Conflicts between religious exefcise and gay rights and "cudgels"

Volokh, Eugene VOLOKH at
Tue Aug 5 13:15:17 PDT 2008

	 Well, it's true that there were limits -- clearly
unconstitutional limits -- on this right, in the form of Jim Crow laws
and the like.  But it seems to me that people have long cherished their
right to choose whom to deal with.  This is true even at lunch counters,
where I suspect many proprietors like to exclude patrons whom they see
as disruptive, or whom they dislike for some reason.  Consider the case
from a couple of decades ago where the  owner of a German restaurant in
L.A. kicked out four patrons for wearing Nazi lapel pins (and was
ultimately held liable under California's unusually broad public
accommodation discrimination law).  Of course proprietors rarely
exercise this right, but it doesn't mean that the right isn't treasured
precisely for the freedom that it provides.

	But surely this is even more so when we're talking not just
about goods, but about personal services, like a wedding photographer's.
What ground is there to pooh-pooh the notion that a photographer, whose
job it is to provide a sympathetic, emotionally warm portrayal of events
-- in an investment of many hours of labor -- might cherish her right to
choose what she'll photograph and what she won't?   Perhaps the law
there has indeed gone far beyond the "rule of reason" that Prof. Black
was advocating.

	And more broadly, how would we feel if we were told that, as
consumers, we had an obligation not to discriminate in our choice of
providers of goods and services?  The Legal Writing Institute (perhaps
including others) is boycotting a hotel owner on the grounds that the
owner contributed to the anti-same-sex-marriage initiative.  How would
we feel if the law barred such action (even setting aside the calls for
the boycott, which might be speech, unless they were found to be
incitement, and focusing on the action) and required everyone not to
discriminate in choice of hotel based on the hotel owner's political
activities, or the hotel owner's religion, or anything else?  Even if
the law would very rarely be enforced, wouldn't we rightly bristle at
the notion that we were being told by the government to do business with
service providers whom we otherwise didn't want to do business with?
Nor is it sound, it seems to me, to say that somehow consumers' actions
don't deprive anyone of a likelihood while business owners' do.  A
business owner may often suffer more from loss of patrons -- especially
in a coordinated boycott -- than a particular same-sex couple would from
not being able to hire a particular wedding photographer (and a wedding
photographer who probably isn't emotionally in sync enough with their
planned event to do a good job in any case).

	Now perhaps on balance this freedom to choose -- without
government coercion -- whom to do business with should indeed yield to
compelling (or even not-so-compelling) government interests.  But I
don't think we can just casually dismiss this freedom as something that
no-one thinks about until the Negro comes in.


> -----Original Message-----
> From: marty.lederman at [mailto:marty.lederman at] 
> Sent: Tuesday, August 05, 2008 12:04 PM
> To: Law & Religion issues for Law Academics; Law & Religion 
> issues for Law Academics
> Cc: Volokh, Eugene
> Subject: RE: Conflicts between religious exefcise and gay 
> rights and "cudgels"
> With respect to the notion that, before the dreaded 1964 
> Civil Rights Act, everyone enjoyed "the traditionally 
> recognized ability of people in a free society not to have 
> the government tell them whom to work with, whom to sell to, 
> whom to buy from, and so on":
> It is not a warranted assumption of our civilization that a 
> lunch-counter proprietor will practice a general choosiness 
> about his customers, or that the law is expected to leave him 
> alone in this regard. If the equal protection clause limits 
> his "freedom of choice," it limits something which people in 
> his position do not ordinarily think about until the Negro 
> comes in, and something which has frequently been limited by 
> other kinds of law.  [FN:  It remains a wonder that so much 
> emotion about the sacred right to choose one's customers 
> could be generated and maintained in communities where 
> segregation laws and ordinances, drastically limiting freedom 
> to choose customers as well as other associates, were so long 
> a matter of course. A good night's sleep after the Brown 
> case, and one woke to find that a restaurant was just like a 
> home.]  If the equal protection clause were held to apply to 
> his dinner-list at home, it would be breaking in upon a 
> process of discriminating selective!
>  ness wh
> ich has the flesh-tones of real life; it would be doing so in 
> a manner quite unknown to prior law and astounding to his 
> expectations as to the ambit of law, constitutional and 
> otherwise, in our society. It seems to me that considerations 
> such as these would fully warrant the development, if cases 
> ever arise, of the suggested 'rule of reason.' The social 
> reality of the general distinction projected also vouches for 
> the feasibility of its being drawn.
> Charles L. Black, Jr., FOREWORD: "STATE ACTION," EQUAL 
> 69, 102-103 (1967).

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