Action/Reaction

by Stephen H. Miller on February 20, 2014

Many of these state legislative proposals would go too far in granting religious exemptions, for instance by allowing government employees to deny their government services to same-sex couples.

According to a Get Equal press release:

Kansas House Bill 2453 (HB 2453) would have made it perfectly legal for private businesses and public employees to refuse service to anyone based on an individual’s “sincerely-held religious beliefs.” As a result, it would have given permission for a firefighter to refuse to extinguish a fire ravaging a gay couple’s home, or a police officer to refuse to help a Hindu mother, or a restaurant owner to refuse to serve a multi-racial family—all under the guise of “religious beliefs.”

But these measures wouldn’t be coming up, including one likely to become law in Arizona, if LGBT activists didn’t think it was a great idea to sue (or request that governments initiate lawsuits against) self-employed photographers, florists and bakers for not wanting to accept assignments celebrating same-sex weddings, such as decorating a wedding hall, or baking a cake with two grooms atop. That’s a small subset of activities that involve artistic or expressive services tied to same-sex marriage, and not equivalent to refusing service in a shop, say, to a gay couple.

I’ve addressed this topic often before (for instance, here and here) because I strongly believe that the activists’ tactics are a stark affront to personal liberty, a charge we usually are able to level at our opponents. But as in the past, this is an argument that statist progressives simply dismiss as if it is of no consequence. For them, it’s just a matter of whose got the power.

More. It helps to understand what proponents of these measures actually think, in contrast to the knee-jerk demonization that’s all over LGBT media right now. From National Review, Kevin D. Williamson makes the case for “religious freedom for the butcher and baker, not just the bishop.” Can’t say I disagree.

(But wait, If people are allowed to make these decisions for themselves, there will be ANARCHY! Sorry, I forgot. The state, under enlightened liberalism, always knows best, doesn’t it.)

I don’t support the Arizona measure, but I do believe certain activists have made it a point to find and force the tiny number of religiously conservative service providers who view same-sex weddings as objectionable, on religious grounds, to nevertheless provide services that celebrate their weddings. And this is the reaction: you reap what you sow. I also believe much of the response to these measures is political hysteria, as discussed here.

Still more. Jason Kuznicki posts on his facebook page:

I’m just vastly less worried by these sorts of laws than many others, I guess. It’s not the new Jim Crow. It’s a few dead-enders passing a largely symbolic law. These laws’ main effect will be to bankrupt a small number of businesses, who will make themselves into pariahs. As applied to state workers, they are clearly unconstitutional if Romer is applied.

That’s how I feel, too.

Furthermore. It now looks like Arizona’s GOP Gov. Jane Brewer will veto the measure [yes, vetoed on 2/26], as even some Republican legislators who voted for it have changed their minds in the wake of a massive media blitz that defined the legislation as a pro-gay discrimination bill (with apparently unlimited scope!) and not a religious-conscience exemption bill.

Walter Olson shares his thoughts on the Arizona measure:

To confess my biases, as a general matter I like the idea of affording wider religious-liberty defenses in most anti-discrimination statutes applying to private actors. At the same time, doing it this way—by pushing out the boundaries of RFRA to change the playing field of private litigation at one stroke, rather than pause for a debate about how best to address multiple areas and situations—strikes me as fairly sure to generate unintended consequences and unexpected results.

His Cato colleague Ilya Shapiro differs somewhat:

While governments have the duty to treat everyone equally under the law, private individuals should be able to make their own decisions on whom to do business with and how – on religious or any other grounds. Those who disagree can take their custom elsewhere and encourage others to do the same.

{ 78 comments }

Tom Scharbach February 20, 2014 at 11:01 pm

But these measures wouldn’t be coming up, including one likely to become law in Arizona, if LGBT activists didn’t think it was a great idea to sue (or request that governments initiate lawsuits against) individual photographers, florists and bakers for not wanting to accept assignments celebrating same-sex weddings.

Conservative Christians have long sought to exempt themselves from civil law — health care laws, non-discrimination laws, zoning laws and on and on — while, by implication, requiring non-believers to obey civil law to the letter.

In Arizona, the Republican Party joined with the Christian Center for Arizona Policy and made it a reality.

Doug February 21, 2014 at 1:43 am

That’s right Stephen blame the real victims, the LGBT community. Christians don’t have to like us, they don’t have to associate with us, they don’t have to live next door to us, don’t have to respect us, but they damn well have to serve us just like every else.

Tom Scharbach February 21, 2014 at 7:47 am

Stephen’s “blame the gays” argument is something we’ve heard over and over and over again through the centuries in a different contexts. Every minority despised by the self-righteous majority has heard it over and over and over again. It is always moronic.

But Stephen’s “blame the gays” justification deflects attention from the real issue, which is that conservative Christians seized the “photographers, florists and bakers” issue — a minor problem at best — to set a major expansion of religious power in motion. The “photographers, florists and bakers” argument is a pretext, a sham. Stephen and others like him have been gulled.

The Arizona bill grants a personal conscience objection to religionists, but does not grant a personal conscience objection to non-believers. The bill achieves a longstanding goal of conservative Christians — to exempt themselves from the operation of law whenever convenient, while degrading personal conscience that is formed independent of religion.

I don’t think that the differential treatment given religious and non-religious conscientious objection will stand constitutional scrutiny, but it will be interesting to watch conservative Christians squirm as Jews, Muslims and other minority religions use the law to assert protection for theirreligious conscience. You can bet your bottom dollar that the first case involving a Muslim who invokes Sharia law to justify their refusal to obey a law in Arizona will set the dogs barking.

Mind you, I am a strong proponent of personal conscience objection. But this law, and others like it, are not intended to protect personal conscience.

Walker February 21, 2014 at 5:05 pm

“They have to serve us.” An interesting phrase.

Mark February 21, 2014 at 9:35 pm

Each of the lawsuits that Stephen condemns was initiated by the gay or lesbian people who were discriminated against–not by “activists” or “statist progressives.” Some interesting phrases.

craig123 March 2, 2014 at 5:19 pm

Sorry, but the lesbian couple in Taos, NM, who sued the photographer instead of using one of the many, many, many other local photographers who would have been glad for the gig, are by definition activists – not full-time paid activists, but yes, they are acting as activists to force the photographer to service their wedding. The photographer even said she would recommend others, but the lesbian couple were more interested in suing her — activism — then finding a mutually agreeable compromise. And that is the activist mindset, not the consumerist mindset.

Don February 21, 2014 at 11:01 am

This series of new laws reminds me of the tea party. While I am wholeheartedly in line with their line of thinking in a principled manner, I do not believe the tea party is truly principled.

In short, it is “cut my taxes and your benefits.” I say this because they want to increase defense spending while cutting everything else. At this juncture we need more defense spending? Really?

And I seriously doubt slashing social security and medicare would go over well with that crowd as well. They say they want it, but I don’t see it on the table. But they are ready to eliminate “foreign aid” and “food stamps.” Okay, less than 1% of the budget down. Now what?

The same is true for these bills. Make a special law for me to do as I please and screw the rest of you. As Tom points out, if it were a principled effort, non-believers would be exempt as well. But they want “special rights” for a particularly tiny subset of Christianity. Evangelicals are now estimated at between 7% and 9% of the population.

How many bakers and photographers can that really be?

Houndentenor February 21, 2014 at 11:07 am

The AZ bill would allow discrimination based on religion. In effect it would allow a Pentecostal business owner to refuse service to Catholics. It will be struck down by the first court that hears the case. it’s a good example of how bigoted the AZ GOP is now. And the GOP in most of the red states. This is the Republican party that Stephen and others think can be reasoned with?

Tom Scharbach February 21, 2014 at 11:34 am

This is the Republican party that Stephen and others think can be reasoned with?

Stephen will manfully defend the Republican Party, as he has always done. Its not about reasoning with anyone, let alone Republicans.

I just wish that Stephen would get honest about political realities in the Republican Party, instead of hiding behind the “she wouldn’t have been raped if she hadn’t dressed like a slut” defense. He’s used that a lot over the years to abrogate Republican responsibility for the anti-marriage amendments and other anti-equality positions taken by Republicans. In StephenWorld, the Republican Party would be pro-equality if only gays and lesbians refrained from demanding equality.

Contrary to what Stephen may say in defense of the Republican lawmakers who passed this bill, Arizona’s law is not protecting “photographers, florists and bakers” from jack-booted lesbians demanding demanding that they crucify Jesus in their hearts by baking a cake for a same-sex wedding. It doesn’t even bear a rational relationship to that supposed offense against “religious conscience”.

Arizona is not a marriage equality state. It is not a marriage-equivalency state. Arizona affords no recognition at all to same-sex couples. Arizona’s public accommodations laws do not protect on the basis of sexual orientation. None of the preconditions to the supposed outrage exist. It is all chimera.

I have no doubt that marriage equality will come to Arizona, despite the best efforts of Republicans. But the chances of a Republican-controlled legislature extending public accommodation laws to protect gays and lesbians is nonexistent.

The outrage that supposedly provoked Republicans into passing this bill — twice, mind you, since it was also passed in the last legislative session — is non-existent in Arizona at present, and will almost certainly never exist.

Lori Heine February 21, 2014 at 4:29 pm

Yup, I know I have already reached my limit. Noble experiment and all that, I just can’t frigging stand these people.

I was born and raised in Arizona, and have lived here all my life. A vocal and aggressive minority of people are making policy for the whole GOP — and the whole state.

The GOP won’t ever stand up and do anything about it. What a total waste of time. I’m out of there.

Kosh III February 22, 2014 at 8:10 am

How many R voted against this?

How many D voted for?

Tom Scharbach February 22, 2014 at 8:33 am

According to the Los Angeles Times: “The state Senate passed it on a straight party-line vote, 17 to 13. The House followed suit, 33 to 27, with two Republicans joining all the Democrats in opposition.”

Houndentenor February 22, 2014 at 1:39 pm

And back to my tired trope: why aren’t Steven and other gay Republicans lauding the two Republicans who bucked their party. That’s a dangerous thing to do politically. I’d think they would be trying to rally around those two and help them fundraise for their re-election campaigns. Instead we get “blame the victim” nonsense. Maybe Brewer will have the common sense (I’m not county on decency since she’s rarely shown any in the past.) to veto this bill.

Jim Michaud February 21, 2014 at 1:40 pm

Just about all the states have a bigoted GOP. Heck Hound, even here in reasonably blue Maine, the Legislature followed party lines in our vote for these bills. See for yourself:
http://www.pressherald.com/news/religious_freedom_bill_LD1428.html
It’s only a matter of lucky timing that we escaped this. Republicans controlled the Legislature from 2010 to 2012. Had they still controlled the State House instead of being defeated in 2012, you could’ve added Maine to the list.

Tom Scharbach February 21, 2014 at 3:59 pm

You’ve certainly rewritten this post to try to clean it up and make it halfway respectable, thankfully without a slurry of “Mores” and “Furthermores”.

I’ll grant you that you keep coming back to the “stark affront to liberty” posed by public accommodation laws as the laws apply to gays and lesbians.

But you haven’t addressed any of the issues raised in comments to this post or prior posts about objections — logical and well grounded in constitutional law, for the most part — to the rash of attempts to carve out an exemption to public accommodation laws covering gays and lesbians. I doubt that you will.

If you ever do want to address those issues in a serious manner, bring it on. I’ve followed the cases involving conscientious objection, religious and otherwise, for many years, and I think this country needs a serious discussion about the topic. As things stand, though, there’s no way it is going to happen on IGF.

Mark February 21, 2014 at 5:08 pm

Agree that the post has changed without any mention of it being edited–that’s bad form.

I still can’t figure out what Stephen’s position is on public accommodations laws. He says the Kansas and Arizona bills go to far–yet he also criticizes public accommodations laws in New Mexico and Oregon.

It appears he now supports an “artistic expression” exemption to public accommodations laws. Apparently, then, he’s saying that an anti-gay bakery should be allowed to refuse to bake a cake to be consumed at a wedding reception for a gay couple. But would that same bakery receive the same “artistic expression” exemption to not have to cover health insurance for the spouse of a married gay employee? And could a restaurant refuse to serve a married gay couple on grounds that an anti-gay chef views his meals as “artistic expressions” and serving a gay couple violates his conscience?

As far as I can tell, Stephen’s basic argument is it’s OK for states to have laws that prohibit discrimination on basis of sexual orientation, but these laws should never be enforced; and if they are enforced, anti-gays are justified in seeking to use the law to impose discrimination.

Tom Scharbach February 22, 2014 at 8:15 am

I still can’t figure out what Stephen’s position is on public accommodations laws. He says the Kansas and Arizona bills go to far–yet he also criticizes public accommodations laws in New Mexico and Oregon.

Stephen has said next to nothing about his views on whether or not religious conscience is more worthy of protection than non-religious conscience, whether or not personal conscience objection should extend beyond exemption for public accommodation laws with respect to same-sex marriages, and whether or not personal conscience objection should extend to protected classes other than gays and lesbians. In fact, Stephen has said next to nothing about the laws themselves, other than to say that “some go to far”. So it is hard to figure out what Stephen is .

Nevertheless, he gives us some hints about his thinking.

In Freedom of Expression Is Worth Defending (January 25, 2014), he suggests that photographers, bakers and florists should be granted an “opt out” from public accommodation laws, and suggests as well (using an example provided by Alan Sears of the ADF, in which a photographer turned Sears down for a Christmas card photography because the photographer did not agree with the goals of ADF, a reason unrelated to protected class) that the “opt out” should be broad, covering more than same-sex marriages.

In Racism and Sexual Orientation Discrimination Are Distinct (February 7, 2014), he suggests that race as a protected class should be treated differently than sexual orientation as a protected class, because the history of segregation is distinct from the history of legal supression of homosexuality. He says nothing about other protected classes (gender, ethnicity, religion, and so on) commonly included in public accommodations laws.

In this post he describes the business activities that he wants to protect from public accommodation laws as a “small subset of activities that involve artistic or expressive services tied to same-sex marriage” and notes that this small subset is “not equivalent to refusing service in a shop, say, to a gay couple“.

I gather from all of this that Stephen would favor an exception to public accommodation laws that is limited to (a) specific “artistic or expressive services” (b) to be provided for same-sex marriages.

He does not indicate whether the exception should be limited to religious conscience objection, personal conscience objection that includes both religious and non-religious objection, or just plain orneriness, but the absense of any discussion of that question, my guess is that the last of the three would suffice in his view. He does not seem to think that the exception to public accommodation laws should be extended beyond same-sex marriage, because he made a point of differentiating discrimination against gays and lesbians from racial discrimination, and has mentioned no other cases in which a photographer, florist or baker might find objection, such as interracial marriage, interfaith marriage, and so on.

My take on Stephen’s position might be right or it might be wrong, but that’s what I suspect based on what Stephen has written.

Tom Scharbach February 22, 2014 at 9:06 am

I should note that if my description of Stephen’s views is correct, his position flunks at least two of the “equal means equal” tests. It probably (although this is not certain, because Stephen hasn’t been explicit) is religion-neutral. It is not issue-neutral, because it is limited to same-sex marriage objections, and does not cover similar cases (interracial marriage, interfaith marriage and so on). It is not class-neutral because it is applicable only to gays and lesbians.

Mark February 22, 2014 at 4:28 pm

Stephen now says he supports “religious freedom for the butcher and baker, not just the bishop.” That seems to go well beyond his previous support for an “artistic expression” exemption–how could anyone claim that butchers are engaged in artistic expression?

Contrary to Stephen’s claims, no one in asserting that these exemptions will cause “anarchy.” Instead, it seems the exemptions will effectively nullify the public accommodations laws, but only as they apply to gays and lesbians.

It’s also not clear to me how Stephen’s new “butcher and baker” exemption will work. He argues that businesses should have the right to refuse to sell goods to gay and lesbian couples (but only to these couples) if the couples are going to use the goods for a wedding celebration. Would the law apply if the gay couple wanted a cake for an anniversary celebration? If a gay person worked for the anti-gay butcher and asked for health insurance for his husband? Who knows? It’s very frustrating to see Stephen post on this issue over and over and not say what he actually believes.

I can see why the National Review backs the rights of businesses to discriminate against gays. I don’t see how IGF does.

Tom Scharbach February 22, 2014 at 5:03 pm

It’s also not clear to me how Stephen’s new “butcher and baker” exemption will work.

Unfortunately, it is pretty clear how it will work under the proposed laws.

Take Williamson’s example:

Try turning the moral math around as a thought experiment: Imagine you are the gay owner of a restaurant in Chelsea, a member in good standing of the National Gay and Lesbian Chamber of Commerce, rainbow flag flying out front — and the cretins from the Westboro Baptist Church decide that they want to rent your party room for their annual “God Hates Fags” Sunday brunch. Shouldn’t you have the right to refuse? There is in this sad world such a thing as a Ku Klux Klan wedding — should the management of Harlem’s famous Sylvia’s Restaurant be prosecuted under civil-rights law if the establishment should decline to cater such a wedding? It is impossible for me to imagine that that should be the case.

Under the laws that have been proposed to date:

(1) The LGBT owner of the restaurant in Chelsea would be required to provide services for the Westboro Baptist Church gathering, because “God Hates Fags” is an essential tenet of WBC’s Christian belief system, and religion remains a protected class under the proposed laws.

(2) Harlem’s famous Sylvia’s Restaurant would be liable to prosecution under the laws as proposed to date for refusing to host a KKK wedding (unless the wedding was a same-sex wedding, which would be pretty bizarre) because exemption is granted only to business owners with religious objection to same-sex weddings.

That’s the nub of the issue. As Williamson notes (but then forgets by positing the examples he gives) these so-called “religious conscience” laws are not about protecting individual conscience, “butchers and bakers”, or “religious conscience”, but instead about legislating permitted discrimination against gays and lesbians, and gays and lesbians alone.

Unless and until the proponents of these laws stop twaddling on about “personal liberty” and “religious conscience”, the reasoning that we get from them will continue to be as muddled as the “objective” arguments put forth against marriage equality.

We can, as a country, have a rational (and perhaps fruitful) discussion about either topic: (1) the nature and extent of personal conscience objection, or (2) the extent of permitted discrimination. We cannot, however, have that discussion if one side of the discussion is doing one while claiming to do the other.

I think that there is a role for personal conscience exemptions from our laws. I favor, in fact, very broad personal conscience exemptions.

But I do not, and will not, favor any law that does not meet the “equal means equal” test, unless clear, compelling and convincing reasons for disparate treatment under the law have been articulated. So far, I have heard none.

What I’ve heard, mostly, is bullshit and twaddle.

Jorge February 21, 2014 at 10:49 pm

“…As a result, it would have given permission for a firefighter to refuse to extinguish a fire ravaging a gay couple’s home, or a police officer to refuse to help a Hindu mother, or a restaurant owner to refuse to serve a multi-racial family—all under the guise of “religious beliefs.”

That quote sounds ludicrous on its face. It cannot possibly be true. That Arizona law Tom S linked to earlier had enough standard safety valvues that they’d surely have to be repeated in this Kansas law. Let’s see…

In fact, upon reading the bill, Get Equal is telling a flat-out lie.

The Kansas 2453, as amended (and also as introduced), applies to (Sec. 1a) anything related to any marriage or the celebration thereof; (1b) solemnizing any marriage; (1c) treating any marriage as valid…

And that’s it. It’s all marriage and things that are about acknowledging marriage.

http://www.kslegislature.org/li/b2013_14/measures/documents/hb2453_01_0000.pdf

A family’s personal or religious lifestyle has no impact on public services or even consumer services. Indeed, the law gives no shield to most businesses, which would otherwise have to serve “unmarried” gay couples anyway!

You should call out Get Equal’s deception. Telling such easily disproven lies is a blight on their honor.

By the way, I find that law appalling.

Jorge February 21, 2014 at 10:50 pm

A family’s personal or religious lifestyle has no impact on public services or even consumer services.

Let’s add a “most” in there.

Lori Heine February 22, 2014 at 12:22 am

The Arizona bill, like the others popping up like pimples around the nation, is nothing but narcissistic, drama-queen crap. Based on a couple of extreme incidents, we’ve now got to change our laws. Nonsense.

Nobody cares what these people’s religious beliefs are. If they don’t want to serve somebody, they don’t even owe them an explanation (at least in Arizona) as to why. And if anybody sued here, the judge would likely (A) laugh it out of court and (B) stick the bringer of the frivolous suit with all legal expenses.

Our entire country expects every day to be reality TV. We need constant emotional stimuli of the most extreme sort we can get. Now we’re pressing for legislation (by “we” I mean Americans in general) based on our need to be entertained or outraged every waking moment of the day.

When somebody starts in on me about how necessary this law is, here in Arizona, I preface my retort with, “Just breathe. Then think.”

Doesn’t always work, but it’s worth a try.

Tom Scharbach February 22, 2014 at 5:24 pm

I think that is good advice for both sides.

We need to remember on our side that the current rush to enact “gays stay away”, “no promo homo” and “protect the sanctity of state marriage policy” laws is part and parcel of an entirely predictable reaction to the progress that we have made over the last 40+ years, the last gasp of the conservative Christian right, a latter-day version of the “massive resistance” strategy that followed Brown.

If we remember that there is nothing new under the sun, we can summon the resources to fight rationally, calmly and doggedly until we see this thing through. It will take another decade or so, and cost mightily in terms of time and money, but the outcome is inevitable if we stay the course.

Lori Heine February 22, 2014 at 5:34 pm

The clothespin on my nose has certainly given out already. That little spring has gone “boing!” — and it will no longer pinch.

Dogs will meow and cats will bark. I think I may need to re-register as a Democrat. I’ll be something of a nonconformist no matter which party I belong to, but at least I won’t need a clothespin for my nose.

I ventured over to Gay Patriot again today (I know — why?) and the way this issue is being treated there is quite predictable. The evil gay agenda is being foiled by those righteous Republicans. Every time I leave that site, I feel like I need to take a shower and wash my clothes with lots of bleach.

Tom Scharbach February 23, 2014 at 7:34 am

I think I may need to re-register as a Democrat.

I think that Democrats would be well served by an infusion of “the government should stay the hell out” thinking. I think that about Republicans, too, of course.

Democrats already think that way about many issues (for example, Democrats by and large support the idea that individuals, rather than the government, should be the arbiter of moral decisions about abortion and birth control), but need constant reminding that most problems are best solved by leaving people alone to solve them by themselves. Not that they listen any better than the Republicans, but reminding has its own value.

“Let’s pass another government program …” is almost never my reaction to anything, and I argue for that point of view frequently with fellow Democrats. I’ve found that there are a lot of Democrats who think like I do in that respect, to one extent or another. Many others, like many Republicans, are caught up in the opposite political philosophy.

The history of government in our country, under both parties, has almost always been a history of “Let’s pass another government program …”, but I think that those of us who think otherwise are a useful brake on the worst instincts of both parties.

Tom Scharbach February 22, 2014 at 3:56 pm

From National Review, Kevin D. Williamson makes the case for “religious freedom for the butcher and baker, not just the bishop.” Can’t say I disagree.

At least Williamson is honest about the fact that the proposed laws are intended to legislate discrimination against gays and lesbians instead of twaddling on and on about “religious conscience” and “personal liberty”.

JIm February 22, 2014 at 10:18 pm

By all means let us revive religion-based discrimination in the public space: No Jews Served Here. That will make life in America so much better, won’t it.

jon February 23, 2014 at 7:23 pm

I can see from the comments that the usual responses prevail. “Well, yeah, well, uh…you guys suck, because you did this thing wrong, and your’e, you’re homophobic, and a hater, and I hope you die and stuff.” About that level. I’ve tried to discuss this with fellow gays and no one is interested in trying to both avoid 1st) what you clearly pointed out is clear, legal overreach in the state bills on religious rights and the right to exclude; and 2nd) that we’ve created some of this ourselves by trying to force people to accept gay marriage who clearly, out of clear conviction rooted in genuine religion of many centuries and the interpretation that has ruled for many years, cannot comply with our wishes. I truly fear for the Republic, whichever way this goes; because we ARE NOT LISTENING. There is time for radical advocacy, and their is a time for respectful dialogue; but it’s not happening, in the main. And yes, I realize that Republicans (not one) are using the advances in Gay Rights to stir up hysteria among the religious. I just hope SoulForce and the Evangelical Network with the Gay Christian Network are on the ground, because these groups get it.

Doug February 23, 2014 at 7:30 pm

Nobody is trying to force anyone to ‘accept’ gay marriage. What we are tying to do is keep the LGBT community from being discriminated against in a business transaction.

Listen up everyone. BUSINESS IS NOT RELIGION. If you offer goods or services to the general public you have to serve ALL of the general public not just part of it.

Jim Michaud February 23, 2014 at 8:31 pm

“…I hope you die and stuff.” Really Jon? Nothing in the comments section even approaches that level. Why don’t you go over to Gay Patriot? They eat that stuff up.

Houndentenor February 23, 2014 at 8:57 pm

Okay, jon. First of all, you’re the one overreaching here. No one said anything nearly as extreme as you are claiming. Secondly, I was raised Southern Baptist and have relatives and neighbors who still are very fundamentalist. Sorry, but this isn’t about their “deeply held religious beliefs”. This is about their bigotry. They have cherry-picked homosexuality out of the Bible as the worst sin ever because it’s one that doesn’t tempt most people. There are a whole host of things that the same religion forbids that they don’t have any problem with at all. Where is the religious outcry against David Vitter who was making appointments with prostitutes from the Senate floor. He’s running for governor of Louisiana now and still the darling of the religious right. how can that be? Because they are selective in their “deeply held religious beliefs” when it suits their own purposes.

As I’ve said many times, I don’t want to give my money to bigots. I’d be happy to take ALL my business (not just my hypothetical wedding cake) somewhere else. But I’m sick of people acting like it’s all about Jesus and not their own personal views, because that’s so obviously just bullshit.

Not listening? We’ve heard it all our lives. It’s not that we aren’t listening. It’s that the religious bigots (and by that I do NOT mean all religious people so don’t strawman me on that) have never shut up about this for as long as I can remember (and I’m not that young). A small number of cases (what is it now 3? 4?) has been blown up into persecution of “Christians” by “homofascists”. Very clever of them, making themselves the victims of bigotry when it’s clearly the other way around.

I’m happy to work out a compromise, but one that includes full rights for everyone. I notice that we are talking about a bill in Arizona in which certain right-wing Christians are claiming they are the victims even though it’s perfectly legal to refuse to hire gay people in that state and same-sex couples still can’t marry there. Really, who are the bigots again? it’s so obvious to someone who isn’t an apologist for right-wing extremists who love their religion so long as it’s convenient for them, but not when it might mean criticizing a politician who has been divorced multiple times (look up what the Bible says about THAT!) . No, it’s just about anti-gay bigotry and nothing else. I won’t pretend that it’s not.

Tom Scharbach February 24, 2014 at 7:33 am

I’m happy to work out a compromise, but one that includes full rights for everyone.

I think that most people with any sense are willing to work out a compromise. Few sensible people, I suspect, want the law to hound small business owners into doing work that they don’t want to do for some reason, or to do work for people whom they despise for some reason.

But whatever is worked out as a compromise, it cannot itself violate core concepts of “equal means equal”, because if that happens, we are making the matter worse rather than better.

That is my primary objection to the proposed laws; fumbling around ineptly trying to redefine personal bias as “religious conscience”, the laws make a mockery of conscience and offend the Constitution.

I wonder if a “de minimus” compromise is possible in the services sector of public accommodations law, a compromise fashioned along the lines of the compromise that has been reached in the housing sector of public accommodations law and in employment law — exempt businesses under a certain size from having to comply with the law, period.

It is an approach that creates a workable exemption to other areas of public accommodation law and in employment law.

A compromise based on that approach would protect the small businesses in which the owner is the business for all practical intents and purposes, without getting the government involved in areas in which the government has no business, and would avoid most of the pitfalls of the so-called “religious conscience” laws.

A “de minimis” approach would not require public officials and courts to differentiate (as required by the proposed Oregon law) “deeply held religious belief” from “ordinary religious belief” or “personal, but not religious, belief”, and involve the courts in questions of whether the government was favoring religious belief over non-religious belief.

Similarly, a “de minimis” approach would not involve the government or the courts in differentiating between issues, or between classes, or involve the courts in determining whether such differentiation meets constitutional standards, because neither issue nor class would be relevant. If the business were below a certain size, it would not have to comply with public accommodation laws, period.

A “de minimis” approach would avoid conflict between employer or employee — an issue that is driving a wedge between social conservatives and business conservatives in Arizona and other states — because employers would not have to try to figure out an indirect way to decide whether a potential employee, hired to decorate cakes as directed by the employer, might find this or that kind of cake an offense against the employee’s “religious conscience”, a direct line of inquiry along those lines being forbidden by employment non-discrimination laws for the most part. A “de minimis” would require no changes to existing employment law, which cannot be said of the proposed “religious conscience” laws.

The details of a “de minimis” exemption — primarily the size of the business — would have to be worked out, but reasonable compromises have been worked out in other areas of non-discrimination law, and I see no reason why the details couldn’t be worked out in this case.

The proposed “religious conscience” laws create a multitude of problems, constitutional and otherwise, require proponents of the laws to take and defend illogical and indefensible positions (as the Williamson article so clearly demonstrates), offend common sense (for example, the pretense that the laws are about “religious conscience” rather than discrimination), and damage a core principle of our social compact — “equal means equal”.

A “de minimis” approach avoids all of that.

So if we want to find a workable compromise, perhaps we should start approaching the problem from the front end of the horse rather than the back end. A “de minimis” approach — actually trying to solve the problem along practical lines — is one way of coming at the problem from the front end of the horse.

If nothing else, as any farm boy will tell you, coming at a problem from the front end is a lot less likely to get you kicked than coming at it from the back end.

Jorge February 24, 2014 at 8:28 am

If the pendulum needs to swing, I say let it swing, just so long as it swings back.

In Arizona’s case, the recent stories have pointed out that Arizona doesn’t even recognize gay marriage. That point will probably become irrelevant someday when states become mandated to recognize out-of-state gay marriages.

So that, far from being an overreach, what we will soon have in certain states is a net increase in rights for gays. States will be differentiated not on whether they recognize gay marriage, but on whether you can be married in those states, and in the level of deference the state gives to actions taken by people who do not approve of same sex marriage.

Tom Scharbach February 24, 2014 at 8:51 am

If the pendulum needs to swing, I say let it swing, just so long as it swings back.

It will swing back, no doubt about it. The “gays stay away”, “no promo homo” laws, and so on, are nothing more or less than a predicable reaction to the gains we’ve made over the last few decades, something akin to the “massive resistance” that formed as segregation crumbled. Just as that effort failed, so will this effort fail, in time. “This too shall pass …” is a principle worth keeping in mind.

I don’t think, though, that we should be passive about it. A core constitutional principle — all citizens are entitled to equal treatment under the law — is at stake, and we, as men and women who have fought long and hard to give life to the practical realization of that principle for gays and lesbians, must fight for it, in my opinion, if we are to be true to ourselves and what we have struggled so long to achieve.

Jorge February 24, 2014 at 11:42 pm

I don’t think, though, that we should be passive about it. A core constitutional principle — all citizens are entitled to equal treatment under the law — is at stake

Let us say that I agree. Then you simply put your stake down to establish a center of gravity, a constant around which all else revolves.

But more likely, it is just one of several competing forces. Some temporary, some constants. What constants remain determine much.

Tom Scharbach February 24, 2014 at 10:06 am

Stephen: But wait, If people are allowed to make these decisions for themselves, there will be ANARCHY! Sorry, I forgot. The state, under enlightened liberalism, always knows best, doesn’t it.

Jon: I can see from the comments that the usual responses prevail. “Well, yeah, well, uh…you guys suck, because you did this thing wrong, and your’e, you’re homophobic, and a hater, and I hope you die and stuff.” About that level.

I have wondered, for a number of years now, what it is about modern conservatism that makes so many on the right so excitable about gays and lesbians. We seem to throw conservatives into a panic, half the time.

These two comments are examples. Nobody has suggested that the proposed laws, although discriminatory and ill-considered, will lead to anarchy; nobody has said anything even close to Jon’s overblown characterizations.

The same, in my opinion anyway, is true of the rush to enact “gays stay away” laws. Nobody with a whit of common sense thinks that the few cases that will arise over wedding photographs or wedding cakes or wedding flowers (or even butchers, for that matter) are threatening enough to demand that states without public accommodation laws that protect gays and lesbians solve a problem that doesn’t exist in those states by working themselves into a lather trying enact religious exemptions to public accommodation laws sanctioning discrimination against gays and lesbians.

I’ve come to think that there is something about gays and lesbians, particularly in the context of marriage equality, that drives people crazy, turning the logical world upside down.

How else can you explain low-church Protestants, who have denied that marriage is a sacrament since the Reformation, suddenly switching course and waxing on about the “sanctity” of marriage? How else can you explain the Catholic Church, which has distinguished between sacramental marriage and civil law marriage for centuries, suddenly changing course and insisting that civil law marriages must conform to sacramental marriage rules? How else can you explain the LDS, which is in no position to claim that it one-man, one-woman is traditional, mobilizing Mormons to fight for “traditional marriage”?

In any event, IGF remains, for the most part, an island of relative sanity, a place where people can stand in opposition to one another and explore ideas without recreating an irrational shouting match like the dreck over at Gay Patriot. I try to do my part to keep it that way, and I am grateful that most others who contribute to IGF do likewise.

Mike in Houston February 24, 2014 at 4:33 pm

I refuse to beat Stephen’s dead horse anymore.

You want to fully participate in the marketplace — then play by the rules.

You want to narrow your approach to “members-only”, then there are equally valid legal structures that let you do just that and discriminate to your heart’s content… just don’t bitch about not getting a larger slice of the economic pie or the approbation of those that don’t agree with your little club’s rules.

Tom Scharbach February 24, 2014 at 4:39 pm

I’m not quite sure what your comment is getting at, Mike, but it seems to me that calm, rational discourse is always a good thing, and I don’t intend to let Stephen’s increasing (or so it seems to me, anyway) bitter and misplaced accusations about gays and lesbians drag me down with him.

Jorge February 24, 2014 at 11:57 pm

Oh, come now. The Catholic Church is not so insular as to say that that religion should be removed from society and government–I remember reading the late John Cardinal O’Connor of New York arguing that we can and should legislate morality (that had a very strong sleeper effect on me). There is nothing new about that, for his argument was about abortion. It is simply that the Church leadership also respects that sometimes the law is not going to be right. There the faithful have a duty as well. That duty is not to collude. Faithfulness is necessary. Success is not.

But I think it is a good thing that the current Pope adopts the view that there are many evils and troubling issues in the world, and that to focus on just one, rather than on the bigger picture, risks far too much.

Doug February 25, 2014 at 1:55 am

We do NOT live in a Catholic country, we will in a secular country not to be ruled by any individual religions tenants.

It’s not up to the Catholic Church to determine if any given law is ‘right’ or not, that’s a job for the Supreme Court. Given the Catholic Church’s handling of the molesting priests scandal I have a hard time granting them any moral opinion whatsoever on any subject.

Tom Scharbach February 25, 2014 at 4:43 pm

I see that the post has changed yet again with the addition of another paragraph. Well, here’s to you:

I don’t support the Arizona measure, but I do believe certain activists have made it a point to find and force the tiny number of religiously conservative service providers who find their weddings objectionable, on religious grounds, to nevertheless provide services that celebrate their weddings.

I do not believe that this statement is supported by the facts. In the Washington case, Robert Ingersoll had been a customer of Arlene’s Flowers for nine years. Similarly, in Oregon’s Sweet Cakes by Melissa case, the bakery had done business with the complaining couple and other gays and lesbians in the past. I can’t say I’ve nailed down all of the half-dozen or so cases, but I haven’t yet seen any evidence that the complaining customers “made it a point to find and force” the businesses. Do you have anything to back up your statement?

And this is the reaction: you reap what you sow.

I don’t know what “we” sowed, exactly (the Republican Party’s reaction strikes me as wildly disproportionate), but what the country is reaping is pretty clear — a spate of proposed laws that involve the government in elevating “religious belief” over non-religious personal conscience, involve the government in picking and choosing which variants of “religious belief” to be valued and which are not, in circumstances that are substantially identical, involve the government in determining not only which beliefs are “religious” and which are not, but among “religious belief”, determining which are “sincerely” or “deeply” held, and which are not.

I am not worried about the proposed laws as a practical matter, because any of the proposed laws that actually become law are clearly not constitutional and will be overruled. But I know a major expansion of government power when I see it, and I am appalled that so-called conservatives are falling all over themselves to expand government’s power into personal conscience.

Hear this, Stephen: It is one thing for the government to say to an individual “If you are going to own/operate a business providing services to the public, then you must provide services to all of the public, whatever your personal objections …” (business is not, after all, religion), but it is quite another to give the government power to select which areas of personal/religious conscience will be protected, and which will be rejected, in substantially similar circumstances.

Whatever else might be said (and business owners who are about to involved in endless litigation over employee refusal to do their jobs on the basis of “religious conscience” are starting to have a lot to say), the proposed laws are the antithesis of a libertarian approach to government power.

I am frankly surprised at the position you seem to be taking, particularly when other approaches (e.g. a “de minimus” exception, which has worked in other areas of public accommodation law and in employment law) are possible.

Lori Heine February 25, 2014 at 9:18 pm

Tom, you are absolutely right on. From your mouth, to Governor Brewer’s ear.

This hysterical nonsense, following smack on the heels of the “Duck Dynasty” con game, will not win conservatives any converts. Nor will it help the Republican Party.

And they still won’t listen. Governor Brewer is dithering around about making up her mind whether to endorse or veto the Arizona bill. Social conservatism is like a vampire: it sucks blood, can’t stand the light of day and won’t die until a stake is driven through its heart.

Tom Scharbach February 25, 2014 at 7:17 pm

So to sum up, Stephen: Since the proposed laws (a) were provoked by homosexual activists seeking out a “tiny number of religiously conservative service providers”, (b) affect states in which gays and lesbians are not protected under public accommodation laws, and so are largely symbolic, (c) will be found unconstitutional in whole or in part in any event, and (d) are the production of the “dead-enders” you constantly asset that those of us on the left are not doing enough to purge from the Republican Party, you you have no problem with them?

Pardon me for borrowing from another religion, but Jesus. You can’t be serious.

Mike in Houston February 25, 2014 at 8:29 pm

The latest additions to this post demonstrate exactly how unserious Stephen really is.

Jorge February 26, 2014 at 1:01 am

I believe what Mr. Miller quoted was someone saying feels the laws aren’t very consequential in the grand scheme of things, not that he does not object to them. You are putting words into his mouth.

It would be more accurate to infer that Mr. Miller’s primary reaction is “you reap what you sow. I also believe much of the response to these measures is political hysteria”, and that any sentiments of neutrality toward the bill are an offshoot of this very strong belief.

There is a part of me that hopes the chickens come home to roost. But that simply will not happen. The “certain activists” are already as psychologically distressed as they ever will be short of ignoring them entirely (and that’s not on the table). Any negative consequences from these laws will befall innocents.

Tom Scharbach February 26, 2014 at 10:57 am

It would be more accurate to infer that Mr. Miller’s primary reaction is “you reap what you sow. I also believe much of the response to these measures is political hysteria”, and that any sentiments of neutrality toward the bill are an offshoot of this very strong belief.

“You brought it upon yourselves …” is not a reason to support a bad law or remain neutral with respect to a bad law.

Hysterical overreaction by some opponents to a bad law is not a reason to support a bad law or remain neutral with respect to a bad law.

Hysterical overreaction by your political base to a law of general application that adversely affects “a tiny number of religiously conservative service providers” is not a reason to propose a bad law or support a bad law.

Mark February 26, 2014 at 11:17 am

Again: who are these “certain activists” about whom Stephen talks? Cases have been filed in New Mexico, Oregon, Washington, and Colorado–all states that ban have public accommodations laws–by gay or lesbian customers who went in to a business to purchase a product, only to be unlawfully denied. There’s zero evidence in any of these instances “activists” somehow put these customers up to their task, or that the customers scoured their surroundings looking for anti-gay businesses to expose–the customers went into the businesses fully expecting to be served, because that’s the law of their states, and had no reason to believe (before being denied) that the business owner was anti-gay. Stephen is just inventing a history with these cases that never existed. As far as I can tell, his basic approach is that in the states that have public accommodations laws protecting gays and lesbians, these laws should never be enforced against business owners that seek to deny gays or lesbians service.

I’m frankly astonished to see he opposes the Arizona law, since everything he’s written at IGF seems to oppose the enforcement of public accommodations laws as applied to gays or lesbians, even as he’s OK in enforcing these laws as applied to other minority groups.

Dale of the Desert February 25, 2014 at 8:59 pm

“force……conservative service providers who find their weddings objectionable….. to nevertheless provide services that celebrate their weddings.”

For more than three decades I cared for the sick, regardless of their personal lives and charactors. From time to time I provided whatever skill and knowledge I had to persons I found personally reprehensible and offensive, in equal measure to every other patient who came my way. By doing so I didn’t honor or celebrate their lives. I just provided the services I was trained to offer. So if I want you to bake me a cake, I’m not asking you celebrate the occasion, just to bake the damn cake and sell it to me.

Jorge February 26, 2014 at 1:21 am

By doing so I didn’t honor or celebrate their lives. I just provided the services I was trained to offer.

That is the most empty affirmation of the Hippocratic Oath (or like principles) I have ever heard.

As someone who is in both social services and civil service, I cannot but call out any sentiment that places service to the public good on the same level as selling a product. One demands as a matter of ethical and sometimes principle a recognition of each person’s dignity and human rights. A sense of fair play for that to which any person is entitled, even if there are things to which some people should be sanctioned. The other has no such principles attached to it save the whimsical personal interests of the merchant and consumer and the equally whimsical governmental interests of the state.

That sense of honorable treatment to all people that characterizes the health and public service professions cannot endure without a faith in justice being done somewhere. There can be no confidence in an oath to serve all equally if there is no ability to code-switch, to have separate spheres of neutrality and judgment.

A wedding cake, a wedding photo, a set of wedding flowers, let that area of judgment be. Banish the ability to judge, and you destroy the ability to even recognize when to exercise professional restraint.

Jorge February 26, 2014 at 1:22 am

One demands as a matter of ethical and sometimes principle

I mean to say “as a matter of ethical and sometimes legal principle”.

JohnInCA February 26, 2014 at 10:05 am

It’s easy to recognize when to exercise professional restraint. When you clock in.

Jorge February 26, 2014 at 7:56 pm

No. Only when you clock in as a Pollyana. Not when you clock in as yourself.

Dale of the Desert February 26, 2014 at 11:15 am

Nowhere, Jorge, did the original Hippocratic Oath stipulate anything about honoring or celebrating the patient. It said the treatment should be honorable…that is, the service provided should be worthy of honor, not that the patient must be worthy of honor in order to receive the treatment. The ancient Hippocratic Oath, although never legally binding, has been altered many times through the years. The form most often used today, called the Geneva Oath, follows below, for your possible interest (or not as the case may be). It also stresses that the service provided must be honorable, not the recipient, and the service must be provided to all without judgment or discrimination. By changing only a few words, one could easily make this into the Cake Bakers’ Oath….or Florists or whatever.

*-I solemnly pledge to consecrate my life to the service of humanity;
*-I will give to my teachers the respect and gratitude that is their due;
*-I will practice my profession with conscience and dignity;
*-The health of my patient will be my first consideration;
*-I will respect the secrets that are confided in me, even after the patient has died;
*-I will maintain by all the means in my power, the honour and the noble traditions of the medical profession;
*-My colleagues will be my sisters and brothers;
*-I will not permit considerations of age, disease or disability, creed, ethnic origin, gender, nationality, political affiliation, race, sexual orientation, social standing or any other factor to intervene between my duty and my patient;
*-I will maintain the utmost respect for human life;
*-I will not use my medical knowledge to violate human rights and civil liberties, even under threat;
*-I make these promises solemnly, freely and upon my honour.

Jorge February 26, 2014 at 8:09 pm

By changing only a few words, one could easily make this into the Cake Bakers’ Oath….or Florists or whatever.

That something could be so easily done has not been done is all the more reason to distinguish serving the public good from selling a product.

“My colleagues will be my sisters and brothers” Uh, yeah right. Lobbyists are nice and all, but this is capitalism.

“The health of my patient will be my first consideration”

“I solemnly pledge to consecrate my life to the service of humanity”

From bakers? That’s not what a business is about. A business is about providing what other people want. That’s not the same as serving the public good.

Tom Jefferson III February 26, 2014 at 8:15 am

question 1; if a business owner (‘x’) in Arizona can ban gay customers/gay couples then can the businesses that provide ‘x’ supplies refuse to supply him?

question 2; If a public employee can refuse to perform a lawful wedding that he morally objects to, can another public employee refuse to give this person a permit or liscense or something of that sort?

Don February 26, 2014 at 10:47 am

“And this is the reaction: you reap what you sow.”

Precisely the point. After decades of shaming gays into submission, the religious right has sewn seeds of vengeance. When the dictator is in power, he is merciless. When he is beaten down by the horde at the gate, he cries victim and begs for mercy.

Where was the mercy when the power was in their hands?

I disagree with the vengeance, but I am not so naïve as to be surprised that it has happened.

Doug February 26, 2014 at 12:31 pm

I am not a particularly religious soul but I have to believe that Jesus would be appalled at the behavior and actions an awful lot of these right wing christians are taking in his name.

Jim Michaud February 26, 2014 at 1:47 pm

Doug, your comment reminded me of 2 bumper stickers that I like. One says: “Jesus called. He wants his religion back.” The other says: “I don’t mind Jesus. It’s his fan club that I can’t stand.”

Mike in Houston February 26, 2014 at 2:21 pm

I think modern right-wing Christian-ism can be summed up in a bumper sticker I saw the other day:

“Jesus Loves You (But He Likes Me Better)”

Mike in Houston February 26, 2014 at 2:42 pm
Tom Scharbach February 26, 2014 at 3:36 pm

Mess with Texas!

BTW, for those interested, Freedom to Marry keeps a good scoreboard of cases pending around the nation. By my count, we’ve won District Court cases in the 4th, 5th, 6th and 10th Circuits at this point.

Tom Scharbach February 26, 2014 at 5:03 pm

This is my nomination for the dumbest justification for the Arizona law that I’ve heard yet from an Arizona legislator. He’s obviously never used a caterer, Jewish or otherwise. But it is always a good thing to know that the Christian morons are thinking about our welfare. Rare, but good.

Ton Jefferson III February 27, 2014 at 5:37 pm

Yeah, that has got to be the dumbest argument that I have heard about this bill.

Tom Scharbach February 26, 2014 at 7:17 pm

… pro-gay discrimination bill and not a religious conscience exemption bill …

It might do you a world of good to read the transcript of the Senate and House debates on the bill. Enough said.

Jorge February 26, 2014 at 7:54 pm

“First of all, “people who like to eat pork” do not qualify as a protected class of people.”

Neither do people who hide their narcissism behind their sexual orientation. That was not a good rebuttal.

Jorge February 26, 2014 at 7:54 pm

That was in response to Tom’s link.

Jimmy February 26, 2014 at 8:14 pm

“…. but I do believe certain activists have made it a point to find and force the tiny number of religiously conservative service providers who view same-sex weddings as objectionable, on religious grounds, to nevertheless provide services that celebrate their weddings. And this is the reaction: you reap what you sow”

Does Mr. Miller imagine that “activists” reside on only one side of this issue? Is he concerned about what activists on the right have been doing to fight equality? I’m glad that organized efforts by activists, along with regular folks, influenced a governor to veto a discriminatory bill.

Jorge February 26, 2014 at 8:33 pm

So Arizona Governor Brewer vetoed it, as was predicted.

Brewer’s reasoning is shrewd. Not one example of an actual injury to any business in Arizona, she says? And also that “advance Arizona” crack. That would be a pre-emptive strike. She draws a line in the sand and says it has not been crossed. Someday it might be. By then, she will no longer be in office. She is willing to accept that.

Houndentenor February 26, 2014 at 10:30 pm

And since it was and is still legal to discriminate against gay people in Arizona, the bill wouldn’t have actually changed anything. It was nothing more than a mean-spirited bit of pandering to anti-gay bigots. The religious right are growing increasingly extreme. Someone today came out for imprisonment for gays (and complained about the Lawrence decision making that impossible). This is the direction of the religious right. It was good to see Republicans standing up to that bunch for a change. They have gotten so nasty that even politicians who are pretty far to the right are now distancing themselves.

Doug February 27, 2014 at 2:08 am

It’s not exactly true that this bill wouldn’t have changed anything since it is legal to discriminate against gay people in Arizona. Phoenix, Tucson and Flagstaff each have non discrimination ordinances that include gay and lesbian people. Those 3 cities make up over 60% of the population of Arizona.

State law trumps local ordinances so this law would have changed things for gays and lesbians living in those cities.

Kosh III February 27, 2014 at 8:30 am

“This hysterical nonsense, following smack on the heels of the “Duck Dynasty” con game, will not win conservatives any converts. Nor will it help the Republican Party.”

Nor will it help to bring more converts to Christianity, in fact, young people are being turned OFF from churches due to their vicious attacks on people that are theologically unworthy.

http://www.huffingtonpost.com/2014/02/26/millennials-gay-unaffiliated-church-religion_n_4856094.html?utm_hp_ref=gay-voices&ir=Gay%20Voices

Tom Scharbach February 27, 2014 at 8:38 am

Walter Olson shares his thoughts on the Arizona measure:

To confess my biases, as a general matter I like the idea of affording wider religious-liberty defenses in most anti-discrimination statutes applying to private actors. At the same time, doing it this way — by pushing out the boundaries of RFRA to change the playing field of private litigation at one stroke, rather than pause for a debate about how best to address multiple areas and situations — strikes me as fairly sure to generate unintended consequences and unexpected results.

His Cato colleague Ilya Shapiro differs somewhat:

While governments have the duty to treat everyone equally under the law, private individuals should be able to make their own decisions on whom to do business with and how – on religious or any other grounds. Those who disagree can take their custom elsewhere and encourage others to do the same.

Ah. Finally, we are getting to the point where we can have an honest discussions with thinkers of a libertarian bent about the nature and level of private discrimination our society should tolerate under public accommodation law, without having to wade through layer upon layer of chimera and misdirection about “expressive services” and pretense that none of this is about permitting discrimination.

I think that a discussion about the level of discrimination our society should tolerate under non-discrimination laws is a discussion we should have, just as I think that our society sorely needs a discussion about personal conscience exemptions in a more general context.

Of the two approaches to carving out exemptions to public accommodations laws, I prefer Shapiro’s to Olson’s because Shapiro’s goes to the heart of the question, while Olson’s continues to walk down the path of chimera.

RFRA, which (a) elevates “religious conscience” above “personal conscience” for the purpose of extending government protection, (b) involves the government in determinations about what constitutes, and what doesn’t constitute, a “religious belief”, and (c) doesn’t cover many instances (see the Williamson examples) in which a business owner might have strong reasons, unrelated to “religious conscience”, to refuse to provide goods and services, is an ill-conceived mess that no one should support at a time when a large and growing number of Americans are non-believers.

So let’s move forward with an intellectually honest discussion about exemptions to public accommodation laws, focused on the level of discrimination we should permit as a society.

My view is that we should tread a path that our country has already successfully trod, and carve out a “de minimis” exception to public accommodations laws relating to goods and services, just as we have already done (many years ago) with respect to public accommodations laws involving housing, and with respect to employment discrimination.

We can have the other discussion — the discussion about whether or not the government can tread upon personal conscience in areas like abortion law — at a later time.

Jorge February 27, 2014 at 2:33 pm

RFRA, which (a) elevates “religious conscience” above “personal conscience” for the purpose of extending government protection, (b) involves the government in determinations about what constitutes, and what doesn’t constitute, a “religious belief”…

Legislators should uphold the Constitution. The Constitution holds religious conscience as above personal conscience. I have expressed before that “religious conscience” should be broad enough recognize the convictions of non-religious. Reading up on commentary of that court decision allowing a vegan to move forward with her suit, it’s actually the view of the US Equal Employment Opportunity Commission.

As for involving the government in determining what does and does not constitute a religious belief, this is unavoidable in any situation in which the government is trying to avoid losing a lawsuit on religious liberty grounds. How are you to distinguish between someone sincere and entitled to protection, and someone who is faking? You have to have a trial where facts are presented and a decision made based on the law. After the issue is heard in the courts, one side wins and one side loses. Now the government needs to hire lawyers to advise it of precedent, and carry out the orders of the court in future cases. If there is a dispute, that one individual case goes to trial. If you’re worried about the “government” deciding the outcome of these controversies, perhaps we should insist that all civil rights cases be heard before a jury.

Doug February 27, 2014 at 3:03 pm

Where and how does the Constitution hold ‘religious conscience’ above ‘personal conscience’?

Tom Jefferson February 27, 2014 at 5:34 pm

“Legislators should uphold the Constitution. ”

Wow. A bold statement to be sure. The problem is that good people can often disagree with what the Federal (or State) Constitution really means about ‘x’.

Yes, Federal (and I suspect) Arizona State Constitution have a strong protection for ‘First Amendment’ express activities, but it is almost impossible for the government to successful put a legal definition ‘religion’, so as a practical matter religious liberty has to be belief liberty or else the courts will probably laugh it out of the court room.

Tom Jefferson III March 1, 2014 at 5:36 pm

The Libertarian-Right is version of libertarianism that pretty much dominates groups that use the label (i.e. Libertarian Party, Cato Institute, etc).

The Libertarian Right is not the exact same thing as the ideas promoted by Ayn Rand, but their are few substantive policy differences between the two.

One of the core ideas of the Objectivist and the Libertarian Right has been to get rid of civil rights laws (as they apply to the private sector, which in their minds would be 99 – 100% of every good, service or institution used).

They take the position that a business is basically its own independent nation. If they want to discriminate against people based on race, color, ethnicity, sex, religion, sexuality, or ANY OTHER reason….well…the libertarian right sees that as their fundamental right.

I was — until recently — dating a Objectivist, so I manage to pick up the basic philosophy.

If you are in a room full of Objectivists/Libertarian-Rightist, you REALLY don’t want to suggest the theoretical situation of ‘Bob’ claiming ownership of the air and demanding payment for use of the air or he is entitled to kill you — because a man got to defend his property, right…

I made this suggestion at a party and well, it was probably all down hill from their.

Tom Jefferson III March 1, 2014 at 5:41 pm

Part of the problem is that that people that tend to backing these types of laws — the advocates and lobbyists and talking heads — also tend to be the sort of people who oppose ANYTHING that remotely smacks of gay rights.

It is not like the AZ right-wing came to the table with the idea of ‘let’s talk about how we can add sexual orientation/gender identity to the state civil rights law and also address issues about religious freedom.’

Basically, you have a situation where the far right is asking gay people to face small and (depending on the legalese) not so small obstacles in getting goods/services and not really promising anything in return…

Not all of what is being said about religious exemptions is total, 100% BS. However, people need to remember the political context of such a ‘debate’.

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