harms caused by discrimination
aebrownstein at ucdavis.edu
Sun Feb 3 11:26:21 PST 2008
I know this is a more than a little late to pick up on this thread, but something that Eugene wrote has percolated in my thoughts for a while.
When we talk about religious exemptions to civil rights laws, some people who support such exemptions distinguish between two harms caused by discrimination -- 1. material harm, which would involve the loss of access to some valued good or service or relative inequality of access to some valued good or service, and 2. dignitary harm, which is grounded on the belief that the act of discrimination expresses something disparaging about the discriminated against group or that it is motivated by some negative evaluation of the discriminated against group. Then it is argued that it is only the first kind of harm, material harm, that should be taken seriously in deciding whether the state's interest in avoiding that harm is sufficiently important to justify burdening the exercise of religion. Dignitary harm is of secondary importance.
When we talk about the public funding of religious organizations that discriminate on the basis of religion in hiring employees to staff government subsidized programs, however, the argument about the harm caused by discrimination seems to be reversed. Arguments alleging that such discrimination causes material harm by depriving people of publicly funded job opportunities (which in most cases would be considered a fairly obvious material harm, and a burden on the job applicants exercise of religion in other circumstances) are summarily rejected because the discriminatory decisions do not reflect invidious motives or express disparaging messages about job applicants of other faiths, or no religion, who are denied jobs because of their beliefs.
Is there something anomalous about maintaining both of these positions?
Just to be clear, I am not suggesting that Eugene made either of these arguments in the way that I have presented them in his prior post. His prior writing on this thread simply led to my thinking about this distinction.
From: religionlaw-bounces at lists.ucla.edu on behalf of Volokh, Eugene
Sent: Tue 1/29/2008 3:56 PM
To: Law & Religion issues for Law Academics
Subject: RE: Photographer's right to refuse to photograph a commitmentceremony?
I sympathize with Doug's view, and the arguments for it. But
it's important to recognize that there are two possible reasons one can
support antidiscrimination law: (1) One wants to make sure that people
have reasonably equal access to various services without regard to race,
religion, sexual orientation, etc. (2) One thinks that every instance
of discrimination based on race, religion, sexual orientation, etc. in
certain fields (perhaps with a few exceptions) is a personal wrong that
the law ought to remedy when the victim so demands -- a sort of tortious
invasion of individual dignity that a victim may sue over even when the
damages are minor.
If one takes view 1, then Doug's argument is excellent; courts
could conclude that view 1 represents the only compelling interest, but
the interest isn't implicated so long as there are many other
photographers available. But if one takes view 2, then Doug's argument
is largely beside the point, precisely because there's "an interest in
not being discriminated against in the abstract," just as there's an
interest in not having people willfully trespass on your land, or
willfully infringe your copyrights, or commercially use your name or
likeness, even when the damages to you are exceedingly modest or even
next to nil.
I think view 1 is the better of the two. But I'm not sure how a
court would reject view 2 as not representing a "compelling government
interest," given that it all depends on whether you think discrimination
is a tortious harm akin to trespass, copyright infringement, etc.
Doug Laycock writes:
Vance may be right as a prediction of what many judges will do.
But it doesn't make much sense as an interpretation of compelling
interest. Especially if this photographer turns out to be in
Albuquerque or Santa Fe, there are surely plenty of other photographers
available. A claimed right to force another to perform personal
services, when comparable services are readily available in the market,
to vindicate -- what? Not an interest in having the ceremony
photographed, but at best an interest in not being discriminated against
in the abstract, or in not having one's feelings hurts, and in fact
probably an interest precisely in forcing a set of values on the
photographer for the purpose of scoring a political point. None of that
matches up well against an interest in not violating what the
photographer understands to be a duty to God. A judge who rules
otherwise is refusing to take RFRA seriously.
If she's out in the middle of the desert and the nearest
substitute photographer is 100 miles away, maybe it's different. If
it's housing or a job and if those things are scarce, it is more likely
to be different. But a right to have my ceremony photographed by an
objecting photographer instead of a cheerfully consenting photographer
is not a compelling interest.
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