The Church supports website developers LGBQT discrimination

[Dwight]

What would the LDS Church's stance be if the web designer wished to refuse their service to Mormons?

From serving my mission in Maryland this is a big thing I try and warn my friends and family about. Maryland isn't even Bible belt, but some Christians there hated us the most. They would gladly put out and enforce a "no Mormons" sign on their businesses. Just cause they oppose gay marriage too does not make them a friend of the Mormon.

but then I also think a pharmacist shouldn't be able to not fill a legal prescription for something like plan B. Likewise if your religious beliefs are so strong and personal that you can't make a cake for a gay wedding that wouldn't look any different if it was for a gay wedding or a straight one, then you don't get to stand behind religious freedom protections.

[Res Ipsa]

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?

The specific doctrine is called "compelled speech." It stems from a case involving compulsory recitation of our flag salute by children in public school. The unconstitutional act is compelling a citizen to communicate something contrary to what they actually believe. That they could express their actual belief in other ways is irrelevant. If I put up a Biden for President sign in my yard, the government cannot force me to also put up a Trump for President sign. It doesn't matter that I could slather my car with Biden for President bumper stickers. It is the act of forcing me to post the Trump sign that is the constitutional violation.

As for your question about the Mormon cashier, I don't know the answer. There are cases permitting employees in a pharmacy to refuse to dispense abortion medication.

ETA: I looked at the website of the Equal Opportunity Employment Commission. An employer is required under federal law to provide reasonable accommodation to religious adherents under certain conditions. https://www.eeoc.gov/laws/guidance/sect ... 0749966592 It is certainly possible that the cashier is entitled to a religious based accommodation.

On the religious freedom issue, I think that's a very good question to ask. 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.

Ah, I understand your point now. Please note that I said that the smaller the minority, the more vigorously its rights should be defended. I wasn't making a historical claim.

[Res Ipsa]

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.

That's interesting information Dwight. I've never researched the extent to which IP law is relevant to the right of free speech. But, what I know of both areas of law suggests that the right of free speech protected by the first amendment is not a property right, where as IP law addresses only speech as a property right. I suspect that the reason you don't see IP law discussed in the context of the current case is that the two are viewed as completely different rights.

And Alito may be a clown, but he's a clown with a very result oriented agenda. My prediction is that he will use this case to kill the Scalia opinion that has been the test of when government can pass laws or regulations that affect churches and replace it with a test that will exempt churches and their members from a broad range of state law and municipal ordinances. And he'll do it even though the case should be decided on first amendment grounds, which will violate another of the court's longstanding norms in constitutional jurisprudence. But his opinions show that he's happy to ignore those norms when they get in his way.

[dastardly stem]

The thing you're missing is that your starting point: "her business isn't her" is legally wrong in the U.S.

I find this confusing. How could someone's business that they work at be legally considered that person? Are you saying if the business consists of just one person then the law can't distinguish between the person and their business? What if that business expands and adds another person.
Does the law see that business as two people? Because as far as I'm aware, I've never been considered the business I've worked at. That just seems silly to me.

From Andrew Seidel's book I've referenced (he details the old Colorado wedding cake case), chapter 5 pg 61:

The baker is a for-profit business organized and operating under the laws of the state, not an individual person. The bakery wasn't for worshipping or praying. Nor was the couple asking the bakery or its employees to participate in a wedding.

PG 66:

The Alliance Defending Freedom was remarkably successful at conflating the corporation with its owner, who comes off as gentle and soft-spoken on camera. Soft-spoken bigotry is still bigotry, and the bakery was still a business. ...

The bakery is a legal entity organized under Colorado law, which protects individuals behind the business from personal liability. If a cake gives fifty people food poisoning, the bakery can be sued, but not the owner personally. The business may have to fork over some cash, but the owner's personal assets are protected. The business could borrow heavily and fail spectacularly, consumed by debt, but the shareholders and owners aren't personally liable for those debts.

This separation is fundamental to American business. Before the Crusade, the Supreme Court called it "a general principle of corporate law deeply ingrained in our economic and legal systems" and even this court would probably agree with that principle outside the religious freedom context. Thirty corporate law professors explained, "This separation is not an ancillary part of corporate law and governance. It is instead the sine qua non of wealth-creating legal innovation of the corporate form." It's difficult to overstate how important this separation is.

The massive benefits of forming a legal corporation come with some burdens, including obeying laws meant for corporations and places of public accommodation, rather than for individual citizens. Jack Phillips had enjoyed the protections of this corporate separation, the "corporate veil," for twenty years. Masterpieces Cakeshop Incorporated was founded as a coporation in 1992, with two shareholders and a four-person board of directors, to operate a "retail bakery," During this litigation, it reorganized sever times. Phillips may personally believe that Jesus wouldn't make a cake for a gay couple, but in 2017, a few months before the Supreme Court heard oral arguments, the bakery reorganized as a limited liability company that didn't even list Phillips on the paperwork.

Phillips used the laws of the state of Colorado to create a legal entity that was deliberately and completely distinct from him as an individual. he then sought to use that creation to discriminate in the name of his personal god. The state may prevent entities created under is laws from being used for such an end. If Charlie and Dave had knocked on the door of Phillip's house and said, "Hey, we hear you bake cakes. Would you make one for our wedding?" Phillips could've said no without consequence. But Phillips didn't say no; Masterpiece Cakeshop Inorderated said no.

The only way a "business" can talk is by people talking. Businesses don't have vocal cords -- people do. Businesses don't have fingers -- people do. When businesses break the law, the "business" doesn't go to jail. People do. Not only is it wrong, but the notion that a U.S. citizen is stripped of her constitutional rights when operating a business has terrible ramifications that I don't think you've thought through.

Nobody has said a person's constitutional rights are stripped from them when they work for a business.

The government could search your business without a warrant. The government could force to to sell whatever it chose. If you choose to open a business that sells pro-democrat bumper stickers, the government could force you to sell pro-Trump stickers. The government would have 100% control over every aspect of every mom and pop business in the country.

I'm not sure what you are saying here. I don't see how the government acknowledging the existence of a business in distinction from a person is somehow treated as if the government would then be in control of the business.

Constitutionally, it doesn't matter that she could express her views on marriage in other ways. The issue is government compelled speech -- which is the antithesis of free speech. Generally, the government cannot compel you to state, imply, or communicate opinions or beliefs that are contrary to your actual beliefs. There are always exceptions, but I'm having trouble even thinking of examples.

What makes this case hard is that, in the normal case, it's easy to separate out the nature of the product or service from the identity of the purchaser. That's why it's ludicrous to think that the government should be able to require Sandra Tanner to sell Nelson's faith-inspiring biography in her bookstore. She doesn't refuse to sell books to Mormons. She simply chooses not to sell pro-Mormon books to anyone. Easy peasy.

That's right. I thought that was my point.

It's a little harder with the cake topper retailer who will special order any topper she doesn't stock as long as it doesn't have two men or two women on it. It looks more like discriminating against gay folks, but she still treats all customers the same. She won't special order the cake toppers for anyone -- not just for gay folks.

But in so doing such a retailer is not acting for the person but for the business.

But with weddings, the product or service is so heavily identified with the purchaser that it's hard to see the distinction that was so easy to see in the Tanner example. Who is going to buy a website for a "gay wedding" other than two "gay people." But the overlap isn't 100%. The designer would design a site for a heterosexual wedding even if the customer paying for the site was gay. And the designer would not design a site for a homosexual wedding even if the customer who purchased the site was straight. So, the situation is not the same as saying "we won't do business with gay folks" especially given that the company will gladly take gay folks money to design other types of web sites.

It seems to me with protection of the government the business is acting against the law, if that were to happen.

The rest of his chapter 5 is quite interesting. One more quote for interest to what I said earlier in this thread:

CHIEF JUSTICE ROBERTS MAY HAVE INADVERTANTLY OFFERED some insights into why the justices may have decided the case with manufactured hostility: they were personally affronted. They, perhaps, felt hostility toward their religious sentiments on LGBTQ equality. Roberts acknowledged during oral argument that "the racial analogy obviously is very compelling," but objected to "decent and honorable" religious bigots who oppose LGBTQ equality, perhaps like himself, being lumped in with religious bigots who oppose racial equality. Roberts was deeply opposed to the court's 2015 marriage-equality decision and even read his dissent from the bench--the only time he's done that in a decade and a half on the court. He began that diatribe, "From the dawn of human history until a few years ago for every people known to have populated this planet, marriage was defined as the union of a man and a woman....for any civilization at anytime at anyplace in the world," which is as untrue as it is sweeping. His anger was palpable: "Just who do we think we are?" Roberts asked his fellow Justices.

While Roberts might object, the reality is that religion motivates racism and homophobia. A year after the cake decision, Boone's Camp Event Hall, a Mississippi wedding venue, refused to rent to an interracial couple. "We don't do gay weddings or mixed race, because of our Christian race--I mean, our Christian belief," said the owner. ...

What's the worst that would have happened had the court decided against the bakery? The bakery owner wasn't forced to marry a man. he wasn't asked to officiate a wedding. In fact, as a religious individual, he wasn't asked to do anything; a business organized under Colorado law and open to the public was asked to do what it has done for thousands of couples and provide a cake for a reception. The owner was still able to go to church and worship as he saw fit. He could still read and study his Bible. he could still condemn homosexuality as an abomination and justify that bigotry with Jesus' carpentry.

[Res Ipsa]

Andrew Siedel isn't purporting to accurately describe the current state of constitutional law in the United States. He's making an argument that it should be different. There's nothing wrong with doing that, but it should be acknowledged for what it is.

Does Seidel cite a case that supports the distinction you are trying to draw?

Start with the simplest case: Res Ipsa, attorney at law. Res is a sole practioner with no employees. The only person that can speak is Res. The "business" is something Res does to earn a living. Are you aware of any case that says Res is stripped of his free speech rights under the Constitution when he is speaking in the context of his business? Or that he is stripped of some of his rights? Why should he lose some or all of his free speech rights when he speaks in the context of his business. And how are you deal with the fact that speech doesn't come divided into neat little categories like "personal" and "business?" The cases that make it to the higher levels of the court system typically involved mixed speech that can't be neatly categorized.

If Res takes on a partner, why should that fact, in and of itself, deprive him of some or all of his free speech rights? Or if he hires a bookkeeper, the same question.

I don't think you can find a case that supports giving a person lesser free speech rights when they are speaking for the business.

Now, there is black letter constitutional law that says purely commercial speech receives a lower level of protection than political or religious speech. That's why, for example, the government can require and regulate the content of a stock prospectus or financial reports or disclosures in the sale of real property. But the key word in that line of cases is "purely." And it's a distinction that is based on the content of the speech -- not on whether the person is speaking as a person or speaking as a business.

There are also laws that create legally fictitious entities for the purpose of limiting liability or tax policy. But, the use of those entities does not have any sort of necessary effect on free speech. Legislators can and do pick and choose which attributes to give such entities. Going back to Res Ipsa, attorney at law, if he chose to be Res Ipsa, PLLC, the business is still just Res Ipsa. The only person who can speak is Res Ipsa. And the law does not say that if Res Ipsa uses one of those liability limitation or tax devices that he somehow loses his constitutional rights to free speech.

Free speech is a complex area of constitutional law, with all kinds of nuance and distinction. There is plenty of room to say that it should be something different than it is. But that shouldn't be confused with how it currently stands.

[toon]

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.

The business owner here claims to be in the business of selling/producing/creating X, not Y. The decision not to sell Y may be based on religious, political, philosophical or other reasons. But that decision can boil down to an expression by the business owner of his or her beliefs, arguably protected by the first amendment. The business owner is attaching their name and reputation to the product the product they sell. And they may think rightly or wrongly that selling Y soils that reputation -- that they sell/produce/create Y is not the message they want to send.

The refusal to sell/produce/create Y may be based on the same reason. And that refusal may have a disparate impact on customers based on some protected status. (A gay couple is much more likely to purchase a wedding cake with gay toppers than a straight couple, so the refusal to make and sell that is more likely to adversely impact couples who are gay.)

But the above is different than a situation where the business owner refuses to sell X to certain customers because of their protected status, something that does not appear before the Court.

(I'm not sure how the ability to special order would change any of this.)

My guess is that we'll see at least one and perhaps more of the "liberal" justices siding with the business owner here, albeit with a concurring opinion that limits the ruling to !st Amendment speech issues and not based on the "free exercise" clause. And I'll guess that's where Roberts will try to push for the consensus.

[toon]

My wife is a portrait artist who will paint on commission. Despite the customer, she retains artistic control over the product. She signs her name to each portrait. And she may from time to time turn down a commission because she doesn't want her name attached to what she anticipates will be the end product. To my recollection, this has always been because she doesn't think she can capture the subject to her satisfaction -- some people are more difficult to paint than others, and some people just don't make good subjects.

She's never discriminate against someone based on a protected status. But I can come up with request that she might refuse, even though she would be perfectly capable of painting the subject in her style, such as someone who wanted to pose as a missionary while holding the Book of Mormon. But what if she had refused to paint a gay or lesbian couple in a loving embrace, or someone in drag? (She wouldn't, but what if? I mean, we could come up with extreme examples, such as a Westboro Baptist leader holding a "God hates **** sign.) Should she be forced to create that product and then sign her name to it?

Sure, this is in an artistic capacity and while you may be able to cordon that off from other business products, I don't know where under the First Amendment you can clearly draw that line.

[Res Ipsa]

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.

The business owner here claims to be in the business of selling/producing/creating X, not Y. The decision not to sell Y may be based on religious, political, philosophical or other reasons. But that decision can boil down to an expression by the business owner of his or her beliefs, arguably protected by the first amendment. The business owner is attaching their name and reputation to the product the product they sell. And they may think rightly or wrongly that selling Y soils that reputation -- that they sell/produce/create Y is not the message they want to send.

The refusal to sell/produce/create Y may be based on the same reason. And that refusal may have a disparate impact on customers based on some protected status. (A gay couple is much more likely to purchase a wedding cake with gay toppers than a straight couple, so the refusal to make and sell that is more likely to adversely impact couples who are gay.)

But the above is different than a situation where the business owner refuses to sell X to certain customers because of their protected status, something that does not appear before the Court.

(I'm not sure how the ability to special order would change any of this.)

My guess is that we'll see at least one and perhaps more of the "liberal" justices siding with the business owner here, albeit with a concurring opinion that limits the ruling to !st Amendment speech issues and not based on the "free exercise" clause. And I'll guess that's where Roberts will try to push for the consensus.

I think that's a pretty fair summary and prediction. I don't know that concern over reputation alone gets the owner free speech protection -- I think there has to be a message that the product or the service communicates. To use the classic example, I don't think the first-amendment reasoning would apply to the seller of widgets.

I can see Kagan filing a concurring opinion that limits her concurrence to the free speech clause and to a very narrow set of facts. But I also have no doubt that Alito will assign himself the opinion and use it to take the wrecking ball to the Smith case. There's probably a concurring opinion out there that tells us what to expect.

I read the 7th Circuit opinion, and I thought it was really off the wall. The more unique an artists' work, the fewer free speech rights she ends up with? That's just weird.

[Res Ipsa]

My wife is a portrait artist who will paint on commission. Despite the customer, she retains artistic control over the product. She signs her name to each portrait. And she may from time to time turn down a commission because she doesn't want her name attached to what she anticipates will be the end product. To my recollection, this has always been because she doesn't think she can capture the subject to her satisfaction -- some people are more difficult to paint than others, and some people just don't make good subjects.

She's never discriminate against someone based on a protected status. But I can come up with request that she might refuse, even though she would be perfectly capable of painting the subject in her style, such as someone who wanted to pose as a missionary while holding the Book of Mormon. But what if she had refused to paint a gay or lesbian couple in a loving embrace, or someone in drag? (She wouldn't, but what if? I mean, we could come up with extreme examples, such as a Westboro Baptist leader holding a "God hates **** sign.) Should she be forced to create that product and then sign her name to it?

Sure, this is in an artistic capacity and while you may be able to cordon that off from other business products, I don't know where under the First Amendment you can clearly draw that line.

in my opinion, there are no clear lines -- only lines that we are willing to live with. I actually gave some thought to a Westboro Baptist Church hypothetical as an extreme example. But I think an artist who paints and sells on commission is a good example of the issues at play.

[dastardly stem]

Andrew Siedel isn't purporting to accurately describe the current state of constitutional law in the United States. He's making an argument that it should be different. There's nothing wrong with doing that, but it should be acknowledged for what it is.

Does Seidel cite a case that supports the distinction you are trying to draw?

Start with the simplest case: Res Ipsa, attorney at law. Res is a sole practioner with no employees. The only person that can speak is Res. The "business" is something Res does to earn a living. Are you aware of any case that says Res is stripped of his free speech rights under the Constitution when he is speaking in the context of his business? Or that he is stripped of some of his rights? Why should he lose some or all of his free speech rights when he speaks in the context of his business. And how are you deal with the fact that speech doesn't come divided into neat little categories like "personal" and "business?" The cases that make it to the higher levels of the court system typically involved mixed speech that can't be neatly categorized.

If Res takes on a partner, why should that fact, in and of itself, deprive him of some or all of his free speech rights? Or if he hires a bookkeeper, the same question.

I don't think you can find a case that supports giving a person lesser free speech rights when they are speaking for the business.

Now, there is black letter constitutional law that says purely commercial speech receives a lower level of protection than political or religious speech. That's why, for example, the government can require and regulate the content of a stock prospectus or financial reports or disclosures in the sale of real property. But the key word in that line of cases is "purely." And it's a distinction that is based on the content of the speech -- not on whether the person is speaking as a person or speaking as a business.

There are also laws that create legally fictitious entities for the purpose of limiting liability or tax policy. But, the use of those entities does not have any sort of necessary effect on free speech. Legislators can and do pick and choose which attributes to give such entities. Going back to Res Ipsa, attorney at law, if he chose to be Res Ipsa, PLLC, the business is still just Res Ipsa. The only person who can speak is Res Ipsa. And the law does not say that if Res Ipsa uses one of those liability limitation or tax devices that he somehow loses his constitutional rights to free speech.

Free speech is a complex area of constitutional law, with all kinds of nuance and distinction. There is plenty of room to say that it should be something different than it is. But that shouldn't be confused with how it currently stands.

Click. I'm starting to see what you are getting at now. I think you are right, for the most part Seidel is arguing what should be and not necessarily what is, although I'd contend in many measures he's also describing what is. And I suppose in my pig-headedness I'm left agreeing with him. Thanks for taking my push back in the spirit it was intended. I do think this represents an interesting case.