Mama, don't let your babies grow up to be Kansas state legislators

by Doctor Science

-- they'll just expose themselves to national embarrassment, while being used as a stalking-horse for out-of-state interests.

You may have heard that the Kansas State House of Representatives just overwhelming passed a bill that, in the name of "religious freedom", would permit any individual or entity -- including government agents or agencies to refuse to

Provide any services, accommodations, advantages, facilities, goods, or privileges; provide counseling, adoption, foster care and other social services; or provide employment or employment benefits, related to,
or related to the celebration of, any marriage, domestic partnership, civil union or similar arrangement; ... or treat any marriage, domestic partnership, civil union or similar arrangement as valid.

While initial reports suggested that the bill would fly through the state Senate, the Kansas Senate leadership is now saying No Way, saying that it is "too broadly defined", and also "unnecessary."

They're concerned not just about the huge amount of criticism they've been getting via social media (which is how I heard about it), but also about concerns raised by the business community in this right-to-work state -- because the bill gives an employee's religious scruples (which the employer isn't allowed to ask about) precedence over the employer's intentions. Basically, a clerk can refuse to serve someone *even if the boss wants them to* -- and the boss wouldn't be able to fire them for it.

All this is aside from the fact that the law has "unconstitutional" written all over it, in way that should be obvious to any elected official or other adult, frankly.

Today, even Representatives who voted for the bill are back-tracking:

John Rubin, R-Shawnee, said he would vote for the bill again based on his beliefs on religious liberty, but he said it was unnecessary since the U.S. and state constitutions already offer religious protections. "It's a bit redundant," he said.

"In other words, I think this whole trip was unnecessary, and I question really why the bill even came to the floor for a vote," Rubin said.

That's a good question, and reporter Bryan Lowry of the Wichita Eagle has been on the trail of the answer.

Lowry points out that "Rep. Charles Macheers, R-Shawnee, who introduced the bill, has repeatedly said it applies only to wedding celebrations" -- but "Macheers did not write the bill and said he did not know its origin. It was crafted by the American Religious Freedom Program, an organization based in Washington D.C. Similar bills are being considered in Tennessee and South Dakota."

The ARFP is part of the Ethics and Public Policy Center, "dedicated to applying the Judeo-Christian moral tradition to critical issues of public policy", and works with The Becket Fund, a law firm specializing in "religious freedom" cases.

It sounds as though the ARFP provided the text of the Kansas bill, in the same way that the American Legislative Exchange Council (ALEC) writes bills promoting corporate interests for state legislatures to use.

What's striking to me is that the Kansas bill is incompetently written, even though it comes out of a high-powered national group. Macheers seems to be under the impression that it's only about marriage ceremony-related services, but, as Mark Joseph Stern points out at Slate,

A catch-all clause allows businesses and bureaucrats to discriminate against gay people so long as this discrimination is somehow "related to, or related to the celebration of, any marriage, domestic partnership, civil union or similar arrangement." (Emphases mine.) This subtle loophole is really just a blank check to discriminate: As long as an individual believes that his service is somehow linked to a gay union of any form, he can legally refuse his services. And since anyone who denies gays service is completely shielded from any charges, no one will ever have to prove that their particular form of discrimination fell within the four corners of the law.

I have no idea if the bill is sloppy on purpose, to ensure that it will be challenged up the court system -- possibly providing a way for the Becket Fund to pick up some fees or at least a prominent amicus brief -- or if it's just another instance of the "traditional marriage" people not being very good at their job?

Support for the latter comes from Erick Erickson, who threatens this is what happens when you make us care:

More states should follow Kansas's lead. Faithful adherents of a religion should not be compelled to provide goods and services in the service of sin.

-- without even mentioning, or apparently thinking about, the fact that there are obvious constitutional issues involved, and that the law was set up to fail. Live by the echo chamber, die by the echo chamber. But while Erickson (founder of RedState.com, formerly at CNN, now at Fox News) lives and profits by that echo chamber, the Kansas State Legislature are the ones who are going to be dying -- of embarrassment, if they have any self-awareness.

Hogs Killing a Snake, by Kansas artist John Steuart Curry. At least the hogs know what they're doing.

Comments

[russell]

NO PORK FOR YOU!!!

[russell]

More seriously, I guess my thoughts about stuff like this go in a few directions.

FIrst, I think people's religious scruples should be respected. People shouldn't be required to do things that contradict their beliefs. And I'd extend this beyond specifically religious scruples to any matter of conscience.

Second, in 99.99% of cases, these things can be sorted out without having to resort to law. If you don't want to dispense the morning after pill, another pharmacist can wait on that customer. If you don't want to bake a cake for a gay wedding, just politely decline the work.

When this stuff makes headlines, it's generally because somebody wants to Make A Very Big Point. Can't we all just get along? In general, yes, we can, if we actually want to. Some folks have other agendas.

Third, conscience in any form - religious, humanistic, what have you - is the unique property of natural human beings. OK, maybe dogs, too. But legal entities operating under color of nominal personhood, but which aren't actual humans, don't have consciences or religious faith of any kind. IMO it's appropriate to extend exemptions for matters of conscience to legal entities *specifically constituted to engage in religious activities*, but otherwise, no.

Lastly, people with strong religious convictions, or simply consciences that put them at variance with general opinion, have to recognize that the rest of the world will not always accommodate them. Sometimes respecting your conscience will bring a cost, to you. The entire population of the rest of the planet is not under any obligation to agree with you, see the sense of your point of view, or twist themselves into pretzels on a daily basis to accommodate your unique and special view of things.

[Julian]

"FIrst, I think people's religious scruples should be respected. People shouldn't be required to do things that contradict their beliefs. And I'd extend this beyond specifically religious scruples to any matter of conscience."

Do you apply these principles to people who work in government? What if someone's religious beliefs preclude racial integration?

[DBN]

But legal entities operating under color of nominal personhood, but which aren't actual humans, don't have consciences or religious faith of any kind. IMO it's appropriate to extend exemptions for matters of conscience to legal entities *specifically constituted to engage in religious activities*, but otherwise, no.

I'm all for pragmatism, but why don't you just say that you embrace the PPACA and reject Citizens United rather that try to argue back from the conclusions to a rather incoherent principle?

[wj]

From the outside, it appears that the difference between what this bill proposes and discrimination in the South in the first half on the last century is this: "Gays not served" is merely allowed, whereas "Negroes not served" was legally required (at least in some places).

As for russell's suggestion that "If you don't want to dispense the morning after pill, another pharmacist can wait on that customer." I would say that, if you don't want to sell some of the products that your employer sells, perhaps you should work elsewhere. Maybe find a pharmacy which doesn't stock it at all. If not, get into another line of work.

Consider if you work in a hardware store, and you boss has to have someone else to sell hammers because you object to them. Or you work for Amazon, but won't write code which could be used to sell books on evolution.

[russell]

Do you apply these principles to people who work in government? What if someone's religious beliefs preclude racial integration?

If working in government is going to conflict with your religious principles or conscience, you should probably find another line of work.

If your religious principles preclude racial integration, you will probably want to find a place to live where you won't have to be around people who are a different color than you.

try to argue back from the conclusions to a rather incoherent principle?

What's incoherent?

People have a conscience. Legal entities that aren't actually people don't.

What is difficult to grasp about that?

[russell]

to respond more directly to DBN's question, the reason I'm against Citizens' United is BECAUSE I distinguish between natural persons and corporations.

The reason I disagree with Hobby Lobby's claim of a 1st Amendment to practice religion is BECAUSE I distinguish between natural persons and corporations.

I'm not arguing back from anything. I'm arguing forward, from the principle to the case. And the principle is dead simple.

[wj]

russell, I think that makes loads of sense. My question would be, given what the Court has ruled so far, how to we go about differentiating in law the rights of corporate "persons" from natural persons?

[thompson]

russell:

Second, in 99.99% of cases, these things can be sorted out without having to resort to law.

Dead on.

wj:

Or you work for Amazon, but won't write code which could be used to sell books on evolution.

Then Amazon should be able to fire you. Or keep you on if you are an amazing programmer in other ways. And you should go find work that satisfies your somewhat odd scruples.

And if you can't, you do some soul searching about how important those particular scruples are.

[thompson]

wj:

You weren't addressing me, but as I understand it (IANAL) but the USSC is relying on the Dictionary Act (at least in the PPACA case), which is legislation that congress could revise.

If you wanted to revise and clearly delineate corporate and natural personhood, it seems like congress could pass a law revising USC1:1 requiring laws to clearly state if they apply to corporations or not.

On Citizen's United, as the USSC already decided it is a 1st amendment issue, I think you would need a constitutional amendment to state that corporations do have any rights not granted to them by the state.

And those rights would have to be hashed out legislatively.

[thompson]

Sorry, I didn't mean the USSC in the PPACA case. I meant 10th circuit.

[russell]

given what the Court has ruled so far, how to we go about differentiating in law the rights of corporate "persons" from natural persons?

I'm actually not sure what the current understanding of the law is regarding corps vs natural persons as regards exercise of religion. I think we will probably see some kind of ruling on that pretty soon.

Regarding other rights or privileges under law - speech, unreasonable searches, ability to enter into contracts, property rights - I don't think law makes much of a distinction.

What I think has been lost is the distinction between rights that are the inalienable heritage of natural persons, and rights or other privileges extended by statutory law to other entities for practical (and often totally reasonable) purposes.

Corps vs natural persons aside, the Kansas bill sounds like a freaking trainwreck waiting to happen. It seems like they want a legal lever allowing people to not recognize gay marriages, period, and the means they are going to use to do so is 1st Amendment freedom of religion.

To do this, "exercise of religion" is going to be extended to mean not being required to do anything whatsoever that touches on behavior someone doesn't approve of, no matter how tangentially. Up to and including baking a cake.

That principle has application EXTRAORDINARILY above and beyond the case of gays marrying. As, I am sure, they will discover if they pass this.

Be careful what you wish for.

[thompson]

That principle has application EXTRAORDINARILY above and beyond the case of gays marrying.

Including the somewhat ironic aspect of its neutral language that would make it perfectly legal for a county clerk to deny the validity of a christian wedding performed in church.

Also, a great moneymaking opportunity for the state. Think of all the penalties they could rack up on couples who benefit by filing jointly: Sorry, we don't recognize your marriage.

Not to mention court cases. You could force spouses to testify against each other. The court could simply not recognize their marriage as valid. After all, they are *criminals*. Everything they do is immoral.

To do this, "exercise of religion" is going to be extended to mean not being required to do anything whatsoever that touches on behavior someone doesn't approve of, no matter how tangentially.

I see no reason people should have to be required to, say, bake a cake if they don't want to. I just don't see why society should subsidize and protect that. If you don't want to cater a gay wedding, fine, but don't get upset when your boss fires you for not doing it.

[Tony P.]

A few weeks ago, we had a brouhaha about a baker refusing to sell a wedding cake to a gay couple. In THAT case, the "baker" WAS "the boss". Some people here seemed to hold that the baker SHOULD have the right to turn away gay customers. I mused at the time about whether those people would side with "the boss" if the religiously-principled baker were a mere employee. It seems that even Kansas Republicans can figure out that their real religion, namely Free Market Capitalism, might be inconvenienced by too much deference to their professed religion.

--TP

[CountMe-In]

The question I have is what say there's a corporation who has evolved from swinging through the trees eons ago and now walks upright and wants to hire a gay chimpanzee with an accounting degree because he likes the cut of the latter's jib, does said person of the first part need to visit the monkey house at the zoo and subject himself to self-appointed dominant ape Erick Erickson knuckling forth to fling his poo all over everyone in sight, or may we skip that step and have the zookeeper put Erickson down, chop him up into edible chunks and feed him to the lions?

It would seem that permitting Kansas officialdom to exercise their individual consciences in the course of their daily work might conflict with the State's law regarding the carrying of concealed weapons by gay couples who feel the need to stand their ground and enforce their civil rights on the spur of the moment, especially if they are turned down for a marriage license during the trailers at the local Cineplex.

[thompson]

Tony:

Some people here seemed to hold that the baker SHOULD have the right to turn away gay customers.

I think people should have the right to do or not do business with anybody they choose. I think that is an extension of freedom of association that should only be limited when there is such extensive and pernicious use of that right against a specific class of individual that they are effectively barred from having normal lives.

The systemic and institutional racism that afflicted this country would be an example of that and I certainly see why anti-discrimination laws were needed in that context.

A few reluctant vendors for gay weddings? I don't see it as a problem on remotely the same scale, and not one that requires government intervention. Which is not to say I think the bakers are doing good things, or are right, or are justified. But I think the appropriate response is to encourage boycott, not to legally force them to bake a cake. (Which, IIRC, is how at least one of the cake incidents resolved. I don't know if that was the specific one you were discussing, there's been a few over the last few years.)

Just like I don't think we need a law protecting people who refuse to do the job they are paid to do, or whatever else the Kansas law was trying to be.

I think the Kansas republicans voted for the bill because they thought they could score political points with their constituency. And they are backpedaling now because the law is just plain bad for multiple reasons, including constitutionality and vague wording.

[Doctor Science]

I assume neither russell nor thompson has ever seriously worried about being turned away from a store, a job, housing, or a school because someone in power didn't like their kind.

The trouble with saying "you shouldn't be forced to bake a cake" is that it is *exactly* the same thing as "you shouldn't be forced to serve everyone at your lunch counter." It's true that the apparatus of discrimination against gays in Kansas is less elaborate than the Jim Crow laws were, but that doesn't mean there isn't still systemic, institutional, and legal discrimination against them.

If you have a business that serves the paying public you have an actual legal obligation to serve The Paying Public -- which means treating *everyone* as though the only thing that matters is the color of their money.

The trouble with permitting "freedom of association" on the part of vendors is that *that trick never works*. It always ends up with invidious effects -- like, for instance, different price schedules for the Right People.

[CharlesWT]

If I were attending a gay wedding, I would like to know if someone was forced to provide the cake so I could avoid it. After all, depending on how strong their feelings were on the matter, the cake might have anything from ex-lax to something worse in it.

When you try to rub people's noses in something, you may end up getting more of it on yourself than on them.

[Doctor Science]

As for respecting people's religious (or conscientious) scruples about *doing a job they've signed up for*, I again say "No".

If you decide to work in a pharmacy, part of that decision is to be a helpful but essentially transparent conduit between a patient and their doctor. If you can't in conscience be such a conduit, then what you're actually doing is becoming a pharmacist in order to have power over people, in order to interfere with the doctor-patient relationship.

And if your job is to bake wedding cakes, then baking good cakes that make people happy is your calling -- even if the people in question aren't good people.

I often think about how abortion clinic workers act, when a protestor becomes a client.

most clinics perform abortions on anti-abortion women because they feel it's their obligation to help all women.

It takes a *lot* of spiritual self-discipline to *help* when you want to *judge* -- and most of the cases of "religious scruples" I've heard about involve people who really, *really* want to judge.

Basically, if your religious scruples demand that you judge someone, even when it interferes with your job, I don't think those scruples should be respected.

[Tony P.]

thompson: I think the Kansas republicans voted for the bill because they thought they could score political points with their constituency.

Sure. And that says something about either their constituency or their opinion of their constituency.

And they are backpedaling now because the law is just plain bad for multiple reasons, including constitutionality and vague wording.

It might also be bad for the reason that the majority of Kansans are not the a$$holes their politicians originally imagined them to be. That's a more charitable view. I'm not saying it's correct, mind you.

--TP

[russell]

The trouble with saying "you shouldn't be forced to bake a cake" is that it is *exactly* the same thing as "you shouldn't be forced to serve everyone at your lunch counter."

First, I'd say that my position isn't exactly the same as thompson's.

That said, I'm not sure that a catering service politely declining to submit a bid for a wedding gig is not exactly the same as hanging out your shingle as a retail cake business and then telling someone who walks in your door that you won't sell them a cake.

The distinction is sort of subtle, maybe, but I also think it's real. Apparently, it's also reflected in law in whatever the jurisdiction was where the issue came up, and probably generally.

My wife works as an interior decorator and she will occasionally turn down work if, for example, she thinks a prospective client's taste is miles away from hers, or even if she just thinks people are going to be a royal PITA to work with.

Unlike the famous cake-baker, she doesn't tell them "I'm sorry, I can't work with you because your taste sucks", or "you seem like a freaking horror show of a client". She simply says she thinks they might be happier working with someone else, and moves on.

The cake-baker could, maybe, take a lesson from my wife on basic etiquette and not being a jerk.

In any case, there appears to be a distinction between folks who operate as a service, where you enter into a contractual arrangement with your clients on a case-by-case basis, and folks who hang up their shingle for come-one-come-all custom with the public at large.

Maybe some of the legal talent here could tease it apart for us.

On the basic concept of the Kansas bill being a simple case of folks wanting the law to not make them get gay cooties, I agree with you. If you open your doors to The Public, you don't get to pick and choose who you want to do business with.

If that doesn't suit you, you need to find another line of work.

[russell]

I assume neither russell nor thompson has ever seriously worried about being turned away from a store, a job, housing, or a school because someone in power didn't like their kind.

And for the record, yes, I've taken shit from people because they "didn't like my kind". Not because I was gay, or black, but because at the time I fairly evidently didn't have any money to speak of.

And yes, it truly does suck.

[thompson]

DrSci:

I assume neither russell nor thompson has ever seriously worried about being turned away from a store, a job, housing, or a school because someone in power didn't like their kind.

I recognize that whatever discrimination I face is not commiserate with those faced by others born other races, genders, or orientations.

And, if that discrimination is pernicious and widespread enough to prevent an entire class of people access to a normal life, I'd agree we'd need to apply legal protections.

It's true that the apparatus of discrimination against gays in Kansas is less elaborate

And far less pervasive and pernicious. Comparing discrimination against homosexuals today to the discrimination faced by blacks in the south during Jim Crow is staggering to me. Homosexuals can readily vote, buy lunch, sit anywhere on the bus, etc etc. I'm pretty sure they can even buy cake for their weddings, if not from every single vendor.

None of that is to say they don't face discrimination, just that in my opinion comparing it to Jim Crow borders on ridiculous.

In my opinion, a law is not needed to answer a few bakers being jerks for no good reason. A few decades ago? Maybe. Anti-homosexual discrimination was more rampant. Today? The demographics are shifting towards acceptance.

The discrimination I'm more concerned about is marriage equality. Or in other words, I'm more concerned about discrimination BY the State rather discrimination that may be STOPPED by the State.

Fortunately, votes and court decisions are tending towards marriage equality as well.

you have an actual legal obligation to serve The Paying Public

I question whether baking cake for a wedding falls under a "public accommodation" and is therefore subject to equal protection laws according to the civil rights act.

Although the specific cake baking in question likely fell under a specific state civil rights statute rather than the federal civil rights act, they tend to be pretty similar to the federal CRA. If you let me know which case we are discussing specifically, I can try to read more about it and the applicable state laws.

Russell:

The cake-baker could, maybe, take a lesson from my wife on basic etiquette and not being a jerk.

Certainly, but nobody has the right to not be exposed to jerks and everybody has the right to be jerks.

Not saying they should, but I think they have that right.

[Julian]

Russell, I asked: "Do you apply these principles to people who work in government? What if someone's religious beliefs preclude racial integration?"

You said:

"If working in government is going to conflict with your religious principles or conscience, you should probably find another line of work.

If your religious principles preclude racial integration, you will probably want to find a place to live where you won't have to be around people who are a different color than you."

You didn't answer my question.

[Roger Lustig]

Comparing discrimination against homosexuals today to the discrimination faced by blacks in the south during Jim Crow is staggering to me. Homosexuals can readily vote, buy lunch, sit anywhere on the bus, etc etc.

Can homosexuals buy lunch or sit on the bus in peace if they hold hands? (Hint: over 45 years after Loving v. Virginia, the reactions to the Cheerios commercial during the Super Bowl.) Things are much better than they were, but there's plenty of discrimination left, and plenty of double standards being enforced. In many places, yes, they can hold hands and get served and otherwise left in peace, but also zillions of places where bigoted "community standards" will coerce them into moving elsewhere or living in fear or shame.

Simple example of the pernicious effect of the proposed law: a couple wishes to rent a private room in a restaurant for their rehearsal dinner. The restaurant, a public accommodation not only regulated by the state but protected by it, refuses service. The other 4 restaurants in town follow suit.

Do the restaurant proprietors have the right to be jerks in this manner? Again: replace "homosexual" with "interracial" and see how it scans. Being a jerk in public, as the proprietor of a business, is not just "being a jerk." No, one cannot legislate people's attitudes; but one can regulate commercial practices that contribute to coercion based on those attitudes.

[DBN]

to respond more directly to DBN's question, the reason I'm against Citizens' United is BECAUSE I distinguish between natural persons and corporations.

That distinction has nothing to do with the decision. Corporate personhood is a legal fiction for tort and tax purposes. It has nothing to do with speech.

It was the judgement of the court, rather obviously, that people do not lose their first amendment rights when they work together in groups, whither those groups are corporations, churches or a crowd of protestors. In fact, this is implied in the right of assembly.

It was also recognized by the court that "media corporations" cannot be distinguished from other types of corporations, and that in the modern world, freedom of the press depends almost entirely on freedom of the corporate press.

The reason I disagree with Hobby Lobby's claim of a 1st Amendment to practice religion is BECAUSE I distinguish between natural persons and corporations.

And yet, you believe that religious organizations are in some way able to have a conscience in the way that other organizations cannot? What about Greenpeace?

[byomtov]

to refuse to

Provide any services, accommodations, advantages, facilities, goods, or privileges; provide counseling, adoption, foster care and other social services; or provide employment or employment benefits, related to,
or related to the celebration of, any marriage, domestic partnership, civil union or similar arrangement; ... or treat any marriage, domestic partnership, civil union or similar arrangement as valid.

Among other problems, I see nothing here that restricts this "privilege" to those who wish to mistreat homosexual couples. It seems to authorize refusing to treat a heterosexual interracial, or non-Christian, or any other, marriage (two divorced people?) as valid, and refusing to bake a cake, rent a hall, etc. for virtually any reason. It might even permit officials to refuse to issue marriage licenses if they didn't want to.

[sapient]

It seems to authorize refusing to treat a heterosexual interracial, or non-Christian, or any other, marriage (two divorced people?) as valid, and refusing to bake a cake, rent a hall, etc. for virtually any reason. It might even permit officials to refuse to issue marriage licenses if they didn't want to.

Some of these other kinds of mistreatments would be prohibited under federal civil rights acts (especially the Civil Rights Act of 1964). Although it seems that discrimination of many kinds should be unconstitutional, it's not. It took the will of Congress to bar racial discrimination by "public accommodations" - private businesses serving the public. AFAIK, it isn't currently illegal under federal law for businesses to discriminate based on sexual orientation. Some state laws protect against discrimination based on sexual orientation.

[sapient]

thompson: I question whether baking cake for a wedding falls under a "public accommodation" and is therefore subject to equal protection laws according to the civil rights act.

It does, I think, fall under "public accommodation". The baker wouldn't be able to discriminate against people protected by the Civil Rights Act of 1964. However, the Civil Rights Act of 1964 doesn't protect against sexual-orientation discrimination.

Roger Lustig: No, one cannot legislate people's attitudes; but one can regulate commercial practices that contribute to coercion based on those attitudes.

I guess what Roger Lustig and thompson are arguing about it whether there should be a law protecting more people from discrimination by private businesses. I tend toward thinking that there should be such a law, but it would be difficult to craft a law protecting all of the people who deserve protection, while maintaining a right of a private business to refuse service.

[thompson]

reactions to the Cheerios commercial during the Super Bowl.

Are not the same thing as Jim Crow.

of the proposed law

The Kansas law is staggeringly stupid for multiple reasons, which I noted above.

plenty of discrimination left, and plenty of double standards being enforced.

Agreed, but not every example of discrimination requires government action.

People on the internet upset about a commercial? Not the same thing as being denied voting rights.

It's very difficult to legislate culture and civility. I'd also argue its dangerous. On top of that, I'd also say that sometimes its necessary.

Part of the trouble with having rights like the freedom of speech or association is that they will be readily abused. Just like the 4th and 5th amendments protect the worst criminals, the 1st protects the biggest jerks.

I see a need for the CRA when it was passed. I could even see a need for extending those protections to homosexuals a few decades ago. At this juncture, I do not. I'd be willing to be convinced, but as it stands right now, I don't see it.

sapient:

On further review, you are correct, the baker should be a public accommodation. And while the federal CRA doesn't cover homosexuality, multiple state laws do (depending on the state law, CO, CA are good examples).

[CaseyL]

I tend toward thinking that there should be such a law, but it would be difficult to craft a law protecting all of the people who deserve protection, while maintaining a right of a private business to refuse service.

To me, the operative issue is whether the reason for refusal is intrinsic or extrinsic to the service.

Refusing to serve someone because you don't like their demographic is not intrinsic to what your business does. If you're a commercial baker, for example, you can turn down an order specifying particular ingredients in the cake (raw milk, or blood, e.g.) because those violate your understanding or beliefs about what you do.

Refusing a specific class of customer is different: it has nothing to do with the creation of the baked good.

Similarly, pharmacists refusing to fill certain prescriptions based on their personal beliefs is extrinsic to what pharmacists do. Pharmacists may warn customers of side-effects and bad drug interactions: these considerations are intrinsic to the practice of pharmacy. Refusing to fill a prescription based on one's personal beliefs is not only extrinsic to the practice of pharmacy, it is also tantamount to unlicensed practice of medicine - something which is normally considered unethical and illegal, with serious penalties.

[CountMe-In]

Think of all of the cakes down through the ages forced, I say forced, against their will to attend heterosexual Christian weddings and be torn to pieces, attacked and dismembered with implements made especially for the occasion, many times beyond counting forced down the gullets of drunken grooms and brides and having these proceedings photographed and distributed through the U.S. Post Office, and now over the internet.

Do you hear the cakes complaining that their druthers in the matter have been ignored? Do they refuse to provide their services? No, you don't and do you know why? Because cakes are not jerks. Because cakes are decent people.

Now, white Christians have at crucial times in history also refused to whine and force themselves on society against its special arrangements and to demand equal protection under the law. For example, Jews, and Gypsies, and homosexuals had their own trains in Europe that ran to Auschwitz and other swanky vacation spots and those groups of people never let white Christians on board, did they? And never did Christians run down to the train depot and demand a ticket to ride. No, they didn't . They knew their place and minded their own business. They respected the rights of Jews, Gypsies, and homosexuals to keep their modes of transportation to themselves.

They didn't rub others faces in it.

Well, a few did. But were the Jews, Gypsies, and homosexuals a bunch of jerks and refuse these few a train reservation as a matter of personal religious conscience? No. These few hardy Christians were readily accepted and afforded the same concierge spa treatment at the end of the line.

Sometimes they even received better cake than the rest.

[russell]

Russell, I asked: "Do you apply these principles to people who work in government? What if someone's religious beliefs preclude racial integration?"

You didn't answer my question.

Apologies. My answer is yes, I would apply the same principles to people who work in government as to anyone else.

And yet, you believe that religious organizations are in some way able to have a conscience in the way that other organizations cannot?

No, I don't.

I believe that natural human persons are capable of holding religious beliefs and convictions, and that their exercise of religion is protected by the 1st Amendment.

I further believe that when they associate in the corporate form *for the purpose of engaging in religious activities*, it's appropriate to extend the same 1st Amendment protections to that corporate entity.

Not a hard concept.

nobody has the right to not be exposed to jerks and everybody has the right to be jerks.

True as stated. And, not related to my point.

Sometimes people aren't going to want to work for certain other people. In many cases, folks can find a way to sort it out without making a Big F****ing Deal out of it.

When that's a possibility, just do that and move on. Nobody has to do anything they are uncomfortable with, everybody's happy.

That's my point.

And while I appreciate your zeal for freedom of association, IANAL but my understanding is that part of the deal in opening your doors for custom to the general public is that you give up the option of picking and choosing your customers based on things like skin color, religion, gender, and (maybe? in some jurisdictions?) sexual orientation.

Again, IANAL but at least some categories of professional service people - lawyers, for example - appear to be exempt from that rule.

in my opinion comparing it to Jim Crow borders on ridiculous.

A significant reason that discrimination against gays has not achieved the systematic level achieved by Jim Crow laws is that the law prevents it.

The Kansas bill would remove much of that protection.

Lastly, byomtov's 8:24 and sapient's 9:59 are IMO right on.

[wj]

Some of these other kinds of mistreatments [interracial, non-Christian, etc.] would be prohibited under federal civil rights acts (especially the Civil Rights Act of 1964).

But consider, the way the Kansas bill was written, it would allow those kinds of mistreatment. And what does it say that they passed a bill which only a Federal law prevents from having that effect? It seems like, at the very least, it indicates a particularly poor job of drafting the language of the bill. (Unless, of course, it was done that way deliberately.)

[CountMe-In]

The proposed law in Kansas states that gays may be refused service, even in government offices, if the service contradicts an individual's "sincerely held religious beliefs".

I protest this high bar of "sincerity". Who is deciding what is sincere and what is not.

What if you possess only lukewarm religious convictions but the mere thought of gay sex being sanctioned by State law makes you want to up chuck every time you watch gay porn, sometimes even watching more than once just to make sure that is it beyond the pale, and you want to deny a marriage license or cake because you're just a jerk, and an insincere one at that, and you get your jollies by being mean to certain classes of people.

This special carve-out for la-di-da sincere people seems unjust to me and precludes the overwhelming majority of red-blooded American citizens their God-given rights, secured by the Constitution, to make shit up as they go along according to their self-interest at any moment in time and what they said or thought yesterday be damned.

What has happened to the bedrock American principle of screwing others over on the basis of mere whim? Or because you just want their land based on insincere statements about God's plan when really all we really want is to build casinos?

Are these Republicans in Kansas trying to say that if Ayn Rand worked as a clerk in the building license department, that she couldn't discriminate against gay architects because she was an atheist and held no "sincere" religious convictions on which she based her prejudices.

No more sincere Atheist than Rand could you find in this fair land (you could
tell she was hyper-sincere because her fictional characters' perorations regarding high principles ran to 25 to 30 pages without so much as a smile) and yet HER sincerity would count for nothing in his dogs body of a law because apparently personal prejudices and hate are only recognized if they are religiously inspired.

[thompson]

Some of these other kinds of mistreatments [interracial, non-Christian, etc.] would be prohibited under federal civil rights acts (especially the Civil Rights Act of 1964).

It's not even just against the CRA. The portion involving state workers is likely in direct violation of the 14th. Or at least, I can't see any way to square it with what I know 14A case law.

And while I appreciate your zeal for freedom of association, IANAL but my understanding is that part of the deal in opening your doors for custom to the general public is that you give up the option of picking and choosing your customers based on things like skin color, religion, gender, and (maybe? in some jurisdictions?) sexual orientation.

Well, it's nice to be appreciated. You are correct, and I'm not arguing that the cake behavior is not against the law (I did, briefly, before I read more on jurisprudence on what a 'public accommodation' is...its broader than I thought.) I just don't think it should be. I understand the motivation for hotels, restaurants, etc, but wedding cakes seems like a stretch. Again, not because I think its a good thing, but because I view free association rights as worthy of protection even when abused by a segment of the population.

That breaks down, as all rights do, in extreme cases. At that point, we need to legislate a solution (such as the CRA). I don't think we're there now, but, as noted above, that could be colored by my status and my locale.

[liberal japonicus]

Doc's 8:35 was ensnared in a spam trap. Fly free comment, fly free!

[russell]

I guess I'm not seeing the strong connection between operating a bakery, and the constitutionally protected right of free association.

I'm not sure the right to freedom of association means quite what you think it means.

IANAL, so take my comment with whatever grains of salt are needed. But citizens organizing together to engage in protected speech and/or other constitutionally protected behaviors seems, to me, not quite equivalent to not wanting to sell a cake to gays.

[thompson]

DrSci, on your buried comment:

"most clinics perform abortions on anti-abortion women because they feel it's their obligation to help all women."

I think thats noble, and good, and worthy of respect. But I don't think its behavior that should be enforced by law.

"Basically, if your religious scruples demand that you judge someone, even when it interferes with your job, I don't think those scruples should be respected."

I don't disagree. I just don't think we should err on the side of rectifying that behavior legally unless it is strongly necessary.

Because, in general, I think people should be able to judge each other. I refuse to shop at walmart, chik-fil-a, I would refuse to support or engage with westboro baptists, and I think businesses should maintain similar rights *even if they would use those rights in ways I find distasteful or downright disgusting*.

The point where I'm willing to break with that is when a class of people is substantially affected: They can't live their lives in a way that the run-of-the-mill american would consider normal: can't find equal housing, can't eat at restaurants, are barred from voting, etc.

And yes, it means people are free to be jerks (and I'm using jerks out of a continued attempt not to use stronger language that would come more naturally). And yes, it sucks.

Also, as a side note, I don't think those scruples should be protected by law either. If a pharmacist doesn't want to give out birth control and gets fired, well, conscience comes with a price. Don't expect society to back you up.

Russell:

"I'm not sure the right to freedom of association means quite what you think it means."

I would define it as the freedom to associate or not associate with other individuals as you see fit, which doesn't strike me as a particularly bizarre interpretation of the phrase. It's not the only definition, sure, but its the one I use.

"But citizens organizing together to engage in protected speech and/or other constitutionally protected behaviors seems, to me, not quite equivalent to not wanting to sell a cake to gays."

Perhaps where we disagree, then, is what rights you maintain when you start a business? I would like to see those rights broadly maintained by business owners, even in the course of their business, even if I sharply disagree with how they use their rights.

I feel that way because a large portion of our lives are spent working. Unless you are extremely wealthy, you must either find a job or run a business of some sort. If you can't exercise your conscience at work (because you either work for someone else or are restricted in how you run your business), I don't view the situation as that distinct as being broadly restricted from exercising your conscience, because very few people are free from working.

I understand how one could draw the distinction between private and business, I just don't think I realistically can without undue burden on individual rights.

[Snarki, child of Loki]

I, for one, applaud in advance the paramedic that refuses to perform CPR on thompson, because "there's already TOO MANY of 'that' kind".

[russell]

I understand how one could draw the distinction between private and business, I just don't think I realistically can without undue burden on individual rights.

The difference, I think, lies in the degree to which your exercise of your right affects other folks' exercise of theirs in the two contexts. Or, simply affects other folks, whether it is a matter of their rights or simply some lesser privilege or ability.

Don't want to invite gays to dinner at your house? No worries, at least as regards the law.

Don't want to serve a meal to gays, or sell them clothes, or a cake? IMO, a different story.

We don't exercise our rights in a social vacuum. There are other folks here, too.

[wj]

russell,
In short, "my freedom to swing my fist around in the air ends at the other guy's nose."

In the contexts we are kicking around here, you are free to associate privately with anyone you like; and shun privately anyone, or any group, you don't like. But when you go to work for someone, or license a business, you are no longer dealing with your private actions. And when you are dealing with public actions, there are some constraints on for freedom of association. Context matters.

[thompson]

russell and wj:

"Or, simply affects other folks"
and
"when you are dealing with public actions, there are some constraints on for freedom of association."

Which strikes me as an incredibly broad and poorly defined legal standard.

Is that baker allowed to go out of business rather than enter into a contract to bake a specific cake? That decision certainly 'affects' other people.

Could a web designer decline a job designing a porn site?

Could a web designer refuse to design a website for a group that encourages people to pray away the gay?

Could a band refuse to perform at one of their 'graduation' ceremonies? What about a caterer? What about a baker?

Could a compounding pharmacist be legally forced to provide a euthanasia cocktail for executions? The execution is legal, the convict had due process, and making drug cocktails is pretty much the job of the pharmacist. Are they allowed to decline based on their scruples?

To me, all of these businesses should be allowed to refuse service, and I don't see an easy way of drawing a line between letting people turn down things I don't like, and things I do like.

In other words, I'm extremely reluctant to legislate morality and civility. Because those kinds of decisions are exactly the kind of thing that, to me, are subject to tyranny of the majority once the government gets involved.

Russell, you mentioned up thread that your wife sometimes declines clients for various reasons, is that right? What protects her legally? Is the distinction in her job or that none of her clients are protected classes? Or does nothing protect her if they decide to sue?

[wj]

Perhaps there are two (admittedly less that stark) distinctions to be made here.

First, what basis are you discriminating on? "I don't like that person" or "I don't like that group"? If you are refusing an otherwise publicly-available sales or service to a group there may be a problem.

Second, is there an objectively based reason for refusing to deal with someone. "He are obnoxious" or "I am already fully booked" are at least relatively objective reasons. "They are damned by their behavior" or "All members of [group X] are [pick your unsavory characteristic]" is harder to objectively determine.

[thompson]

wj:

is there an objectively based reason

At which point we need a mechanism for determining what objective reason is good enough. Which will likely either be through direct or representative democracy, and is an excellent mechanism for stripping minorities of their rights.

Is thinking pornography distributors are bad people a good reason?

Is thinking executions are bad a good reason?

Is not liking someones style of dress? What if its mandated by their religion? What if it's just because?

What if someone engages in or promotes behavior you view as destructive and unhealthy. Are you required to help them?

Perhaps there are two (admittedly less that stark) distinctions to be made here

I sympathize with what you're trying to do here, but the "less than stark" qualifier gives me pause.

I'd agree that you can draw distinctions, but to me the distinctions tend to fall into the category of "things the majority like, things the majority don't like".

And I think its very dangerous to allow for laws like that, because they are *going to be used against minorities.*

[wj]

I understand (and sympathize with) your reservations. On the other hand, is there ever a time when discrimination based on raw prejudice is not acceptable? And if so (and I admit to thinking that there is), how do you identify those situations?

[bobbyp]

thompson,

The State of Washington has initiated suit against the homophobic florist who refused to sell flowers to a gay couple for their wedding. The suit was brought under the State of Washington's Consumer Protection Act which specifically forbids discrimination based upon sexual orientation.

Since you consistently advocate for "states' rights" please discuss.

Also: Why should business owners, sanctioned by the state and ostensibly engaging in an activity to promote the greater public good, be given special exemption to discriminate? Is this not standing things on their head? The state is now actively engaged is legitimizing discrimination against a class of people who did not volunteer to be a member of that class.

And why does your overly repeated 'slippery slope' only go one way?

[thompson]

wj:

is there ever a time when discrimination based on raw prejudice is not acceptable?

Yes, if by not acceptable you mean not legal.

Protecting all rights breaks down at some point.

Frex, freedom of speech: There are large swaths of speech that are both considered a) detrimental to society and b) protected.

I see no benefit of Rush to society, but I think his speech is protected. Ann Coulter, Michelle Bachmann, etc? I think a lot of what they say is actually destructive to society, but their speech is still protected.

But there are some (fairly extreme) limits to what you can say in some very specific instances.

So, its seems to me we have a standard (with regards to speech) where we are only willing to bring in legal limits to it in extreme cases. Not just when it might benefit society, but when to not limit is downright toxic to society.

The de jure and de facto racial discrimination that existed in this country, especially in the south, to me, is about as an extreme an example as you can get. I have no objection to the federal CRA. It was necessary. Entire communities were robbed of anything approaching a normal life.

how do you identify those situations?

Very hesitantly. Which is not an incredibly fair answer after the crap I gave you about your vague lines. So, sorry about that.

It's a judgement call. But the judgement for me isn't between better or worse (wouldn't we all be better off if Rush was off the air?). It's between necessary or not.

Anytime you 'draw a line', it is subject to majority rule enforcing its will on the minority. I think that is a real concern, and our history (as well as our present) is replete with examples of minorities being stripped of their rights by the majority.

Including the numerous state laws enacted to prevent gay marriage.

For reasons such as those, I think lines limiting fundamental rights should be drawn only when absolutely necessary.

Limiting the discrimination homosexual couples face by bakers and photographers strikes me as a noble goal, but I'm unwilling to limit the important right of freedom of association to accomplish it.

[wj]

Which is not an incredibly fair answer after the crap I gave you about your vague lines. So, sorry about that.

Hey, I think we are both groping in the dark here, on a question that is far from trivial to answer sensibly. And, by and large, without rancor. Not much more can be asked in such a situation.

I would, however, rather not simply say that "acceptable" and "legal" are synonyms for the purposes of this discussion. There are just too many laws which, IMHO, fall outside that identity. For example, this proposed law in Kansas. (OK, it was a seriously badly drawn law, even for the purposes for which it was supposedly intended. But then, it wouldn't have been the first time....)

I'm fine with your rule of thumb of "only when necessary." But I bet we would find a bunch of people who do feel that banning gay marriage is necessary -- in the sense that they believe (however inaccurately) serious harm flowing to the institution of marriage from doing so. So we need something a little clearer if we are not going to just shift the arguments without resolving anything.

[russell]

Which strikes me as an incredibly broad and poorly defined legal standard.

It's about as broad and specific as "undue burden".

My comment was simply to point out, in principle, where the line between the public and private spheres might be found. It wasn't intended to be an exhaustive citation of the related black letter law.

I think sapient has already pointed us in the right direction on that count, with his citation of federal anti-discrimination laws and the legal concept of public accommodation.

you mentioned up thread that your wife sometimes declines clients for various reasons, is that right?

Yes, that's right.

As I understand it, my wife's business would not fall under the heading of "public accommodation". Also, her basis for picking and choosing who she wants to work with isn't based on categories that are legally protected.

Basically, if she doesn't think she'll be able to do a good job for somebody, for whatever reason, she'll suggest that they find someone else. She always meets with new clients for an hour or so, for free, explicitly as a "getting to know you" exercise, to make sure it will seem like a good fit for both parties.

My point in raising my wife's business was simply to provide an example of how one might gracefully opt out of working with someone that you might not want to work with. I.e., it's usually best to not give as your reason the fact that God hates them because their lives are an abomination. Simply stating that you don't think you're the best fit for their needs will normally cover the bases.

But, some folks want to make a point.

[russell]

The de jure and de facto racial discrimination that existed in this country, especially in the south, to me, is about as an extreme an example as you can get.

Since the cases we seem to be focused on involved discrimination against gays, it seems relevant (to me), in the interest of rooting the conversation in some historical reality, to point out that gays are, and have been, regularly and systematically discriminated against in

• employment
• housing
• access to public and private services of all sorts
• participation in public institutions of all sorts
• participation in religious institutions

and pretty much anything else you might care to name. They have, in fact, been vigorously persecuted and singled out for abuse of every kind.

And not only de facto, but de jure, for quite a lot of our national history.

We aren't just talking about a one-off case of some idiosyncratic baker in Oregon.

[DavidTC]

Man, I wished I worked for someone in Kansas and this passed. It's not just that it includes heterosexual marriages, it's that it doesn't even know what it's talking about.

So, boss, I refuse to provide any goods related to 'marriage'. And as we are a martial property state, money paid by a married couple is likely to be jointly owned. Having me accept that would cause me to 'recognize' their marriage.

So I will no longer be providing anything for married people anymore. Can't fire me.

And, on top of that, as there is apparently no standard way for me to determine who is 'married' under the law, people who claim to not be married will have to demonstrate *to my satisfaction* that they are not married.

Yes, I am aware that there is no such thing as 'certificate of not-marriage', but that problem doesn't seem to be my fault. And, still, can't fire me.

I'll be sitting here reading a magazine until you manage to invent some job duties for me.

Seriously, under this law, literally anyone who interacts with the public at all can choose to simply stop doing their job.

[thompson]

wj:

But I bet we would find a bunch of people who do feel that banning gay marriage is necessary

Sure, and that's exactly what I want to prevent. I think everybody has the right to marry. Not because the constitution says so, but because they are people and that right is innate.

If a majority gets together in a state and bans a class of people from exercising that right: that's a sad part of the democratic process. It's happened many many times in the past and I see little hope that it will stop.

Which is when the courts step in, as they are now in regards to gay marriage. Those rights are innate, and the states are offering no evidence of a compelling state interest to limit them.

Which brings us to "compelling state interest" and the related "strict scrutiny".

So we need something a little clearer if we are not going to just shift the arguments without resolving anything.

Ideally, yes, but I don't see clear answers. 1A jurisprudence, for example, often struggles with what a compelling state interest is.

I think if you took 9 of the most preeminent legal scholars and tried to define what a compelling state interest is and whether a law passes strict scrutiny, you would often get multiple answers.

Do you have any suggestions on drawing those bright lines? I fully admit I don't. I think it has to be done case by case.

I guess I would also like to ask you if you see any situations where discrimination would be allowed? For example, the compounding pharmacist or not working with a anti-gay 'therapy' group? And if some discrimination is allowed, what standard do we use for making something a protected class?

Russell:

It's about as broad and specific as "undue burden".

That's fair.

As I understand it, my wife's business would not fall under the heading of "public accommodation".

Why not? I originally would have agreed with you, but if it applies to a baker making a cake on contract (not simply walking into a store and picking up a cake), what's the distinction between the two lines of work?

An example of the definition of public accommodation:

"a business, accommodation, refreshment, entertainment, recreation, or transportation facility of any kind, whether licensed or not, whose goods, services, facilities, privileges, advantages or accommodations are extended, offered, sold, or otherwise made available to the public."

I would say both fall under 'services' although it probably varies state by state.

Simply stating that you don't think you're the best fit for their needs will normally cover the bases.

Yeah, I get that. I fully agree that's the mature, adult, civil thing to do.

[thompson]

russell:

to point out that gays are, and have been, regularly and systematically discriminated against in

And a few decades ago, I would be a lot more willing to accept that protected status was necessary. I'm even willing to now if you can give me examples of broad and invidious discrimination by private businesses. I also admitted upthread that my perception may be colored by who I am and where I live: I just don't see examples of broad and pernicious anti-gay discrimination by private businesses that do exist.

The discrimination I see is largely from the state, although that's changing, thankfully.

[russell]

a business, accommodation, refreshment, entertainment, recreation, or transportation facility of any kind

No facility. There is no "there" there. Which appears to be a relevant distinction.

If my understanding is wrong about this, perhaps some of the attorneys would like to weigh in.

And a few decades ago, I would be a lot more willing to accept that protected status was necessary.

Which is why it would be a bad idea for the Kansas bill to pass.

Back to the future!!

[russell]

To expand slightly:

if it applies to a baker making a cake on contract (not simply walking into a store and picking up a cake)

The CA case was a caterer (not a bakery). Professional service, no particular location open to the public for anyone to walk in. Probably legal for them to decline the business, even though same-sex marriage is legal in CA.

The OR case was a bakery, with a physical location. Not legal for them to refuse to make the cake, even though same-sex marriages cannot be performed there.

It likely seems like a nit, but nits are what the law is made of.

[thompson]

"bad idea for the Kansas bill to pass."

Which I said from the beginning, multiple times. Its unconstitutional on its face. Then the subject diverged...

Regarding the definition of 'public accommodation'...yeah, seems nit picky, but that's what laws are made of. Clarity is important.

Fun fact: Apparently the PGA is 'a public accommodation' covered by the ADA.

However, in CA at least, the nondiscrimination extends beyond public accommodation to "all business establishments of every kind whatsoever". Which I would find likely covers even an at home bakery (which, isn't the home itself a facility at that point?), although maybe establishment also implies something specific.

Other state laws probably have their own nits.

I don't like that structure to the law: This behavior is banned if you rent an office space, but not if you work out of your home.

But alright. This has been an exhausting use of my weekend, but I learned a lot about the specific phrasing of public accommodations as it applies to anti-discrimination statutes.

[CJColucci]

There's a widespread perception that businesses have a general right to refuse service. They don't. Businesses exist to do business on a business basis, and that's what most businesses do. For obvious reasons. They want the money.
So the general rule is when you invite the world in to do business, you can't just arbitrarily exclude some portion of the buying public without some reason socierty is prepared to accept as reasonable.
There are lots of such reasons, like behavior, hygiene, or solvency. And if you aren't a merchant open to general trade but someone who works closely with clients on an individual basis, like interior decorators or lawyers or political campaign managers, you need not, and should not, eneter into a business relationship with a client who makes your skin crawl because you are likely to do a lousy job and the client is likely to be unhappy.
There are lots of good reasons for refusing service, too many to specify in advance, so as a rule of thumb "We reserve the right to refuse service for any reason that the law has not specifically outlawed" is close enough. And since most business operate on a business basis, there is often little reason to gin up the public force if, say, a quirky hatmaker won't sell fedoras to Republicans.
But sometimes allowing unfettered discretion about whom to serve causes significant enough problems for enough otherwise respectable and responsible customers that society ceases to regard such discretion as reasonable. Hence, it has been the law for centuries that, generally, innkeepers, carriers, and the like did not have such unfettered discretion -- though they could always refuse to serve a disruptive or odiferous or impecunious potential client. As life got more complicated and interdependent, or merchants became persnickety about serving large classes of otherwise respectable customers for reasons that did not bear examination, a wider variety of merchants of good and services have been brought under similar "public accommodation" rules, and specific types of discrimination in providing goods and services have been outlawed. So you can't refuse to provide ordinary goods and services to blacks or gays. If there's ever a critical mass of businesses that refuse to serve Republicans, we'll see laws prohibiting that, and rightly so.
So do business on a business basis, and you'll do just fine.