Refusal of service based race, sex, marital status or sexual orientation is not protected speech. It's discrimination. They gave up rights when they went into business.
On the other hand, there's a significant number of religious people in the US that believe they can't ethically support an LGBT wedding by offering services as a photographer, baker, etc. There's a very real tension between the rights of LGBT people to not be discriminated against and the rights of religious business owners to act according to their conscience. It's a snaggly issue, but hearing this kind of rhetoric from Democrats and left-leaning media("they give up rights when the went into business") is exactly what caused the center of the country to swing further right in the last election.
Should a Jewish baker be forced to bake a Swastika cake?
Should a black florist be forced to make arrangements for a KKK wedding?
Should a Muslim butcher be forced to prepare pork for his customers?
I don't know about you but I wouldn't want to eat something that someone didn't really want to make for me. Can you trust food that was only made under threat of government action? I can't.
1) No, that's silly
2) No, the florist would not be in violation of anti-discrimination
3) No, if he didn't already sell pork he wouldn't be forced to
The last point, fair. No one said the cake had to be good :P It's just their professional reputation on the line.
The protected populations are rather limited "race, sex, marital status or sexual orientation", there may be additional protections in your jurisdiction + it has to be a product/service you already provide.
If you bake cakes, you can't refuse a cake to a gay couple; you could refuse on any number of other grounds though. If you don't sell pork, you can't be forced to. But breaking our laws because you like a book (legally speaking) is not allowed.
* FYI I'm not a lawyer and this is not legal advice, if you're refusing service to anyone for anything other than business reasons you should double check with your counsel. You could be violating feduciary duty, etc.
I find it silly that a devout Christian can be sued into bankruptcy because he or she doesn't want make a wedding cake with two grooms on it.
I find it silly that a devout Christian can be sued into bankruptcy because he or she doesn't want to photograph a wedding ceremony with two brides.
The law has no regard for silly.
Moreover, you're missing the point. I picked people for my example because we all understand how repugnant those people would find it to be forced to take part in certain actions.
I get it, religious people are a convenient target of scorn and ridicule but the government shouldn't be in the business of coercing people to provide non-essential services to others.
So, a black ER doctor should have to provide assistance to the KKK member who was just shot and a Jewish pharmacist should have to fill the prescription for the neo-nazi's cancer medication.
Those are life and death issues, so they're not the same as someone getting their feelings hurt because someone else didn't want to associate with them.
None of the examples you listed in the GP were illegal.
The first two you listed here are, if it is proven in court that they were discriminating based on sexual-orientation. If the baker doesn't do bespoke decorations, fine. If the photographer doesn't shoot weddings, fine.
If you don't obey the law A) you're not a good Christian B) you don't get to engage in commerce in the United States of America.
Also please show me in your holy book where it says "thou shall not participate in commerce with homosexuals"
You can't discriminate based on "race, sex, marital status or sexual orientation" that's the law. It's not a matter of repugnance, it's not a matter of silly. It's about protecting rights that the free market was unwilling to correct for on it's own.
Just cause you like a book doesn't mean you can ignore the law.
Those devout Christians had no business exchanging services for currency if they can't respect the law. Commerce is regulated per our Constitution.
You can't discriminate based on "race, sex, marital status or sexual orientation" that's the law.
I have noticed that every time you say this, you conveniently leave out "religion". It's against the law to discriminate against someone because of their religion too.
Commerce is regulated per our Constitution.
Interstate commerce is regulated per our Constitution. Intrastate commerce falls under other laws.
I am of the opinion that since these services are not limited in number that society can be more corrective by simply not patronizing providers who don't uphold its values.
Further in those places, the populations that non-discrimination laws protect need protecting. If it weren't for the law their livelyhoods and lives would be in greater danger.
I'm from the middle of nowhere and so are my gay brothers, one of whom recently got married. I've experienced this. I've fought this. Don't try to feed me this invisble hand solving discrimination and hate crimes horseshit.
As much as I disagree with the GP commenter, this doesn't make any sense at all. It's possible to think that Garner was breaking the law and that police use of excessive force (including a banned technique) was _unjustifiable_.
How on earth do you jump from "he was doing something illegal so the police had the right to enforce the law" to "the amount of force used was appropriate and unfortunately led to his death". You may have lost the thread of the conversation, but no one was talking about bakers being killed by inappropriate use of police force in the course of compelling them to serve gay weddings.
hearing this kind of rhetoric from Democrats and left-leaning media("they give up rights when the went into business") is exactly what caused the center of the country to swing further right in the last election.
I grew up in the Midwest and still visit sometimes. Many people I know think Democrats have lost their minds with this issue (and the bathroom debate).
The bathroom debate that, like so many issues of the last several years, was borne from GOP legislative and executive action, but blamed on the Democrats for standing against it?
I don't think refusal of service is itself protected speech either, but we're not talking about the government restricting protected speech. We're talking about the government compelling an individual to engage in protected speech, like taking a wedding photograph.
> The U.S. Supreme Court has said repeatedly that the First Amendment protects an "individual freedom of mind"—e.g., (1943), which affirmed the right not to salute the flag or say the Pledge of Allegiance—which the government violates whenever it tells a person that she must or must not speak. Forcing a photographer to create a unique piece of art violates that freedom of the mind.
actually that is exactly what the government did. The bakery didn't refuse to serve homosexuals. They did refused to bake a cake with say, two males at the top (paraphrasing the case).
EDIT: looked it up, they didn't want to bake a cake with bert & ernie and a pro-gay-marriage slogan.
Ok, but that does not change the fact that the bakery in this situation was in fact discriminating. You don't have to refuse all service to be discriminating illegally.
A more sinister version of the same logic is the argument that states weren't discriminating against gay people by not letting them marry someone of the same sex because technically they could go find someone of the opposite sex and be granted a wedding license for a life of misery married to someone who they could literally never be attracted to instead of the person they were attracted to and loved. It's discrimination in either case.
The cases I listed above all involve sole proprietorships or closely-held companies, so compelling the business to engage in protected speech is tantamount to compelling the individual who owns the business to engage in protected speech.
I agree the states and Congress can regulate commerce, but those regulations are still subject to the First Amendment.
> The cases I listed above all involve sole proprietorships or closely-held companies, so compelling the business to engage in protected speech is tantamount to compelling the individual who owns the business to engage in protected speech.
The moment you start a business you adapt an additional role to the one you already have ("private person"). In this role you have specific rights and obligations while you're in that role. It's the same reason that a person who is a police officer is allowed to arrest you while on duty (in his role as a police officer), but not when he is off duty (and in his role as a private citizen).
What's the difference between the wedding photographer who won't take a picture of a gay couple, and a bar/shop owner with "no dogs, no blacks, no Irish" policy?
Business owners cited religious reasons to deny service to black people too. The KKK was founded as a nominally Christian organization.
Folks who fought for Jim Crow laws did not view themselves as willfully evil people who discriminated for no reason. They viewed their own support of segregation as a principled moral stance. That's why they fought so hard.
Gay marriage was an obvious win for individual rights and liberty. This issue is different: the discussion isn't around whether bars should be allowed to kick out LGBT patrons, it's whether bakers and photographers should be compelled to offer services which might be against their conscience. That's a important right that could be taken away, so it isn't obvious compelling bakers not to turn away LGBT clients is a net win for individual rights.
It's a tough issue, but so are all civil rights laws. They all force a business owner to serve or accommodate customers they might not want to. Calling something a religious objection shouldn't be a universal pass IMO.
Among other reasons, what do you do when people start inventing religions to get out of doing things they don't want to? Should the government be in the position of deciding which religions are "real"? Just look at the history of Scientology or modern Satanism for examples.
For me this issue is so frustrating because in the gospels, Jesus repeatedly went out of his way to accept and bless society's cast-offs. He tells his followers to turn the other cheek and be wary of imposing judgment.
Yet today, people who supposedly follow his teachings are eager to do the casting off themselves, based on a few sketchy line readings from elsewhere in the Bible. I just don't understand how someone can read the New Testament and come away with "be mean to gay people" as a priority message.
what is the fundamental difference between a bar "offering service" to patrons, and a photographer "offering service"?
Perhaps more importantly, the difference between that and a landlord "offering service"?
We talk about the wedding cakes and the photographs, but it's important to remember that less than 50 years ago, blacks were constantly turned away from houses in nice neighborhoods for similar objections.
Your comment shows that you have not done even the most basic research into different kinds of Old Testament law, their function, how they relate to the New Covenant, underlying principles from Creation, etc. For example, how do you reconcile Christians eating non-kosher meat, since it is also forbidden in the OT?
You haven't even begun to consider these issues, yet here you are issuing sweeping proclamations about the contents and motivations of other people's hearts. Dare I say that you are not fostering anti-Christian feelings because of your understanding, but you trawl archaic text to justify anti-Christian feelings that already exist.
> For example, how do you reconcile Christians eating non-kosher meat, since it is also forbidden in the OT?
Because they don't want to follow that rule, and they see other Christians not following that rule.
Under your interpretation (that Christian attitudes are recieved from the Bible) Christian law would have remained largely static for the past 1600 years since the Bible was compiled, which is clearly not the case. For example, the treatment of adultery and usury have changed unrecognisably.
Having either attended or helped perform mass for half of my life, I can tell you for a fact that most Christians have no interest at all in treating the Bible as 'law' and instead use it for inspiration, comfort, or occasionally a crutch when making tough decisions. They recieve their morality and prejudices from themselves and from their peers.
If anyone was actually interested in treating the Bible as law then Theology would be a legal field not an academic one.
> ... you trawl archaic text to justify anti-Christian feelings that already exist.
Nonsense, I haven't said a single anti-christian word... and my pre-existing feelings are against the rationalisation of bigotry being treated as special, or worthy.
Prejudice (and we all have plenty) is to be examined and squashed, not protected.
> ... how they relate to the New Covenant
This is topical. Jesus teaches "love thy neighbour", and the Good Samaritan, lessons that we could all let a little closer to our hearts in times of wall-building, rejection of refugees, and threats of war.
The two aren't mutually exclusive. I imagine you would agree that a journalist still engages in protected speech when he writes articles in exchange for compensation. Why isn't a photographer also engaging in protected speech when he takes photos in exchange for compensation?
Are you saying that an act is no longer considered speech if you're paid for it? This seems to fly in the face of innumerable legal precedents, from porn to commissioned/sponsored art works to TV shows.
There's a decent, but by no means slam dunk, case that wedding photographers engage in protected expressive conduct. The case is significantly weaker one for bakers and florists.
This is true. The case is stronger if the baker designs a custom cake or has to write a message on the cake, or if the florist designs a custom floral arrangement.
Personally, I've always wondered if the people who don't want to make cakes for a gay wedding/provide flowers would be willing to subcontract that out to someone else. When you buy a cake you don't generally expect that specific person will be making that cake. This would allow them to not participate while at the same time protecting people from discrimination.
Alternatively, why doesn't the gay couple just go somewhere else? I would imagine that only a very small minority of bakers/photographers/florists have strong feelings on this issue, so it's not like it would be difficult to find equivalent service elsewhere.
Because the law can't depend on how many people would like to disregard it. If, in any particular locality, it's not a small minority at all, we're quickly back to "separate but equal". We've seen that movie and we know it doesn't end well.
So given that people's rights would be grossly violated if lots of businesses turned them away, the law must say that no business may turn them away.
Simply put: there isn't always "somewhere else" they can go, and you can't have different standards for businesses depending on whether or not they're the bakery in town, or the only photographer in town, etc.
When you engage in commerce you're subject to regulation, per the Constitution. Which means giving up (unstated) rights that you otherwise would have as a citizen. Discrimination for example.
It makes sense to me that businesses should be regulated and should not have the same rights as a citizen (Citizens United?)
One thing I wonder, though, is: what if the owner or sole proprietor "quits" their business? Are they still criminally/civilly liable after they've "given up" their additional role? And, if something like that'd actually fly, would they ever be able to return to their [line of] business, or would they have to quit forever?
Reminds me of Lavabit, that secure email service whose owner shut down rather than complying with an order to give the government information on a client.
Article I, Section 8, Clause 3:
[The Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
Several high court rulings have concluded that it includes intrastate commerce. It's wide reaching & has historically been the main tool for combating discrimination.
In some ways, and in some states, you do. You also take on a greater responsibility to the public, to whom you're offering products and services, that you would not shoulder as an individual.
