Niadna wrote:
Personally, I agree with both the ruling...and the narrowness of the decision.
Res Ipsa wrote:Yeah, I think it was appropriately narrow. I also think that cases involving conflicts between exercise of the state’s police power and the free exercise clause are tricky.
Niadna wrote:I'm torn over this one. If a gay couple asked ME to bake a cake or 'shoot' the wedding, I would. In fact, I have. Well, I've done the cake. My daughter did the wedding. It's no skin off my nose, after all. They didn't believe as I do, they sure didn't want to be married 'Mormon style," and the government recognizes their union as a legal contract that ends at the death of one of them.
Res Ipsa wrote:One of the important facts cited by the majority was that the government didn’t recognize their union at the time of the wedding. In other words, the government was compelling the baker to provide services for an act of no legal significance
Niadna wrote:This should bother me, why, precisely?
HOWEVER, there ARE things I wouldn't participate in or want to deal with; I wouldn't supply live chickens for a Santaria service, for one thing. I guess we all have a line we won't cross. I do not believe that the GOVERNMENT should force us to cross it.
Res Ipsa wrote:Now, in my opinion, this is where things start to get tricky. Suppose we change the example from chickens and Santeria to olive oil and Mormons. Would it be okay with you for an evangelical seller of olive oil to refuse to sell to Mormons on the grounds that she believes Mormonism is of the devil and the oil might be consecrated and used in religious blessings?
Niadna wrote:Yes, actually, it would be perfectly OK with me. Really...as long as he can prove that his objection is the result of HIS beliefs. The above example isn't quite analogous, though. Mormons buy olive oil to cook with just like everybody else does. I would object to his refusing to sell me olive oil simply because I'm a Mormon and MIGHT use it for anointing the sick. I would not object to such a refusal if I'd told him that was what I was buying it for.
I think that's an important distinction.
You're right. The multiple uses of olive oil weakens the analogy. I could tighten it up, but I don't think I need to. I would object in the case you describe, and I'm not LDS or any other flavor of religion. I think you are failing to make a critical distinction between whether discrimination has occurred and the motive for discrimination. If a store owner will sell olive oil to any person except for use in a Mormon religious practice, that is discrimination on the basis of religion. The refusal is based solely on the religious practice of the customer. The motive may be objection to the religious practice itself, but that doesn't change the fact of discrimination based on religion.
Res Ipsa wrote:The opinion says that the states have the power to protect their citizens from discrimination. How can they do that without compelling folks to provide goods and services without respect to race or religion or sexual orientation?
Niadna wrote:They can't. However, Do you see that there is a difference between, say, refusing to photograph a gay wedding (when the WEDDING is the problem) and refusing to photograph, say, a graduation party for that same gay couple, when it's their sexual orientation that's the problem?
Is there a difference? Yes. Is there a material difference (i.e., a difference that should change the result)? No. Let me test that. Suppose we have a baker who only bakes wedding cakes. That's all he does. No cupcakes. No graduation cakes. Just wedding cakes. Does that change your answer to whether the baker should be permitted to refuse service to gay couples?
Niadna wrote:Or...refusing to bake a cake for a gay wedding....and refusing to allow gays to buy cupcakes from the store just because they want to eat a cupcake?
Same answer. The fact that the baker only discriminates on selling a single product does not mean he is not discriminating based on sexual orientation. The same would be true if the baker had a religious based objection to mixed race marriage. It's still discrimination on the basis of race.
Niadna wrote:The problem here is the perception of the objection. Those who have problems with the photography and the cakes don't object to the people or their sexual orientation. They object to being force to participate in a religious event they don't believe in.
I disagree that people who refuse service to gay folks don't object to the people or their sexual orientation. I think they object to both because they believe homosexuality is a sin. But, again, that goes to a motive. They are still discriminating on the basis of sexual orientation.
Niadna wrote:So, yeah. I would protect the right of that olive grower to refuse to sell oil to me if I wanted it for anointing the sick. I would NOT protect the right of that grower to sell to me simply because I was a Mormon.
I understand, and would defend your right under anti-discrimination legislation not to be deprived of the sale of goods based on your religion.
Niadna" wrote:Y'know, everybody is all excited about the First Amendment and freedom of speech...but it is freedom of religion that is mentioned first. It's the ONLY right we have that is actually mentioned TWICE.
Res Ipsa wrote:I think you have an unsupported minor premise here — that the framers listed items in the Constitution in order of importance. Do you have any support for that?
Niadna wrote:Do you have any support for the premise that they did not? If you don't, then we are free to make any assumption we want as to that matter. ;) However, order of importance or not, freedom of religion is still the only one mentioned twice.
Now, Niadna, I'm going to get after you a little here. Remember that taxonomy thread of yours? Remember what makes one an "honest" critic? Basing claims on evidence, right? A critic who makes claims not based on evidence is not honest, right? Isn't that what you are doing here? You made the claim that there is some significance to the order of rights mentioned in the amendment. You made a claim. You have an obligation to back it up with evidence. if we are free to make any assumption we want in the absence of evidence, then aren't I free to claim that Joseph's Smith real motive in introducing polygamy was to get his rocks off?
(by the way, I don't think you are dishonest. I think you did miss an inconsistency in your thinking. Happens to us all.)
Res Ipsa wrote: Are the rights listed in the bill of rights listed in diminishing importance? Is the Commerce Clause more important than freedom of religion because the amendments are listed after the text? I don’t think there is any evidence that the order that things appear in the Constitution is any indication of importance or priority.
Likewise, there is a perfectly good reason that religion is mentioned twice: the Establishnent Clause and the Free Exercise Clause address very different limitations on the government. When it comes to speech, press, assembly, and redress of grievances, there is nothing comparable to the Esablishnent if religion, so there is no need to mention those twice. I don’t believe there is any evidence that the framers mentioned religion twice because they thought it was more important than other rights.
Niadna wrote:I do. They put an extra 'shield' around religion, specifically to keep the GOVERNMENT out of it. We seem to be ignoring that.
Ignoring what? The shield isn't around "religion." The shield is around citizens. One clause protects the citizens from the government forcing religion on them; the other protects the citizens from the government interfering with their religious practice. "Religion" can't make a first-amendment claim. Only people.
Niadna wrote:...and freedom of religion, like freedom of speech, is mentioned in the constitution not to protect OUR speech and OUR freedom to worship as we wish. It is established there to protect others FROM us. And yes, that means the silly evangelical whose religious beliefs are honestly violated by being forced to participate in a religious ceremony that they find to be very much against those beliefs.
Res Ipsa wrote:I disagree. The bill of rights is a limitation on the power of government for the benefit of all citizens. The first amendment protects my ability to speak from government interference. It does not protect citizens vis a vis other citizens.
Niadna wrote:In what way? Are you claiming that the government doesn't protect the religious from mob action? Mind you, it certainly didn't when the Mormons first showed up, but I was hoping that that sort of thing had calmed down.
Nope, not claiming that at all. However, the First Amendment doesn't protect the religious from mob action. If I discriminate against you because you are LDS, you can't sue me for violation of the first amendment. The First Amendment doesn't restrict my freedom in any way. It is a limitation on what the government can do -- not private citizens.
Niadna wrote:Perhaps I'm misunderstanding something you are saying here. The government, at least in the USA, is a republic...and it is the CITIZENS who make up the government. They send citizens to represent them. Those citizens make the laws of the nation, and the constitution prohibits the government (all those citizens) from making laws that prohibit the free exercise of religion.
Sure, we're a republic. But I don't think that affects my point. You said the bill of rights isn't there to protect "our" speech rights. If by "our" you mean "citizens," then that's simply incorrect. That's exactly what the bill of rights does. Now, I described the relevant distinction between citizens and the government. I could just as easily described it as being between citizens not exercising governmental power and citizens exercising governmental power. But, as a citizen who doesn't exercise governmental power, the bill of rights absolutely is intended to protect me.
Niadna wrote:Like photographing it or supplying the cake.
I mean, really, people: nobody is suing the local kosher deli because it won't cater a back yard pork rib barbeque. Nobody is suing that deli if someone walks in there and demands a ham on rye sandwich. It is PRECISELY THE SAME THING.
Res Ipsa wrote:Actually, it’s not the same thing at all. The kosher deli does not discriminate against its customers. It won’t sell non-kosher foods to anyone. Every business decides which goods and services to provide. That is not discrimination against customers. A kosher deli that sells pickles to everyone except Muslims would be discriminating on the basis of religion. A lunch counter that serves everyone except black folks is discriminating on the basis of race. And a baker who sells cakes to everyone except gay folks is discriminating on the basis of sexual orientation.
Niadna wrote:Ah, but that's the problem. The opposition in this case claims that the photographer and baker, by refusing to provide services for a WEDDING their religious beliefs oppose, are indeed discriminating against them because of their sexual orientation. The problem is, they were perfectly willing, and did, sell cakes and bakery items, and to photograph events and people irrespective of their sexual orientation. They simply didn't want to be forced to participate in the wedding.
So, it's not a service they offer.
Just like the deli. Someone can come in and purchase anything ELSE it has..pastrami, chicken, the best bread in the world...but you can't buy pork products no matter who you are.
And that baker will sell anybody cakes or donuts or whatever, to anybody who wants them...but he won't make a wedding cake for a religious service that violates his beliefs.
No, you're still missing my point. All people who shop at the kosher deli can buy everything the deli sells. All people who shop at the baker cannot buy everything the deli sells. One group is prohibited from purchasing a good that the baker will sell to everyone else: a wedding cake. That's flat out discrimination based on sexual orientation. Again, I'll refer back to the hypothetical baker who sells only wedding cakes. Clearly he won't sell anything to gay folks. The fact that other bakers offer other goods for which they do not discriminate, does not mean they are not discriminating. The issue you raise is the motive for discriminating -- not whether discrimination has occurred.
The kosher deli doesn't sell pork to anyone. The baker sells wedding cakes to everyone except gay folks. The two examples are absolutely not the same.
Nadnia'}by the way, I know of a Catholic baker who absolutely WILL NOT bake a wedding cake for a couple if one of them has been divorced. Nobody has objected to that, nor has he been sued. He WILL, however, happily bake the cake for that couple's kid's confirmation party.[/quote]
If he lives in a jurisdiction that has an anti-discrimination law that prohibits discrimination based on marital status, he's very likely breaking the law. That no one has challenged him doesn't mean someone could not successfully do so.
[quote="Nandia wrote:Just as the baker in question would (and has) happily baked birthday cakes for gays. There is a DIFFERENCE between discrimination because of a group a customer belongs to...and refusal to participate in a specific event that violates the religious beliefs of the vendor.
Again, you are failing to distinguish between whether discrimination has occurred and the motive for discrimination. If you won't provide the same goods or services to a particular group that you will provide to everyone else, you are discriminating, regardless of why you are doing it.
Res Ipsa wrote:Kosher Deli selling to everyone — not discrminating against people
Baker who refuses services to gay folks — discriminating against people.
Do you see the difference?
Nandia wrote:Except he wasn't refusing services to gay people. He was refusing to bake a cake for a WEDDING. Do you see the difference?
Nope. He was refusing to bake a wedding cake for gay people. That's a refusal of services based on sexual orientation.
Nandia wrote:Had they asked for a cake for any other event, he would happily have made it.
So? He discriminated in the sale of wedding cakes. That he did not discriminate in the sale of cupcakes doesn't turn discrimination into not discrimination.
Nandia wrote:You may think they are stupid and bigoted. Shoot, I might think so, but it is THEIR RIGHT TO BE SO.
Nandia wrote:Sure, people have the right to be stupid and bigoted. But that’s not the question here. The question is under what circumstances can a business person violate a generally applicable law that prohibits discrimination against their fellow citizens because of their religion?
Nandia wrote:And we need to be careful, because if we can force our opinions on the people with whom we disagree, then someday they might get the power and enforce them on us.
Res Ipsa wrote:I’d suggest that no one required the baker to hold a certain opinion. He was perfectly free to hold whatever opinion he wanted. What was regulated was his conduct — he was not permitted to discriminate against customers based on their sexual orientation. That’s a matter of regulating conduct to prevent harm to citizens.
Nandia wrote:OK, I was waiting for that one.
"We aren't trying to change your beliefs, just what you DO about them."
The problem with that is the language of the first amendment: Congress shall make no law respecting an establishment of religion, or PROHIBITING THE FREE EXERCISE THEREOF...
What? I fell into your trap???? Say it isn't so!!!
Actually, that's a pretty good example of the question begging fallacy. The question to be determined is whether requiring a baker to sell wedding cakes to everyone regardless of sexual orientation is something that prohibits the free exercise of the baker's religion. Generally, a law that applies to citizens generally and does not target a specific religious practice is not a prohibition on the free exercise of religion. That's what a non-discrimination ordinance is. That compliance with a law may offend one's religious sensibilities is hardly a prohibition on free exercise. So, how exactly does requiring a seller of goods to sell to everyone regardless of sexual orientation prohibit the baker from freely exercising his religion?
“The ideal subject of totalitarian rule is not the convinced Nazi or the dedicated communist, but people for whom the distinction between fact and fiction, true and false, no longer exists.”
― Hannah Arendt, The Origins of Totalitarianism, 1951
