SCOTUS gay rights case

[Loren Pechtel]

You appear to be proposing that the government should get to require a website designer to write html for a website for a wedding of people of unspecified sexes, wherein the affianced persons can later fill in the blanks to make clear who the future spouses are and whether the wedding is gay or straight. And that degree of forced speech is compatible with the description of free speech that you use, because she doesn't have to create something she finds repugnant or contrary to her deeply held religious or political beliefs, because until the blanks in the template are filled in it isn't repugnant and contrary to her beliefs. Is that what you have in mind?

So how would you judge the case if an evidently Jewish guy in a yarmulke met with a Palestinian-American website designer and asked her to design a website proclaiming "The West Bank rightfully belongs to the [blank]s, so all the [blank]s there should either quit fighting about it and submit to [blank] rule, or else clear out.", and the website designer deduced how the blanks were going to get filled in and refused to do the job, so the wannabe customer sued her?

Layout is often done with the content deliberately removed to avoid perceptions being distorted. That's what Lorum Ipsum is about.

 

[Jarhyn]

I still think the better comparison is to my billboard company not wanting to serve a Christian customer requiring "Jesus is Lord" on their billboard because it happens to be something I don't agree with, rather than it being a direct interference with the *exercise* of my religion.

This is a rather interesting corner case: the billboard company may be taking advantage of the common carrier types of protection.

They are idemnified against charges of hate speech, etc if they screen nothing.

If they filter out all religious reference, they are again protected by uniformity of policy, but they open themselves up to liabilities for other things, especially if they make an exception for someone they like.

If they filter out just the one message, they will be sued, and should be.

If the rubric is provided by the government on the filter, it opens the government up for liability in the form of rebellion over the suppression of free speech.

In all cases the billboard company has their logo printed under the billboard most times so it can be construed as a paid endorsement, or unavoidable appear that way to a too-large segment of the population.

The resulting solution is that most billboard companies post a policy of what they will not print on their billboards, keep the language free of specific references to religion, and employ their policies strictly to prevent things like "you posted 'Jesus Saves', so why not 'Satan Delivers' or whatever?"

If they refuse to post one of the two, it indicates endorsement to the extent that competing message is censored.

 

[Bomb#20]

So how would you judge the case if an evidently Jewish guy in a yarmulke met with a Palestinian-American website designer and asked her to design a website proclaiming "The West Bank rightfully belongs to the [blank]s, so all the [blank]s there should either quit fighting about it and submit to [blank] rule, or else clear out.", and the website designer deduced how the blanks were going to get filled in and refused to do the job, so the wannabe customer sued her?

Yes. Quite.

"So how would you judge the case ..." isn't a yes/no question. Do you mean you would rule in favor of the customer?

Which is why nobody, Jew or Palestinian, ought be making cakes going anywhere near the topic of ownership of the west bank, or getting into any politically sticky waters.

If they would make a cake stating "The West Bank rightfully belongs to the [blank]s, so all the [blank]s there should either quit fighting about it and submit to [blank] rule, or else clear out." for a Jew, they must make "The West Bank rightfully belongs to the [blank]s, so all the [blank]s there should either quit fighting about it and submit to [blank] rule, or else clear out." for anyone.

Your thinking on this topic appears to have evolved since last year. Back then you supported viewpoint discrimination against Zionists.

Making a statement for someone is a liability, which is why most people wouldn't do it for  anyone, because it opens a door to exactly this kind of demand for universal access.

The question is, what constitutional basis is there for the government making it a liability? If a legislature wants to stop private businesses from preferentially promoting their own ideologies and charging whoever is willing to pay them for that service -- something every biased news organization from Fox to CNN does -- well, that's why we have a First Amendment and a court system, to stop our legislatures from doing that. So when a legislature makes it a liability -- when it says "It's not us stopping you; it's some private citizen's lawsuit" -- that legislature is engaging in exactly the same corrupt end-run around the constitution as Texas pulled when it said "It's not us stopping you from getting the abortion Roe v Wade guarantees your right to; it's some private citizen's lawsuit." Do you think that whole "Anybody can sue people who enable abortions for $10,000." stunt was a legitimate application of the Texas legislature's authority?

It seems to me it should be axiomatic that what the constitution forbids the government to do itself, it also forbids the government to bribe some third party to do for it.

 

[Jarhyn]

The question is, what constitutional basis is there for the government making it a liability?

Their liability is over not supporting free access to the public marketplace.

The government has interest in regulating the marketplace, including the universal availability of service.

They are liable to uphold the commitments they make to serve the community equally.

If you don't think the constitution contains any requirement to do so, then the constitution is wrong. Public licensure means being open to the public.

 

[Metaphor]

The question is, what constitutional basis is there for the government making it a liability?

Their liability is over not supporting free access to the public marketplace.

The government has interest in regulating the marketplace, including the universal availability of service.

They are liable to uphold the commitments they make to serve the community equally.

If you don't think the constitution contains any requirement to do so, then the constitution is wrong. Public licensure means being open to the public.

So, no specialist businesses whatsoever? What a sad world you want to live in.

 

[Bomb#20]

Does this woman’s religion *require* her to run a business? ...

How far would you push that style of reasoning? ... Suppose the government ... If this were government policy, would you defend it that way?

I don't find your comparisons compelling, for two reasons:

I take it that's a "No".

1) it puts discriminating against gay people on par with Jews celebrating the Sabbath and Sikhs not cutting hair as a legitimate *exercise* of religion. If Christians want to admit that bigotry against gays is a tenet of their religion then maybe we're getting somewhere with their honesty and I'd be more open to that argument.

I don't know what to make of that answer. It's not as though Christians have been keeping the homophobic character of their religion and/or their religious certainty that gay sex is a sin against their God's law a secret for the last two thousand years.

I still think the better comparison is to my billboard company not wanting to serve a Christian customer requiring "Jesus is Lord" on their billboard because it happens to be something I don't agree with, rather than it being a direct interference with the *exercise* of my religion.

Did you take any position on whether you should get to turn away the "Jesus is Lord" customer? I only recall you asking other members if they thought you should be allowed to.

2) the laws you are proposing are a) not likely to happen,

The first one, true. The second one isn't a matter of "likely" -- it's the law of the land right now, in sixteen states, violations punishable by fine or jail. Used to be a lot more states -- California had a law like that until about 20 years ago. The only thing at all invented about the scenario is my putting a Sikh into it -- hair braiding businesses are mostly an African-American thing.

and b) would not serve the same legislative purpose as an anti-discrimination law. So, I think the arguments against compliance with the law in the face of potential violations of religious freedom are not compatible with the current case.

I.e., you regard preventing discrimination as a more valid legislative purpose than protecting a favored lobby from competition. And so it is, morally; but as the saying goes, "This is a court of law, not a court of justice." What legal difference is there between coercing a person to go against his religion by holding hostage his ability to make a living, for a good reason, and doing it for a bad reason the legislature has declared to be good enough?

The issue I'm trying to explore here is to what extent there's any constitutional basis for presuming the government has the authority in the first place to pick two arbitrary services and say you can't make a living providing service A unless you also provide service B, and use that authority as a club to stop citizens from exercising their rights. Where does it end? There's no provision in the constitution distinguishing "run a business" from "have a job". So if the state can hold "run a business" hostage it can hold "have a job" hostage. And if it can hold "have a hair-braiding job" hostage to willingness to cut hair it can hold "have any job" hostage to willingness to do anything it names. If it can make you say "Jesus is Lord" or lose your livelihood it can make you say "Re-elect Congressman Jones" or lose your livelihood.

I saw a statistic that in the fifties, one American in twenty had a job he wasn't allowed to do without a state license, and today it's one in four. If in seventy more years it's nineteen in twenty, will religious freedom amount to "You're allowed to take the requirements of your religion seriously, provided you're a ditch-digger."?

 

[Jarhyn]

The question is, what constitutional basis is there for the government making it a liability?

Their liability is over not supporting free access to the public marketplace.

The government has interest in regulating the marketplace, including the universal availability of service.

They are liable to uphold the commitments they make to serve the community equally.

If you don't think the constitution contains any requirement to do so, then the constitution is wrong. Public licensure means being open to the public.

So, no specialist businesses whatsoever? What a sad world you want to live in.

In what kind of twisted bizarro-land world does "serve the whole public as you would serve any of the public" translate into "no specialization"?

 

[Metaphor]

The question is, what constitutional basis is there for the government making it a liability?

Their liability is over not supporting free access to the public marketplace.

The government has interest in regulating the marketplace, including the universal availability of service.

They are liable to uphold the commitments they make to serve the community equally.

If you don't think the constitution contains any requirement to do so, then the constitution is wrong. Public licensure means being open to the public.

So, no specialist businesses whatsoever? What a sad world you want to live in.

In what kind of twisted bizarro-land world does "serve the whole public as you would serve any of the public" translate into "no specialization"?

In a world where male only sex-on-premises venues exist. Or they wouldn't, in your brave new world.

 

[Shadowy Man]

Does this woman’s religion *require* her to run a business? ...

How far would you push that style of reasoning? ... Suppose the government ... If this were government policy, would you defend it that way?

I don't find your comparisons compelling, for two reasons:

I take it that's a "No".

1) it puts discriminating against gay people on par with Jews celebrating the Sabbath and Sikhs not cutting hair as a legitimate *exercise* of religion. If Christians want to admit that bigotry against gays is a tenet of their religion then maybe we're getting somewhere with their honesty and I'd be more open to that argument.

I don't know what to make of that answer. It's not as though Christians have been keeping the homophobic character of their religion and/or their religious certainty that gay sex is a sin against their God's law a secret for the last two thousand years.

Sure, but is discriminating against gays an *exercise*’of their religion. Like celebrating the sabbath? Going to church on Sundays? Having a Bar Mitzvah?

I contend that it is not. That the government’s interest in equality under the law trumps this woman’s prejudices. I don’t believe that a prejudice is an *exercise* of religion. She doesn’t have to get gay married or have gay sex. She can still go to church and have all the rites and rituals of her religion respected.

But, I’m sure you likely disagree with me. Maybe I’m wrong and I don’t understand how exercising one’s religion works. Im not a constitutional scholar who fully understands the context of the word “exercise” as it pertains to first amendment laws. I’m just a guy with an opinion.

 

[Jarhyn]

The issue I'm trying to explore here is to what extent there's any constitutional basis for presuming the government has the authority in the first place to pick two arbitrary services and say you can't make a living providing service A unless you also provide service B,

No, the issue is that the authority being asked for is not to offer service A and not service B.

The authority asked for is to offer A "the service", and not offer B "the service".

If "the service" is to present a Lorum Ipsum filled layout geared to discussing relationships with placeholders for Straight America, they need to entertain bids for that same service for Gays United, so long as they are a publicly licensed business.

Do you deny that people ought freely be able to access the businesses of the public square, so long as they do not run afoul of the laws?

I would maintain that this is a fundamental thing, a right that is too often neglected.

The question is, what constitutional basis is there for the government making it a liability?

Their liability is over not supporting free access to the public marketplace.

The government has interest in regulating the marketplace, including the universal availability of service.

They are liable to uphold the commitments they make to serve the community equally.

If you don't think the constitution contains any requirement to do so, then the constitution is wrong. Public licensure means being open to the public.

So, no specialist businesses whatsoever? What a sad world you want to live in.

In what kind of twisted bizarro-land world does "serve the whole public as you would serve any of the public" translate into "no specialization"?

In a world where male only sex-on-premises venues exist. Or they wouldn't, in your brave new world.

Interesting jump you made from a situation of "this particular industry needs to be reordered to specialize" to "no specialization whatsoever".

It's almost like your post was exceedingly dishonest.

Spoiler: responding to Metaphor's attempted derail to trans-exclusionist campsites

Yes, I would end this particular kind of discrimination of publicly licensed "male" only sex-on-premises venues. It is discriminatory, right on the face of it. Just like I would expect the state to end a "whites only eating-on-premise venue".

If they want to be selective about their clientele, I would as soon see them be forced to become a private members club. They will still see protest for their sexism, to be sure, but it will at least then be legal. They have no right to be free of social pressures, however.

 

[Metaphor]

Interesting jump you made from a situation of "this particular industry needs to be reordered to specialize" to "no specialization whatsoever".

It's almost like your post was exceedingly dishonest.

It wasn't dishonest in any way. Some services are not only built to cater to one kind of person, the presence of other kinds makes the business impossible.

Yes, I would end this particular kind of discrimination of publicly licensed "male" only sex-on-premises venues. It is discriminatory, right on the face of it.

Thank you for clarifying your vision. It is a hellish, dystopian vision and I hope it never comes to pass.

 

[Jarhyn]

Some services are not only built to cater to one kind of person, the presence of other kinds makes the business impossible.

And when this is the case, we call those businesses "discriminatory" and either expect they do it in their own private circle or or figure out a way to serve everyone and run into as few issues as they may.

Sure, it makes it hard for a public business to cater to hardline bigots, but so what?

Do you seriously find that kind of world where, if you want to find a cabin in the woods surrounded by other cabins in the woods where only people of a specific appearance will be seen, you have to join a private club rather than just book a travel agent "hellish"? If so, I think your life is too easy for me to take you seriously.

I would encourage others to perceive it likewise.

 

[Metaphor]

And when this is the case, we call those businesses "discriminatory" and either expect they do it in their own private circle or or figure out a way to serve everyone and run into as few issues as they may.

You may have the expectation, but I do not. I am not quite as intensely interested in controlling the actions of other people via government force as you are.

Sure, it makes it hard for a public business to cater to hardline bigots, but so what?

So, you could just let people associate as they please, whether you believe they are 'bigots' or not.

Do you seriously find that kind of world where, if you want to find a cabin in the woods surrounded by other cabins in the woods where only people of a specific appearance will be seen, you have to join a private club rather than just book a travel agent "hellish"?

I don't know where 'cabin in the woods' came from. What are you talking about?

I think that putting a facade of 'you can do it if it's a private club' is a ridiculous and time-wasting engineered loophole to patch a problem you created.

Let's say I want to open a male-only sex-on-premises venue, entry is $20. (I know homosexuality makes you shudder with disgust but hear me out). Under your 'no discrimination' regime, I can't. I can't stick someone on the door to vet who comes in, and I can't advertise in a way to discourage non-males from coming in, because that would be 'discriminatory'. In fact, the business itself can't exist because it is premised on excluding non-males.

So, instead, I form a 'private club'. Membership lasts for 24 hours. Because this is a private club, we can discriminate, and we only let people sign on to be members for 24 hours (24 hour membership cost, $20). You can sign on to the private club at the door, if the bouncer likes your look.

Now, either you can see the second scenario is just as discriminatory as the first, but requires ludicrous bureaucratic nonsense to survive because otherwise it would be "discrimination". It's like Islamic banking: you can't take out a loan with interest to buy a house....so you happen to be able to get around Allah's (peace be upon her) rules by buying the house (on a thirty year repayment plan) at the sale price plus what about thirty years of interest would cost....but we're not charging interest!

Or: an alternative scenario. Say I want to run an atheist-only dating service. Or perhaps a Jewish-only dating service. Or a Muslim-only dating service. This would appeal to people to whom the religion of a dating partner is important, specifically that it be the same as their own. Obviously, it would be discrimination to exclude the people who don't fit into the category, but it would be better for everyone who wants to sign on to such a service.

But so what if it is 'discrimination'? You think that by merely stating that, that makes whatever it is bad and wrong. It doesn't.

 

[Bomb#20]

The issue I'm trying to explore here is to what extent there's any constitutional basis for presuming the government has the authority in the first place to pick two arbitrary services and say you can't make a living providing service A unless you also provide service B,

No, the issue is that the authority being asked for is not to offer service A and not service B.

The authority asked for is to offer A "the service", and not offer B "the service".

That's an exercise in mistaking the map for the territory -- deducing that two things are identical because you chose to attach the same label to both. In real life, especially when we're talking about made-to-order goods or personal services rather than about pre-made off-the-shelf goods, there are always differences between one service and another. When the government is empowered to equate two distinguishable services and define offering A but not B to be the same thing as offering to buyer of A but not to buyer of B, there is nothing to stop the government from defining braiding and cutting as "the hairdressing service", and accusing a woman who braids the hairstyles black women typically want but won't learn how to cut the hairstyles white women typically want of illegally offering "hairdressing" to blacks but not to whites.

If "the service" is to present a Lorum Ipsum filled layout geared to discussing relationships with placeholders for Straight America, they need to entertain bids for that same service for Gays United,

But Ms. Smith isn't trying to offer "the service" of a Lorum Ipsum filled layout. Most customers of web design services don't want to buy a template that they will then have to do a bunch of further work on after having to climb a learning curve in order to customize their template to their actual needs. They want to buy a website.

I think you knew that -- you appear to be in effect arguing that if Ms. Smith is willing to write an actual website for a specific wedding then the state should be authorized to compel her to also write Lorum Ipsum templates for hypothetical weddings. That, it should go without saying, is a different service. Those are service A and service B, not "the service".

so long as they are a publicly licensed business.

There's nothing in the constitution about who needs licenses. If the state is empowered to disregard someone's constitutional rights whenever she's running a "business" the state requires licenses for, then it's equally empowered to disregard her constitutional rights whenever she's selling fruit-picking labor to the local landowner. The state can require "farm-workers" to be licensed as easily as "businesspersons".

Do you deny that people ought freely be able to access the businesses of the public square, so long as they do not run afoul of the laws?

Don't you? "So long as they do not run afoul of the laws" is a pretty low bar. If a shopkeeper banned a customer from her store because every time the guy came in he made fun of her weight, so he sued her, would you rule against her?

I would maintain that this is a fundamental thing, a right that is too often neglected.

The question is, what constitutional basis is there for the government making it a liability?

Their liability is over not supporting free access to the public marketplace.

The government has interest in regulating the marketplace, including the universal availability of service.

They are liable to uphold the commitments they make to serve the community equally.

If you don't think the constitution contains any requirement to do so, then the constitution is wrong. Public licensure means being open to the public.

The constitution certainly does not contain any requirement to do so. The constitution is very long on "negative rights", rights we can all respect merely by leaving someone alone, but very skimpy on "positive rights", rights that require one citizen to do some service for others. By my count, the total number of such constitutional positive rights comes to exactly one: the requirement to come to court and testify if called as a defense witness. If you think it's wrong for the constitution to be so strongly biased against fists in favor of noses, well, it comes with an amendment procedure. If you want to add an amendment to install some more positive rights, by all means propose some wording and we can analyze its merits. But if what you have in mind implies our other rights all go away in a puff of license law whenever the government says so, it's going to be hard to get 38 states to ratify that. It's probably going to be hard to even get 51% of voters to support that.

 

[James Madison]

If gays are required to cater to anti gays then that eight for the anti gay to not be selectively discriminated against has to apply to all.

Yes. The Fourteenth protects everyone. That's the entire point.

Which is why suing the government so you can be specially allowed to discriminate against a particular class is wrong, even if a panel of specially chosen theocratic judges agrees with you.

Yet, the 14th amendment doesn’t forbid private discrimination. Neither does the 14th amendment mandate the state governments to prohibit private discrimination. States can pass public accommodation laws but there isn’t a 14th amendment mandate to do so.

So, by way of example, she (the web designer) is suing under the 1st amendment free speech clause asserting the state public accommodation law as applied to her in this factual context results in compelled speech by her in violation of the 1st amendment. The 14th amendment doesn’t illuminate whether her act of suing to prohibit the enforcement of the state law in relation to her in this context is “wrong”. See Hurley vs Irish American Gay and Lesbian and Bisexual Group of Boston. Hurley involved a state public accommodation law that had to yield as applied in the factual context to the free speech expressive rights of others.

 

[Elixir]

What's "private discrimination"? Is "private discrimination" against individuals even possible to be done by a business open to the public?
That's where there's no unanimity among judges.

 

[James Madison]

It isn't hard if you try. Setting a flag on fire is a protest - clearly political speech. Making ______ (fill in the blank) for money is not speech, it is commerce.

so Michaelangelo's painting the Sistine Chapel was not speech, but commerce, Madonna's "Like a Virgin' video was not speech, but commerce.

Those are both examples of art as expression... for money. It is speech. Making a pretty cake to sell is baking and decoration, not speech.

a very narrow definition of "art as expression". So what about photography, quilts, clothing design, knitting, crochet, embroidery, other "handicrafts"?

When I made our wedding cake... the whole expression was "pretty", "elegant", "sharp", "clean". I assure you, I achieved none of those goals, but the one thing it clearly didn't express was the sexual orientation of the couple getting married.

Where do you draw the line. and then, of course, there's the issue of web design.

I draw the line at expression. Actual expression. If I show a picture of a wedding cake, it'd be near impossible to tell whether the couple was gay or straight.

And the “actual expression” in the Jackson Pollock art work below is what? Arguably none. So, no speech protection for those paintings?

 

[James Madison]

What's "private discrimination"? Is "private discrimination" against individuals even possible to be done by a business open to the public?
That's where there's no unanimity among judges.

Absent a public accommodation law, yes. Public accommodation laws were conceived to prohibit certain kinds of private discrimination. The point, though, is the legislature had to pass legislation to prohibit certain kinds of private discrimination since such discrimination was not by default unlawful.

 

[Bomb#20]

What's "private discrimination"? Is "private discrimination" against individuals even possible to be done by a business open to the public?
That's where there's no unanimity among judges.

That doesn't matter, because there's no need for judges to decide whether "private discrimination" against individuals is possible to be done by a business open to the public. The Constitution doesn't distinguish which discriminations it prohibits based on the private/non-private difference; it distinguishes them based on the state/non-state difference. Litigants can insist until they're blue in the face that some economic activity is a "business" because the state says so, and is "public" because the state says so, but none of that will magically transform the private citizens engaging in that economic activity into a state.

 

[Jarhyn]

What's "private discrimination"? Is "private discrimination" against individuals even possible to be done by a business open to the public?
That's where there's no unanimity among judges.

That doesn't matter, because there's no need for judges to decide whether "private discrimination" against individuals is possible to be done by a business open to the public. The Constitution doesn't distinguish which discriminations it prohibits based on the private/non-private difference; it distinguishes them based on the state/non-state difference. Litigants can insist until they're blue in the face that some economic activity is a "business" because the state says so, and is "public" because the state says so, but none of that will magically transform the private citizens engaging in that economic activity into a state.

And neither will that transform the agreement the business made to serve the whole public, nor the real responsibility they have to do so on a philosophical level.

What is clear is that some folks wish to have a public facing business with an open door and then pick and choose who they do business with, throwing fair practice out the window.

Anyone who rides in on that horse can ride out on a rail for all I care.