harms caused by discrimination

[Volokh, Eugene]

    Hmm; it seems to me that the typical argument in the Establishment
Clause cases is simply that the government is not establishing religion
by declining to control government grantees' discrimination (at least
when the grantee is chosen for reasons unrelated to its religiosity, or
its willingness to discriminate).
 
    Thus, say that the government gives a nonreligious entity a grant,
and doesn't attach a condition barring the entity from discriminating
based on political affiliation.  Unconstitutional?  No, under
Rendell-Baker v. Kohn:  The entity's action isn't state action, and the
grant award is state action but doesn't violate the Free Speech Clause.
 
    Say the government gives a nonreligious entity a grant, and doesn't
attach a condition barring the entity from discriminating based on
religion.  Unconstitutional?  I take it not, unless the Rendell-Baker
principle somehow applies differently for the Establishment Clause (or
Free Exercise Clause) than for the Free Speech Clause, which doesn't
seem likely.
 
    Say the government gives a religious entity a grant -- again, for
reasons unrelated to its religiosity -- and doesn't attach a condition
barring the entity from discriminating based on political affiliation or
on religion.  The grant could be the matching grant that's provided by
the deductibility of charitable contributions to nonprofits.  Or the
grant could be money brought to a religious university using the GI Bill
or various state- or federal-level college scholarship programs.  Or the
grant could be direct aid.  In any of these situations, my view is that
the government's failure to bar discrimination by its grantees neither
abridges the expressive association or free speech rights of the
grantees' employees (if the discrimination is based on political
affiliation or speech), nor abridges the free exercise rights or
Establishment Clause rights of the grantees' employees (if the
discrimination is based on religion).  None of this turns on whether the
harm of discrimination is conceptualized as material or dignitary; it's
just not, in my view, a constitutional violation.
 
    On the other hand, when the government *does* act to restrict
discrimination by employers, landlords, owners of public accommodations,
etc., it's doing it on a theory that the discrimination causes some harm
that the government chooses to statutorily prohibit.  Then the RFRA
question is whether the harm is material (in which case discriminating
employers, landlords, photographers, etc. might be entitled to an
exemption in the cases where the material harm doesn't seem likely to
happen), or dignitary (in which case they wouldn't be an entitled to an
exemption, assuming the interest in avoiding the harm is seen as
compelling).
 
    What am I missing here?

    Eugene
 
________________________________

From: religionlaw-bounces at lists.ucla.edu
[mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Brownstein,
Alan
Sent: Sunday, February 03, 2008 11:26 AM
To: Law & Religion issues for Law Academics
Subject: RE: harms caused by discrimination



	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.
	 
	Alan Brownstein
	 
	 
	 
	 

________________________________

	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.
	
	        Eugene
	
	
	
	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.
	
	_______________________________________________
	To post, send message to Religionlaw at lists.ucla.edu
	To subscribe, unsubscribe, change options, or get password, see
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
	
	Please note that messages sent to this large list cannot be
viewed as private.  Anyone can subscribe to the list and read messages
that are posted; people can read the Web archives; and list members can
(rightly or wrongly) forward the messages to others.
	

-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://lists.ucla.edu/pipermail/religionlaw/attachments/20080204/664ef313/attachment.htm