« Your Pi Day open thread | Main | prison »

March 14, 2014

Comments

"Freedom is never having to say your sorry."

And neither should it be.

"you're"

CharleyCarp!

Clearly I'm missing what you're saying in some way.

Really? This is what you wrote: "Doesn't the freedom of speech include bigoted speech? Doesn't the freedom of religion include bigoted religion?"

The answer is yes, but nobody is claiming otherwise. So what's your point?

There is a large difference and an obvious one between the lunch counter in Birmingham and the wedding in NM.

Yes, I recognize that, although the difference I recognize may or may not be the one you're referring to.

IMVHO professional services should probably not be held to the same standard as places that are, per the US Code, public accommodations.

Again, IMVHO, Hugenin ought to have been able to simply decline to shoot the wedding, for whatever reason she liked. Religious scruple about gay marriage, she found the couple to be obnoxious and she didn't feel like dealing with them, she had something else going on that day. Whatever. Professional services, entered into on a client by client basis, under a per-deal contract, seem, at least to me, to be an area where some kind of alignment of purpose between vendor and client is desirable and reasonable, and the lack of that is sufficient reason for either party to opt out.

Stuff like bakeries, restaurants, hotels, etc., different story. If you, literally, open your doors as a public accommodation, you have explicitly made yourself available for custom to whoever. And it's reasonable for folks to expect that, if your door is open and the lights are on, they can walk through it and avail themselves of whatever is nominally on offer. If you are open to the public, you don't get pick which public you're open to.

The definition of a public accommodation is here, I find it to be sufficiently specific that there shouldn't be all that much debate about what does and doesn't fall into that category.

So I don't see a difference between the lunch counter and the wedding, I see a difference between doing business in the form of some facility that is, literally, open to the public, and doing business in the form of providing, personally, your professional services, for hire, under contract.

My issue with thompson is that he draws no such distinction, in his world I could walk into a restaurant and be told sorry, we don't serve tall overweight balding white guys, for no reason other than tall overweight balding white guys bug the owner.

And he sees that kind of thing protected under freedom of association.

Again, IMVHO, I find that reading of "freedom of association" kind of eccentric, and not supported by anything I can find in the Constitution or case law or even plain old common sense.

To many exclamation points and bold text.

How many is too many? As you keep alluding to, it's all about drawing lines. Draw, pardner.

For anyone whose interested, here is the opinion.

The opinion includes a record of the communications between Willock and Huguenin, which are actually interesting.

Huguenin's position also is based on her belief that:

as an artist, she became a part of the events which she photographed and an owner of the images or messages conveyed in her photographs. Based on her religious and artistic freedom of expression, she declined to photograph events or promote views which were contrary to her belief system

So, not a freedom of religion issue, but freedom of speech.

For the record, the oppression Huguenin suffered for her actions was being required to pay the Willock's attorneys' fees. It was something over $6K.

Not nothing, but not f***ing slavery, either.

So yeah, Willock could have just moved on, but she felt she was being discriminated against because she was gay, and she was right.

And if we're talking the "can't we all just get along" thing, Huguenin could have simply said sorry, we're not available.

If you poke people in the eye, it pisses them off.

I'd also like to answer Brett's claim that WIllock hired another photographer and Willock "paid for it" by pointing out that Willock sought, and received, attorney's fees and attorney's fees only, and when offered the opportunity to pursue monetary damages, declined to do so.

So Brett, you are, once again, freaking wrong. Wrong, wrong, and wrong.

My issue with thompson is that he draws no such distinction, in his world I could walk into a restaurant and be told sorry, we don't serve tall overweight balding white guys, for no reason other than tall overweight balding white guys bug the owner.

Yeah, ok, I see the distinction you're making, which is one I missed earlier. Looking back at my 7:14, I picked up hammers in the list when I should have focused on the vendors. I misspoke there, and was using hammers as the proxy for the law in general.

Like I said the last time around (I think it was in a thread about the proposed Kansas law), I don't have a problem with the anti-discrimination laws as they apply to public accommodations like restaurants, stores, or hotels.

Public accommodations, depending on the state, can be expansive to a point they include various professional services, at which point I do disagree with them, as in this case.

While I do view that as an infringement of freedom of association (which I admit is an expansive view), I also accept that the state has a compelling interest to do so.

For me, the bridge to far is contract based services. Again, I think there's an infringement of freedom of association, but I fail to see the compelling need to induce those contracts.

You are, of course, still free to view that as eccentric. But I spoke a little hastily earlier and convolved things that shouldn't have been convolved.

Yes, it definitely was the:

http://obsidianwings.blogs.com/obsidian_wings/2014/02/mama-dont-let-your-babies-grow-up-to-kansas-state-legislators.html

I expressed myself a lot better there.

Could a bakery counter person at say, a Kroger's, refuse to supply a cake to a gay wedding or any other gay function without fear of being sued?

And could they as well demand that the gay individual put the rest of the items they've collected in their grocery cart back on the shelves, because what is good for the cake is good for the pork shops and the canned corn.

May the lesbian owner of an upscale dining establishment which serves a sumptuous selection of cakes baked from scratch, custom-made you could say, wheel the dessert tray up to a table at which are seated a married gay couple and their friends, a married straight Christian couple, and refuse to serve cake to the married straight couple without fear of legal action.

Or reverse the order of things -- a straight Christian (or not) restaurant owner commandeering the dessert tray and refusing to serve cake to the gay married couple?

Assume everyone is wearing concealed weapons. How does that change the dynamic?

How might this arrangement ameliorate the wedding cake at the gay wedding problem? What if the gay couple hired one cake maker without objections to the arrangement to create a cake to be served only to the gay wedding party and gay guests and another cake maker with religious-based objections but who might agree to create a cake to be served only to the straight family members and guests.

What if Wayne LaPierre, carrying a concealed weapon, ordered a cake for his wedding from say, Rick Santorum, in his new career as custom cake maker and say, Santorum is suspicious, because of La Pierre's name alone (it's French-sounding first off, and La Pierre flourishes a slightly effeminate hand gesture every time he pronounces the "La"), that the latter might be marrying a standard poodle, because Santorum knew it would come to this.

Should Santorum feel threatened and keep his prejudices to himself and reluctantly supply the cake, against his Constitutional right to freedom of association, and because he knows La Pierre is carrying deadly force and is prone to violent rhetoric, or should he stand his ground and refuse La Pierre service and meanwhile duck into the back of the shop and summon the local S.W.A.T team as backup, but only after being assured by the police dispatcher that none of the S.W.A.T team members are gay themselves, or belong to a government labor union with a defined-benefit pension?

Would Santorum's objections be overcome if La Pierre requested that the cake be baked in the shape of a Gatling Gun mounted on the top of a Ford Fiasco?

Bisexual agnostics at the gay wedding with the gay cake and the hetero cake would have to RSVP their choice of cake beforehand and not change their minds during the festivities.

You can't have your cake and eat it too.

As always xkcd has the last word on atheism: https://xkcd.com/774/

dr ngo,

Hilarious! And the cursor pop-up is even better.

--TP

Suppose the photographer just said 'sorry, I don't photograph black people' to a black family looking for someone to take pictures at the kid's 8th birthday party. OK, those of you having trouble applying our general (and quite hard won) societal consensus on public accommodations are free to raise freedom of association, or freedom of expression, or, as Dreher does, freedom of religion.

You can have any opinion you want. Just don't be surprised when everyone else thinks your position functionally no different from the KKK. Indeed, this would seem especially apt for arguments that would equally exonerate straight up racial bigotry (which, at least, Dreher's wouldn't).

Just don't be surprised when everyone else thinks your position functionally no different from the KKK.

The KKK wished to strip people of liberty, and life, by extra-judicial means. All blatantly illegal and unconstitutional. That is an entirely different thing from the assertion of first amendment rights.

Rights do not apply only to behaviors that a majority deems good.

For example, the NSPA was a completely despicable organization. Its one that I'm glad was swept into the dustbin of history. It's one that caused mental anguish to people targeted by its hate speech.

But it's right to march in Skokie, a community of Holocaust survivors, was defended, in my mind rightly so, by the ACLU. Regardless of how despicable the speech, how much I loathe those that practice it, it is worth defending.

I think boobyp for one post dropped the distinction between 'being a bigot' and 'having your bigotry enshrined in law'. The former is protected by the US Constitution the latter is (for the most part) banned.
From my POV this was the original trigger for the nasty clash between bobbyp and thompson.
The question remains unresolved to what degree the state can compel private actors to not act on their bogotry to the detriment of others.
---
Another point: depending on the situation open bigotry can be an essential part of a successful business model or can ruin it. If a majority would not do business with you unless you discriminate against certain people that lack the same means, it would be economically unwise not to join in. On the other hand, if you pander to the bigots where they are a tiny minority and this leads to a boycott by the majority, this too would be unwise.
To use a less US-tainted example: If the RCC excommunicates someone this includes a ban for all Catholics to do business with them or those that do. A shopkeeper in a rural Catholic village that would not refuse to sell food to an excommunicated person would instantly lose the business of everyone else out of fear to get the same church treatment. At least up to Vaticanum II this was a widely used practice even in 'civilized' countries. 'Denial of bread and water', legality be damned.

The question is, what constitutes "having your bigotry enshrined in law"?

Rosa Parks was ordered to the back of the bus. Doing this was legally mandated. I would call that bigotry enshrined in law.

Elaine Photography didn't want to photograph a gay event. Call that bigotry if you want, I won't argue, but they're not asking for anything to be "enshrined in law", they're not asking that other photographers be barred from photographing the event. They're asking the law to leave them be. Asking for the normal, default assumption of a free market to prevail: Transactions only happen if both sides to the transaction want them to happen.

When it first came about, "public accommodation" laws addressed a real problem: If the only ferry won't take you across a river, you can't cross. If the only hotel won't take you in, you sleep under a bridge. If the only restaurant or grocer won't sell you food, you go hungry. The prospect of a family traveling, the car breaks down, and they end up huddled under a bridge in the storm, their bellies empty, tugs at the heart-strings.

The prospect that somebody can't have their event photographed by a person who doesn't think it should be happening, and has to go with a photographer who's willing? Doesn't tug at MY heart-strings, that's for sure. It's not freezing under a bridge with an empty belly material.

And I notice that the prospect of somebody being forced to work for a person doing something they hate doesn't tug much at your heartstrings.

For me, the bridge to far is contract based services.

Thanks for the clarification, I appreciate it!

I'm basically on the same page, however CharlieCarp's question, quoted just below, makes me think twice.

Suppose the photographer just said 'sorry, I don't photograph black people' to a black family looking for someone to take pictures at the kid's 8th birthday party.

If we don't consider photographic services as a public accommodation, this would seem to be legal. Which seems, at a minimum, pretty crappy.

When it first came about, "public accommodation" laws addressed a real problem

When public accommodation laws first came about, it was quite common for their to be more than one hotel, restaurant, etc., in a given town.

Tugging at heart strings isn't the point. Basic freaking fairness is the point.

What's the difference between somebody having to take pictures, for hire, that don't express their most deeply held beliefs and convictions, and somebody having to serve a black person whom they revile a sandwich?

In both cases somebody's forced by law to do work that they would prefer not to do. In your mind, the first is slavery, and the second is legitimate.

Can you explain the distinction?

What's the difference between somebody having to take pictures, for hire, that don't express their most deeply held beliefs and convictions, and somebody having to serve a black person whom they revile a sandwich?

Of course, how the issue is framed can drive the answer. However, there are differences. Being compelled to participate--in person, and under the direction of the participants--in a ceremony that runs afoul of personal religious conviction is a long way from selling sandwiches.

The line I would draw is that sellers of public services that are faith neutral--as the vast majority are--cannot discriminate or claim a faith based reason for refusing service on the grounds that the act of, e.g. selling a sandwich, is too attenuated to give rise to a plausible claim of one's faith being compromised.

On the other side of the line, florist, photographers, bakers, caterers called upon to provide services to and therefore participate in a gay, Mormon, what-have-you wedding, can bow out.

This is a peripheral issue and the kind that makes bad law for someone. Compromise is in order. It is inconsistent to pitch gay marriage as a privacy, personal matter and then compel others to render service. Privacy and personal matters of faith run in both directions.

If I were hiring a photographer, I wouldn't want to hire a person who hated me based on my race or sexual orientation (or my personality, for that matter). My guess is that there are more than enough photographers to serve the gay wedding market since there are many talented gay photographers. Ditto with African-American, Chinese, white, etc.

Small-time bigots will just lose business. It becomes an issue when people aren't able to obtain services.

I, for one, wouldn't patronize a known bigot. Bigots would lose my business even if I didn't fall into a hated category. It becomes a social problem only when bigots control the market.

"The line I would draw is that sellers of public services that are faith neutral"

I defy you to explain how a fast food cashier's refusal to serve married gay patrons (because his faith holds that gay marriage is an abomination) is faith neutral but a wedding photographer's refusal to photograph gay patrons (because his faith holds that gay marriage is an abomination) is not.

Sure, the photographer is more involved with the wedding than the fast food cashier, but religious faith is motivating both of them. And your proposed distinction doesn't depend on the objector's depth of involvement, but rather whether their faith is involved.

If I were a wedding photographer, I might want to refuse to provide services at a white supremacist's wedding. At a certain point, it's okay when people refuse to do business with people they don't like.

The problem comes when people aren't able to use public services, or services provided to the public at large by private entities. Honestly, how much of a problem is the scarcity of wedding photographers for gay weddings, or the scarcity of wedding photographers for Nazi weddings? My guess is that pictures will be taken.

It is inconsistent to pitch gay marriage as a privacy, personal matter and then compel others to render service.

Really? We did this with historic civil rights legislation. Are you not aware of it? Are you not aware of the historical record of discrimination against gays? How is this different?

Again, you, Marty, Brett, thompson, wj all run and hide when this is brought up. You are making a tenuous case for the legal sanctioning of blatant discrimination and bigotry.

A florist selling flowers to a wedding (or a funeral) is "participating" in it? Who are you trying to kid?

You want to draw lines? Make it simple. If you want to speak, assemble, and petition the government to make blacks and gays second class citizens, knock you heart out. If you insist that the private power to deny rights to others based on an asserted moral position is both right and legal, you've crossed the line.

Clothing it in language about 'free speech' or 'freedom of association' is simply asking me, as a citizen, to participate in the denial of simple human dignity to folks who have suffered greatly due to discrimination. You're asking me to sanction the bigotry of others. It is an abomination.

PS: Apologies for all for the previous blowup.

I keep three sets of books.

One for the reasonable reality, one for the blooming offal of the unreasonable among us (according to my subjective view of reasonable, objective reality), and one for the ridiculous (everyone, including me, makes that book by default).

For the record, and unless I've missed something, McTx and wj have explicitly stated here that they are foursquare in favor of the institution of gay marriage, and Marty and Brett have implicitly raised no objections to the institution of gay marriage, so on this issue all four make the first book of reasonable realities despite some reluctance on the surrounding attendant issues.

This is progress.

For example, if during the height of the civil rights era, I had fallen in love with and married a black woman, one of my grandfathers (and other relatives) would have expressed his very gut-level racist displeasure by refusing to recognize my decision and shunning me thereafter, but the other, I have reason to believe, while harboring the usual racist sentiments of the culture, would have made his accommodations with reasonable reality and attended the ceremony, I would hope, and made room in the family for my new wife and me.

Now, if my new wife had blurted out her
admiration for Franklin D. Roosevelt during a family dinner, the wife -- my grandmother -- of my reasonable grandfather would have thrown down her cloth napkin and stormed from the room, ending all previous accommodation, so there is that.

Of course, these relatives, by default, are listed in a fourth book, the family accounting, which is by its nature a different beast.

I keep another book devoted only to Erick Erickson of Redstate and any attempt of his to marry anyone should be boycotted and disrupted by vigilantes. In fact, his current marriage should be annulled by the State and the gifts confiscated and returned to the merchants who dared sell them for the occasion on account of the congenital nature of his sins.

I never open my books for inspection, because there are too many funky cross-entries that I wouldn't be able to explain or justify to the auditors, but there is a glimpse for the record.

I defy you to explain how a fast food cashier's refusal to serve married gay patrons (because his faith holds that gay marriage is an abomination) is faith neutral but a wedding photographer's refusal to photograph gay patrons (because his faith holds that gay marriage is an abomination) is not.

Ok--eating at a restaurant is not an event with any religious overtones whatsoever; a marriage is.

We did this with historic civil rights legislation. Are you not aware of it? Are you not aware of the historical record of discrimination against gays? How is this different?

I am vaguely aware of something passed back in the day--the 60's maybe?--and as I seem to recall it dealt with race.

There was and is no colorable religious component to objecting to serving minorities in commercial establishments. Marriage is different--a part of the SSM pitch is that it is a civil ceremony and will not impact people with contrary religious convictions. Apparently, like the fibs told to sell ACA, that pitch is untrue as well.

The exception I propose is very narrow. One of the least attractive attributes of some on the left is that they have zero problem with compelling individuals to act against their conscience, particularly when their conscience is Christian-based.

Yet, I would imagine that if, for example, the American Prospect refused ad space to the Tea Party, that refusal of a commercial enterprise would be cloaked with a secular, right of association/free speech privilege.

Could the NYT refuse an ad to the KKK?

I think it could.

For me, the bridge to far is contract based services.

"Hello. Is this the office of Carp, Carp, and Asshole, attorney-at-law?"

"Why, yes it is. How may I help you?"

"I'm it a bit of a legal jam, and need an attorney."

"Are you gay?"

"Well, uh....what?"

"We do not provide our services to gay people. They are an abomination to God."

I am being asked by some participants on this board to enshrine this as a legally authorized response to a request for publicly for-sale services.

Sorry. No. F*cking. Way.

One of the least attractive attributes of some on the left is that they have zero problem with compelling individuals to act against their conscience, particularly when their conscience is Christian-based.

No one has to be a photographer. And Christians have essentially ruled this country from the start - the poor, oppressed things.

There was and is no colorable religious component to objecting to serving minorities in commercial establishments.

I'll bet the KKK and others who share their thinking would disagree. I'm sure I don't have to tell you what sort of organization the KKK is.

For me, the bridge to far is contract based services.

Did I say this? You are being obtuse. I call for a narrow exception, you paint with a broad brush.

And, for the record, the atty/client relationship is consensual. I am not required to take a case or a client against my will except when assigned a case by a judge and even then, I can object. But, for the record, I have and have had plenty of gay clients.

No one has to be a photographer.

True. So list for me all of the occupations that, by assuming one, I waive/forfeit my religious freedom.

Say a couple, gay or straight, desires not only photographs of the wedding, but the intimate activities of the honeymoon--can our photographer decline? Sex inside a marriage is legal, the photographer is in commerce, why not compel the photographer to shoot photos of intimate sexual activity?

I'd like the principle of law that separates weddings from honeymoons. Thanks.

For the record, this is what I said:

Seems to me, though, that the principle that compels allowing SSM goes a bridge too far *when it is used to compel private citizens to, in some form or fashion, participate/support a specific act of SSM*, particularly if the objection participating is based on their religion.

Asterisks added.

We did this with historic civil rights legislation. Are you not aware of it? Are you not aware of the historical record of discrimination against gays? How is this different?

Again, you, Marty, Brett, thompson, wj all run and hide when this is brought up.

bobby, I can't speak for the others, but I don't think I am running and hiding. In the civil rights era, I believe that it was entirely correct to insist that blacks should be allowed to sit anywhere in a bus, or to attend public schools. And laws that restricted those uses of public services were unconstitutional.

On the other hand, if someone running a private business providing services wants to choose not to offer services to blacks (and even to advertise this restriction), it seems to me that it is their legal right to do so. Provided there is no legal restriction, even indirectly, on someone else setting up a business which will do so.

And that necessary services are available. In the case of a law firm, I don't see a problem with the policy of Carp, Carp, and Asshole above. IF it is possible for a black person to obtain legal representation as necessary. If the next nearest law firm is 8 hours away, then the situation is different. But the accomodation would be to either provide local legal services another way, or to waive the requirement somehow (depending on what the need was.)

As russell said, this is a crappy situation. But do we have to deal legally with every possible crappy situation? I would say no. Some things we do need a legal solution for. But a lot of others can be addressed in other ways.

For example, we can organize a boycott of a firm whose behavior we think ill of. It doesn't take legally forcing them out of business to get the point across. (Although if enough people embrace our view, they may end up out of business. And just as we cannot use the law to force them out of business, neither do they have a legal remedy against out boycott forcing them out.)

P.S. I would also like to endorse McKinney's observation that, as the old saw has it, "hard cases make bad law."

I'm basically on the same page, however CharlieCarp's question, quoted just below, makes me think twice.

I'd be lying if I didn't make me think twice as well. It's something I've thought about, and had pointed out to me, multiple times. Every time it makes me question my stance. Some times it changes it.

In CharlieCarp's example, it would be a loathsome act by the photographer. And I would want to live in a world where people are fair and respectful towards each other. And I'm tempted to say we could deal with it through law.

But when we are using the law (through majority rule) to define fuzzy concepts like morality and fairness, it gets really murky really fast, and can be used by majorities to unfairly restrict the rights of minorities.

What's fair and moral, as defined by the majority, is a dangerous concept in law. It's a concept that was, and still is, used to restrict SSM. Wrongly and unconstitutionally in my mind, but the democratic process repeatably failed to uphold the rights of all based on popular morality.

In addition, protected classes include some pretty odious groups. Westboro baptists, white supremacist churches, etc, and I'm completely fine with people refusing to do business with them on moral grounds.

Under several anti-discrimination statues, that's illegal.

Enforcing morality and fairness with law is a dangerous, inexact tool, and don't want it used unless its necessary.

And, in the case of SSM weddings...I don't see it as necessary. And, as I mentioned last time around, maybe my view is colored by my class or my locale (SSM is broadly accepted where I am), but I see the polls: Even in the bible belt support for SSM gotten to 50%. Those photographers will either catch up with the times or they will be left behind.

Either way I don't see it as something that requires the application of law at this juncture. Especially one that induces behavior in people in contradiction of their conscience (even if I strongly disagree with their conscience).

There is a big difference in my mind between the government providing equal protection under law, and enforcing fairness and morality.

Now, I'd understand if you fall on the other side of that. I've said, and I'll say again, I arguing against a law that restricts pretty despicable behavior.

But I would also argue against 4th/5th/6th amendment violations for criminals. Because I think the rights that allow unfair, criminal, immoral, and disgusting behaviors are important to protect.

wj:

But do we have to deal legally with every possible crappy situation? I would say no. Some things we do need a legal solution for. But a lot of others can be addressed in other ways.

Agree. Also with some similar thoughts upthread by sapient, I think. If it was someone else, or I imagined it, I'm sorry.

Hartmut:

I keep missing your comments, sorry about that. Not intentional, I assure. I can't give you the full answer you deserve (I have to run off to work), on the "denial of bread and water", but here's a short one. I gave a longer, more coherent argument in the Kansas thread.

All principles break down in extreme cases. If the conversation wasn't about vendors for a wedding, but was basically people being denied food, housing, sundries you need for life, it becomes a different thing. If the refusal of service is pernicious and pervasive, the victims are practically being denied life and liberty. Jim Crow is an example of this (it is, sadly, not the only example of this). It's a terrible thing, and the social solution either doesn't work or takes too long to work. The situation is different, and the solution is different.

There is a point where you need the coordinated action of government to address a problem like that. I don't think we are there now with SSM, and we are trending in the right direction.

The government is not the solution to every societal ill. But it is to some of them.

For a longer, more coherent answer, I refer you to the Kansas thread.

Again, sorry I missed your posts earlier.

At a certain point, it's okay when people refuse to do business with people they don't like.

With the possible exception of bobbyp, I don't think anyone here disagrees with this.

wj,

In the civil rights era, I believe that it was entirely correct to insist that blacks should be allowed to sit anywhere in a bus, or to attend public schools. And laws that restricted those uses of public services were unconstitutional.

On the other hand, if someone running a private business providing services wants to choose not to offer services to blacks (and even to advertise this restriction), it seems to me that it is their legal right to do so. Provided there is no legal restriction, even indirectly, on someone else setting up a business which will do so.

So are you saying you oppose the public accommodations portions of the 1964 CRA?

Because if so, then I will tell you that you have a very unrealistic picture of what the Jim Crow south looked like. Among other things, while there may have been no legal restrictions agaiinst blacks setting up certain types of businesses ther were enough social and economic obstacles to prevent it, or make it vastly difficult. Also, market forces - those wonderful things libertarians claim solve all problems - actually worked to reinforce segregation, not remove it.

Those provisions were absolutely necessary and fully justified.

If market forces worked to reinforce segregation, what was the whole point of Jim Crow law then? I though the purpose of the Jim Crow laws was prevent market forces from working against segregation.

I'd like to point out that Brett's description the the Elane Photography case is a cavalcade of lies and slander.

Willock and her partner were not seeking someone to sue, they were seeking a photographer and called Elane Photography. Willock sought no monetary damage award, so the claim that she sued in order to make a profit (or to pay for her commitment ceremony) is a flat-out lie.

Additionally, while Brett and a few others cast this as Elaine Huguenin being forced to take photographs, that is not accurate. Elane Photography LLC was enjoined from refusing to photograph same-sex commitment ceremonies, but no one was required to take photos. Elane Photography has subcontracted the taking of photos previously, and is free to do so in the future.

If market forces worked to reinforce segregation, what was the whole point of Jim Crow law then? I though the purpose of the Jim Crow laws was prevent market forces from working against segregation.

I don't wear a seatbelt because it's the only thing that will keep me inside my car when I'm driving it. I wear the seatbelt to make sure I stay in the car even when the means I normally use fail.

I though the purpose of the Jim Crow laws was prevent market forces from working against segregation.

Jim Crow was not about market forces, full stop.

Additionally, while Brett and a few others cast this as Elaine Huguenin being forced to take photographs, that is not accurate.

Correct, and thank you.

thompson, the main problem I see is that there will never be a universal consent where to draw the line (even among the reasonable kind of people). Personally, the distinction between general and contractual (and thus individual) business services is a good starting point (with legal compulsion applied on the former but not the latter). Beyond that it becomes quickly extremly complicated with no easy solutions. A tentative solution covering the worst abuses would be to carve out exemptions from 'freedom of contracting' for de facto monopolies (i.e. the service in question could not be obtained without unreasonable burden when the de facto monopolist refuses).
Of course that could become troublesome in case of duopolies (two service providers; which one would be the one that could be coerced to serve?).

while there may have been no legal restrictions agaiinst blacks setting up certain types of businesses ther were enough social and economic obstacles to prevent it, or make it vastly difficult.

Which is why I included the part about "even indirectly." If there is no bar to you setting up a store, but you cannot get a lease or buy a location, that's a bar, too. If you need a lawyer in order to do something, but the only way to become a lawyer entails lots of expensive education and testing, and then networking with existing lawyers, you may be effectively barred from finding a lawyer who will serve you -- even though no law prevents one from doing so.

In the Jim Crow South, there was a synergy between the laws which kept blacks down and the economic restrictions (and other restrictions beyond the laws) which kept them down as well. Breaking that synergy required changing the laws. After which, the other restrictions started breaking as well. Some survive to this day, but they are dying with the passing of those who were most invested in them.

[...]
Many people might intuitively assume that Southern racism had led to entrenched public segregation long before Southern legislatures made it mandatory. Not so. Separate facilities for blacks and whites were not routine in the South until the early 20th century. Racism there surely was, but as C. Vann Woodward observed in “The Strange Career of Jim Crow,” the idea of separating the races in places of public accommodation initially struck many white Southerners as daft…
[...]
Eventually, of course, the government got its way, as companies surrendered to pressure from lawmakers. In a victory of government regulation over the free market, Jim Crow took hold across the South, where it would cruelly hold sway for the next 60 years.
[...]

The enemies of Jim Crow

And of course the courts would have to have some wiggle room to deal with actual frivolous lawsuites, i.e. the cases where the (a priori expected) refusal of service is just a pretense for legal harassing (of the refuser).

Hartmut:

Beyond that it becomes quickly extremly complicated with no easy solutions.

I'd agree with this, if I indicated otherwise to you, I didn't mean to. It's complicated and delicate and I'm certainly not trying to slam people that come to a different conclusion than I do.

As I mentioned upthread, things like this are concepts I struggle with and go back and forth on. Because they are complicated.

In the Jim Crow South, there was a synergy between the laws which kept blacks down and the economic restrictions (and other restrictions beyond the laws) which kept them down as well.

In the Jim Crow South, were the laws which kept blacks down passed against the will of the white citizenry?

Eventually, of course, the government got its way, as companies surrendered to pressure from lawmakers. In a victory of government regulation over the free market, Jim Crow took hold across the South ...

Was "the government" that got its way the oppressive one in Washington DC, or the closer-to-the-people state government, composed of "lawmakers" elected by the white citizenry to pressure companies into surrender?

Blaming Government, in a democracy, sometimes seems like an attempt to exonerate The People. White racists dominated the ex-Confederacy from the end of Reconstruction until the Johnson years. Not white racist "lawmakers", but white racist citizens.

--TP

"No one has to be a photographer"

Nobody has to be a butcher, a baker, a candlestick maker... Pretty much everybody who's not born independently wealthy has to be something. If public accommodation laws had some sort of limiting principle, some way where you could say, "If I go into photography, I can be forced to work for people I hate, but at least that's not true if I become an "X".", that might be a coherent thing to say.

But there IS not limiting principle here. There's no line of work where you know you won't be conscripted to work for somebody you don't want to work for. A pro-life bricklayer could end up forced to lay bricks for an abortion clinic, a Holocaust survivor be forced to work for the Aryan nation, in principle anybody could be forced to work for anybody under the lash of "public accommodation". So, it's not a coherent point to make, even if it were relevant.

That at the moment it's only people you don't like being forced to work for people you do like is less than relevant. All that means is that you like winning.

All that means is that you like winning.

It's true, at night I dream of forcing social trad photographers to take pictures of gay weddings.

Everybody has a dream. That's mine.

Today New Mexico, tomorrow the world!!

In a victory of government regulation over the free market, Jim Crow took hold across the South

And here, I thought Jim Crow was about white supremacy.

I didn't realize it represented the triumph of socialism.

If market forces worked to reinforce segregation, what was the whole point of Jim Crow law then?

To reflect the racist ideology of the vast majority of voters. Go and look at political campaigns in the south in that era. What you will find is that they were mostly based on arguments as to who was the greater racist, the stronger segregationist.

The purpose of the laws was to demonstrate to a racist public that the legislature and the governor shared their views.

I though the purpose of the Jim Crow laws was prevent market forces from working against segregation.

This is incorrect, on many grounds.

Market forces did not work against segregation. For example, there were hardly any Jim Crow laws dealing with employment. An employer was, from a legal point of view, usually perfectly free to hire blacks, to promote them, etc. But it didn't happen. Why? Because white customers didn't like dealing with black salespeople. Because white co-workers didn't like cooperating on projects with black co-workers. Because if, heaven forfend, a white worker were asked to report to a black supervisor the employer would have had a mutiny on his hands.

The lesson here is that economic interactions are about prefernces, not money. If racist preferences are strong enough, as they were, they will be satisfied, even at the cost of money.

So, in a racist society, market forces strengthen, rather than weaken, discriminatory practices. The "free market" reinforces discrimination.

Suppose you own a restaurant in the 1950's south. Lacking any racist bone, you are happy to serve anyone. But you know that if you serve blacks you wil lose your white customers. What do you do, from a rational economic point of view? Obviously, you don't serve blacks, any more than you carry on your menu items that no one orders.

One more thing about the whole "free market against segregation" nonsense.

A historical point worth noting is that, when black students staged their famous sit-in at Woolworth's lunch counter in Greensboro, there was no law prohibiting Woolworth's from serving them.

Write that on the libertarian blackboard one hundred times.

The refusal to serve them was purely a comapny policy. In your free market anti-discrimination paradise why wouldn't Woolworth's want to sell those guys hamburgers?

de jure jim crow ended 50 or so years ago. in another 20 or 30 years, maybe less, the folks who have a living memory of the actual jim crow era will basically be gone.

what i expect to see is an emerging meme where jim crow laws were actually a liberal project. mostly democrats behind it, you know.

wait and see.

war is peace.
freedom is slavery.
ignorance is strength.

Russell,"If you poke people in the eye, it pisses them off."

hmmm

With that statement we are brought right back full circle to Dr. Science's incorrect interpretation of the golden rule.

The golden rule is NOT "Do onto others....." with an implied addendum reading "or else" or "that'll learn ya".

The photographer exercised 1st amendment rights based on concepts of liberty that created this country. The gay couple exercised revenge (Dr. Science's and Russell's social revolutionary guillotine).

I do not know how we could construct a society in which all personal beliefs are suspended such that no one is offended (or worse, perceives oppression) by anyone, anytime.

I do not know if we would even want to construct such a society if we could. Who would be in charge deciding what the right thinking should be? Enlightened members of this blog? Would he/she/they/it have any personal beliefs beyond the belief that no one should have to endure perceived insult? What of recalcitrants? Civil suits? Re-education camps? Execution?

Surely many eggs would be broken making this omelet.


Russell,

what i expect to see is an emerging meme where jim crow laws were actually a liberal project.

What we are already seeing is the idea that somehow Jim Crow was the fault of Big Government, as if the southern states were ruled by aliens who came in and destroyed the natural good relations between black and white.

It's truly amazing, as if the state governments - those fonts of wisdom and justice in the federalist view - had somehow been subverted into passing race laws that all decent southerners found repulsive, but were forced to obey.

It's absolutely stunning what people will believe.

I do not know how we could construct a society in which all personal beliefs are suspended such that no one is offended (or worse, perceives oppression) by anyone, anytime.

we don't. it's not possible.

Surely many eggs would be broken making this omelet.

eggs are broken either way, buddy.

I appreciate the discomfort and, frankly, financial pain that the NM law imposes on Huguenin. And by "appreciate" I don't mean "applaud" or "cheer on". I mean, I understand that the law put Huguenin in a difficult place, and the enforcement of the law cost her and her husband almost $7,000, which ain't nothing.

She claimed the 1st Amendment right to not have to create photographs that conflicted with her beliefs, under the right to freedom of speech. The court found that taking pictures of a same-sex commitment ceremony for hire wasn't really an exercise of free speech.

IMVHO that's a reasonable finding.

Here's the thing that the "free associationist" and / or "libertarians" of the world seem to miss.

Gay people deserve to be able to buy stuff, live places, work for a living, raise their kids, and otherwise function in the world like everyone else. Regardless of what somebody's personal religious or other beliefs tells them about gay people.

Why? Because they're human beings, and they live here. That's why.

Whether you want to enshrine that in a Sacred Unalienable Right, or just in plain old black letter law, or just in good freaking manners and the general concept of not being a dick, I don't care.

In the state of New Mexico, specifically, they have decided to enshrine that in black letter law. If you open a business and make your goods and services available to the public at large, you're not allowed to refuse to sell those goods and services to gays, specifically because they are gay.

If you don't like that law, don't live in New Mexico. Or, work to change the law. But as it stands, that's the law.

Having been refused service specifically because she and her partner were gay, Willock reported that to the state, as is her right and privilege as a citizen of NM, the state found Huguenin in breach of the law, and Huguenin was required to pay Willock's attorney's fees.

And not a dime more. And Willock got nothing whatsoever out of it, other than making the point that in the state of NM you can't refuse to serve gay people.

I'm fine with the idea that business transactions that require you to enter into a contract with the client should be exempt from these kinds of laws, but that's not the state of the law in NM.

And that's pretty much that.

What I'd also like to say is that I find analogies to slavery, and guillotines, and social revolution, offensive. And not just offensive, but monumentally stupid.

Slavery is not when you are prevented from refusing to sell goods and services to people who bug you. Slavery is when you are, personally and physically, owned by somebody else, and are that person's property, to dispose of as they wish.

Guillotines are used to chop people's heads off. Being assessed attorney's fees when you are in violation of the law is not having your head chopped off.

Gay people have been subject to physical abuse and assault including murder, have been denied housing and employment, have had their children taken from them, have been jailed and involuntarily committed to mental institutions, and have generally been subject to any and every form of harrassment and abuse, de facto and de jure, basically for ever.

WIllock and her partner wanted to hire Huguenin to take pictures of their commitment ceremony. Huguenin felt it was insufficient to simply say "sorry, can't do it, best of luck". She felt it necessary to say "sorry, we don't shoot gay weddings, because god".

That put her outside the law, and she was obliged to pay a little less than $7K.

Trust me when I say that people have paid much higher prices for observing the dictates of their conscience.

If observing your religious scruples requires that you either inconvenience or otherwise create a burden for yourself, or other people, IMVHO it behooves you to place the burden on yourself. Because they are *your religious scruples*, not everybody else's.

And this is not an expression of hostility to religious faith, because I'm not hostile to religious faith.

Enough of this "slavery" and "guillotine" bullshit.

For crying out loud in a bathtub, Willock and her partner just wanted some pictures taken. They didn't need to hear about Huguenin's freaking religious scruples, or about how her for-hire photographic work had to express Huguenin's own deepest beliefs .

"Sorry, I'm not available" would have done the trick.

If you poke people in the eye, it pisses them off. Dig?

Thank you.

With that statement we are brought right back full circle to Dr. Science's incorrect interpretation of the golden rule.

Are Willock and her partner under some legal or social obligation to observe the golden rule?

No, in fact they are not. As with all religious principles, adherence is voluntary.

As far as "exacting revenge", they reported a violation of law. They got nothing whatsoever out of it, other than reinforcing the fact that other people couldn't refuse them services they would gladly make available to other people, simply because they were gay.

My guess is that Willock and her partner would have preferred that the issue never came up. They didn't raise it, Huguenin did.

Jim Crow was the fault of Big Government

jim crow was the expression, in law, of the belief, held by the majority of the people where jim crow was actually the law, that black people were inferior to white people, by virtue of having black skin.

that's what jim crow was.

it was racism enshrined in black letter law. it was the law because the people who lived where it was the law, wanted it to be the law.

if that simple reality bugs you for any reason, that's your problem. leave the history alone.

what i expect to see is an emerging meme where jim crow laws were actually a liberal project. mostly democrats behind it

Well, we're off to a good start. There is already a pretty substantial section of the population which has convinced themselves that blacks ought to support the current Republican Party, because Democrats were the party in power in the South half a century ago. Utterly ignoring the fact that their spiritual descendants are now all in the Republican Party.

So the step to declaring the Jim Crow laws were a liberal plot wouldn't be a large one. If it weren't for the fact that the people who would have to make that step are at least beholden to voters who are not all that philosophically opposed to Jim Crow laws. So maybe it is a big step after all.

What we are already seeing is the idea that somehow Jim Crow was the fault of Big Government

That would be somewhat ahistorical, to put it mildly. From where I stand, the so-called Jim Crow laws were perpetuations of the Black Codes, and only made possible because the Republican Party decided to sell Southern blacks down the road in exchange for one more presidency.

what i expect to see is an emerging meme where jim crow laws were actually a liberal project. mostly democrats behind it, you know.

True and not true all at once. I don't think there was much that we would describe as "liberal" about southern democrats of that time.

For example, there were hardly any Jim Crow laws dealing with employment.

Other than the vagrancy laws? But I can see you were making a different point.

Hello from Incheon airport. Having been away for almost a week, I don't have anything in particular to add, but thompson mentioned that he often misses responding to Hartmut. Part of what is at work there is the different time zones involved. Right now, the non-american bench is not so deep, but I do think that the fact that we have had a good number of folks like that contributes to the general atmosphere here, in that sometimes you have to wait almost a day to get a response. Slowing down the conversation helps keep things calmer. Which is a Good Thing.

[...]
Labor Laws

Outside of laws that specifically addressed the issue of race, other laws that impacted the tenant farmer were often differentially enforced, to the detriment of African Americans. Enticement laws, and emigrant agent laws were geared toward immobilizing labor by preventing other employers from trying to lure employees away with promises of better wages; in the case of enticement the laws limited competition between landowners to the beginning of each contract season, and the emigrant agent laws created limitations on employers trying to lure out of the region altogether.
[...]
Jim Crow Economy - Labor Laws

@slarti: the so-called Jim Crow laws were perpetuations of the Black Codes, and only made possible because the Republican Party decided to sell Southern blacks down the road in exchange for one more presidency.

Just out of idle curiosity, which particular Republican Presidency do you figure was the result of the Republican Party doing that? And what do you think that they did, specifically?

http://en.wikipedia.org/wiki/United_States_presidential_election,_1876

The Republicans agreed to withdraw federal troops from the south in exchange for the Democrats agreeing to cede the 1876 presidential election.

To fan the flames, some rejoinders....

wj: bobby, I can't speak for the others, but I don't think I am running and hiding.

Well, OK, but you then you proceeded to post the following:

"On the other hand, if someone running a private business providing services wants to choose not to offer services to blacks (and even to advertise this restriction), it seems to me that it is their legal right to do so. Provided there is no legal restriction, even indirectly, on someone else setting up a business which will do so."

With the qualifier, you are still running and hiding. You ignore history. You are ignoring reality. I respect you as a reasonable "Republican", however you are basically assert something to be a right that is a direct contravention of the 14th Amendment which, I take pains to remind you and others here, is the law of the land. Was the 14th Amendment adopted to "legislate morality"? You're goddamn right it was...at the time a not insignificant number of people asserted the "moral" belief that a certain class of people could be treated as property, like the shit you try to get rid of at your garage sale. The weaseling about "setting up an equal but available business" is simply risible. Who decides if said service is available? How is it determined that alleged services are indeed equal? You are basically arguing that Brown v. Board of Ed was decided incorrectly. It is a call to enshrine and sanctify segregation.....much as I believe that you believe otherwise. Really. I believe that. But I believe it is irredeemably a great wrong.

Now you might well assert that we are now "past that" and reinstating segregation or anything like it is therefore unthinkable. This is false. We still have de facto segregation. We still have massive disparities. We still have discrimination against certain classes of people based on attributes they had no control over. You are asserting that I should assent to letting somebody have, for example, limited liability....an attribute granted by We The People, yet let them withhold business services to an oppressed class of people based upon their bigotry? I say no.

The law calls for equal protection. Congress has the authority to implement legislation to make it so. Disparate impact is the current legal standard as per the explicitly granted authority that Congress has under the Constitution.

You are asserting a right that does not exist in law.

thompson: But when we are using the law (through majority rule) to define fuzzy concepts like morality and fairness....

Not so. There is nothing "fuzzy" about ending discrimination against gays. The historical record on this is as shameful as it is relatively unknown. It is heinous. To assert a right to government sanctioned bigotry in this regard is illegal...cf united states v windsor. The LGBT community is a protected class.

And you know what really irks me? Despite the extent to which the liberal community has gone to tie itself up in knots to protect the freedoms of reprehensible f*cks like the Skokie nazis and Westboro Baptists we still get smeared with "trying to legislate morality" by the likes of you. Why it's as if anti-abortion, anti-drug, anti-sodomy, anti-miscegenation, anti-birth control, anti-teaching of evolution in public schools...had, miraculously...never happened!

Now you will, and you have, declaimed that you find such laws reprehensible. All well and good. But it took decades of effort and a lot of blood sweat and tears to get those abominations off the books (Note: Some of them are still there). After all, they were considered right, proper, and most importantly..legal.

And where were libertarians during this struggle? MIA, that's where. That's no dig on you personally, that's a dig on the political movement to which you have oft expressed you are aligned with.

russell: With the possible exception of bobbyp, I don't think anyone here disagrees with this.

I have no problem with McKinney refusing to represent nazis. They are not a protected class. If you had some other impression, please accept this clarification.

I view the arguments supporting the bigot photographer as part and parcel of a frontal assault on the 14th Amendment. Hence the heat.

Pretty damned simple.

charles S: I'd like to point out that Brett's description the the Elane Photography case is a cavalcade of lies and slander.

Thank you.

Racism there surely was, but as C. Vann Woodward observed ....

This is an egregious misrepresentation of Van Woodward's work, bordering on slander. But what else should one expect from a dickwad like Jeff Jacoby? I suppose next he will argue that lynchings, too, were mandated by "teh government"? For some inexplicable reason the laws on the books in, say, Mississippi ca 1925 are silent on this matter. How could that possibly be?

brett bellmore: "No one has to be a photographer"

That's true. Like Tony P. I'm agreeing with you. As you and other free marketeers assert incessantly in another context, "If you think you are being treated unfairly by your employer, why, just get up and get some other job." Why is this so easy for a janitor, but not a bigoted asshole photographer?

Can she write letters to the editor expressing homophobic views? Yes.
Can she assemble in public with other like minded bigoted assholes and petition the government? Yes.
Can she stand on the street corner and shout her bigoted assholery to the world? Yes.
Can she donate funds to political causes with other like minded assholes? Yes.
Can she vote for assholes? Yes.
If she gets enough other assholes to agree with her, can she command political power to change the law and sanction assholery? Yes.

Let's be clear, if this asshole was denied a service due to her sex she most likely would scream bloody murder. And rightly so. And I'd support her.

Informed observer: The photographer exercised 1st amendment rights based on concepts of liberty that created this country

you mean like the concept that enshrined chattel slavery?
You mean like the concept that denied women the vote?
You mean like the concept that routinely limited the right to vote to property holders?
Those concepts? You're kidding, right?

Liberty for me. Thee...well, not so much.

Russell: Gay people have been subject to physical abuse and assault including murder, have been denied housing and employment, have had their children taken from them, have been jailed and involuntarily committed to mental institutions, and have generally been subject to any and every form of harrassment and abuse, de facto and de jure, basically for ever.

Absolutely. However, for some here the right to exercise private power to deny equality to persons due to an attribute those persons have no control over and that they themselves routinely assume they are due in both their public and private lives and be an asshole overrides those inconsequential considerations.

I thank you for your time.

"Utterly ignoring the fact that their spiritual descendants are now all in the Republican Party."

This would be an easier case to make, were it not for the fact that the Republican party is currently opposing government mandated racial discrimination, and the Democratic party is still defending it. Switching your client race doesn't make you not a racist. It makes you an opportunistic racist.

The Democratic party is still, to this day, the party of racial spoils. You just decided that the civil rights revolution made it easier to buy black votes with racial spoils, rather than white votes.

That people of all races were entitled, legally entitled, to be treated without regard to the color of their skin? Democrats rejected that proposition then, and reject it now.

No, I'd say the parties haven't changed all that much, and they certainly haven't switched places.

No, I'd say the parties haven't changed all that much, and they certainly haven't switched places.

Brett, are you willfully blind? Or just drinking the kool-aid?

I wouldn't disagree that there is a significant segment of the Democratic Party which looks to buy black votes with government money. Just as there are large segments of both parties which try to do the same with farmers, oil companies, home-owners, or any other identifiable group that you care to name.

But where are all the politicians who try to gain votes by demonizing races (blacks) or ethnic groups (e.g Latinos)? Pretty much all members of my party. (And no significant politician is demonizing whites. Individual nut cases, yes. But no state-wide politician that I have seen.)

the Republican party is currently opposing government mandated racial discrimination

... a "discrimination" that can only be seen as discrimination when viewed through the cynical self-serving lens of a "conservative".

on the other hand, the GOP is apparently deeply in love with discrimination based on sexuality.

A "discrimination" that which is seen as discrimination by anybody who cares what the word means. ANY policy which takes to similarly situated people, and treats them differently, discriminates between them, on the basis of race, is racially discriminatory.

That's what the blasted word MEANS.

Q:

Just out of idle curiosity, which particular Republican Presidency do you figure was the result of the Republican Party doing that? And what do you think that they did, specifically?

A:

http://en.wikipedia.org/wiki/United_States_presidential_election,_1876

The Republicans agreed to withdraw federal troops from the south in exchange for the Democrats agreeing to cede the 1876 presidential election.

See also: The Compromise of 1877. I don't know that Republicans have never taken responsibility for that bit of evil; if not, they'd be well served to do so. It was a deeply, deeply fncked thing to do.

The Democratic party is still, to this day, the party of racial spoils.

Possibly you could make a case for this. But you couldn't possibly make a case for the implicit claim that the Democrats are still all about oppressing black people. That is, in effect, what you are arguing: that Democrats are just as connivingly evil now as they were then.

It's bullshit, to put it kindly. If this isn't in fact your argument, you should probably state that unambiguously.

Assertion:

That's what the blasted word MEANS.

Reality:

dis·crim·i·nate verb \dis-ˈkri-mə-ˌnāt\

1: to unfairly treat a person or group of people differently from other people or groups

2: to notice and understand that one thing is different from another thing : to recognize a difference between things

It's best not to use meaning 2 where 1 applies, and vice versa.

Overall, I tend to think that the answer to past injustices isn't turnabout. But I am just fine with efforts that actually serve to bootstrap a formerly (and, to a much smaller extent, still) oppressed population to the point of equity, if not equality.

This country has basically attempted to oppress minorities at every opportunity, with particular attention and verve applied to people of African descent. Think about it: the thirteenth through fifteenth amendments were necessary why? Erring a bit on the side of overenthusiasm, if that were happening, might actually be a necessity.

Just read the history of our country, with particular attention to how we as a country decided to fuck over (or even refuse to grant equal standing under the law to) various populations who were not men of European descent. Take off your party-politics-colored-glasses and just consider how this country has at nearly every opportunity drifted in the direction of fucking people over, as opposed to vice versa.

Forget about whether the other guys did it. It's done. It can't be undone. Acknowledge it. Repudiate the thinking behind it, assuming there was thinking to be had.

My own thinking on same-sex marriage, and whether one can for instance refuse to be a party to it, is less than clear. So I am not sharing.

Being a wedding photographer isn't just about having people come to your studio to snap a portrait. You're to some extent part of the event. If you have a problem with same-sex marriages, do you also have a problem with heterosexual marriages that aren't sanctioned by some Christian denomination or other? If not, why not?

I suspect that most people in this line of business simply haven't given it that much thought. But I would guess that if Satanic weddings existed, the photographer in question would refuse to participate in that as well. And no: I am not equating same-sex relationships with Satanism.

Again: I have no personal point of view that I care to defend at this point. Just spitballing.

ANY policy which takes to similarly situated people, and treats them differently

and there's the key.

Slartibartfast @ 9:00 AM. My hat's off to you, sir. Well put. Well put indeed.

Russell and Slarti,

Jim Crow was the fault of Big Government

I'm afraid you may have misinterpreted my comment.

I was mocking that idea, which seems to be firmly held by some libertarians, not endorsing it.

I think it's incredibly stupid, for reasons I cite in my earlier comment, which more or less agrees with both of yours.

Actually, it's more than stupid. It's an example of how ideology can distort one's view of reality, so facts cease to matter in the face of arbitrary beliefs.

I'm afraid you may have misinterpreted my comment.

I was mocking that idea, which seems to be firmly held by some libertarians, not endorsing it.

Consider it a team effort, as was intended.

I know: since when?

My hat's off to you, sir. Well put. Well put indeed.

Thanks! But (putting my Randian had on) I didn't do it for anyone but me.

Just kidding about the Randian hat. I don't think I own one. But the thanks was genuine.

Slart:

Thank you.

Brett's 6:19 am above should be issued as part of a series called "The CliffsNotes Survey of Historical Horsesh*t".

Attempting to parse the lineage of today's Democratic and Republican Parties, especially with regard to the Civil War (and the years leading up to it; read the history) and all subsequent Civil Rights history is to stumble into a thicket with infinite unmarked pathways crisscrossing each other and each ending up on the other side not where one might assume.

To apply Brett's version to a single event, say, Lincoln's assassination, is to imagine John Wilkes Boothe, a Democrat and the Founder of the modern Republican Party in my own fractured fairy tale series on American history, slipping into the President's box at the Ford Theater and Lincoln sensing him there and turning in his seat and saying: "You've come, as I knew you would, Mr Booth, and I see that you not glad to see me. What do you say to this bargain? I'll abolish slavery and will oppose what my crystal ball terms "Jim Crow", BUT, if you let me live out my second term, I'll propose a series of affirmative action legislative actions for the black race to soothe you and your fellow Southern Democrats' wounded pride. What say you?

Booth: (dropping his weapon) You had me at "what do you say", Mr. President, you progressive man.

Question: Was Andrew Jackson a Democrat or Republican, in modern day terms?

How about Thomas Jefferson?

John C. Calhoun?

Was Strom Thurmond a Lincoln devotee?

Cripes!

"But (putting my Randian had on) I didn't do it for anyone but me."

I always assumed your Randian hat was an origami construct made from your old copy of "Atlas Shrugged".

I'm afraid you may have misinterpreted my comment.

No, I got it. I was just piling on.

Thanks slarti, perfectly well said.

If public accommodation laws had some sort of limiting principle, some way where you could say, "If I go into photography, I can be forced to work for people I hate, but at least that's not true if I become an "X".", that might be a coherent thing to say.

Let's assume for the moment that someone started a business specializing in "Christian photography," and that this person invested in items of particularly Christian interest to be used in photographs for Christian clients. Now, let's say someone wanted to hire this person to photograph a Bar Mitzvah.

In such a case, and let's put aside the necessity for hatred being involved, the photographer could refuse based simply on the fact that photographing a Bar Mitzvah would not leverage the photographer's investment in items of Christian interest, such that the photographer's specialty, being inapplicable, would involve an opportunity cost the photographer would prefer to avoid. No harm, no foul.

Now, if we imagine the lovely world you do, Brett, and the photographer refuses because of a hatred for Jews, then we have a case on our hands.

And if there's going to be an orgy after the Bar Mitzvah, no one has to photograph that, either. I don't think naked people are a protected class. "I don't produce pronography" isn't at statement of bigotry. If you're dumb enough to make it about the type of people intending to do the nasty with each other, that's on you.

I'm also pretty sure a Jew, or anyone else the Aryan Nation has on their list, holocaust survivor or not, can refuse to work for the Aryan Nation simply out of fear for his or her safety.

And brick layers can refuse to work on any type of building they like, so long as it isn't based on someones's creed, color, national origin, race, ethnicity, religion, sexual orientation, gender, health status, genetic make-up, etc.

someones's - italicized, no less

Here's another thought:

Let's say you have an irrational but very real fear of bald people and you refuse to do business (yours being a face-to-face type of endeavor) with them because it is particularly upsetting to you. I think you'd be fine. Why? Because there has not been a history of societal marginalization of bald people, and there is no reasonable reason to think that such a one-off refusal would cause harm to the bald population, and certainly not harm equal to the psychological harm our hypothetical baldness-fearing business person would suffer in doing business with bald people.

You could posit that someone could have a similar irrational but very real fear of Black people, in which case, given the history of our country, that person might have to be more discreet about the reasons refusing to do business with Black people. Or they could move to Wyoming.

A bald libertarian, a gay rabbi, and a duck want to get married, all to each. They walk into a wedding photography studio ...........

The right to refuse to sell your goods and services to anyone you damn please for any damn reason that suits you isn't baked into the cake of the moral universe. It is, and has been, "violated" every day for centuries, and rightly so.
People go into business to make money. By and large, most of the time, they do not let money walk out the door for purely arbitrary reasons. As a practical matter, most of the time, if A can't get what he wants from B, he can get it conveniently enough from C, and there is simply no practical reason to get the public force involved. Keeping the public force out of the matter is, generally, a good idea because there are all sorts of reasons society is prepared to accept as legitimate for turning down particular customers, like solvency, behavior, hygiene, or the desire to give a break to a friend or potential benefactor, too many to specify in advance.
Sometimes, however, letting people withhold their goods or services for arbitrary reasons is damned inconvenient. Therefore, we decided centuries ago that certain businesses were "public accommodations," which had to serve whoever showed up in the absence of what society would consider a valid business reason. The innkeeper who had a room had to rent it to you, or the coach driver with a seat had to sell it to you, unless you had no money, were drunk and disorderly, or stank to high heaven. As society became more complex and interdependent, more types of businesses have the character of public accommodations. And some kinds of personal services are such that the range of socially acceptable reasons to refuse business are extremely wide: try working with an interior decorator who has an aesthetic outlook incompatible with the client's.
Then, sometimes, something weird happens: large numbers of merchants refuse to have anything to do with a defined class of persons. Allowing them to do that seriously inconvenienced blameless persons like Jews and Negroes, and we put a stop to that s**t, and rightly so -- though a few folks here might disagree. Now, we don't do it for everyone, because most businesses are in business to make money and don't arbitrarily refuse prospective customers' money. Maybe a quirky milliner won't sell fedoras to Republicans, but the problem just isn't big enough to gin up the public force; but if hatless Republicans became a big enough problem, then we would put a stop to it, and, again, rightly so.
Reasonable people can squabble over whether a baker can refuse to sell a custom wedding cake, or the cannolis in the display case, or both, or neither, for use at a same-sex wedding. There are always marginal cases. But anyone who has gone into some business serving the public in, say, the last several centuries, has had limits on his or her ability to refuse custom arbitrarily. Those limits have changed over time, and will change again. The general "right to refuse service," while perhaps a useful enough rule of thumb in most cases, is not a feature of the universe; it's an approximation of a practical reality that works only on the background assumption that most people do business on a business basis.

bobbyp:

To assert a right to government sanctioned bigotry in this regard is illegal

That's very much not what I am doing.

The government has, and still does, sanction bigotry. You listed some examples of that. Topical to the conversation, SSM is still barred in some states. I am 100% in agreement that the government absolutely should not do that.

In a nod to Tony P., the government does so because they are/were asked to do so by a majority of the people, and no, I'm not interested in letting the people off the hook. They asked for laws that infringe on others rights in pretty terrible ways.

However, the actions of the majority, through the government, are distinct from the actions of individuals.

Frex, the government should not engage in or support hate speech, but I also don't think it has a place in restricting individuals from expressing it.

Similarly, I don't think the government (or a majority acting through the government) have a right telling a photographer what she must photograph.

Even if I think her reasons are heinous.

I'd also draw a distinction between allowing and protecting. The photographer, and Dreher et al from the original thread, deserve no legal protection from social retribution for their stance. If people refuse to do business with them, boycott, say mean things about them on the internet: too bad. In my mind that's the appropriate tool to affect the social change.

You say the morality isn't fuzzy for enforcing photography of a SSM ceremony. But it is for me. Perhaps you could help clarify it for me.

What about other protected classes, like religion? There are religions that in my mind are pretty odious. Can someone refuse to photograph a wedding of a religion that doesn't recognize SSM? Or a religion that doesn't treat men and women equally? Or a religion that pickets funerals? Or a racist religion?

Can a photographer have a moral objection to photographing weddings if they don't agree with religion of the individual?

Under current statute, the answer is no. Religion is protected, and you can't refuse service based on a protected class. I think they should have that capacity, even if I think it will be misused.

Touching on what Slart said, which I broadly agree with and was nicely phrased, it can make sense to give historically disadvantaged classes a leg up. I have no objections to this.

As I've said multiple times, I also have no objections to the government actively barring discrimination in some cases. The Jim Crow era has been discussed, it was a framework of state laws and private action that really had no solution, in my mind, other than federal action.

And touching on what HSH said:

fear of bald people and you refuse to do business
...
I think you'd be fine.

That is, in fact, illegal in the state of CA, and likely other states as well. You're basically not allowed to refuse service except in very limiting cases (ejecting unruly patrons, etc).

It's not a statute I agree with for reasons noted above (I think people, even businesses, should be able to exercise conscience and not work with some people/groups, even if it will be misused. And the majoritarian track record of what is and is not allowed is not inspiring in confidence).

So, depending on jurisdiction, discrimination for any reason may be illegal, while in others it is limited to specific protected classes, as is my understanding.

That is, in fact, illegal in the state of CA, and likely other states as well. You're basically not allowed to refuse service except in very limiting cases (ejecting unruly patrons, etc).

Illegal for whom, in what type of business(es)?

Can barber shops discriminate against bald people?

Yes, but it's very easy for bald people to boycott them in return.

HSH:

http://en.wikipedia.org/wiki/Unruh_Civil_Rights_Act

The text may not seem that broad, but the CA SC has repeatedly expanded the scope as described here:

http://digitalcommons.lmu.edu/cgi/viewcontent.cgi?article=1687&context=llr

A key quote from that document:

"It found, therefore, that the legislature intended to prohibit all arbitrary discrimination by business establishments."

As to what type of businesses:

"The Unruh Act is binding upon all business
establishments of every kind whatsoever"
(internal quotes removed)

It might just be CA, I'm not sure, but I was under the impression (perhaps false) that other states had similar statutes. I could be wrong on that count, so I overstated when I said it was "likely" other states were similar.

So do you think that my scenario, involving an irrational but very real fear of bald people, would be prohibited based on arbitrary discrimination, even though bald people are not and never have been a protected class anywhere in the United States?

The subtext of a lot of California law is "Move Your Ass to Texas."

HSH:

I think that's the CA SC opinion of what the Unruh act is, yes.

You can read the linked document, or the other citations from the Wikipedia article. In my reading, there is no requirement for the arbitrary distinction to involve a historically disadvantaged class, or otherwise specifically protected class.

thompson: Frex, the government should not engage in or support hate speech, but I also don't think it has a place in restricting individuals from expressing it.

As a general rule-yes. As an absolute rule-no. You can't yell fire in a crowded theater. You can be charged for speech that incites riot and/or rebellion, etc. Yes? You agree so far?

So then the case becomes this: Does this instance fall under the general rule? You say yes. I say no.

Similarly, I don't think the government (or a majority acting through the government) have a right telling a photographer what she must photograph.

Two things enter here. Is this poor asshole bigot unduly burdened? I have yet to hear or see any substantive argument making that case. That leaves you trying to elevate this instance to that of an instance of inclusion in the Venn diagram of the general principle. I find that effort less than convincing....just my opinion.

Then we get to protected class. This is the law as embodied in statute and court precedent flowing from the 14th Amendment and the treatment of the gay community in our history. This cannot be ignored.

Now it could be the fact that this gal is very nice lady. (note, all lefties are not in-your-face assholes like me).

Nonetheless, she is a bigot. She is reducing the realm of liberty of a member of a protected class. She embodies a hateful ignorance and bigotry that is all too common. Common enough that we've had quite a political struggle to, yes, squelch this behavior.

If she doesn't like it, she can go flip houses, hamburgers, or write books for a living. But when she insists upon a business license and limited liability, she is asking my government to grant her special exemption.


If people refuse to do business with them, boycott, say mean things about them on the internet: too bad. In my mind that's the appropriate tool to affect the social change.

If only Lester Maddox had been a CPA instead of owning a restaurant. Think of all the pain and agony we could have avoided.

In my reading, there is no requirement for the arbitrary distinction to involve a historically disadvantaged class, or otherwise specifically protected class.

I was wondering whether I should have put that part in my question. Leaving the protected-class issue aside, is the discrimination arbitrary?

That fact that baldies aren't a protected class was somewhat of an aside. But my reading was that specific classes are listed in the legislation, even though the courts in specific cases have ruled in favor of other classes not listed in the legislation. But, even then, those classes were among those considered for special legal protections in other times and places - some even added by subsequent amendment to the list of classes covered by the Unruh CRA.

Another way to look at a lot of California law is: "This is what happens if one party moves so far from the center that it becomes irrelevant." The most interesting part of this is that it provides a window into what our collective future might hold. Just another example of California getting all fads and trends first.

HSH:

is the discrimination arbitrary?
...
even though the courts in specific cases have ruled in favor of other classes not listed

My understanding is the case law developed to a point where any arbitrary discrimination is illegal, where my understanding of "arbitrary" is there is no business reason.

For example, In Re Cox, where discrimination based on long hair and "motorcycle clothes" was barred. I think that's a pretty close example to your bald hypothesis.

If you want to argue there is an Unruh exception based on the vendor in your hypo being afraid of bald people...I would need convincing. I see nothing in the case law (or summaries thereof) to support that.

A lot of the argument on the libertarian side here seems to boil down to one side having a right, the other side having no right.

So, the photographer has a right to not be required to take pictures of a same-sex wedding, but the couple has no specific right to be served by the photographer.

Some folks (Douthat, Dreher) locate the photographer's right in 1st A freedom of religion.

The photographer herself locates it in freedom of speech.

The libertarians here (at least thompson, I think) and elsewhere, locate it in freedom of association.

I want to leave aside the case of the photographer, specifically, or really any case of professional services based on contract are involved, because there seems to be less of a consensus that discrimination should be disallowed there.

In the simple case of restaurant, or bakery, or hardware store - the "public accommodation" universe :

How is freedom of religion expressed by selling meatloaf?

How is freedom of expression manifested by selling donuts?

How is freedom of association expressed by selling hammers?

In other words, how do that things that fall under "public accomodation", at least per the relatively limited definition found in the US code, fall under any of the rights that have been invoked here and elsewhere?

Where is the "right" that is violated?

Where is the "right" that is violated?

russell, you're looking at specific rights. What's really at play here is the supposed right to do business however you damn please, with whoever you damn please, on whatever terms you can impose. That the right is, historically, pure fiction, doesn't matter to its advocates; it's just so, goddammit!
If you try to analyze the issue with reference to more specific rights, you might come to different conclusions regarding the custom cake maker and the cannoli baker. I could live with a rule that lets the custom cake baker slide while requiring the cannoli baker (who might be the same person) to sell the cannolis. And if social peace required it, I could live with that rule and could even come up with a plausible reason it makes sense.
But the advocates of the supposed right to refuse service for any reason won't make any such distinction; no cannolis for you.

If you want to argue there is an Unruh exception based on the vendor in your hypo being afraid of bald people...I would need convincing. I see nothing in the case law (or summaries thereof) to support that.

Are you asking me to prove a negative? I'm really not familiar enough with the case law regarding Unruh to do that. Can you show a case where someone had a truly compelling reason to refuse the business of a certain class of people, but ran afoul of Unruh because of it regardless?

It's really not my intent to defend Unruh, anyway. Maybe it's crappy law. My main point is a more general one: people can refuse other people's business for a variety of reasons, just not simply based on some fundamental characteristic those people share - like color, religion, gender, sexual orientation, etc. (as I see it).

Brett's example of the Aryan Nation turns out to be instructive, since people can readily choose not to be members of the Aryan Nation. (And, while people can choose their religion, one's religion has traditionally been treated as a fundamental aspect of who someone is - not to mention that it's historically a basis upon which people have killed, tortured and subjugated others as readily as, say, race.)

Or I could just say that no one has brought an Unruh case based on baldness, so I can only assume it's exempted. ;^)

russell:

In the simple case of restaurant, or bakery, or hardware store - the "public accommodation" universe :

I would refer you back to my previous statements. I'm ok with "public accommodation" laws as they concern hotels, restaurants, stores, etc., based on compelling interest.

I did convolve the limited case of contract based vendors with more general "public accommodations" previously. That was sloppy on my part and not reflective on my beliefs on the matter.

I did, however, clarify that point and correct myself when I realized what I said.

So, the photographer has a right to not be required to take pictures of a same-sex wedding, but the couple has no specific right to be served by the photographer.

I think you've hit on the crux of the issue.

Regarding "rights" in general, I'd agree that the definition I use for freedom of association is expansive, although in keeping with libertarian thought. I understand you don't take it that far. That's fine. It's been discussed, I don't see the need to delve into that again.

Regarding the right to purchase specific things at specific stores, I get tripped up there. I don't view that as an individual right. I view it as sound policy, and part of a compelling interest in ensuring commerce, but I don't view it as a right.

Could you elaborate on why you view it as a right to engage in business with a specific person? I'm not unwilling to be convinced on the issue, but my current thinking on it, if I could draw an analogy from the freedom of speech:

I recognize a right to speech, but I do not recognize a right to be heard by a specific person or on a specific forum.

Similarly, I recognize a right to associate and form contracts at will, but don't recognize a right to induce association with someone who is unwilling.

Sound policy in some cases, compelling interest in some cases, but not an innate individual right.

You disagree, and I'd be curious to hear your thinking on it.

Where prostitution is legal, can potential customers be refused for any reason or no reason at all?

The comments to this entry are closed.

Blog powered by Typepad