The Church supports website developers LGBQT discrimination

[Marcus]

She won't special order the cake toppers for anyone -- not just for gay folks.

Is this true? It truly goes against all business sense if so.

So when i asked my sO about special orders, i asked the wrong question? True, i did not ask him if he never special orders from his distributors.

Nor did i ask him if he unlocks the door of his facility in the morning. For the same reason.

Let me go read the case.

[Res Ipsa]

This is going to come down to - should religion hold a position of special protection in a democratic society? The answer might be yes today because America is currently perceived to be a Christian/religious society. But the trajectory of religiosity suggests it will be a no tomorrow. Religion is gradually losing its special place in society. And the laws will follow to reflect that.

But the "free exercise" clause argument is a separate argument in the case. I could construct a parallel example using political views or philosophical views. There is a pure free speech argument that the Court has to grapple with that is independent of religion.

On the religious freedom issue, I think that's a very good question to act. Religion is given special treatment in the U.S. because of the "free exercise" clause in the first amendment. That special treatment isn't limited to Christianity.

I think to say that the right to freely exercise religion will go away as the majority moves away from religion is to completely miss the point of having rights at all. Rights exist to protect certain individual liberties from interference by the majority. In fact, the smaller the minority that is protected by a given right, the more vigorously the right should be defended. That's why, years ago, the ACLU defended the right of Nazis to march in Skokie.

[Marcus]

Just from a business standpoint, suppose a retailer stocks items from a distributor. They keep popular items in stock, and they also offer a service to special-order less common items. Assume all the common items and also the less common items are offered by the distributor.

If that’s their policy, then choosing not to 1) sell from items commonly stocked or 2) sell from items that are available but require a special-ordered stock seem to be effectively the same thing. I’ll double check this with my SO who runs a wholesale business and special orders stuff all the time, but I guarantee that if I ask him if he can legally refuse to special order a version of an item he regularly sells on the basis that he objects to the sale because the customer is gay he will look at me like I have three heads. Maybe 10.

And well he should. But if you want to make your hypothetical parallel comparable to the actual case, the store owner would have to refuse to order and sell the item regardless of the sexual orientation of the customer. I use the cake toppers only because it gets us closer to the real case. Combine the two examples. The store owner only stocks cake toppers with a man and a woman. But the distributor has a whole line of cake toppers, many of which don't include people at all. The store owner routinely will special order toppers she doesn't stock, but not those that include two men and two women. A customer asks if the store stocks toppers with two women. The owner says no. The customer asks if she will special order one. The owner says no. The customer asks why and she says her religious belief is that marriage is limited to one woman and one man. Can the government force the owner to special order the topper with two women and sell it to the customer?

We seem to be talking at cross purposes. There is, in the business world, no difference between selling a distributor's wares you stock and selling the same distributor's wares you special order. Unless you NEVER stock from a distributor.

Now, in a lawyer's world? Who knows.

[Res Ipsa]

She won't special order the cake toppers for anyone -- not just for gay folks.

Is this true? It truly goes against all business sense if so.

So when i asked my sO about special orders, i asked the wrong question? True, i did not ask him if he never special orders from his distributors.

Nor did i ask him if he unlocks the door of his facility in the morning. For the same reason.

Let me go read the case.

From a purely economic standpoint, all discrimination goes against business sense. In theory, market competition would lead a business that discriminates to either abandon the practice or be outcompeted. In the real world, it doesn't work like that if doing business with the minority would cause a substantial percentage of customers to do business elsewhere.

The cake topper example is a hypothetical I created for discussion purposes. It's true that, in my hypothetical, the business owner would special order any cake topper she did not stock from the distributor except for those that had two men or two women as the happy couple. It is also true that she treated her cis het customers the selfsame way she treated her non cis het customers. There was no need to ask about sexual orientation, as she provided the same products to everyone.

So, yeah, you asked the wrong question.

[Res Ipsa]

And well he should. But if you want to make your hypothetical parallel comparable to the actual case, the store owner would have to refuse to order and sell the item regardless of the sexual orientation of the customer. I use the cake toppers only because it gets us closer to the real case. Combine the two examples. The store owner only stocks cake toppers with a man and a woman. But the distributor has a whole line of cake toppers, many of which don't include people at all. The store owner routinely will special order toppers she doesn't stock, but not those that include two men and two women. A customer asks if the store stocks toppers with two women. The owner says no. The customer asks if she will special order one. The owner says no. The customer asks why and she says her religious belief is that marriage is limited to one woman and one man. Can the government force the owner to special order the topper with two women and sell it to the customer?

We seem to be talking at cross purposes. There is, in the business world, no difference between selling a distributor's wares you stock and selling the same distributor's wares you special order. Unless you NEVER stock from a distributor.

Now, in a lawyer's world? Who knows.

For purposes of the hypothetical, adding in the potential for special ordering makes the hypothetical better (i.e., illustrates what makes the real case difficult in a better way). In trying to figure out what the government should be allowed to do, most people will naturally resist the notion that the government should be able to sell a retailer what she must stock in terms of goods. But, as you point out, there's not a meaningful distinction based on what is stocked when you factor in special ordering. So, I added in that the retailer would special order any toppers she did not carry other than "gay" toppers based on religious belief. That brings the hypothetical factually closer to the web designer in a way that still illustrates the distinction between what products or services a businessperson chooses to offer and declining to provide any goods or services to a class of people.

I agree 100% with your SO's answer that "green is green." That would be the response of a rational economic actor. But the designer isn't a rational economic actor. She's willing to turn down the green for a non-economic reason.

[Marcus]

The cake topper example is a hypothetical I created for discussion purposes. It's true that, in my hypothetical, the business owner would special order any cake topper she did not stock from the distributor except for those that had two men or two women as the happy couple.It is also true that she treated her cis het customers the selfsame way she treated her non cis het customers. There was no need to ask about sexual orientation, as she provided the same products to everyone.

So, yeah, you asked the wrong question.

I bolded a part above. If the business owner will not order those items when requested, then i disagree with your next two sentences. She is NOT treating her customers the same if she refuses to order those items from her same distributor's list on the basis of her customer's orientations.

Eta: i see you posted, i'm trying to do something else while responding and I fear it is gettng too disjointed, let me finish and i'll come back to this as a whole-!!

[Res Ipsa]

The cake topper example is a hypothetical I created for discussion purposes. It's true that, in my hypothetical, the business owner would special order any cake topper she did not stock from the distributor except for those that had two men or two women as the happy couple.It is also true that she treated her cis het customers the selfsame way she treated her non cis het customers. There was no need to ask about sexual orientation, as she provided the same products to everyone.

So, yeah, you asked the wrong question.

I bolded a part above. If the business owner will not order those items when requested, then i disagree with your next two sentences. She is NOT treating her customers the same if she refuses to order those items from her same distributor's list on the basis of her customer's orientations.

Eta: i see you posted, i'm trying to do something else while responding and I fear it is gettng too disjointed, let me finish and i'll come back to this as a whole-!!

Yeah, I agree that we may be talking past each other a little. When you get a little more time, please keep in mind that what I attempted to do was create a series of hypothetical examples that went from easy and clear to clouded and difficult. I think there's a straight faced argument to be made on both sides of the cake topper example. If you do so, that would be cool. That help's illustrate why the actual case is difficult for free speech advocates.

[Marcus]

I bolded a part above. If the business owner will not order those items when requested, then i disagree with your next two sentences. She is NOT treating her customers the same if she refuses to order those items from her same distributor's list on the basis of her customer's orientations.

Eta: i see you posted, i'm trying to do something else while responding and I fear it is gettng too disjointed, let me finish and i'll come back to this as a whole-!!

Yeah, I agree that we may be talking past each other a little. When you get a little more time, please keep in mind that what I attempted to do was create a series of hypothetical examples that went from easy and clear to clouded and difficult. I think there's a straight faced argument to be made on both sides of the cake topper example. If you do so, that would be cool. That help's illustrate why the actual case is difficult for free speech advocates.

thank you for clarifying your hypothetical, i see your point-- and yes ill take some time and come back.

[IHAQ]

This is going to come down to - should religion hold a position of special protection in a democratic society? The answer might be yes today because America is currently perceived to be a Christian/religious society. But the trajectory of religiosity suggests it will be a no tomorrow. Religion is gradually losing its special place in society. And the laws will follow to reflect that.

But the "free exercise" clause argument is a separate argument in the case. I could construct a parallel example using political views or philosophical views. There is a pure free speech argument that the Court has to grapple with that is independent of religion.

Forgive me Res, but that's the bit I'm not grasping. I don't see how providing a website for a couple having a same sex marriage is impinging on her freedom to say she believes same sex marriage is wrong. If a Mormon works as a cashier in a supermarket that sells alcohol, would they be within their right to refuse to process sales of alcohol because drinking it is against their religious belief?

On the religious freedom issue, I think that's a very good question to act. Religion is given special treatment in the U.S. because of the "free exercise" clause in the first amendment. That special treatment isn't limited to Christianity.

I think to say that the right to freely exercise religion will go away as the majority moves away from religion is to completely miss the point of having rights at all. Rights exist to protect certain individual liberties from interference by the majority. In fact, the smaller the minority that is protected by a given right, the more vigorously the right should be defended. That's why, years ago, the ACLU defended the right of Nazis to march in Skokie.

I'm not suggesting religions right to hold services and operate religious programmes etc will go away. I'm suggesting that the operation of wider society will become less and less subject to the views of individual religions and religions in general. Using the same sex marriage debate, why on earth should two people be prevented from marrying each other because a religion they aren't part of be allowed to prevent them? It's a ludicrous situation, but it shows the unfair leverage of religions involving themselves in matters of state. Because they think they're special.

And if minority rights are to be even more vigorously protected, how for example can America explain its treatment of Native Americans? It simply doesn't wash except through the lens of White Christianity being favoured at the expense of everyone else. That's changing because American society won't tolerate it any more, and that's what I was referencing.

[Dwight]

I listened to most of the oral arguments. Alito was a clown. From the oral arguments a point was brought up that "honorable people can disagree". It was almost taken as given that "honorable" could not disagree about interracial marriage (almost), but somehow today gay marriage is. However I would say if you would deny services to someone just cause they are having a gay marriage then you are inherently not honorable. Also while I get the need/want to have this precedent, really today if you are a small company, or even not so small, it's so easy to discriminate in ways that are illegal, such that it would be impossible to prove so effectively you can get away with it. As one justice asked, maybe no one would go to 303 Creative if the link back to 303 Creative's site has a big "we believe marriage is between only one man and one woman."

A wrinkle beyond the tech side of things, is apparently 303 Creative includes a thing in the footer of any website they design linking back to them. It was something an agency I worked for required and made part of their contracts, we design at this price and we almost always host it on our servers, and there is a footer linking back to us to help us with our marketing. However the contracts were at the end of the day completely work-for-hire. The websites were not our speech, we sold it, the graphics, the code, everything belonged to the client. They could have requested and gotten the code and everything from us (assuming no outstanding invoices) and hosted it elsewhere and would be free to remove the footer, but as long as we were maintaining and hosting the site it was part of the terms.

I know some wedding photographers that retain the copyright on photos for some period or indefinitely. It is a bit of the give them the razor and sell the blades as any additional prints and stuff are marked up to make the photographer more money. In one case a friend of my roommates in a big bachelor house got engagement photos at some outfit. They retained the copyright so at the end of the day he paid more cause they got some big prints for themselves and their parents/grandparents. Then each photo for the invitations were not just the duplication fee. Bizarrely they retouched the photo, and it took us hours of looking at it on our fridge to finally figure out that unrequested they had airbrushed a mole off this guys face.

Another technicality that is worth exploring, but will be overlooked is does 303 Creative retain the copyright? Is it really their speech then? That same agency I worked for at one point was taking any and all business it could get. We then got a 'virtual' CFO (part time books and financial advice) to help straighten up the financials, and we no longer needed to service low paying casinos in Nevada websites, and this virtual CFO also was opposed morally to profiting from gambling, so it was a customer we phased out, especially cause there was more money to be made elsewhere then. Gambling is legal in Nevada, but it isn't protected. Another technicality that got danced around is does this woman write up the couple's stories, or do they present them to her? Does she do a lot of copywriting which is more creative and personal, or does she just do some light editing. The photos I assume come from the couple so is any cropping or resizing for the website incidental if it is a straight or gay couple, or is there some real creativity involved. Another technicality is she is doing this as a business, the state recognizes the company with certain limited liabilities and such vs. if it was a sole trader or something. I would say that a company maybe can't hold personal strong beliefs of the owners and employees, even if they are universally held in the company, if it goes against a protected class. If you want your personal religion to dictate then do it as yourself with all the implications that does to your personal taxes and liability as well.