _______________________________________________
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