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"No Gay Couples Allowed":

John Culhane is continuing a series of posts this week on religious liberty and gay marriage. (See here, here, and here) The posts have been very informative and lively. In today's post, he takes the view that there is no need for special religious-liberty exemptions in SSM but offers an especially creative and interesting alternative. The core of the proposal is this:

Why not simply remind the [religious] objectors -- I'd support a law spelling this out -- that they have a right to clearly state that they oppose same-sex unions and would "prefer to step aside" (borrowing and repurposing language from Professor Wilson here) for religious reasons. There might even be standard, respectful language suggested (not mandated, but perhaps bulletproof), making clear that the proprietor's objection is based on religion, not animosity. What same-sex couple wouldn't respect that, and go somewhere else -- if they could?

If they couldn't -- the dreaded one-florist town! -- the couple could, under my proposal: (1) forego flowers (gasp!); (2) if botanically feasible, order some from out-of-town, or (3) fail to respect the wishes of the religiously objecting florist and use their services anyway. Wilson et al. would achieve that result through a "hardship exception" (only in a wedding-obsessed culture could the possibility of having no flowers at a wedding be thought of as a "hardship," by the way), but then we might find ourselves litigating the issue of hardship. "We had a hardship." "No, you didn't." Please, stop. Let's not invent laws we hardly need.

Let's be clear what we're talking about here: a situation in which a gay married couple or a gay couple about to get married seeks some good or service as a couple and is refused that good or service on the grounds that the provider objects to gay marriage (not gay people) for religious reasons. The gay couple nevertheless wants to force the transaction by seeking some legal remedy under a state antidiscrimination law that (a) applies to the transaction and (b) is not already subject to an exemption for religious objectors. I have found no reported cases so far in which all these conditions were present. But that doesn't mean they won't ever happen. It is for dealing with such cases that we are seeing proposals for special religious-liberty exemptions that apply to the provision of goods or services related to a gay marriage or to the status of being in a gay marriage.

Culhane's proposal for dealing with what seems likely to be a very rare confrontation will not please purists on either side, who really want maximum cultural conflict over this issue. On the pro-SSM side, some will insist that allowing a florist to put up a "no gay couples" sign is repugnant, even if the florist in fact is required not to discriminate. To them it would be akin to inviting Ollie's BBQ to put up a sign saying "no colored folks — but the law requires us to serve you anyway." On the anti-SSM side, some will insist that the signs are just window-dressing, provide no legal protection, and may expose business owners to even more litigation by advertising their aversion to gay marriage.

But if, as I suspect, (1) gay couples will generally not want to work with business owners who make it plain that they object to same-sex marriages, and (2) only the most sincerely and deeply religious objectors would put up such a sign, the number of religious-liberty legal confrontations over SSM ceremonies should be reduced.

The potential difficulty with Culhane's proposal is that it might be too clever and subtle to work politically. How do you sell the idea that a business owner has a right to put up a sign but no right to act on the message in the sign?

An alternative would be to include a specific religious-liberty exemption in SSM laws but require the sign display ("no gay couples") as a condition of being protected by the exemption. This should also reduce litigation, for the same reasons discussed above. Only the serious culture warriors will force the issue. I suppose there might be a First Amendment objection to requiring the sign display as a condition for getting the protection of the exemption. But since the exemption itself is not constitutionally required, that would be a complicated and doubtful claim.

I'm open to either alternative in principle, since in my view there is very little legal or experiential justification for special religious-liberty carve-outs in laws authorizing SSM, but some accommodation may be necessary politically to assuage SSM moderates in state legislatures and in referenda.

Related Posts (on one page):

  1. "No Gay Couples Allowed":
  2. Blog Series on SSM and Religious Liberty:
Owen H. (mail):
How would this help? Why should religious belief [i]ever[/i] be allowed as a reason to discriminate in a public accommodation? Shall we give them the right to refuse to serve "nonbelievers" too?

And it hardly takes a "culture warrior" to decide, "dammit, I am going to sit at that lunch counter".
8.5.2009 2:02pm
DangerMouse:
I think a more likely scenario is that property owned by a Church that is used for weddings and receptions will not be rented out to homosexuals who pretend to marry.
8.5.2009 2:04pm
DavidBernstein (mail):
Fair housing law regarding intimate associations has traditionally had the opposite approach: you can't advertise that you don't want a gay/black/Jewish etc roommate, but you also aren't liable if you refuse to have one.
8.5.2009 2:04pm
Steve:
I don't get it. Do Catholic court reporters refuse to handle divorce cases? What sort of religious belief goes like, "My religion doesn't recognize gay marriage, so it would be wrong of me to sell flowers to a gay couple"? You're not performing the ceremony, you're selling flowers, for heaven's sake.
8.5.2009 2:07pm
2009? Or 1809?:
According to my religion, people of different races can't marry. It's in the Bible. If people of different races think they've gotten married, they're wrong--whatever it is they have is not sanctioned by God.

Does this mean that, if I'm a florist, I have to sell flowers for a mixed-race marriage? That's ridiculous--I'd rather go to hell!
8.5.2009 2:12pm
11-B/2O.B4:

How would this help? Why should religious belief [i]ever[/i] be allowed as a reason to discriminate in a public accommodation? Shall we give them the right to refuse to serve "nonbelievers" too?



Yes, we should, shall, and do. "The proprietor reserves the right to refuse service to anyone, for any reason". If it is a PRIVATE business, they can and should be allowed to refuse service to anyone, because of race, sex, sexual orientation, clothing or lack thereof, hair color..... you get the picture. I don't support bigotry, so those are businesses you would not find me patronizing, but they have the right, nonetheless.

as to this:

Do Catholic court reporters refuse to handle divorce cases?


The court being a government institution, and required to treat all equally, the reporter being an employee of that government organization, no, the theoretical reporter does not have the right to refuse to work on those cases. Once more, this is the difference (which some people cannot seem to grasp) between private sector and public.
8.5.2009 2:13pm
Steve:
Once more, this is the difference (which some people cannot seem to grasp) between private sector and public.

I wasn't talking about public employees. If you take a deposition in a divorce case, I assure you the court does not send over an employee to take down the transcript.

Regardless, you might think the law should allow all sorts of discrimination in private business dealings, but it doesn't.
8.5.2009 2:23pm
Larrya (mail) (www):
I think posting a sign of either kind is like trying to avoid lightning by holding up a steel pole.
8.5.2009 2:27pm
JK:
As much as I support gay marriage in an official sense (I don't think the government should refuse to issue marriage certificates to gay couples), I've always been skeptical of anti-descrimination laws regarding private business. Individuals are allowed to be racists, sexist, anti-gay, etc, so why shouldn't business be allowed to do so? It's a stupid business decision to refuse to serve people illogical reasons like race or sexual orientation, but private businesses should be allowed to make stupid decisions.

Our thinking about private anti-discrimnation laws has been tainted by the (post) Jim Crow experience in the South. That was a special case where government entities hostile to the rule of law effectuated public policy through private actors on a wink and nod basis (If you didn't discriminate you would be punished). The fact that there was a special case that required an exception to the general rule that private actors can be bigots, is a poor reason to change the general rule.

In response to DangerMouse's point regarding Churches, I'm actually far less sympathetic to entities, religious or otherwise, that seek out and obtain special tax except (or other) privileges at the price of being available to the public (note this is about local property taxes for building, not 501c, or other income tax except, status that has no such requirement). If you don't want to play by the Government's rules, then don't get in bed with the Government.
8.5.2009 2:30pm
egd:
As an added benefit, we can make all of these religious objectors sew a yellow cross to all of their clothing so that when they go out in public, everyone will know that they are opposed to gay marriages and homosexual couples can cross the street to avoid these bigots.

Eventually we can have an office dedicated to handling these individuals, we can call it Peaceful Opposition to Gay Right Oppressive Moralities, or P.O.G.R.O.M. for short.

A brilliant solution if I've ever heard of one.
8.5.2009 2:30pm
DG:
If florists want to post a sign, I think they should be allowed to. They'll pay a price, however - many folks wouldn't utilize a florist with a sign like that, gay or not. If they really believe, they'll suck it up and decent people will take their business elsewhere.
8.5.2009 2:34pm
John (mail):
The trouble with Culhane's suggestion is the assumption that a polite "go somewhere else" will not be met with litigation. There are plenty of people in any group that feels discriminated against who are furious enough to sue anyone they can to make a point. That's why a statute is needed to protect those who don't want to participate.
8.5.2009 2:35pm
Officious Intermeddler:
Why should religious belief ever be allowed as a reason to discriminate in a public accommodation?


Because religious freedom, free association, and freedom of contract are higher-order values than the supposed "right" not to be offended by people who don't want to have anything to do with you.
8.5.2009 2:35pm
Officious Intermeddler:
Not to mention that the entire idea of a "public accommodation" is utter nonsense.
8.5.2009 2:37pm
josil (mail):
It appears that the cultural warriors on both sides have one thing in common: their willingness to use the power of the state to shove things down the throat of their opposites. One side claims their "morals" and the other side claims their "rights".
8.5.2009 2:42pm
Ken Arromdee:
Let's be clear what we're talking about here: a situation in which a gay married couple or a gay couple about to get married seeks some good or service as a couple and is refused that good or service on the grounds that the provider objects to gay marriage (not gay people) for religious reasons.

That's absurdly specific, given that

* all religions which object to gay marriage, in practice, also object to gay sex without marriage, letting you explain away any case as being about gays, and not really about marriage

* most religions which object to gay marriage object to civil unions and unofficial gay marriages too, letting you explain away any case as "the marriage law had nothing to do with it"

* prosecutors like to stretch laws, letting you explain away a case by saying it wasn't a marriage law

For instance, the Albuquerque wedding photographer case should count to anyone except pedants. Yes, the law used to convict was an antidiscrimination law, not a marriage law, but it was being used to say "not treating this gay marriage as a gay marriage is discrimination"--the antidiscrimination law was being used as a marriage law.

DC: The reason for the focus on the SSM context is that the claimed fear arises from whatever additional burden SSM itself will place on religious objectors, above an beyond existing antidiscrimination protections regarding sexual orientation. If, as you suggest, and as I think is true, religious objectors face the prospect of litigation *already* in some contexts regarding the treatment of gay people then that is a concern independent of whether a state authorizes SSM. As I've suggested elsewhere, the real concern is with existing antidiscrimination law, and it appears based on experience so far that SSM adds little, if anything, special to the mix.
8.5.2009 2:43pm
Steve:
Because religious freedom, free association, and freedom of contract are higher-order values than the supposed "right" not to be offended by people who don't want to have anything to do with you.

In what country are they considered higher-order values? Certainly not in America. That's why we have a duly enacted law that elevates the black person's right to sit at a lunch counter above the right of the owner to refuse to serve black people.

You can certainly argue that it should be otherwise, but don't you need some support for the concept that the values you prefer are "higher-order values"? Is that based on any objective frame of reference?

Of course, characterizing the black person's right to go into a restaurant and eat lunch like anyone else as a "right not to be offended" is a rather dismissive rhetorical trick, but let's look past that.
8.5.2009 2:45pm
Mike S.:
Although I am a religious person who dissaproves of same sex relationships, I find it hard to understand refusing to sell flowers for a same sex marriage. I can understand the clergyman refusing to perform such a ceremony, but that implies a degree of approval not present in a commercial transaction like selling flowers, photographs and the like. It seems clear that religious liberty should protect the clergyman and the use of a sanctuary. Merchants are not generally assumed to endorse the behavior of their customers; I see no religious liberty infringement in requiring respect for public accomodation laws. We would not permit someone operating a Kosher restaurant to refuse to seat a Gentile or a non-observant Jew no matter how much he may disaprove; I fail to see why same sex marriage should be different.
8.5.2009 2:46pm
Ken Arromdee:
I wasn't talking about public employees. If you take a deposition in a divorce case, I assure you the court does not send over an employee to take down the transcript.

I don't see how a court reporter can fail to be an employee in this sense. Even if they're not on the payroll, they're still ultimately being picked and paid by the court, and the court should adhere to nondiscrimination principles in picking them.
8.5.2009 2:46pm
RV:
I kinda like the idea about forcing them to post it if they are going to discriminate. Then all the young people like me, who are both more likely to be the ones having weddings and more likely to be supportive of gay marriage, will boycott the bigoted florists/dressmakers/bakers/etc and they will all go out of business.

I do see a much stronger argument for allowing religious organizations to refuse to allow their property to be used for ceremonies they disagree with than for providers of goods or public accomodations. Does anyone know whether Cathoic churches can be required to allow an individual who is divorced (but whose marriage has not been annulled by the church) to marry on their property? If the local synagogue rents out property it owns for bar mitzvahs and weddings, does it also have to do so for baptisms and luaus complete with roast pig?
8.5.2009 2:47pm
r finley (mail):
Please remit state and federal Taxes from the past ten years. Your tax exempt status has just been revoked. Have a nice day.
8.5.2009 2:52pm
RV:

I don't see how a court reporter can fail to be an employee in this sense. Even if they're not on the payroll, they're still ultimately being picked and paid by the court, and the court should adhere to nondiscrimination principles in picking them.


Actually, if it is a deposition, the party taking the deposition hires the court reporter. They are registered by the state, like notaries and lawyers and doctors and optometrist..., but that doesn't make them state employees. I would have much better benefits if licensure made you a public employee. :)
8.5.2009 2:54pm
JK:

Please remit state and federal Taxes from the past ten years. Your tax exempt status has just been revoked. Have a nice day.

God forbid we catch people who are fraudulently obtaining tax exempt status....
8.5.2009 2:59pm
pete (mail) (www):

We would not permit someone operating a Kosher restaurant to refuse to seat a Gentile or a non-observant Jew no matter how much he may disaprove; I fail to see why same sex marriage should be different.


I think part of this issue is a lot of people would be ok with it or at least consider it the lesser of two evils and that private discrimination should be legally permitted. You have two conflicting values of freedom (association, religion, and voluntary labor) and morals (treating everone as equals). One of those two values has to lose. The people who support anti-discrimination laws need to be honest and acknowledge that they are restricting some pretty important freedoms to advance their moral ends. I think sometimes like in Jim Crow the ends do justify the means, but that does not mean it should ever be an easy decision.
8.5.2009 2:59pm
Officious Intermeddler:
You can certainly argue that it should be otherwise, but don't you need some support for the concept that the values you prefer are "higher-order values"? Is that based on any objective frame of reference?


Yeah. See: the First Amendment.

Of course, characterizing the black person's right to go into a restaurant and eat lunch like anyone else as a "right not to be offended" is a rather dismissive rhetorical trick, but let's look past that.


It's not a dismissive rhetorical trick. It's a clearheaded acknowledgement that there is no such "right", given a proper understanding of what a right is. To wit: there can be no right to force others to serve you.
8.5.2009 2:59pm
Steve:
Yeah. See: the First Amendment.

Well, when the Civil Rights Act is struck down as violative of the First Amendment, then I'll agree with you that America recognizes the values you cited as "higher-order." Until then, it's just your opinion.

To wit: there can be no right to force others to serve you.

And yet, legally, there is. Go figure. The point is that when you characterize the right to shop, eat in a restaurant, and so forth as merely a "right not to be offended," you're pretending that nothing tangible is being denied and that it's merely a case of hurt feelings. That's what's called a failure to honestly engage with the argument.
8.5.2009 3:07pm
pete (mail) (www):

To wit: there can be no right to force others to serve you.

And yet, legally, there is. Go figure.


I think the point is that there is no "right" to do it. There is a "law" that requires it however. Just because the law allows for it, does not make it a right.
8.5.2009 3:11pm
Anatid:
Pete: Can you give us a definition of what "rights" are in the sense that you use them, outside of those provided by law?
8.5.2009 3:18pm
Officious Intermeddler:
Well, when the Civil Rights Act is struck down as violative of the First Amendment, then I'll agree with you that America recognizes the values you cited as "higher-order."


So it is your position that the constitutionality of a particular law on any given day, as determined by a collection of black-robed political appointees, is indicative of where that law sits on the continuum of values?

You owe me a new keyboard; I just snarfed soda out of my nose onto this one.

And yet, legally, there is. Go figure.


The law is frequently an ass. Go figure.

you're pretending that nothing tangible is being denied and that it's merely a case of hurt feelings. That's what's called a failure to honestly engage with the argument.


I'm not pretending. I'm stating a fact. Nothing tangible is being denied. It is merely a case of hurt feelings. The "argument" to the contrary is sophist apologia for authoritarianism.
8.5.2009 3:20pm
Terry4531 (mail):
Doesn't this kind of discrimination, justifiable or not, make you sick? Gay people are real people with feelings. This is just dehumanizing.

Of course, I'm a pretty staunch libertarian, so I believe in freedom to deny service based on anything, but I also believe in the right to publicize said discrimination and mobilize the community against any establishment that seeks to behave in such a vile fashion.
8.5.2009 3:22pm
John Moore (www):

I kinda like the idea about forcing them to post it if they are going to discriminate. Then all the young people like me, who are both more likely to be the ones having weddings and more likely to be supportive of gay marriage, will boycott the bigoted florists/dressmakers/bakers/etc and they will all go out of business.


Yeah, and I like the idea of forcing you to post all your political and religious/anti-religious beliefs wherever you work, so those of us who disagree can shun and discriminate against you.

Are you starting to see the problem here?
8.5.2009 3:23pm
Clayton E. Cramer (mail) (www):

I kinda like the idea about forcing them to post it if they are going to discriminate. Then all the young people like me, who are both more likely to be the ones having weddings and more likely to be supportive of gay marriage, will boycott the bigoted florists/dressmakers/bakers/etc and they will all go out of business.
Do you like the idea of forcing gay-owned businesses to identify themselves on the outside, so that the rest of America can choose not to put money into their pockets?

I didn't think so.
8.5.2009 3:23pm
Clayton E. Cramer (mail) (www):

Doesn't this kind of discrimination, justifiable or not, make you sick? Gay people are real people with feelings. This is just dehumanizing.

Nazis and Klansmen are real people with feelings, too. And I demand the right to discriminate against them. Is that "dehumanizing"?
8.5.2009 3:25pm
John Moore (www):
The idea being present is either intended to harm the interests of those who oppose gay marriage or is utterly dumb.

There is no question but what it would severely harm anyone who has to post that sign in order to exercise their religious rights. Just look at what happened to the folks who supported Prop 8 in California.

The gay "rights" lobby knows no bounds. It will use whatever vicious techniques it feels like in order to hound anyone who disagrees with its positions.
8.5.2009 3:26pm
Putting Two and Two...:
Are you starting to see the problem here?

What problem? I have a deeply seated, religious objection to bigotry. Don't you want to respect that?

</sarcasm>
8.5.2009 3:28pm
MarkField (mail):

Our thinking about private anti-discrimnation laws has been tainted by the (post) Jim Crow experience in the South. That was a special case where government entities hostile to the rule of law effectuated public policy through private actors on a wink and nod basis (If you didn't discriminate you would be punished). The fact that there was a special case that required an exception to the general rule that private actors can be bigots, is a poor reason to change the general rule.


I don't think this is right. In my view, public acceptance of discrimination causes both the spread of discrimination and quasi-private enforcement. Permitting discrimination against particular people sends a message: these people are not worthy of the same respect you show others. In a situation where there are already plenty of people who believe this, they won't hesitate to "encourage" stores to begin or maintain the discriminatory practice.
8.5.2009 3:30pm
Officious Intermeddler:
Doesn't this kind of discrimination, justifiable or not, make you sick? Gay people are real people with feelings. This is just dehumanizing.


Yes, absolutely. I think it's contemptible.

The fact that bigotry is contemptible, however, doesn't legitimize its criminalization. No one should have to justify to their government or their fellow man who they do and do not choose to associate or do business with.
8.5.2009 3:30pm
Anatid:

Nothing tangible is being denied.




Yeah, and I like the idea of forcing you to post all your political and religious/anti-religious beliefs wherever you work, so those of us who disagree can shun and discriminate against you.


If those beliefs directly affect your ability to do your job, then (at least your employer) absolutely needs to know. If my religious beliefs prohibit me from working on Saturdays, and I intend to take a job in retail, then my boss - and likely, my co-workers - will need to know not to schedule me on those days, or expect me to show up if they do schedule me. If I disclose this information in the job interview, and the employer needs an employee able to work Saturdays, can he refuse to hire me without cries of religious discrimination? If I do not disclose, and he later fires me for not being free to work Saturdays, what then?

Although it is a different story depending on whether the tux rental shop refusing service is at the discretion of the business owner, or the employee working that day.
8.5.2009 3:31pm
Anatid:

Nothing tangible is being denied.


Missed post, sorry: Are services tangible? Is entrance to a privately-owned business tangible?
8.5.2009 3:32pm
pete (mail) (www):

Can you give us a definition of what "rights" are in the sense that you use them, outside of those provided by law?


I (and I think most libertarians, though I am not a libertarian) use the term in the negative sense. In short, the right to be free from someone forcing things on you. The right to free practice of religion, peacable assembly, speech, no forced labor etc. do not require anything of anyone else other than that they leave you alone. Stuff that is in the bill of rights and 13th ammendment is here.

Positive rights granted by law require something of another person. Right to emergency room care, right to patronize a business that does not like your race, etc. all require something of someone else. Involunatary use of their labor or property usually.
8.5.2009 3:39pm
JK:
Clayton &John Moore,
I think there's a difference between requiring notice that you'll refuse to do business with a certain group of people and notice of opinions and facts that are unrelated to your willingness to do business and the nature of your business.

While I agree (maybe with some extreme exceptions) with the libertarian position that you ought to be able to refuse to do business with anyone you don't want to (including refusals to hire people who are bigots, something I've seen conservatives rally against), there is a general assumption that when you hang a shingle that you're willing to do business with anywone who's willing to pay your price. It doesn't seem crazy to require, under some sort of estoppel theory, reasonable notice that you're not willing to do business with certain groups. E.g. if I post an ad saying I'm selling a TV for $100 and you drive to my store to buy the TV and I refuse to sell it to you because you're an X, you've suffered a loss based on reasonable reliance on my statement.

To be clear I don't actually think there should be such a law in either the gay couples or the TV case, but I don't think it's the equivalent of requiring people to post their religion on their storefront window.
8.5.2009 3:42pm
Clayton E. Cramer (mail) (www):

Permitting discrimination against particular people sends a message: these people are not worthy of the same respect you show others. In a situation where there are already plenty of people who believe this, they won't hesitate to "encourage" stores to begin or maintain the discriminatory practice.

Replace "gay" with "pedophile" "Nazi" "meth user" or "animal abuser" and see if you still believe this. (Or in the Bay Area, "Republican.") This high sounding rhetoric is based on the notion that homosexuality is fundamentally okay--a position that most Americans do not share. You clearly wouldn't take this position for many of the other behavioral categories--but you have bought into the "gay is okay" idea, and so you are prepared to impose your views on the majority.
8.5.2009 3:42pm
Officious Intermeddler:
Are services tangible? Is entrance to a privately-owned business tangible?


Sure. Whether those things are tangible isn't the issue, though; it's whether they're being denied.

You can't be "denied" something to which you're not entitled to begin with.
8.5.2009 3:43pm
David Drake:
RV said:

Does anyone know whether Cathoic churches can be required to allow an individual who is divorced (but whose marriage has not been annulled by the church) to marry on their property?


The answer is "no" and I think that's a good starting point here. The fact that the state permits someone who is divorced to remarry , and the fact that many or most Christian religious denominations permit their clergy to perform such marriages has not led, as far as I am aware, to a divorced person demanding the right to be married in a Catholic Church.
8.5.2009 3:44pm
Clayton E. Cramer (mail) (www):


I think there's a difference between requiring notice that you'll refuse to do business with a certain group of people and notice of opinions and facts that are unrelated to your willingness to do business and the nature of your business.
The example that I used involved facts related to my willingness to do business. I ordinarily wouldn't consider a person's sexual perversion relevant to a decision whether to do business with them, but because homosexuals have decided that it is legitimate to force others to do business with them, now it matters, because every penny in a gay person's pocket is potentially a penny that will be used to force others to do business against their conscience.
8.5.2009 3:46pm
troll_dc2 (mail):
The tone of this thread, for the most part, is so very different from that of the thread that resulted from DC's earlier blog. See here.

I would like to think that that thread was much more on point than this one. But maybe the difference in commenters is the reason for the difference in tone.
8.5.2009 3:49pm
pete (mail) (www):

the fact that many or most Christian religious denominations permit their clergy to perform such marriages has not led, as far as I am aware, to a divorced person demanding the right to be married in a Catholic Church.


From talking with the Episcopal priest I had growing up, he told me of cases where he refused to perform weddings or allow weddings in his church for never marries heterosexual couples when he thought they should not get married as he thoguht it is a sacrament. Require a church to perform a wedding is like requiring them to give someone communion or another sacrament and forces them to perfrom their religious duties incorrectly and hardly anyone thinks that is a reasonable demand.

Selling someone flowers is a private business activity and many more people are ok with the government regulating private business transactions. Whether they should regulate that particualr activity or not is a different question.
8.5.2009 3:54pm
Ken Arromdee:
Actually, if it is a deposition, the party taking the deposition hires the court reporter.

In that case, fine, don't force court reporters to take on any customers unless this results in someone not being able to find a court reporter at all, in which case we can force the reporter to do so under a hardship exemption. (I'm sympathetic with libertarians, but I'm not one, so I would support a hardship exemption in such cases. I do, however, suspect that one would almost never be necessary.)
8.5.2009 4:06pm
Roberto (mail):
There are several other alternatives to finding a resolution to this situation.

Owners of businesses who object to gays, gay marriage, other religions, other races or ethnic groups, political parties, etc. might simply let it be known that any proceeds from business done with people of such classes will result in a donation to an anti-SSM organization, a racial or religious supremacist group, contrary religious organizations, the opposing political party, etc., wherever the case may apply.

That should be quite dissuasive, I would think, for anyone of the targeted group from wanting to do business with that establishment.

The other alternative would be to follow the lead of Great Britain, where parallel societies and legal systems are gaining ground with the acceptance of Sharia tribunals alongside British courts. There should be no reason why everyone should have to follow the same law if this is contrary to the culture and values of the group in which a person is a part. A multicultural and diverse society should be able to accept such a principle.
8.5.2009 4:13pm
gordo:

Replace "gay" with "pedophile" "Nazi" "meth user" or "animal abuser" and see if you still believe this. (Or in the Bay Area, "Republican.") This high sounding rhetoric is based on the notion that homosexuality is fundamentally okay--a position that most Americans do not share. You clearly wouldn't take this position for many of the other behavioral categories--but you have bought into the "gay is okay" idea, and so you are prepared to impose your views on the majority.



We have a winner.
8.5.2009 4:20pm
Dan Hamilton:
There is a difference between selling flowers to be used at a Gay weeding and the photographer who refused to do the weeding pictures. The Florist does not have to ATTEND the weeding! Attending the weeding is seen as approval of the weeding. The same as forcing a Pastor to perform the weeding. That is what the Gay agenda is all about. It has gone FAR past tolerance. If you don't accept the Gay agenda then they want to FORCE you to accept it. Vote for Prop 8 and lose your tax exempt status, lose your job, next it will be go to jail.

So there had better be legal protections. You cannot assume that Gay Activists will be either reasonable or sane. They have demonstrated that they are not many times in the past.
8.5.2009 4:24pm
U.Va. Grad:
This high sounding rhetoric is based on the notion that homosexuality is fundamentally okay--a position that most Americans do not share.

The last time Gallup asked the question (scroll down about halfway), in May 2008, 57% of those polled "[felt] that homosexuality should be considered an acceptable alternative lifestyle."
8.5.2009 4:26pm
Clayton E. Cramer (mail) (www):

We have a winner.

Please articulate what makes private discrimination against members of that list okay, but against homosexuals not okay--other than your personal (and by no means universally shared) belief that homosexuality is okay, and those other behaviors are not.
8.5.2009 4:28pm
Anatid:
If attending a wedding is the same as approving of it, then I have a few thousand disappointed mothers- and fathers-in-law you should speak to.
8.5.2009 4:29pm
Clayton E. Cramer (mail) (www):

The last time Gallup asked the question (scroll down about halfway), in May 2008, 57% of those polled "[felt] that homosexuality should be considered an acceptable alternative lifestyle."

If there is any group that wouldn't want its rights dependent on majority will, it's homosexuals.
8.5.2009 4:29pm
gordo:


The last time Gallup asked the question (scroll down about halfway), in May 2008, 57% of those polled "[felt] that homosexuality should be considered an acceptable alternative lifestyle."


That's fine...doesn't change the point.
8.5.2009 4:30pm
gordo:


Please articulate what makes private discrimination against members of that list okay, but against homosexuals not okay--other than your personal (and by no means universally shared) belief that homosexuality is okay, and those other behaviors are not.


Hah, I was actually agreeing with you. I can see how it came across as sarcastic.
8.5.2009 4:31pm
Anatid:
Clayton:

Please articulate what makes private discrimination against members of that list okay, but against homosexuals not okay--other than your personal (and by no means universally shared) belief that homosexuality is okay, and those other behaviors are not.


Everyone on that list, except for homosexuals, is feasibly causing harm to others.


... Although that's a slippery slope. Despite the fact that it's scientifically understood that chronic stress can cause brain damage and cardiovascular wear 'n' tear, causing certain brain regions to shrink as much as 10% and shortening the lifespan by as much as 10-15 years, inflicting undue stress on other people is not socially or legally considered to be harmful so long as it falls short of outright abuse. But that's another topic.
8.5.2009 4:34pm
Anatid:

If there is any group that wouldn't want its rights dependent on majority will, it's homosexuals.


Really? I was under the impression that most homosexuals are hoping that the current cultural trend of widening tolerance will continue until tolerant folk constitute the vast majority of the country, and vote accordingly.
8.5.2009 4:36pm
gordo:


Everyone on that list, except for homosexuals, is feasibly causing harm to others.


Meth users are not, pedophiles are not if they don't act on it, animal abusers are not harming people, and I think most Nazis today don't do anything either.
8.5.2009 4:37pm
CJColucci:
There is a difference between selling flowers to be used at a Gay weeding and the photographer who refused to do the weeding pictures. The Florist does not have to ATTEND the weeding! Attending the weeding is seen as approval of the weeding. The same as forcing a Pastor to perform the weeding.

See what happens when we allow same-sex gardening?
8.5.2009 4:41pm
troll_dc2 (mail):

Replace "gay" with "pedophile" "Nazi" "meth user" or "animal abuser" and see if you still believe this. (Or in the Bay Area, "Republican.") This high sounding rhetoric is based on the notion that homosexuality is fundamentally okay--a position that most Americans do not share. You clearly wouldn't take this position for many of the other behavioral categories--but you have bought into the "gay is okay" idea, and so you are prepared to impose your views on the majority.

Please articulate what makes private discrimination against members of that list okay, but against homosexuals not okay--other than your personal (and by no means universally shared) belief that homosexuality is okay, and those other behaviors are not.



Truly private discrimination may be the essence of liberty; you get to choose with whom you associate, and you make your own decisions as to where to go, what to avoid, and the like. The problem is that when you interact with society, yours is not the only interest at stake. You interact with society when you offer services to the public. When you take the position that you have, or ought to have, a right to refuse to deal with them because of who they are, you are impinging on their liberty because they don't have the same freedom to choose that other people have.

Now look at your list of objectionable people: "pedophile" "Nazi" "meth user" or "animal abuser" (along with Republican in some places). You can discriminate against these people--and homosexuals too--in your private life, but when you engage in commerce, you give up some of that freedom. This is not a new point. This was very much debated at the time of the adoption of the public-accommodations section of the 1964 Civil Rights Act.

The only difference between your list of objectionable people and homosexuals is that the people on that list have, so far as I know, not persuaded any legislature to protect them from discrimination, whereas homosexuals have done so in some states and municipalities. So, for example, Cracker Barrel remains free to exclude gay couples from its restaurants in places that do not forbid that practice (although it had a hellacious public-relations problem). Just because you do not like homosexuals does not entitle you to deprive them of your goods and services.

In the other thread, I confessed at the end to being unsure about what to do with the florists and photographers. But you are helping me get to the conclusion (I will not say that I am there yet, though.) that if they offer their goods and services to the public, they cannot rely on their religious beliefs to avoid dealing with homosexuals who are getting married.
8.5.2009 4:53pm
Officious Intermeddler:
Just because you do not like homosexuals does not entitle you to deprive them of your goods and services.


What moral claim do homosexuals have to my goods and services, that compels me to deal with them against my will?
8.5.2009 5:29pm
Officious Intermeddler:
Hell, not just homosexuals -- anyone. What moral claim does X have to Y's labor, that compels Y to serve X against Y's will?
8.5.2009 5:30pm
Roberto (mail):
Then there is the case of involuntary servitude.

Any business owner or employee who is legally compelled by law to serve someone else falls under a situation of involuntary servitude.

And I thought slavery was abolished!
8.5.2009 5:32pm
Steve:
Hardcore libertarians are awesome. Civil rights laws become a Thirteenth Amendment violation!
8.5.2009 5:33pm
Officious Intermeddler:
Civil rights laws become a Thirteenth Amendment violation!


If the totalitarian shoe fits, wear it.
8.5.2009 5:34pm
Owen H. (mail):


Yes, we should, shall, and do. "The proprietor reserves the right to refuse service to anyone, for any reason". If it is a PRIVATE business, they can and should be allowed to refuse service to anyone, because of race, sex, sexual orientation, clothing or lack thereof, hair color..... you get the picture. I don't support bigotry, so those are businesses you would not find me patronizing, but they have the right, nonetheless.



Refuse to serve someone in your restaurant because they are Jewish, see what happens.
8.5.2009 5:34pm
troll_dc2 (mail):

Just because you do not like homosexuals does not entitle you to deprive them of your goods and services.
-----

What moral claim do homosexuals have to my goods and services, that compels me to deal with them against my will?



Yours is not the only morality. There is a competing one that says that if you offer goods and services to the public, you cannot pick and choose who that public is. When a law is enacted that forbids you to discriminate against certain classes, such as homosexuals, the morality shifts. Notice, some 45 years after the enactment of the Civil Rights Act, that the right to refuse to serve black people is now a non-issue.
8.5.2009 5:41pm
Ken Arromdee:
If, as you suggest, and as I think is true, religious objectors face the prospect of litigation *already* in some contexts regarding the treatment of gay people then that is a concern independent of whether a state authorizes SSM.

I'd say that a law that's supposedly not about marriage but is used to require acceptance of marriages is basically a marriage law, at least a partial one.

It's not *independent* of SSM laws, it *is* a (partial) SSM law. It was passed by judicial fiat and there's no big label on the front saying "SSM", but that doesn't change what it is.

So you're basically saying "if religious objectors already face litigation under one marriage law, that's a concern independent of whether a state authorizes another, broader, marriage law". I don't think that makes sense, and the fact that you think examples of some marriage laws being abused might have bearing on other marriage laws indicates that you don't either.
8.5.2009 5:43pm
Snaphappy:

Replace "gay" with "pedophile" "Nazi" "meth user" or "animal abuser" and see if you still believe this. (Or in the Bay Area, "Republican.") This high sounding rhetoric is based on the notion that homosexuality is fundamentally okay--a position that most Americans do not share. You clearly wouldn't take this position for many of the other behavioral categories--but you have bought into the "gay is okay" idea, and so you are prepared to impose your views on the majority.

We have a winner.


Troll_dc has the answer. Assuming that the people described aren't actively breaking the law, I don't see why business owners should be permitted to refuse them service. A photography store might refuse service to a pedophile who brags that the camera will be perfect for child porn shots, but why shouldn't a miserable pedophile who's served a long sentence and avoids all children be able to buy a pack of cigarettes at a liquor store? Sure, a hardware store can avoid abetting a cross-burning by refusing to sell timber and lighter fluid to a Nazi who intends to use them for that purpose, but the bigot should still be able to buy a hamburger like everyone else. And why can't a meth user buy wifebeaters at Wal Mart with his peers? I even support the right of Republicans (to the extent that category isn't already covered by the categories of "gay" and "pedophile" discussed above) to purchase goods and services without discrimination.
8.5.2009 5:46pm
Rhymes With Right (mail) (www):
Actually, this conundrum points to the absurdity of applying anti-discrimination principles to entities other than government. Of course we have a right to equal treatment by government and government employees in the performance of their duties. But does there truly exist a right, properly so called, to not be discriminated against by a private individual/company?

Why shouldn't a religious individual be permitted to decline to do business with individuals whose conduct they find objectionable? Why shouldn't a group of gay individuals be permitted to establish a business that ONLY does gay weddings? Indeed, is the harm suffered by an individual facing private discrimination so great that we must restrict the liberty of every other member of society to act upon their religious, moral, social, or political beliefs?

Of course, there is a legitimate basis for limiting any private discrimination in instances when such discrimination will result in death or serious injury -- so discrimination by an emergency room, for example, would obviously be out. But we debase the notion of rights when we declare that purchasing flowers from an unwilling florist constitutes a right.
8.5.2009 5:48pm
Snaphappy:
Rhymes:
Look at the 14th Amendment. It's equal "protection," not equal treatment. Protection of the laws means that the goverment makes sure that others are not allowed to deny you the fruits of liberty by discrimination.
8.5.2009 5:51pm
troll_dc2 (mail):
In states with no law forbidding sexual-orientation discrimination, I would like to see some gay business owners actually refuse to do business with some non-gay people precisely because they are not gay. Perhaps the resulting publicity might lead to legislative action to outlaw the discrimination.
8.5.2009 5:53pm
gordo:
but why shouldn't a miserable pedophile who's served a long sentence and avoids all children be able to buy a pack of cigarettes at a liquor store?


Why shouldn't a liquor store owner be able to refuse to sell cigarettes to somebody? (If they did, they would lose in the marketplace).

the bigot should still be able to buy a hamburger like everyone else.


Why shouldn't a guy who sells hamburgers be able to sell only to non-Nazis?

And why can't a meth user buy wifebeaters at Wal Mart with his peers?


etc.

The fundamental misconception here is that there should be a collective right for society to access the property, goods and services of private entities.
8.5.2009 5:55pm
gordo:
Yours is not the only morality. There is a competing one that says that if you offer goods and services to the public, you cannot pick and choose who that public is. When a law is enacted that forbids you to discriminate against certain classes, such as homosexuals, the morality shifts. Notice, some 45 years after the enactment of the Civil Rights Act, that the right to refuse to serve black people is now a non-issue.


OK, I am going to offer goods and services, but not to the "public." Problem solved?
8.5.2009 5:56pm
Danny (mail):
Marriage equality and anti-discrimination laws are entirely separate in theory and practice, please don't mix them up.
8.5.2009 5:56pm
Officious Intermeddler:
When a law is enacted that forbids you to discriminate against certain classes, such as homosexuals, the morality shifts.


You have confused the law with morality, and the result is that you've turned the definition of liberty on its head and become an apologist for involuntary servitude.
8.5.2009 5:57pm
Danny (mail):

I'd say that a law that's supposedly not about marriage but is used to require acceptance of marriages is basically a marriage law, at least a partial one.


Nope, all of the cases would have been the same if the photographer or florist had refused to take photos or sell flowers for an individual, single gay person at his or her birthday party. No connection to marriage equality
8.5.2009 6:00pm
Anatid:
Asking a waiter in a restaurant to serve an interracial couple is "involuntary servitude" about as much as asking your child to take the trash out to the curb is "forced child labor."

It's fun to take things way out of proportion, but it weakens the core of the argument.
8.5.2009 6:01pm
Officious Intermeddler:
Protection of the laws means that the goverment makes sure that others are not allowed to deny you the fruits of liberty by discrimination.


Uh, no.
8.5.2009 6:02pm
Anatid:

Nope, all of the cases would have been the same if the photographer or florist had refused to take photos or sell flowers for an individual, single gay person at his or her birthday party. No connection to marriage equality.


Would the photography or florist have also refused this service? (I wonder how many gay people have they served without ever knowing the person was gay, because sexual orientation isn't relevant to most things, including birthday parties?)

In this case, the distinction between the two is being made by the photographer or florist, not the law.
8.5.2009 6:03pm
Rhymes With Right (mail) (www):
Snaphappy, I'd argue differently. You are equally protected by the laws when the same law that applies to me applies to you in the same way. Actions by a private individual are not law, and therefore any inequity that results is not a denial of equal protection of the law.

And troll_dc, I personally would applaud the gay business owners for their decision to fill an economic niche. I'd oppose any attempt to limit their right to operate their business in a manner consistent with their beliefs. Indeed, I'd argue that permitting business owners to serve/not serve other individuals based upon their beliefs (even beliefs I find reprehensible) would constitute a move towards respect for real diversity and real freedom.
8.5.2009 6:03pm
gordo:

Indeed, I'd argue that permitting business owners to serve/not serve other individuals based upon their beliefs (even beliefs I find reprehensible) would constitute a move towards respect for real diversity and real freedom.



Hear Hear
8.5.2009 6:06pm
pete (mail) (www):

Asking a waiter in a restaurant to serve an interracial couple is "involuntary servitude" about as much as asking your child to take the trash out to the curb is "forced child labor."


But it is involuntary servitude and it is dishonest to pretend it is not. You are making him perform labor he does not want to do with the threat of fines, etc. backed by the force of law.

It may be morally justified because of the ends it achieves, but you are denying the restaurant/waiter the right to run their business the way they say fit.
8.5.2009 6:06pm
Officious Intermeddler:
Asking a waiter in a restaurant to serve an interracial couple is "involuntary servitude" about as much as asking your child to take the trash out to the curb is "forced child labor."


See, because the waiter isn't actually clapped into irons and beaten, it's all good!
8.5.2009 6:09pm
Roberto (mail):

Steve:
Hardcore libertarians are awesome. Civil rights laws become a Thirteenth Amendment violation!


Hey! It's not our fault if the US Constitution contradicts itself!
8.5.2009 6:09pm
Rhymes With Right (mail) (www):
Pete:

Telling the waiter/waitress he has to serve that interracial couple is not involuntary servitude -- it is a condition of his/her employment imposed by his/her employer. Don't like the condition, then quit.

On the other hand, government imposing the requirement that the restaurant serve that interracial couple is an unwarranted imposition on the property rights of the owner. As would a government requirement that the landlord of the property renew the lease if he objected to the restaurateur's discriminatory practices.
8.5.2009 6:10pm
troll_dc2 (mail):

The fundamental misconception here is that there should be a collective right for society to access the property, goods and services of private entities.



The problem with your statement is that you write "should be," but the correct word is "is." If you don't want the public to access your property, goods, and services, do not propose to offer these items to the public. Society has a right to determine that when you are doing business, you cannot exclude categories of the public.
8.5.2009 6:12pm
Anatid:

And troll_dc, I personally would applaud the gay business owners for their decision to fill an economic niche.


It's not really a niche. While some services may be frequented more often by heterosexuals or homosexuals, off the top of my head, I can't think of a single service one could provide to gay couples that would not also be useful to straight couples (barring instances where gay couples are denied a right or privilege available to straight couples, and require an alternative).

You're implying that services offered primarily to straight couples will be unsuitable for gay couples, and they would require a separate service. Refusing to serve a gay couple is just losing business for yourself. Refusing to serve a straight couple is just losing business for yourself.


It may be morally justified because of the ends it achieves, but you are denying the restaurant/waiter the right to run their business the way they say fit.


But we do this all the time. Restaurants have to comply with all manner of health, business, employment, and zoning codes, and can face staggering fines for noncompliance, even be shut down.
8.5.2009 6:16pm
Danny (mail):
@ Anatid

Yes, definately they would! Technically gays and lesbians are not a "visible" minority, but you would be surprised how good people's gaydar is. Some gay men and lesbians are a little effeminate or butch respectively, and even those who are not you can sometimes guess based on the color and cut of their clothing, who they are with, in what neighborhood (for example a young man walking around the gay ghetto on Saturday night is probably assumed to be gay, regardless of what he looks or sounds like). This is anecdotal, but I have sometimes been unable to catch a taxi or have the taxi speed away if I try to hail it while walking too close to the gay neighborhood without a woman. Also I have been harrassed by waiters just for eating in a restaurant with another guy on Saturday night without women (although the second time I went there there was a gay waiter who gave me a free pizza!)

Some homophobic business owners can and will discriminate against anyone they can figure out is gay and lesbian person. It happens ALL the time and is not even necessarily correlated to religion or to marriage or being in a couple.
8.5.2009 6:16pm
Chimaxx (mail):
Ken Aromdee:
I'd say that a law that's supposedly not about marriage but is used to require acceptance of marriages is basically a marriage law, at least a partial one.

It's not *independent* of SSM laws, it *is* a (partial) SSM law. It was passed by judicial fiat and there's no big label on the front saying "SSM", but that doesn't change what it is.


But Ken: All the commonly-cited cases occurred in locales where there was not same-sex marriage, no civil unions. Elane photography refused to photograph a private "commitment ceremony." It had no legal significance in New Mexico. So no same-sex marriage was involved. So the complaint and the fine and everything else were entirely independent of same-sex marriage law.
8.5.2009 6:16pm
Rhymes With Right (mail) (www):
Anatid:

And other than health regulations, I find very few of those laws to be legitimate.
8.5.2009 6:18pm
gordo:
Society has a right to determine that when you are doing business, you cannot exclude categories of the public.


But actually, you can exclude almost whomever you want...just not this one category of people who have mobilized themselves into special interest groups to wield the force of law against you and your property.

Society can make their opinions about this known in the marketplace of money and ideas.
8.5.2009 6:21pm
troll_dc2 (mail):

When a law is enacted that forbids you to discriminate against certain classes, such as homosexuals, the morality shifts.
------

You have confused the law with morality, and the result is that you've turned the definition of liberty on its head and become an apologist for involuntary servitude.



What morality are you talking about? The one that says that you can go into the marketplace and pick and choose with whom you will do business because that is what you want to do? I believe in a different morality, which is that all people (with the money and other requisites) can access the same things as everyone else regardless of who they are. Why is your morality better than mine?

You talk about liberty for the seller. But why should not the buyer have liberty too?

Involuntary servitude? Nonsense. The seller is not compelled to be in business.
8.5.2009 6:25pm
troll_dc2 (mail):

It may be morally justified because of the ends it achieves, but you are denying the restaurant/waiter the right to run their business the way they say fit.

---

But we do this all the time. Restaurants have to comply with all manner of health, business, employment, and zoning codes, and can face staggering fines for noncompliance, even be shut down.



I was going to make that point myself. Your liberty to dabble in business depends on complying with all sorts of laws. Are you going to argue that that is wrong too?
8.5.2009 6:28pm
Rhymes With Right (mail) (www):
I can't help but remember that one of the restaurants that adjoined our college campus posted pictures of the leadership of the College Republicans by the register and directed employees of the restaurant to refuse service to us. We on the blacklist considered it to be a legitimate exercise of the prerogatives of ownership, and patronized other restaurants. Of course, the developer who owned the plaza (one of the leaders of the county GOP) was also perfectly within his rights when he refused to renew the restaurant's lease.
8.5.2009 6:29pm
troll_dc2 (mail):

Society has a right to determine that when you are doing business, you cannot exclude categories of the public.

-----
But actually, you can exclude almost whomever you want...just not this one category of people who have mobilized themselves into special interest groups to wield the force of law against you and your property.



You need to explain your abstract libertarianism further.


Society can make their opinions about this known in the marketplace of money and ideas.


I have no idea what this means.
8.5.2009 6:31pm
Rhymes With Right (mail) (www):
Troll -- the buyer DOES have significantly more liberty than the seller. He/she has a full range of choice as to who he/she does business with. whereas the seller cannot compel anyone to enter his/her establishment.
8.5.2009 6:31pm
Ken Arromdee:
All the commonly-cited cases occurred in locales where there was not same-sex marriage, no civil unions.

My point is a legal requirement to treat a private same-sex commitment ceremony like a marriage is basically a same-sex marriage law. In other words, there is same-sex marriage in that locale. They're just calling it by another name, and limiting its scope.
8.5.2009 6:32pm
Christian K:
<blockquote>
What moral claim do homosexuals have to my goods and services, that compels me to deal with them against my will?
</blockquote>

An interesting point, however, couldn't it be said that you give up some of that control by opening your business to the public? You could, of course, kept your business closed to the public and retained complete control over your clientele.


<blockquote>
Replace "gay" with "pedophile" "Nazi" "meth user" or "animal abuser" and see if you still believe this. (Or in the Bay Area, "Republican.") This high sounding rhetoric is based on the notion that homosexuality is fundamentally okay--a position that most Americans do not share. You clearly wouldn't take this position for many of the other behavioral categories--but you have bought into the "gay is okay" idea, and so you are prepared to impose your views on the majority.

Please articulate what makes private discrimination against members of that list okay, but against homosexuals not okay--other than your personal (and by no means universally shared) belief that homosexuality is okay, and those other behaviors are not.
</blockquote>

You could also replace "gay" with "christian", "catholic", "jew", or "mormon". There are many religions that support marriage, and see no difference between Homosexual marriage and Heterosexual marriage. A view that more and more Americans support. You clearly wouldn't take this position for many of the other religious/philosophical categories -- but you have bought into this view that "religious discrimination is OK" idea.

Please articulate what makes the public (for we are talking about businesses that are open to the public) discrimination against members of a religious group that support homosexual marriage okay -- other than your personal (and by no means universally shared) belief that religious discrimiation is okay, and discrimiation against those other religions is not.
8.5.2009 6:33pm
Anatid:

And other than health regulations, I find very few of those laws to be legitimate.


It is possible to fail a health inspection for leaving the lid off of a jar of vinegar for five minutes or for having dust underneath the deep fryer, or fail fire code inspection for leaving a milk crate against one wall in a six-foot-wide fire exit corridor. By comparison, requiring an hourly employee to work 20 hours straight at the risk of losing his job without offering him overtime seems like the greater offense.

I understand your ideals in this sense, but in practice, it's not so clear-cut. Even if the only standard you're using for evaluation is public health, some extent of labor protection laws do make sense.


Society can make their opinions about this known in the marketplace of money and ideas.


We do. However, the best way for me to refuse my business to a gay-intolerant store is to hear about it, and I don't have time to spend hours scouring Yelp and various blogs to learn about every business before I patronize it. Sadly, discrimination lawsuits are one of the best ways to get publicity in news, even if the lawsuit fails. It doesn't occur to many of these people to just hire a publicist.


Whereas the seller cannot compel anyone to enter his/her establishment.


The seller often has a captive or exclusive market. Apply this to, say, newly-developed drugs that do not yet have a generic on the market. Or the only abortion provider in the entire state of South Dakota.
8.5.2009 6:36pm
Owen H. (mail):

Replace "gay" with "pedophile" "Nazi" "meth user" or "animal abuser" and see if you still believe this. (Or in the Bay Area, "Republican.") This high sounding rhetoric is based on the notion that homosexuality is fundamentally okay--a position that most Americans do not share. You clearly wouldn't take this position for many of the other behavioral categories--but you have bought into the "gay is okay" idea, and so you are prepared to impose your views on the majority.


It's interesting that most of your substitutions involve criminals, instead of simply differing beliefs. Being a Nazi or a Republican is not illegal (even in the Bay Area). If someone is breaking the law, you don't have to serve that guy stoned on meth, or strangling a kitten.

But it doesn't matter whether or not you think a particular belief is "ok". Nor is it "one category of people".
8.5.2009 6:37pm
gordo:
Troll:

What I mean is that business owners can exclude categories of people...except for those categories that have succeeded in passing laws requiring otherwise.

If you have no idea what a "marketplace" means, either of money or ideas, I can't explain it to you here. You'll have to read up on...I don't know, a lot of things.
8.5.2009 6:44pm
troll_dc2 (mail):

Troll -- the buyer DOES have significantly more liberty than the seller. He/she has a full range of choice as to who he/she does business with. whereas the seller cannot compel anyone to enter his/her establishment.



Apples and oranges (unless you have a better cliche).

When a buyer is excluded because of who he is, he does not have a "full range of choice," and it may well be that an alternative is much further away, costs more, or doesn't have what he knows is available at the place in question.

As for the seller, of course he cannot compel anyone to enter his establishment, but that is not relevant to the concept of "liberty" that everyone in this thread has been using. That concept assumes that there IS someone who wants to show up and that the seller ought to be free to say "yes" or "no."
8.5.2009 6:46pm
Steve:
But actually, you can exclude almost whomever you want...just not this one category of people who have mobilized themselves into special interest groups to wield the force of law against you and your property.

Having turned the Thirteenth Amendment on its head, we will now proceed to turn Carolene Products on its head as well. No longer does the law disfavor discrete and insular minorities - in fact, somehow the law is made to disfavor the majority through the murky operation of "special interest groups"!

It never seems to occur to people who think this way is that the reason we have civil rights laws is that, by and large, the majority wants them to exist - including many citizens who are not members of the mistreated class. In other words, there are an awful lot of white people who believe that black people should be able to walk into a restaurant and be served just like a white person would be; it has nothing to do with black people somehow oppressing the majority by means of an "interest group."
8.5.2009 6:46pm
gordo:
We do. However, the best way for me to refuse my business to a gay-intolerant store is to hear about it, and I don't have time to spend hours scouring Yelp and various blogs to learn about every business before I patronize it. Sadly, discrimination lawsuits are one of the best ways to get publicity in news, even if the lawsuit fails. It doesn't occur to many of these people to just hire a publicist.


If you haven't heard about it, then it's obviously not causing enough of a problem among anyone for you to care.
8.5.2009 6:47pm
FWB (mail):
What ever happened about the personal right of association?

Does one not have the right to choose with whom they associate or do "protected classes" get to override the rights of everyone else?

How do "protected classes" fit with the equal protection clause?
8.5.2009 6:47pm
Rebelyell:
This historical and common law rule was that every business owner had the right to discriminate against any person he chose to discriminate against. This is a good rule and served us well, but there was absolutely no way to get decent treatment for blacks, and so an exception was made to this rule.

Now all of a sudden everyone wants to maintain that a business is obligated to serve everyone. Law after law is passed essentially promoting everyone to being black. And yet there is no portion of the 13th Amendment that has been interpreted as giving the government sweeping authority to remove a "bade of gayhood," or what have you.

Blacks descended from slaves are special. We've decided to protect them. Nobody else needs protection. There are plenty of places for gays to get married -- assuming legality -- and I can assure you there is no problem finding gay florists. How can anyone suggest they can't find a gay florist? Don't be ridiculous.

People should be allowed to discriminate all they want when it comes to performing personal services. The only exception should be for blacks. Let's just leave it at that.
8.5.2009 6:48pm
gordo:

It's interesting that most of your substitutions involve criminals, instead of simply differing beliefs.



Actually, all of those categories include non-criminals.
8.5.2009 6:49pm
troll_dc2 (mail):

What I mean is that business owners can exclude categories of people...except for those categories that have succeeded in passing laws requiring otherwise.



That's true. And it is also true that a lot of categories have gottem themselves covered. Would you argue that a store owner should have the right to refuse to serve blacks if he be so minded? If not, why not?

If you would not allow the exclusion of blacks, why would you allow the exclusion of other categories?
8.5.2009 6:51pm
Danny (mail):

My point is a legal requirement to treat a private same-sex commitment ceremony like a marriage is basically a same-sex marriage law.


Ken, they are still not connected. Believe it or not there are European countries with some kind of civil union or even SSM that have NO ANTI-DISCRIMINATION LAWS at all. There are countries that don't ban nationality discrimination but still marry all nationalities. So you can refuse to photograph the Russian wedding (or person, or birthday party) but Russians are not excluded from civil marriage. Marriage laws govern only whom the government considers to be married, nothing else. How can we make it any clearer?
8.5.2009 6:53pm
troll_dc2 (mail):

What ever happened about the personal right of association?

Does one not have the right to choose with whom they associate or do "protected classes" get to override the rights of everyone else?



You can associate with whomever you want. But do not confuse association with doing business with the public.
8.5.2009 6:53pm
SuperSkeptic (mail):
Your liberty to dabble in business depends on complying with all sorts of laws. Are you going to argue that that is wrong too?

Yes I am.

But since everything is more and more considered "interstate commerce," our liberties which were once private choices in business and association (remember the First Amendment?) are now subject public democratic coercion.
8.5.2009 6:55pm
troll_dc2 (mail):

This historical and common law rule was that every business owner had the right to discriminate against any person he chose to discriminate against. This is a good rule and served us well, but there was absolutely no way to get decent treatment for blacks, and so an exception was made to this rule.


At common law, weren't innkeepers required to take in all travelers?
8.5.2009 6:57pm
SuperSkeptic (mail):
doing business with the public.

there's no limit to that logic. I walk down the street in public, so I guess literally everything that I do should be subject to democratic coercive controls
8.5.2009 6:57pm
troll_dc2 (mail):

But since everything is more and more considered "interstate commerce," our liberties which were once private choices in business and association (remember the First Amendment?) are now subject public democratic coercion.



All that means is that they are governed by what the legislature decides.
8.5.2009 6:58pm
Officious Intermeddler:
You can associate with whomever you want. But do not confuse association with doing business with the public.


He's not the one who's confused. You're proposing a distinction without a meaningful difference, in that nobody ever "does business with the public". "The public" is not a party to any business contract.
8.5.2009 7:00pm
Steve:
My point is a legal requirement to treat a private same-sex commitment ceremony like a marriage is basically a same-sex marriage law.

To believe that the photographer was forced to treat that same-sex commitment ceremony like a marriage, you would have to believe they had a policy or practice of refusing to photograph anyone's commitment ceremony.

If my wife and I were renewing our vows, and I called up that photographer, I have a funny feeling they would have done the job. But maybe they really did have some "weddings only" policy that I'm unaware of.
8.5.2009 7:00pm
troll_dc2 (mail):

doing business with the public.

there's no limit to that logic. I walk down the street in public, so I guess literally everything that I do should be subject to democratic coercive controls



For starters, you cannot walk down the street in the nude. You cannot walk in the street and interfere with traffic. You cannot continue to walk if there is a police tape. You cannot block someone else's path or hit him. In many places, you cannot even spit on the sidewalk. Poor you.
8.5.2009 7:01pm
SuperSkeptic (mail):
That's true. And it is also true that a lot of categories have gottem themselves covered. Would you argue that a store owner should have the right to refuse to serve blacks if he be so minded?

Yes.

Instead, we have lingering state control over decisions that should have remained private, social decisions.

Do you think that of Ollie's BBQ and Heart of Atlanta were not decided black people would not be able to eat and segregation would remain?

Morality has evolved, but the instinctive reach for State coercion never seems to...
8.5.2009 7:01pm
Steve:
I walk down the street in public, so I guess literally everything that I do should be subject to democratic coercive controls

Actually yes, there are quite a few restrictions on what you can do while walking down the street. This is thought to be necessary because a lot of other people need to share that street with you.
8.5.2009 7:01pm
Anatid:

I walk down the street in public, so I guess literally everything that I do should be subject to democratic coercive controls.


Yup. You cannot walk down the street stark nude, or smoke within 20 feet of the doors to a business (in California, at least), or carry a boombox playing music above a certain number of decibels (varies by city) or any number of such things. If you want to do these things, you must do them on your own, private property.

Not literally everything. Just the things that government (and usually, voters) see fit to control.
8.5.2009 7:02pm
Anatid:
... beaten to the punch.
8.5.2009 7:03pm
troll_dc2 (mail):
And morality will evolve some more. Why do you think that it evolved after 1964?
8.5.2009 7:03pm
SuperSkeptic (mail):
But since everything is more and more considered "interstate commerce," our liberties which were once private choices in business and association (remember the First Amendment?) are now subject public democratic coercion.




All that means is that they are governed by what the legislature decides.


Exactly. That's the problem. Private property owners can no longer decide what to do with their private property.
8.5.2009 7:03pm
gordo:
That's true. And it is also true that a lot of categories have gottem themselves covered. Would you argue that a store owner should have the right to refuse to serve blacks if he be so minded? If not, why not?

If you would not allow the exclusion of blacks, why would you allow the exclusion of other categories?


The Civil Rights laws were an unfortunate exception to the general rule, as has been stated many times in this thread. Were they necessary? I don't know, probably. But it's not inconceivable to me that there may have been a better way we could have solved the problem. Are they necessary now? Surely not as necessary as they once were. Social pressure may be a far more effective tool than the threat of litigation.

To pretend that the circumstances surrounding the protection of any other class of persons has even remotely approached the gravity that black people were facing is insulting.
8.5.2009 7:05pm
SuperSkeptic (mail):
And morality will evolve some more. Why do you think that it evolved after 1964?

Yeah, exactly, morality evolved because of the Civil Rights Act of 1964...

It was a coercive manifestation of the evolution of morality. Dr. King preached non-violence and non-aggression.

AND BOYCOTTS
8.5.2009 7:05pm
Anatid:
Business regulations can also be nice. If Typhoid Mary is spitting in the soup, or if they're employing 10-year-olds for heavy labor 15+ hrs/day, or if they're chaining shut the exits to prevent workers from taking long smoke breaks, well ...
8.5.2009 7:05pm
troll_dc2 (mail):

You can associate with whomever you want. But do not confuse association with doing business with the public.

----
He's not the one who's confused. You're proposing a distinction without a meaningful difference, in that nobody ever "does business with the public". "The public" is not a party to any business contract.


The public is made up of all of the actual or potential customers that a business owner may have. Being in business and saying "we're open" is the extension of an offer to anyone who has a mind to go there.
8.5.2009 7:06pm
MarkField (mail):

At common law, weren't innkeepers required to take in all travelers?


Yes, innkeepers and common carriers.
8.5.2009 7:06pm
troll_dc2 (mail):

The Civil Rights laws were an unfortunate exception to the general rule, as has been stated many times in this thread. Were they necessary? I don't know, probably. But it's not inconceivable to me that there may have been a better way we could have solved the problem. Are they necessary now? Surely not as necessary as they once were. Social pressure may be a far more effective tool than the threat of litigation.



Gordo, how old were you in 1964?
8.5.2009 7:08pm
MarkField (mail):
I've always thought that the real libertarian position should favor non-discrimination laws. It's those laws which protect the rights of individuals to march to their own drummer. They EXPAND freedom to include the socially and politically unpopular.
8.5.2009 7:10pm
Roberto (mail):

Anatid:
Asking a waiter in a restaurant to serve an interracial couple is "involuntary servitude" about as much as asking your child to take the trash out to the curb is "forced child labor."

It's fun to take things way out of proportion, but it weakens the core of the argument.


First of all, no one is asking. One is being compelled by threat of punishment and the loss of livelihood.

I agree that all persons should be served regardless of outwardly distinguishing characteristics and without discrimination with respect to their various social classes, but this would be done because spiritually enlightened individuals personally assume this duty. The US, however, has become such a litigious society that attempts to resolve all of its problems by micromanaging morality and civility by means of the law that it only leads to these intractable contradictions in its founding principles.

A nation and society has to decide what values are to have priority. You can't have it all or even both ways. If it is individual rights and liberties that are of foremost importance, then one has got to accept that there will be some imperfection and that some things will have to be tolerated that don't seem right. If it is to achieve a universal, politically correct, moral order, then individual liberties and rights will have to be sacrificed to the agenda of an increasingly controlling government.
8.5.2009 7:23pm
SuperSkeptic (mail):
Association and discrimination should be Private functions. Once the State intercedes and interferes, it then becomes the arbiter of who is deemed worthy of protection or benefit. This means subjecting any particular miniority to the wishes of a democratic majority du jour.

Just because gays are coming into the democratic majorities good graces now, let us not forget there are devolutionary forces also. (conservatives might look to the 2nd Amendment for proof of this) What the good lord (democratic majority)giveth and can taketh away...
8.5.2009 7:24pm
troll_dc2 (mail):

A nation and society has to decide what values are to have priority. You can't have it all or even both ways. If it is individual rights and liberties that are of foremost importance, then one has got to accept that there will be some imperfection and that some things will have to be tolerated that don't seem right. If it is to achieve a universal, politically correct, moral order, then individual liberties and rights will have to be sacrificed to the agenda of an increasingly controlling government.



Somehow, I am not stirred by this abstract rhetoric.
8.5.2009 7:27pm
gordo:
Gordo, how old were you in 1964?


I'm saying with the benefit of hindsight, maybe we can say that there could be a better solution to this problem. For example, the legislation could have been a lot clearer. Not that we can change the past, just learn from it.
8.5.2009 7:28pm
gordo:

Somehow, I am not stirred by this abstract rhetoric.


Well, you also said you don't understand what a marketplace is, of money or ideas, so this is is unsurprising.
8.5.2009 7:34pm
troll_dc2 (mail):

Gordo, how old were you in 1964?


I'm saying with the benefit of hindsight, maybe we can say that there could be a better solution to this problem. For example, the legislation could have been a lot clearer. Not that we can change the past, just learn from it.



Didn't Holmes compare a page of history to a book (or something) of logic? You need to study history here. It took Kennedy's assassination to push the bill through Congress, and even then it was a monumental task. (You may be interested to know that the only reason why it included a ban on sex discrimination is that it was added in an attempt to kill the legislation--and in fact a number of female legislators voted against the amendment for that very reason.)
8.5.2009 7:36pm
troll_dc2 (mail):

Somehow, I am not stirred by this abstract rhetoric.



Well, you also said you don't understand what a marketplace is, of money or ideas, so this is is unsurprising


The context made no sense. Unfortunately, I have to catch a train. I'll attack you more thoroughly tomorrow. Have fun until then.
8.5.2009 7:40pm
Anatid:

Well, you also said you don't understand what a marketplace is, of money or ideas, so this is is unsurprising.


Perhaps you can educate us then and explain the meaning of the word that you are using, in order to facilitate this discussion, rather than just snarking at us repeatedly?

I mean, I could denounce your understanding of "harm" because you haven't studied enough neuroscience or developmental psychology, but that wouldn't be productive to the conversation, either. We all have different educational backgrounds, different technical vocabularies, and different perspectives. Work with us here.
8.5.2009 7:44pm
Officious Intermeddler:
The public is made up of all of the actual or potential customers that a business owner may have. Being in business and saying "we're open" is the extension of an offer to anyone who has a mind to go there.


Even if being in business and saying "we're open" amounts to an offer -- which is a flat-out ludicrous proposition, but let's roll with it -- an offer is not a contract, and only individuals, not "the public", can accept the offer.
8.5.2009 7:46pm
Roberto (mail):

troll_dc2 (mail):
Somehow, I am not stirred by this abstract rhetoric.



Just so long as you recognize it to be true………
8.5.2009 7:49pm
Officious Intermeddler:
Somehow, I am not stirred by this abstract rhetoric.


Why would you be? You've argued vociferously in this thread for the punishment of people who make politically-unpopular associative or business decisions. It's clear which side your bread is buttered on.
8.5.2009 7:49pm
Roberto (mail):

troll_dc2:

You talk about liberty for the seller. But why should not the buyer have liberty too?

Involuntary servitude? Nonsense. The seller is not compelled to be in business.


Actually the buyer does have greater liberty. That is the principle of the boycott. Among different sellers, he can choose whom he will do business with for any reason at all.

No person is compelled to start an enterprise. It is entirely voluntary, so it should be surprising that constraints, obligations, conditions and demands be put upon him. To do so is simply the exercise of raw power. I see no moral justification for it, especially when earning a livelihood is a fundamental right!
8.5.2009 7:57pm
Danny (mail):
Another consequence of these exemptions would be the gutting of anti-discrimination laws concerning religions: Protestants could refuse Catholics and Muslims and vice versa, etc., since their sincerely held beliefs may mean that they cannot in good conscience coexist.

Religion is such a lovely thing, isn't it? I really thank God (figuratively of course) that my parents didn't brainwash me with this stuff.
8.5.2009 8:06pm
Brian K (mail):
Another consequence of these exemptions would be the gutting of anti-discrimination laws concerning religions: Protestants could refuse Catholics and Muslims and vice versa, etc., since their sincerely held beliefs may mean that they cannot in good conscience coexist.

It doesn't work that way. we all know what happens when muslims didn't want to accept intoxicated passengers into their taxis or when muslim women wanted to wear their religious clothing...although many posters on this site choose to ignore it because they believe religious exceptions only apply to their preferred religion.
8.5.2009 8:48pm
Rhymes With Right (mail) (www):
Actually, many of us took a position based upon what the law is, rather than arguing the philosophical issue that we are arguing here.

Ought those Muslims be allowed to refuse intoxicated passengers or blind folks with guide dogs? You bet. But the law does not allow that.
8.5.2009 9:06pm
Duncan Frissell (mail):
Is that based on any objective frame of reference?

The frame of reference is natural liberty. The right to control your person and property as you will in peace without coercion.

It was considered important by many of those who founded the country.

The right to work with people that you want to work with and not with people that you don't want to work with. Forced associations is a major human rights (and constitutional) violation.

It's why Barry voted againts the '64 Civil Rights Act.
8.5.2009 9:32pm
Toby:

No person is compelled to start an enterprise. It is entirely voluntary, so it should be surprising that constraints, obligations, conditions and demands be put upon him. To do so is simply the exercise of raw power.

If Bernie Madoff were still walking around, should a store owner be able to refuse to seel to him? What if he was only still working because Madoff vansihed his retirement?

Also I have been harrassed by waiters just for eating in a restaurant with another guy on Saturday night without women (although the second time I went there there was a gay waiter who gave me a free pizza!)

If discrimination by a business is always bad, why aren't both sets of behaviors equally odious...
8.5.2009 9:38pm
pete (mail) (www):
As I said above people who do not want to admit there is a violation of liberty with anti-discrimination laws and I should have pointed out this is true with many other laws.


But we do this all the time. Restaurants have to comply with all manner of health, business, employment, and zoning codes, and can face staggering fines for noncompliance, even be shut down.


All of those are restrictions to liberty too. They may be justified, moral, and wise restrictions of liberty that 99% of the population agrees with including me since I am not a libertarian, but they are restrictions none the less and you are forcing people to do things with their time, labor and property they do not wish to do on threat of losing their property and possibly freedom. That always carries some moral cost depending on how much liberty is being restricted.

The whole point of most laws (excepting laws law the bill of rights that restrict the government) is that they restrict our liberty because the people through the government think the ends of a safe and orderly society justify the restriction on liberty. This is basic Hobbes and the leviathan. If you are a libertarian you do not think these restrictions should ever go beyond protecting negative rights. If you are not a libertarian you think the ends of an orderly and more just society justify restricting liberty to a much greater extent.

Anti-discrimination laws force people to do business with people they do not want to associate with along with potentially forcing them to violate their conscience. That is a pretty major restriction of liberty that the government should not impose lightly and should only impose when the benefits clearly outweigh the costs to liberty. I think the Civil rights act was justified because racism in US society was so overwhelmingly powerful it was caused a break down of law and order and a good chunk of society was not being protected by the government. This was especially true in the south where the murder of blacks asserting their basic human rights (along with other rights violations) by whites was not only tolerated by local governments, but sometimes actively encouraged. That more than justified the restriction of liberty, but it is still a restriction and we should be honest about that.
8.5.2009 10:13pm
Ken Arromdee:
To believe that the photographer was forced to treat that same-sex commitment ceremony like a marriage, you would have to believe they had a policy or practice of refusing to photograph anyone's commitment ceremony.

They photograph marriages. Being forced to photograph a sane-sex commitment ceremony means being forced to treat it like a marriage. The comparison is to marriages, not to other commitment ceremonies; what they do with other commitment ceremonies would just mean that they are or are not treating those like marriages too (either voluntarily or not).
8.5.2009 10:56pm
Ken Arromdee:
Believe it or not there are European countries with some kind of civil union or even SSM that have NO ANTI-DISCRIMINATION LAWS at all.

I am saying that this discrimination law is a defacto partial SSM law. I am not saying that all SSM laws are antidiscrimination laws. "A is B" (and certainly "this item within A is also within B") does not imply "B is A".

There are countries that don't ban nationality discrimination but still marry all nationalities.

Same idea. "this discrimination law is a marriage law" does not imply "a marriage law must be a discrimination law".
8.5.2009 11:03pm
11-B/2O.B4:

Refuse to serve someone in your restaurant because they are Jewish, see what happens.


You'll suffer a massive backlash and lose an enormous amount of money because people realise you're a tiresome bigot. You'll also get sued, which I don't support, but we're a socialist republic, so what do you expect?

It's time to accept that being a dickhead isn't always illegal. People can actually make choices that we as a culture disagree with without arresting them. Shocking, I know, but stick with me, the libertarian train rumbles on.

I'll be the first in line to boycott a business that refuses service to jews, blacks, gays, unnaccompanied women, w/e. I'll also be first in line to support their legal right to be morons by excluding the aforesaid groups. It's called ideological consistency, try it.
8.6.2009 1:49am
Anatid:

I see no moral justification for it, especially when earning a livelihood is a fundamental right!


Again, this right is restricted and regulated. You must pay income taxes on your earnings. You must acquire a license before you are allowed to practice certain livelihoods, such as medicine or law. You are prohibited from earning a livelihood at illegal activities, such as prostitution, bank robbery, synthesizing drugs, or assassination.

The opportunity to earn a livelihood, perhaps, may be a right. But the actual earning is up to you, to the employment market, and to the economy. Idiots have no guarantees.
8.6.2009 2:36am
Owen H. (mail):


You'll suffer a massive backlash and lose an enormous amount of money because people realise you're a tiresome bigot.



And you will be violating the law, which you and others have to accept is the case. No matter how much you want to pretend otherwise, that's how it is. I fail to see what is inconsistent about this.

Being a dickhead isn't illegal. No one, and no law, is forcing you to socialize with anyone. That's why the Boy Scouts won.
8.6.2009 7:51am
Owen H. (mail):
I do think there is a difference between a store selling to the public and a photographer going to a wedding. In the case of the photographer, they are being hired to perform a service, not selling a product. In general, you can decide who you will and will not work for. I don't have to accept any job I am offered.
8.6.2009 8:23am
cmr:
This thread has gotten massively off-topic.

While I'd agree with religious exemptions, to be honest, I think social conservatives have painted themselves into a corner with these exemptions. As an institution, church's should not have their freedom of religion abridged by having to acknowledge marriage they don't find in line with their beliefs. But as private citizens, as voters, they can still oppose SSM for whatever reason they choose.

The one problem with this entire debate about religious exemptions is it assumes that the only opposition to SSM is religion, and the State would desperately like to legalize it, but because we shamelessly ignore the Establishment Clause, the State can't legalize it. That's absolutely not true. People have voted in fair elections on what they believe is marriage. The culture war surrounding this issue might be partially religious, but the legal dispute? Not so much.
8.6.2009 9:08am
Smooth, Like a Rhapsody (mail):
Rebelyell and others have hit on this as well, but it is clear that the cognitive problem here is that any one who values liberty/limited government knows that the Ollie's BBQ scenario was a deal with the devil. Granted it was a deal made in an attempt to partially absolve our polity of the stain of slavery, but it was a deal nonetheless.

Now, though, we reap the whirlwind and the '64 Civil rights model/meme gets used for every aggrieved group who gets a little power (women...then female athletes...then disabled people...then gays....then...???).

Either you agree that blacks are a unique civil rights category or you don't. If you do agree, then a wedding photographer should obviously have the right to refuse to contract with gays; if you don't agree, then he obviously should not.
8.6.2009 10:11am
David M. Nieporent (www):
Owen H writes:
[If you refuse to serve a Jewish person at a restaurant] you will be violating the law, which you and others have to accept is the case. No matter how much you want to pretend otherwise, that's how it is. I fail to see what is inconsistent about this.
In other words, you're arguing about what the law currently says. But then in your very next post you say, "I do think there is a difference between a store selling to the public and a photographer going to a wedding. In the case of the photographer, they are being hired to perform a service, not selling a product. In general, you can decide who you will and will not work for. I don't have to accept any job I am offered." And yet, you're wrong. In general in the law there's no difference between selling a product and selling a service. (You can choose who to work for if you're merely selling your labor -- i.e., if you're an employee. But a doctor or a photographer or accountant or the like cannot choose not to serve black people because they're black.)

You also add:
Being a dickhead isn't illegal. No one, and no law, is forcing you to socialize with anyone. That's why the Boy Scouts won.
Incorrect again. The Boy Scouts won because of the freedom of expressive association -- that is, based on the notion that part of the Boy Scouts' inherent message is that being gay is wrong, and forcing them to have gay leaders would undermine that message. But other social clubs, ones that don't have such a message, in fact are forced by local and state antidiscrimination laws to admit people that they would prefer not to admit.
8.6.2009 10:33am
Largo (mail):
The right here is getting frustrated because the left are glossing over, ignoring, some fundamental problems they face in trying to grasp what the left has to say. And the left is glossing over and ignoring these problems because, frankly, the right ain't been that too articulate in articulating them.

Such is how it seems to this one, slow of thought.
8.6.2009 10:49am
plutosdad (mail):
Is the religious exemption whatever the person feels like? For instance, the Catholic Church is against gay marriage, but I don't think the Catholic Church has a policy saying you cannot sell flowers to a gay couple. Because of that, I don't see how any Catholics can get away with denying services based on their religion, because according to their own church it's not based on their religion. Therefore it must be based on personal feelings.
8.6.2009 11:56am
Danny (mail):

But other social clubs, ones that don't have such a message, in fact are forced by local and state antidiscrimination laws to admit people that they would prefer not to admit.


Is that really true? A social club is not like a store. It has a membership that if offers to whomever it chooses; by definition it is not open to "the public" at large. However, if it chooses to limit its membership to a section of the public, so to one group of taxpayers, then it is not eligible for public funding from ALL taxpayers and has to get by with its members contributions. Fair, right?


Either you agree that blacks are a unique civil rights category or you don't. If you do agree, then a wedding photographer should obviously have the right to refuse to contract with gays; if you don't agree, then he obviously should not.


It's an interesting question. Was black/white segregation a unique national trauma whose solutions cannot be applied automatically to other groups? Should we declare "open season" on discriminating against Christians, Mormons, Muslims, Latinos, disabled people, gays and lesbians and Americans from different states, while reserving anti-discrimination laws only for blacks? I think it is getting harder to argue that in 2009 blacks face unique discrimination in every place. Isn't it impossible to imagine a gay, lesbian or Latino president? Also, many non-white ethnic groups (African Americans, Asians and Latinos) discriminate extensively against each other. In very diverse places like Los Angeles or New York, I think that anti-discrimination laws may reduce social tension. In any case from a libertarian perspective there are so many ways in which the state interferes with the private life of citizens (like illegally spying on all of our telephone calls and e-mail) that I wonder about the sincerity of people who are fixated on the intense mental suffering caused by a lack of a "right to discriminate" against customers. Until these hardcore libertarians fight equally hard against all of the Bush-Obama authoritarianism, or for Muslims to be able to exclude blind people or Christians from taxis (and emotionally I find it inappropriate for my heart to bleed for the Muslim over the blind person) I will suspect that it is less political philosophy and more code for the rural white nationalist grievance that has become the dominant strain in current "conservatism" (an existential tribalism). Isn't that perhaps what is really going on here?
8.6.2009 12:09pm
David M. Nieporent (www):
Is that really true? A social club is not like a store. It has a membership that if offers to whomever it chooses; by definition it is not open to "the public" at large. However, if it chooses to limit its membership to a section of the public, so to one group of taxpayers, then it is not eligible for public funding from ALL taxpayers and has to get by with its members contributions. Fair, right?
It's really true. See Roberts v. Jaycees, Rotary International v. Rotary Club of Duarte, or New York Club Association v. City of New York, all of which held that states (or cities, in the last one) could apply their non-discrimination laws to social clubs.

Also note that the Boy Scouts v. Dale case itself was only 5-4; one more "liberal" on the court and it would have gone the other way. And it overturned a New Jersey Supreme Court decision that held that the Boy Scouts were required to admit gays.
8.6.2009 12:53pm
suze (mail):
You said"Let's be clear what we're talking about here: a situation in which a gay married couple or a gay couple about to get married seeks some good or service as a couple and is refused that good or service on the grounds that the provider objects to gay marriage (not gay people) for religious reasons. The gay couple nevertheless wants to force the transaction by seeking some legal remedy under a state antidiscrimination law that (a) applies to the transaction and (b) is not already subject to an exemption for religious objectors. I have found no reported cases so far in which all these conditions were present. "

Have you already forgotten the eharmony case, where the gay lobby DEMANDED - and WON! - the requirement for a Christian matchmaking site to cater to gay relationships!! It was an outrageous trampling of the website owner's rights, the Christian participants rights, etc.

Gay rights are protected from discrimination - at the cost of religious freedom. It is a disgrace.
8.6.2009 1:03pm
Owen H. (mail):
If I understand correctly, those cases involve groups that are not "merely" social in nature, which was also the argument used against the BSA. For example, country clubs are still permitted to refuse membership to minorities (or whites, for that matter).

David M. Nieporent- so what your saying is, if I don't want to work for someone that offers me a job, I have to anyway? A contractor has to accept every job he asked about? Nope. Including doctors is irrelevent, they are covered by a different set of laws. In most things, like a contractor or a photographer, you are selling your labor.
8.6.2009 1:04pm
troll_dc2 (mail):
When I left yesterday, I had not fully addressed the last sentence from this post by gordo:


But actually, you can exclude almost whomever you want...just not this one category of people who have mobilized themselves into special interest groups to wield the force of law against you and your property.

Society can make their opinions about this known in the marketplace of money and ideas.



I said that I had no idea what this last sentence meant. The response was that "If you have no idea what a "marketplace" means, either of money or ideas, I can't explain it to you here. You'll have to read up on...I don't know, a lot of things."

I know what a "marketplace" is. I just don't know what it has to do with your sentence.

First, what is this "[s]ociety" that you refer to? Is it everyone? Is it a subset? If a subset, who is included, and how are they selected?

Second, how does "[s]ociety" have opinions? People have opinion, and groups may have opintions, but society? Officious Intermeddler claims that "nobody ever 'does business with the public'" (quoting me) because "'The public' is not a party to any business contract." He goes on to assert that "only individuals, not 'the public', can accept the offer." So is he right, or are you?

Third, what do you mean by "known"? Letters to the editor? A blog? A poll? A demonstration? A boycott? A disruption of a town-hall meeting involving a senator and a Cabinet secretary?

Fourth, "the marketplace of money and ideas." Apart from the fact that I think that you meant to refer to two separate marketplaces, I really do not get what you are driving at. You wrote the sentence as part of a response to my statement that "Society has a right to determine that when you are doing business, you cannot exclude categories of the public."

Want to try again?
8.6.2009 1:28pm
troll_dc2 (mail):

Have you already forgotten the eharmony case, where the gay lobby DEMANDED - and WON! - the requirement for a Christian matchmaking site to cater to gay relationships!! It was an outrageous trampling of the website owner's rights, the Christian participants rights, etc.

Gay rights are protected from discrimination - at the cost of religious freedom. It is a disgrace.



I am not going to defend that decision. I think that it was a perversion of antidiscrimination law. I do not see how a Web site can be a public accommodation.

Was that a New Jersey administative decision?
8.6.2009 1:45pm
Danny (mail):

Have you already forgotten the eharmony case, where the gay lobby DEMANDED - and WON! - the requirement for a Christian matchmaking site to cater to gay relationships!!


THE gay lobby? A couple of crazy litigious gay people you mean. Most gays I know who heard about that were against the case. After all, there are lots of dating services and bars and clubs that cater exclusively to the gay community.
8.6.2009 2:07pm
troll_dc2 (mail):

THE gay lobby? A couple of crazy litigious gay people you mean. Most gays I know who heard about that were against the case. After all, there are lots of dating services and bars and clubs that cater exclusively to the gay community.



There will always be litigious people. The problem is that the government agency supported them, even though, if I recall, the metrics used by eHarmony were developed entirely on the basis of data submitted by heterosexuals. The settlement required the company to start a whole new section.

I wish that the matter had been taken to court, although that costs money and maybe the company saw a way to make money from what it was being forced to do.

It is stuff like that that makes me so hesitant about requiring florists and photographers to do things that they believe are wrong.
8.6.2009 2:13pm
Putting Two and Two...:

Have you already forgotten the eharmony case, where the gay lobby DEMANDED - and WON! - the requirement for a Christian matchmaking site to cater to gay relationships!! It was an outrageous trampling of the website owner's rights, the Christian participants rights, etc.

Gay rights are protected from discrimination - at the cost of religious freedom. It is a disgrace.


Uh... the owner's position wasn't based on religion. He claimed that his patented system for matching people was designed for heterosexual couples, based on years and years of experience in analyzing them and their compatibility characteristics and that that system could not be applied to gay couples.

Time for a virtual field trip! Go to eHarmony.com. Indicate your gender. As a first-time visitor, you now get to indicate the gender you're looking for. Click the same gender as your own. You will find yourself spirited off to a different website, one for gays only. First off, you'll notice very, very few photos of couples -- someone is squeamish about showing two gay people in the same photo apparently -- but that's not the important bit. Follow the links about WHY you should spend your hard-earned dollars on this match-making service. Surprise!!! Why, it's their patented, expert software!

I was no fan of the lawsuit. However, having been exposed as utter hypocrits, I sort of look forward to a lawsuit by some disgruntled bisexual. See, you can look for opposite-sex potential partners on eHarmony and same-sex ones on the gay site, but you have to have two separate accounts. Clearly discriminatory...
8.6.2009 3:14pm
troll_dc2 (mail):

I was no fan of the lawsuit. However, having been exposed as utter hypocrits, I sort of look forward to a lawsuit by some disgruntled bisexual. See, you can look for opposite-sex potential partners on eHarmony and same-sex ones on the gay site, but you have to have two separate accounts. Clearly discriminatory...



The transgender types will want some of that lawsuit money too, I reckon.
8.6.2009 3:47pm
David M. Nieporent (www):
David M. Nieporent- so what your saying is, if I don't want to work for someone that offers me a job, I have to anyway? A contractor has to accept every job he asked about? Nope. Including doctors is irrelevent, they are covered by a different set of laws. In most things, like a contractor or a photographer, you are selling your labor.
No, what I'm saying is that people selling services are not treated the same as people "selling labor." A doctor is not "covered by a different set of laws." A doctor, architect, barber, photographer... none of them are allowed to turn down a customer on the grounds that the customer is a member of a protected group.

(Of course, people in those lines of work have more plausible deniability much of the time, but the issue of proof is different than the issue of what the law requires.)
8.6.2009 3:57pm
troll_dc2 (mail):

A doctor, architect, barber, photographer... none of them are allowed to turn down a customer on the grounds that the customer is a member of a protected group.



So it seems that you would require a photographer who opposes gay marriage on religious grounds to photograph the gay wedding party if he is selected out of the yellow pages. Would you require a doctor who opposes abortion on religious grounds to perform one?

I assume that your answer to the question is "no" (even without regard to any possible "freedom of conscience" law on the subject). How do you distinguish the two situations?
8.6.2009 4:17pm
John D (mail):
Photographers aren't doctors.

I've known a few professional photographers. One does fine art photography but pays the bills with news photography. Another photographs...well, what are you paying him for. He does weddings. Parties. Family portraits. He's a guy with a big camera and bills to pay.

Now I suspect that if my friend the radiologist were asked to perform an abortion, he'd do a better job of it than I would. He's had medical training. It is not, however, his field of specialty.

The techniques for wedding photography, bar mitzvah photography, christening photography, birthday party photography, and corporate event photography are all going to be exactly the same.

It's probably a bit of a distortion to call the photographer in New Mexico a "wedding photographer." The photography business just isn't that specialized. Unlike doctors.
8.6.2009 5:17pm
John D (mail):
Of course one can check the web site.

First, they have the strangest bit of hidden code on their web site. Line after line in the vein of "discount percocet online." Okay, that's odd.

The services listed at Elane Photography (after Elaine Huguenin, the photographer who was sued) include weddings (featured prominently), engagements, portraits, and freelance.

Ms. Huguenin is a professional photographer. She does not only photograph weddings.
8.6.2009 5:28pm
Hank Gillette:
A gay unfriendly florist shop? Couldn't you have picked a more realistic example?

Other than possibly the church, I can't think of any business that depends on the wedding trade that is likely to be gay unfriendly.
8.6.2009 7:06pm
Danny (mail):
Come on, I've enjoyed the mental image of a macho, homophobic floral shop
8.6.2009 7:17pm
David M. Nieporent (www):
So it seems that you would require a photographer who opposes gay marriage on religious grounds to photograph the gay wedding party if he is selected out of the yellow pages. Would you require a doctor who opposes abortion on religious grounds to perform one?

I assume that your answer to the question is "no" (even without regard to any possible "freedom of conscience" law on the subject). How do you distinguish the two situations?
First, for clarification: I was not describing what I would do, but what the law says. I wouldn't do any of these things, if I had my druthers (*).

Second, the two situations are distinguished under the law in that (for all but the most radical feminists), not performing abortions is not discriminatory. Non-discrimination law requires people to treat members of different protected classes equally; it does not require people to provide goods or services that they would not ordinarily provide simply because a member of one of those protected classes wants them to.


(*) Whatever the heck a druther is.
8.6.2009 7:37pm
Clayton E. Cramer (mail) (www):
Yup. Put the sign out front, on the glass. You'll get Kristallnacht--just like happened from putting Juden on the front windows. But that's the goal, isn't it?

Imagine if homosexual-owned businesses in 1960 had been required to put a pink triangle out front, so we wouldn't take our little boys inside.
8.7.2009 12:30am
yankee (mail):
Have you already forgotten the eharmony case, where the gay lobby DEMANDED - and WON! - the requirement for a Christian matchmaking site to cater to gay relationships!! It was an outrageous trampling of the website owner's rights, the Christian participants rights, etc.

Gay rights are protected from discrimination - at the cost of religious freedom. It is a disgrace.

Let's get the facts straight here:

1) eHarmony is not and never has been a "Christian" matchmaking site. The founder is an evangelical Christian, but eHarmony, Inc. has never been a specifically Christian corporation and the eHarmony website has never been Christian-specific.

2) The lawsuit in question was filed by a random gay guy, not by the "gay lobby."

3) eHarmony did not raise any sort of religious freedom defense. eHarmony's claim (dating from long before the litigation) was that they didn't do same-sex dating because their matchmaking research wasn't valid for same-sex couples.

4) The guy didn't "win" anything. eHarmony chose to settle after the New Jersey Civil Division of Civil Rights issued a "finding of probable cause"—basically a first-round administrative refusal to dismiss the complaint prior to hearing. No judgment was ever issued in the matter and it never even made it to an ALJ.

Of course, you're still free to find it appalling that the case was not instantly dismissed, but you should at least get the facts right.
8.7.2009 1:02am
Roberto (mail):
Anatid:
Again, this right is restricted and regulated. You must pay income taxes on your earnings. You must acquire a license before you are allowed to practice certain livelihoods, such as medicine or law. You are prohibited from earning a livelihood at illegal activities, such as prostitution, bank robbery, synthesizing drugs, or assassination.

The opportunity to earn a livelihood, perhaps, may be a right. But the actual earning is up to you, to the employment market, and to the economy.


If there are restrictions and regulations on earning a livelihood, there is also a legitimate governmental interest for this, such as health, safety and economic concerns.

But when the concern is only to spare a person having his feelings hurt, then a good argument has to be made as to why this should be a proper interest of government. We hear all the time that there is no right to NOT be offended. This is, evidently, open to debate.

A photographer who refuses to do business with someone for any reason at all may cause some hurt feelings, but how is this any business of the government?

Anatid:
Idiots have no guarantees.


No more or less than any other person. It's right there in the constitution.
8.7.2009 4:42am
Roberto (mail):
Toby:

If Bernie Madoff were still walking around, should a store owner be able to refuse to seel to him? What if he was only still working because Madoff vansihed his retirement?


I should clarify my position. As no person is compelled to start an enterprise and it is entirely voluntary, it should be surprising that constraints, obligations, conditions and demands are put upon him for reasons that are of no legitimate governmental interest. To do so is simply the exercise of raw power.

We hear all the time that there is no right to NOT be offended. When the concern is only to spare hurt feelings, then a good argument has to be made as to why this should be a proper interest of government.
8.7.2009 5:37am
Owen H. (mail):
If the buyer has no right to not be offended, doesn't that also mean that the seller has no such right either?
8.7.2009 8:29am
John D (mail):
I've read the whole series, and even though Culhane seems sympathetic to the idea of religious objections to same-sex marriage, there is no there there.

In these comments, at great length, commenters have offered cases in which people expressed a religious objection to doing business with gay people. None of these involved marriage.

I, personally, found myself confused by Wilson's arguments cited by Culhane. The florist can object but the cabby cannot? Then again, I found it disappointing that Wilson happily cites the same cases that appear here in the comments, despite their irrelevancy. She should be held to a much higher standard than people making comments on a blog.
8.7.2009 11:23am
troll_dc2 (mail):

So it seems that you would require a photographer who opposes gay marriage on religious grounds to photograph the gay wedding party if he is selected out of the yellow pages. Would you require a doctor who opposes abortion on religious grounds to perform one?

I assume that your answer to the question is "no" (even without regard to any possible "freedom of conscience" law on the subject). How do you distinguish the two situations?

----
First, for clarification: I was not describing what I would do, but what the law says. I wouldn't do any of these things, if I had my druthers (*).

Second, the two situations are distinguished under the law in that (for all but the most radical feminists), not performing abortions is not discriminatory. Non-discrimination law requires people to treat members of different protected classes equally; it does not require people to provide goods or services that they would not ordinarily provide simply because a member of one of those protected classes wants them to.


(*) Whatever the heck a druther is.




I first wish to address your footnote. See here for a possible answer.

"druthers" Your imagination would come up with more intriguing possibilities than the reality of the origins of the expression. It's simply the product of a regional speech mannerism, in which "I'd rather" gets contracted into "druther," and then becomes a noun by adding an "s." So if you had your druthers, you would have what you want, what you'd rather have.


I also have a question about your statement that "Non-discrimination law requires people to treat members of different protected classes equally; it does not require people to provide goods or services that they would not ordinarily provide simply because a member of one of those protected classes wants them to." If the photographer ordinarily provides photography services for weddings, I take it that you would find that the law requires her to do so for gay people as well as straight ones. But the abortion doctor provides a service too. Would you say that the law requires him to do one for a pregnant lesbian if he does them for pregnant straight women?
8.7.2009 12:48pm
Danny (mail):
Can we all agree that a Christian doctor can be forced to harvest the aborted fetus of a lesbian for stem-cell research IF the procedure is funded by socialized health care?
8.7.2009 1:39pm
Anatid:
Fetal abortions are not used for the creation of stem-cell lines, for starters. Nor is the creation of stem-cell lines by research groups in any way a public or even private service.
8.7.2009 1:47pm

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