The paradox of religious freedom and governmental neutrality toward religion is not new; it’s embedded in America’s DNA in the First Amendment, which guarantees the free exercise of religion and prohibits the government from establishing or even endorsing religion.
What is new is the question of whether a business, rather than church or a person, can exercise religion. Businesses must have a right to communicate with the public, and it seems necessary to me that the First Amendment’s speech protection applies to them — though there are many reasonable questions about how far this protection should extend.
The religion clauses are trickier. The Establishment Clause requires government not to take sides in religious disputes, but there are some cases that courts, in particular have to decide: When two parents of differing religious beliefs divorce, can a court enforce one parent’s veto of the other’s decision about taking the children to church, or raising them as non-believers? If there is a dispute between two Jewish business owners over what is kosher, should a court of law be able to decide which one is right? These are hard questions.
For lesbians and gay men, though, it is the Free Exercise Clause that is most difficult right now. There is no doubt that individuals must be free to exercise their religion without government interference. But is selling cakes the exercise of religion? Is anything a sincere religious believer does the constitutionally protected exercise of religion? If not, what are the limits?
More broadly, do businesses as businesses have the same kind of First Amendment right to exercise religion as they do to communicate under the Free Speech Clause? There is a particular subjectivity to the Free Exercise Clause. Under Establishment Clause rules, government must accept any sincere religious belief, even if it isn’t “acceptable, logical, consistent, or comprehensible to others.”
A sensible limit I see built into the Free Exercise Clause is that the exercise of religion, at least as the founders would have understood it, will tend to be with and among other believers. This is not a strict rule, since many activities of religious believers will take place in the broader world: caring for the sick or poor or elderly, for example. But in general, the exercise of religion is something more than just any activity motivated by a religious belief. I cannot drive my car in violation of the speed laws just because I sincerely believe (however illogical it seems) that the speed laws are a violation of the laws of God because biblical authority does not support them.
What we have today is a subset of believers who want to use sincerely held religious beliefs that are at the least controversial among a very large number of non-believers to avoid laws that apply broadly to all businesses. These laws were passed at the insistence of the gay community, but they are not an unmixed blessing.
As I’ve said before, while I remain doubtful as a constitutional matter that selling cakes and flowers or renting apartments is anything like the exercise of religion the First Amendment intended, I think it is better social policy to allow some business exercise of religion than for government to try to forbid it.
But I think a line can be drawn. Unlike individuals, businesses are not human beings; they are fictional “persons” for sensible legal and economic reasons. As such, they are constituted pursuant to legal processes that give the public notice of what they will do and how they will operate.
The almost complete deference that government gives to the personal exercise of religion respects the constitutional mandate prohibiting the government from establishing or favoring any particular religion (or no religion at all). That deference also respect the fact that people’s religious beliefs are always subjective, and even sometimes contradict their own church’s stance – as the Catholic Church well knows when it comes to same-sex marriage and contraception. Government has no business interfering with that.
If a business wants to engage in the exercise of religion, this deference to religion’s subjective nature presents unique challenges. The government cannot inquire into anything but the sincerity of religious beliefs, and that would have to apply to a business’s “beliefs.”
I think that can be managed consistent with the constitution if a business states up front in its incorporation papers (which establish the parameters under which the business will operate) that, among its other rules, it will operate pursuant to certain religious beliefs.
This will give the public notice that certain businesses, while not religious entities themselves, will be exempt from certain laws. Customers can choose how important, if at all, a religiously motivated business philosophy is to them. A publicly stated religious purpose will also serve as notice to potential employees that certain benefits (like contraceptive coverage) will not be provided.
It will take time and thought to develop such a policy. It may apply only to closely held businesses, for example, like bakeries and local florists, though in theory it could apply to larger companies. Such a rule would be a line that could be drawn in cases like Hobby Lobby v. Sibelius, where non-believing employees would have a clear understanding that certain kinds of contraceptive coverage would not be included in any benefit package. It could also identify businesses like Chik-Fil-A, if they determine that serving homosexuals is a violation of their religious rights. In the modern world, this would be a business risk, but it may be one companies ought to be able to take, and accept (or suffer) its consequences.
In addition, it is not immediately clear at what level of generality or specificity the religious statement would need to be drafted. A statement that the business would observe “Christian” principles would not be very helpful as notice to non-believers, since there are so many versions of Christian teaching and thought. On the other hand, the number of possible issues a religious business could address is nearly infinite, and notice to the public and other third parties normally requires a certain amount of specificity.
This is a problem inherent in the nature of any exercise of religion that implicates the rights of non-believing third parties. That, in itself, is a strong argument against this proposal. But since the religious landlord cases in the 1990s, it is clear that courts seem to accept some business exercise of religion. If that continues – as seems likely – it will make sense to think more deeply about what it means for businesses to be religious when they are dealing with the public at large.
61 Comments for “Free The Florists!”
posted by Thom Watson on
In effect, then, wouldn’t such a position be in opposition to the Civil Rights Act, and imply that the Act itself is unconstitutional? If religious belief can allow a business to refuse to serve gay people, after all, why should it not also be able to allow another business to refuse to serve Jews, Muslims, women, naturalized citizens, or people of color?
posted by Houndentenor on
In practice in the handful of isolated cases thus far, the proprietors have no problem with gay customers except when it comes to the marriage issue. And then they are surprised that gay people would bother that they happily took their money for flowers for Mother’s Day or birthday cakes but now suddenly refuse them for this one specific event. The gay people, are surprised at being suddenly refused and the owners are shocked that the gay customers would take offense. It really is a bubble that the religious right live in. “Love the sinner; hate the sin” is so commonly repeated that it doesn’t occur to them that such a sentiment is offensive to people who thought they were good neighbors or friends. I knew a gay couple who lived in the Virginia suburbs of DC. Friends who had been to their parties and in their home many time suddenly put up signs in support of the anti-gay ballot initiative that banned not only gay marriage but all recognition of same-sex couples. They moved. (Fortunately at a time when selling was feasible and they weren’t under water on their mortgage.) Their neighbors were shocked to learn that the gay couple was offended. How dense to do you have to be not to anticipate that gay people would mind that you won’t bake their wedding cake or that you support legal discrimination against them?
posted by Doug on
“the First Amendment, which guarantees the free exercise of religion and prohibits the government from establishing or even endorsing religion.”
If the government passes a law, against marriage equality for example, pushed by evangelical christians, that is not universal to all christian denominations, is that not endorsing a particular religion?
posted by Houndentenor on
If Hobby Lobby wins this case, we will all have to ask in job interviews if there is any religious policy of the company that we need to know about before accepting a job offer. Which medical treatments will not be covered because of the owners’ religious beliefs? Which nondiscrimination laws will be ignored on religious grounds? Is it even legal to ask an employer what his or her religion is? It would be a relevant question after all and not something one would want to learn when they realized that the company’s health insurance plans didn’t cover this or that.
posted by Jorge on
If the government passed a law restricting marriage equality for some Christians but not others? I’ll assume you mean to say that evangelical Christians do not represent all Christian denomenations.
It is no less an endorsement of a particular religion than if the government were to pass a law in support of marriage equality that has been pushed by ex-Christian heretics.
posted by Houndentenor on
“It is no less an endorsement of a particular religion than if the government were to pass a law in support of marriage equality that has been pushed by ex-Christian heretics.”
That is complete nonsense. The government cannot (and does not) tell churches what their marriage rules are. If they did they might have already, for example, forced Catholic churches to marry people who were previously married and divorced. They have no authority to do that. Alternately it is not for some religious groups to get to decide for everyone else what civil law should be. No one is forcing marriage on any church. They never have and they will have no right to do so in the future. Why then do SOME churches wish to exercise the right to tell those churches who would marry same sex couples that those marriages cannot be legal? What some Christians want are “special rights”. They want to impose their will on others without others having any power over them. Should they succeed in tearing down the separation of church and state, it will inevitably come back to bite them in the ass. I hope I live that long because I’m going to be ecstatic from the Schadenfreude when it happens.
posted by Tom Scharbach on
em>That is complete nonsense. The government cannot (and does not) tell churches what their marriage rules are. If they did they might have already, for example, forced Catholic churches to marry people who were previously married and divorced. They have no authority to do that.
Dead on. The Catholic Church has very particular religious teachings about marriage between Catholics and non-Catholics, Catholics and non-Christians, and remarriage after divorce, teachings that run against societal norms and have throughout our country’s history, and yet there is not a single case (that I am aware of, anyway) in which civil law was used to force the Catholic Church to marry anyone contrary to its teachings. The “Christians will be forced to marry gays and lesbians” meme is another example of social conservative prevarication.
Why then do SOME churches wish to exercise the right to tell those churches who would marry same sex couples that those marriages cannot be legal? What some Christians want are “special rights”. They want to impose their will on others without others having any power over them.
I would gently point out that Christians, as the majority religion, have long imposed their morality on the rest of us. Take, for example, divorce laws, which used to more-or-less uniformly codify Matthew 5:31-32, setting up situations in which many Jewish couples with a religious Get could not divorce at civil law without perjury. I do not think that the divorce laws represented anti-Jewish bias, or were even concious, but instead were the product of the unthinking arrogance of the majority, but there you have it.
Should they succeed in tearing down the separation of church and state, it will inevitably come back to bite them in the ass. I hope I live that long because I’m going to be ecstatic from the Schadenfreude when it happens.
You don’t have to wait. This is one case where you can have your cake and eat it too. The “Blaine Amendments” (prohibiting public funding to parochial schools) were codified into state constitutions all over the country during the anti-Catholic fervor of the late 1800’s, and now Evangelical Christians chafe under the restrictions, having to evade the amendments with “vouchers” and “charter schools”. Cracks me up every time I think about it.
posted by Jorge on
That is complete nonsense. The government cannot (and does not) tell churches what their marriage rules are….
Alternately it is not for some religious groups to get to decide for everyone else what civil law should be.
How is it not okay for “some religious groups” to decide “for everyone else” what civil law should be but perfectly fine for people who happen to think gay marriage is good on religious grounds, including anti-religious gruonds?
You are making a red herring of a distinction in order to justify a hypocritical standard. In both examples civil law is being used to legislate morality for the public good. In both cases one particular religion is exercising power over another, with the prize being what the public morality will be. Do not try to sugarcoat the power struggle.
posted by Tom Scharbach on
How is it not okay for “some religious groups” to decide “for everyone else” what civil law should be but perfectly fine for people who happen to think gay marriage is good on religious grounds, including anti-religious gruonds? You are making a red herring of a distinction in order to justify a hypocritical standard. In both examples civil law is being used to legislate morality for the public good.
Civil marriage law does not make a moral judgment. It makes a practical judgment.
Take the example of remarriage after divorce.
Our laws permit remarriage after divorce for religiously-neutral reasons — the common good is best served when couples living together and raising children do so within the legal framework of civil marriage, defining the legal, financial and inheritance relationship between the couple and between the couple and the children being raised by the couple, allowing orderly disposition of property upon death or divorce, and so on.
That does not mean that the law in this case renders remarriage after divorce moral? In a country that claims to be about 85% Christian, a religion in which remarriage after divorce is considered adultery, a “grave sin” in the words of the Catholic Church? Whatever the moral status of remarriage after divorce, civil law did not pass judgment on that score.
Do not try to sugarcoat the power struggle.
The “power struggle” is not between competing religious views of morality, but instead between those who would attempt to enforce their moral precepts on society, and those who would not, insisting the civil law be grounded in religiously-neutral considerations of the common good.
Opposition to expanding civil marriage law has always been religious in nature, although it was hidden under plethora of supposedly “religiously-neutral” justifications (gays and lesbians are child predators, gays and lesbians are unfit parents, and so on) until fact and common sense laid waste to the justifications. Now that the supposedly “religiously-neutral” justifications have been swept away, social conservatives are attempting to convince us otherwise, arguing that marriage equality under civil law passes a moral judgment as to the acceptability of homosexuality.
It isn’t so. Its just that those in opposition no longer have anywhere to go.
posted by Mark on
One difficulty I have with this issue is where any reasonable line could be drawn.
The current understanding in all states with public accommodations laws that cover sexual orientation is that for-profit businesses (as opposed to apartment rentals) must serve all gay and lesbian customers. Even in the states that don’t have coverage, there almost seems to be a belief that businesses can’t refuse service to gays (hence the push for the AZ law, to give an exception where one already existed). Recall the remark even from an ultra-conservative like Frank Keating to the NYTabout the law: “This isn’t 1964 anymore,” he said. “We’ve moved beyond that. If you open up your doors to the general public, you can’t pick and choose who you are going to deal with.”
But if religious businesses get to discriminate against gays and lesbians, what reason is there to belief the discrimination would stop at not selling baked goods? For instance: many businesses cover the health care of spouses, and HHS has just issued a rule requiring businesses that do so to also cover same-sex spouses. Surely a business paying for the health care of a gay employee’s spouse constitutes more of a recognition of the gay person’s marriage than, say, a business selling the gay couple some flowers or selling the couple a cake. So presumably–under an exemption scheme, if it happens–the anti-gay business could refuse to supply health care to the gay employee’s spouse. Could the business also deny coverage to the couple’s child, since the coverage would recognize a family headed by a gay couple? Could an anti-gay grocer refuse to sell the gay couple food?
The Elane Photography/Hobby Lobby argument seems to envision excluding gays and lesbians–or at least married gays and lesbians–from entire segments of the economy. They couldn’t shop at certain stores; they couldn’t work for certain companies. I suspect this is where we’re headed, since I think Hobby Lobby will prevail at the Court (and Elane might well, too). In this new order, I suppose the best we can hope for, as David’s post outlines, is a requirement that the discriminatory businesses be forced to make their discriminatory intent public. But as we saw in AZ, the pro-discrimination forces strongly oppose public notice, and would the Supreme Court compel notice?
posted by Houndentenor on
This is a bit off topic but it’s a pet peeve of mine. Very few (if any) employers PAY FOR an employee’s spouse’s health insurance. They may allow the employee to purchase insurance on their plan at a group rate, but that is nowhere near the same thing as the employer actually paying for it. I have a similar quibble over reporting about Hobby Lobby. Is HL actually providing its employees with health coverage at the employer’s expense or are they providing a way for employees to purchase insurance? Or are they paying some percentage of it. I have never known of any for-profit business to provide 100% health coverage. (I did have such at a non-profit, however.) I hear a lot of arguments thrown around that don’t pass the smell test for me. To me there’s a great deal of difference between “Hobby Lobby is being forced to pay for something to which its owners morally object” and “Employees are purchasing something that Hobby Lobby has to offer even though they aren’t actually paying for it directly as the premiums are paid by the employees themselves.” I’d love some clarification but since our modern news media doesn’t seem interested in such pesky details I’ll ask if anyone actually knows which it is in this particular case?
posted by Mark on
Good point; I’ll rephrase.
Lots of jobs subsidize (as part of salary) an employee’s health care, or an employee’s retirement account. That is: there’s some transfer of the employer’s money for services that will be used by the employee–and, if the employee is married, his or her spouse.
My point is that if selling a cake to a gay couple violated the religious precepts of an anti-gay business, because it somehow means that the business owner is “celebrating” the gay couple’s marriage, then surely the employer subsidizing the health insurance or retirement account of a gay employee’s spouse is a “celebration” of the marriage. (The proposed 2014 Oregon ballot referendum, which allows anti-gay businesses to claim an exemption for “arrangements” related to a same-sex marriage, illustrates the point.)
In light of victories for Hobby Lobby and Elane, there will be nothing to prevent such discrimination, but I do think it’s worth noting just how multi-faceted the exemption will be. A marriage doesn’t end on the day of the ceremony, so an anti-gay business being forced to “recognize” a marriage by selling the gay couple a good or service would occur every day throughout the marriage, not just on the day of the ceremony. It’s telling how the anti-gay side consistently avoids spelling out the full effects of their demands on this point.
posted by clayton on
In 1982, SCOTUS heard a case called United States vs. Lee. It involved an Amish man who ran a small business. He objected to paying Social Security taxes on his employees based upon his religious beliefs. SCOTUS ruled against him, saying that refusing to pay this tax on (and for) his employees amounted him imposing his personal religious beliefs upon them. If this does not set a precedent in the Hobby Lobby case, I don’t know what does.
posted by Houndentenor on
I’m not sure my point is clear about Hobby Lobby. What percent of the employee’s health insurance are they paying at how much of that do they have to pay before they get to dictate what will and will not be covered. They MIGHT have a point if they pay for all of it (which I find very hard to believe), but if it’s just that they are a clearing house that allows employees to purchase at a group rate (which is far more likely, but again if someone has actual information I’ll be happy to be corrected) then it’s hardly a given that they have the right to determine every single thing that can be covered under that plan just because they don’t like it. Of course part of this is the system in which health insurance being tied to one’s employment, but my point is that just because someone contributed some part of the cost of your health insurance shouldn’t mean that they get to dictate that you can’t have certain prescriptions covered because it’s against THEIR religious beliefs, especially if they aren’t yours.
posted by Don on
It’s a great question, but I don’t think it can be answered per se. I purchase the insurance for our law firm. I read the plan offerings and make a determination as to what coverage we will provide. (think bronze, silver or gold plan). We offer the bronze plan. Take it or leave it.
Our firm for many years pays 100% of the cost. We now ask employees to pay 10% of the costs. We are freaks out there, but we are small and it is important to our principal.
Our employees have only one choice in their insurance plan: HMO or PPO; basically “pick a doctor from our network” or “go to any doctor you want.” The PPO is more slightly expensive. An employee would pay the difference.
This is part of their “salary package” and we deduct it just like a any other expense from our “profits” at the company. So we have a tax write-off whereas the employee would have to pay with post-tax dollars if they went outside for insurance (like car insurance).
So, you see, saying “who pays” is nearly impossible. It is part of what the employee is offered to come to our firm. We have salary, dental insurance, health insurance, some with performance bonuses, some with year-end bonuses that depend on how well we did that year.
Personally, I believe it is a HUGE leap to say that Hobby Lobby is paying for it’s employees sins. If one of their employees bought cocaine, hired a hooker, or purchased “marital aids” how could they object? And yet, because they are part of this weird formula for health insurance, they are objecting.
We had a case where one employee wished to enroll in Medicare. They received a bump in salary for coming off of our insurance. But I suspect not everyone would get that. It’s just how we saw it as an equity.
I think it stems from the role of shopper for insurance. We are already deciding what is available to you. No one at our firm could have a silver/gold plan without my recommendation and the top guy’s approval. Problem is, if one of us moves to silver, we all move to silver. we cannot offer “tiered” insurance. Although I’m sure larger companies do. Executives one class of insurance, middle managers another, and line workers a more affordable plan.
See what a mess this is?
And I would wager someone else who made these decisions at a different company would have different rules they go by. So I think it’s hard for the media to say “this is how it is” because it’s a little different everywhere and still generally the same. Kinda like local pizzarias. well, it’s all recognizable as pizza – but wildly different from place to place in quality and construction.
posted by Lori Heine on
There are ways to accomplish what “Christian” business owners who support these stupid bills want to do — without the stupid bills. That they show no interest in these alternatives is telling.
The civil court system could be reformed to discourage frivolous lawsuits. Excuse me, but was it not the conservatives who used to claim they wanted to do this? Why the chorus of crickets concerning that idea now?
In Arizona, the Unity Pledge movement is urging a voluntary method for businesses to show support for the LGBT community and same-sex marriage. The pledge would be totally voluntary — keeping government completely out of the picture.
Conservatives show little interest in this idea. It is being spearheaded almost totally by progressives and libertarians.
It isn’t hard to see why libertarians would like it — but progressives were the ones behind the idea from the start. Contrary to the conservative lie that progressives reach for the guns of government to address every problem.
If the supposedly “liberal” media were not so lazy, they would be connecting the dots. But of course they ignore the implications of what’s being suggested.
posted by Mike in Houston on
Under this post ‘s logic, I can’t wait to see Exxon re-incorporate as a religious business exempting themselves from environmental and safety laws (not to mention federal tax recognition for their LGBT employees).
posted by Tom Scharbach on
I have sympathy for sensitivities of small, family-owned businesses that are an extension of the owner, and I sympathize with efforts to accommodate them within reason.
It seems to me that we can find a way to accommodate personal conscientious objection exemption to public accommodation laws for small, family-owned businesses without opening the floodgates to widespread discrimination, effectively decimating public accommodation laws. Common sense tells us that a storefront bakery is differently situated than the bakery at WalMart, just as common sense tells us that a family-run B&B is differently situated than a EconoLodge.
All in all, I don’t think that it would be difficult to carve out a pragmatic exemption that meets basic considerations of “equal means equal” (religion-neutral, issue-neutral and class-neutral) without resorting to a constitutionally dubious “religious belief” exemption like the proposed 2014 Oregon ballot referendum, a model of how not to go about addressing the issue. It gets just about everything wrong. It is not religion-neutral, issue-neutral or class-neutral. It isn’t even logical, defining a business entity as a “person”, as if the entity were human. The absurdity of a legal fiction holding a religious belief (Can a Limited Liability Company be saved?) boggles the mind. But that is the kind of nonsense we are beginning to see.
My ire aside, however we approach the issue, however, I think that we should require public notice when businesses claim an exemption from public accommodation laws. The harm done to a customer who is turned away is done just as much (if not more so) by the indignity of being turned away without warning as it is by being deprived of the goods or services provided by the business.
I acknowledge that a notice requirement presents practical difficulties, but I think that a reasonable formula can be found. The notice need not cover every possible contingency, but need only cover categories with sufficient specificity to put potential customers on notice that a problem is likely to exist.
I think that we need to acknowledge something else in our discussion.
The “religious belief” laws now being proposed were not born in a cabbage patch. The proposed laws are part of a larger campaign by well-organized Christian legal firms and organizations (Becket Fund, the ADA, the Christian Legal Society and the FRC). Nor are the proposed laws primarily concerned with protecting religious liberty so much as they are about permitting anti-choice and anti-gay Christians from having to obey specific laws in specific situations. If the proposed laws were primarily concerned with protecting religious liberty, the laws would be issue-neutral and class-neutral. And if the proposed laws were about protecting personal conscience, the laws would be religion-neutral as well.
My sympathy for the sensitivities of small, family-owned businesses is tempered by the fact that social conservatives are, once again, embarked on a campaign that is inherently dishonest.
posted by Houndentenor on
I’ll repeat this (it’s certainly not original) until SCOTUS comes to its senses and reversed itself: I’ll believe a corporation is a person when Texas executes one.
posted by Mark on
I wonder, though, how easy it would be to draw lines on this issue (and that’s assuming that Hobby Lobby isn’t decided in such a way that gives all corporations a blanket right to discriminate on religious grounds). Part of the problem, I think, is that the demand for exemptions (as Tom noted) aren’t made in good faith.
All of these exemptions–because the groups floating them want to claim they’re not bigoted–never demand a right not to serve all gay people across the board. The bakers/florists/photographers/other “Christian” businesses just say they don’t want to express support for same-sex marriage.
But what are they really asking for with the exemptions? Surely the right to refuse service for any product related to a wedding. But what about if a married gay couple came in to purchase flowers for their 5th anniversary? Is that supporting a marriage? I would think so. What about a married gay couple who wanted to purchase a birthday cake for their son, in a state that only allowed married couples to adopt? Would baking a cake be supporting the marriage, and thus subject to the exemption? What about a married gay couple who just wanted to dine out for the evening, wearing their wedding rings? Would a restaurant serving them be recognizing their status as a married couple, and thus be allowed to refuse to seat them if the owner were anti-gay? And, as I noted above, how do these exemptions apply to any married gay employees of these businesses, even if we’re just talking about small businesses? Can the anti-gay business owner cite an exemption to refuse to subside health care coverage for the spouse, or to refuse to pay into a a retirement fund if the spouse is the beneficiary?
I get the sense that those who are pushing the exemptions are still living in a fantasy world, in which gay people get married but then cease to exist the day after the ceremony occurs. I don’t have any impression that groups like the ADF or the Becket Fund have thought through what they want, and how aggressively they want businesses to be able to discriminate against married gay couples, because they haven’t thought through the implications of a society in which married gay couples celebrate anniversaries or need birthday cakes for their kids or pay into retirement accounts to benefit their spouses. But at least taken literally, their demand for religious exemptions would cover all of these non-marriage ceremony scenarios.
posted by Jorge on
Corporations don’t commit murder.
Or treason or other capital offenses, except in authoritarian countries that want to purge them, of course. It can be easily done.
posted by Houndentenor on
It’s hyperbole. The point is that a corporation is not a person. The purpose was to limit liability of the shareholders. It’s been take way too far and the courts need to rein in the nonsense that has ensued. If a corporation cannot commit murder, then it also can’t hold a religious belief or do or believe anything other than what people tell it to do. The owners of Hobby Lobby may have religious beliefs. The corporation does not.
posted by Doug on
“Corporations don’t commit murder.”
What about a corporation that causes extreme pollution, something like Love Canal? Corporations may or may not be able to murder but they sure as hell kill people.
posted by Tom Jefferson III on
Jorge;
If you do not think that a corporation cannot commit murder, well then you have not seen the sort of things that a corporation can do — especially when their are little to no regulatory laws.
Theoretically — if we really want to go down this road — selling tobacco products would be constructed as ‘assisting suicide’. Also I do seem to recall reading about something rather nasty a foreign company did to a bunch of Indians (Asia) back in the 1980s or 1970s.
posted by Houndentenor on
I think a case could have been made the BP committed negligent homicide by continuing to operate oil rigs with multiple safety citations that were never fixed. Perhaps that’s not a capital case, but how exactly would a corporation serve jail time if convicted? It’s absurd of course, but that’s exactly my point. BP is NOT A PERSON.
posted by Jorge on
Perhaps that’s not a capital case, but how exactly would a corporation serve jail time if convicted?
Indict the corporation on conspiracy charges. That I think has been done. Perhaps more relevant is the racketeering statute that was created to break up the mafia. It has been occasionally used with corrupt unions. (That begins to move away from legal personhood.)
Also I do seem to recall reading about something rather nasty a foreign company did to a bunch of Indians (Asia) back in the 1980s or 1970s.
I’m not sure what I was expecting, but I can’t tell if what you’re talking about fits (the other examples do not).
posted by Jorge on
What is new is the question of whether a business, rather than church or a person, can exercise religion.
…
But is selling cakes the exercise of religion?
I see this as two separate questions.
If there is a serious question as to whether a business can exercise any religion at all, I fail to see the merit of even asking if selling cakes is the exercise of religion. But if it can exercise any religion at all, then the next question gets treated as if a business is a full person. This is an all-or-nothing question.
As for questioning whether selling a cake is an exercise of religion, the only people we’re talking are refusing to sell stuff to people are people who do not believe in gay marriage for religious reasons refusing to sell to gays who are getting married. It does not get more clear-cut than that.
But in general, the exercise of religion is something more than just any activity motivated by a religious belief. I cannot drive my car in violation of the speed laws just because I sincerely believe (however illogical it seems) that the speed laws are a violation of the laws of God because biblical authority does not support them.
This is wrong. If no evidence of mental illness can be found (unlikely, but let’s suppose), this is an exercise of religion. What you point to is a case in which the government can impose burdens on the exercise of religion if there is an important reason.
A sensible limit I see built into the Free Exercise Clause is that the exercise of religion, at least as the founders would have understood it, will tend to be with and among other believers.
Huh? That would restrict preaching and conversion more than other actions, and provide few restrictions against actions that are abusive against other believers. I think your idea here is very poorly founded.
I think that can be managed consistent with the constitution if a business states up front in its incorporation papers (which establish the parameters under which the business will operate) that, among its other rules, it will operate pursuant to certain religious beliefs.
This will give the public notice that certain businesses, while not religious entities themselves, will be exempt from certain laws.
This sounds too much like forcing Jews to wear the Star of David to me.
A statement that the business would observe “Christian” principles would not be very helpful as notice to non-believers, since there are so many versions of Christian teaching and thought.
No less helpful for a Supreme Court than a statement that an organization promotes values that are “morally straight”. And no less closed to interpretation by outside parties.
posted by Tom Scharbach on
This will give the public notice that certain businesses, while not religious entities themselves, will be exempt from certain laws.
This sounds too much like forcing Jews to wear the Star of David to me.
I’m not going to respond to the Jew card, other than to say that if you can’t tell the difference between the two situations, you aren’t thinking clearly.
But I will point out this: The harm done to a customer who is turned away is done just as much (if not more so) by the indignity of being turned away without warning as it is by being deprived of the goods or services provided by the business.
posted by Jorge on
I’m not going to respond to the Jew card, other than to say that if you can’t tell the difference between the two situations, you aren’t thinking clearly.
I think you’re playing the plug your ears against a fatal blow card.
The difference is very simple: in this country, public, government-sanctioned blacklisting of a disfavored group on religious grounds is unconstitutional on establishment grounds. Methinks the similarity is worth noting.
But I will point out this: The harm done to a customer who is turned away is done just as much (if not more so) by the indignity of being turned away without warning as it is by being deprived of the goods or services provided by the business.
This is jumping at shadows.
posted by Tom Scharbach on
The difference is very simple: in this country, public, government-sanctioned blacklisting of a disfavored group on religious grounds is unconstitutional on establishment grounds.
How is it “blacklisting” for our laws requiring a business that is required to offer its goods and services to all and sundry to make an exception to the laws (allowing the business to refuse to sell goods and services to particular people on particular grounds) if but only if the business gives notice of its business practice?
Methinks the similarity is worth noting.
Right. Uh huh. Do you know anything about Shoah? Anything at all?
Tom: But I will point out this: The harm done to a customer who is turned away is done just as much (if not more so) by the indignity of being turned away without warning as it is by being deprived of the goods or services provided by the business.
Jorge: This is jumping at shadows.
I sincerely hope that you never have the experience of being blindsided in such a situation. I have, and I know that it isn’t “jumping at shadows”.
posted by Lori Heine on
A large part of the problem, as I see it — speaking as a lesbian of Christian faith — is that there might someday be instances when religious freedom genuinely is threatened. And by something a hell of a lot worse than same-sex couples wanting a wedding cake.
When I read commentary threads on some other blogs and websites (not this one, as the people who comment here tend to be more reasonable and mature), I see all sorts of blather about sky fairies and flying spaghetti monsters every time religion is mentioned. I have little problem doubting that if they got the chance, people with that much contempt for religious faith might do whatever they can to make life tougher for believers. Probably including for me.
It makes me think of the fable of the boy who cried wolf. These social conservatives are screaming and having temper tantrums because they can’t be nasty to people they don’t like — as if that’s the highest possible expression of their religious faith. Quite apart from the fact that it’s hard to figure out what Bible they’re reading, what on earth are they going to do if their religious freedom actually is ever threatened?
Because they’ve cried wolf so many times before, nobody will listen to them. What I very much fear is that they won’t listen to me, either.
posted by Tom Scharbach on
I see all sorts of blather about sky fairies and flying spaghetti monsters every time religion is mentioned.
I’m kind of fond of fairies, myself.
More seriously, although I am a believer, doing the best I can to maintain conscious contact with God, I recognize that religious belief is essentially irrational, in the sense that it is ultimately not susceptible to factual inquiry, logic or reason, if for no other reason than religious truth, when delved deeply enough, always ends up in an irresolvable paradox (e.g. the core Christian paradox that Jesus was “fully God and fully Human” at one and the same time).
So I think that the folks who bring up the Flying Spaghetti Monster have a point; while a parody, the Flying Spaghetti Monster goes to the heart of the difficulties religious belief presents to the rational mind.
When we are dealing with non-believers, we should keep in mind that religious belief is not objective, not fact-based, and not a rational basis for creating law.
I have little problem doubting that if they got the chance, people with that much contempt for religious faith might do whatever they can to make life tougher for believers. Probably including for me.
Be not afraid. We have strong constitutional protection for religion in this country, and Americans are sensible people who will continue to insist on it.
But you are right about crying wolf. I’m not one to suggest that there is anything new under the sun, but the current level of hysteria about “persecution” demonstrated among conservative Christians is unprecedented in our country’s recent history, and it is nonsensical.
I think that it is dangerous, though, and not just for the reasons that you suggest.
I think that it is an orchestrated assault on the core American ideas that laws should be secular in origin and applicable to all with an even hand, a deliberate attempt to upset and undo the sensible balance we have worked out between protecting religious freedom and other constitutional protections.
Conservative Christians remind me of the NRA, twisting a constitutional right out of balance, insisting that no limits be placed on the exercise of a particular constitutional rights, at the expense of all others, and without regard for the good of society as a whole.
I intend to resist, and I think that we all should resist.
posted by Houndentenor on
If the religious right REALLY thought they were in imminent danger of persecution by the government, wouldn’t they want MORE separation between church and state instead of less? The fact that they argue consistently against separation of religion and government shows that even they know that their persecution claims are a load of crap.
posted by Lori Heine on
What it shows is that the religious right aspire to be the persecutors — instead of the persecuted. This has been their aim all along.
Both the religious right and the secular left are doing all they can to marginalize progressive Christians. If any Christians are persecuted, it will be those. This is why the religious right is pushing the lie that they are the only Christians.
posted by Tom Scharbach on
Both the religious right and the secular left are doing all they can to marginalize progressive Christians. If any Christians are persecuted, it will be those. This is why the religious right is pushing the lie that they are the only Christians.
If past is prolog, any future persecution of Christians in this country will come at the hands of other Christians, just as it always has in the past.
The secular left (which includes many of us of non-Christian religions who want religion-neutral laws) is more than willing to live and let live, so long as Christians stop trying to impose their theology on the rest of us. To the extent that Christians keep it up, then we’ll resist.
I seldom meet a Christian who doesn’t think that their religion is God’s gift to the rest of us. My advice, none too gently stated: Get over yourselves.
posted by Lori Heine on
Might I suggest that the only time LGBT Christians get any notion we might meet with discrimination (from anybody who isn’t a right-wing hetero Christian) is when we hear rhetoric lecturing us on what we, as LGBT’s, are or are not permitted to believe.
See another commenter’s remark, below.
I quite agree that the major danger of persecution comes from other Christians. I’m quite familiar with the history of Western civilization. But the rhetoric against LGBT Christians (and probably Jews, as well) from others in what is so euphemistically described as “the community” is often bigoted and nasty.
I am not going to back down. I have as much right to my beliefs as anyone else does to theirs.
Tom, your rhetoric on religion is usually quite thoughtful and restrained. That is a long way, in “the community,” from always being the case. And in our circles, rhetoric putting people down for their beliefs usually does NOT come from Christians.
posted by Houndentenor on
I don’t know who this “secular left” is and think it’s funny in a country where 85% of the public consider themselves Christians that the very small number of people who aren’t religious are in any way a threat to anyone or have any power to “marginalize” anyone.
posted by Lori Heine on
That is true today. It will not be true when conservative, anti-gay, anti-“uppity-woman” people misusing the Christian name and misquoting the Bible get through driving people away from Christianity.
Check back in 20 years. I predict that the percentage of the population describing itself as Christian will be far lower.
Which will give the ever-shrinking percentage of those on the religious right even more to scream about.
posted by Tom Jefferson III on
Any sort of exemption in this case should be restricted….
(a) self employed/small business owners;
(b) who are upfront about their policy;
(c) who are primarily dealing in non-essential wedding type services;
(d) who are not the only game in town;
Once you get into the idea that ANY BUSINESS OF ANY SIZE can exempt itself from having to follow any rules, you clearly are going into Ayn Rand lunacy.
posted by JohnInCA on
Bare minimum for me to even consider “religious exemptions” of this flavor of rot includes the right for me to discriminate against other people because of their religion.
Or, to put it simply… if your religion means you can ignore non-discrimination laws when it comes to me, then I damn well better be able to ignore non-discrimination laws when it comes to you because of your religion.
posted by J. Bruce Wilcox on
To all you gays and lesbians of ‘faith’ really- you can’t be serious. To all you ‘believers’ out there- in here- watch COSMOS- it will blow your little minds. Your christian religion has gotten in your way.
I’m pretty sure- after reading all your comments for the last while- that what I’m about to say will be met with greater derision and disdain than even ‘faithers’ are getting right now. However- that may be the point- because if you could believe it- your experience wouldn’t be based on faith.
But first let me offend you all and say it’s time to grow UP.
We not/heterosexuals- based in being a gender but likely having a greater connection to our inner opposite than straight separatists have- are in a unique position right now to evolve beyond known and accepted religious opinions based in not/knowing- (faith) INSTEAD OF BEING BASED IN KNOWING.
We not/heterosexuals are in a position to unify the perceived split that exists in a gender-based reality. This level of unity opens an interior channel to the DIVINE- which is in all things. The spark is already there. It can be expanded- and unifying the masculine/feminine in a singular human is what opens the human being up.
So- KNOWING is possible- though it does take some inner/outer work on the self- and that does take a bit of time- depending on just how relentless you are. You have to WANT to KNOW.
If all you want is to ‘believe’ the supposedly un-provable- you are stuck in an old dysfunctional paradigm- no matter how RIGHT and HOLY you think you are.
It is the ending of an AGE- and overlapping that is the beginning of a new AGE. This time between AGES where dying and being re-born are happening simultaneously- allows the human being to step beyond the ‘believed’ ‘faith’ reality into what has been the unknown but becomes the KNOWN. And anyone willing to do the spiritual healing work necessary can get there. But I’m talking about NO/RELIGION. Religion remains human based- and a total limitation.
KNOWING IS AN EVOLUTIONARY LEAP BEYOND ‘FAITH’.
It requires of you a new level of commitment and responsibility- and my observations of humanity suggest nobody wants that kind of responsibility- so they remain in religious and not/religious ignorance- instead of doing the necessary work to re-connect to the UNIVERSE- personally.
I did it. So anybody can do it. I wrote a whole book explaining how to do it. Nobody cares. I’ll send you the book if you want it. I’ll be surprised if there’s a single soul in here who will. But explaining the very simple process would still take more time than is pertinent to spend- in here.
I might describe it as a Shamanic Path to ONENESS. But it is a path that each must choose and follow on their own- because your path will be unique to you. If you’re a not/heterosexual- you may already be halfway there.
posted by Lori Heine on
And I need to “grow up” and get over MYSELF?
Wow. Just wow.
So you’re entitled to your beliefs — and you’re entitled to preach to the rest of us about what we can, or should, believe. I have not done that a single time in any comment on this blog. But that is exactly what you can do with impunity.
Whatever boons your own spiritual path may lead to, I can see self-awareness is not one of them.
posted by Houndentenor on
Okay I guess this is where I out myself. I don’t believe in anything supernatural. Therefore to me your “shamanistic path to oneness” makes no more sense to me than Lori’s Episcopal faith, but you still have a right to believe in that so long as you aren’t being a jerk about it. But here’s my real question to you:
What did you intend to accomplish with your little rant? Did you think Lori was going to “see the light” and abandon her faith because someone told her off (and not that well) on the interwebs? For reals? How’s that working out? Has she deconverted yet? *shakes head* UGH.
posted by Lori Heine on
Oh, but I have seen the light! I need to get a tambourine. Lawrence Welk Show bubbles are floating around me even as I write this.
Sometimes good sense is more important than religion. You’re very good at reminding me of that.
posted by Jorge on
Oh, good grief. Even I’m not such a nut that I’ll try to convince other people to follow my backward ways.
Okay I guess this is where I out myself. I don’t believe in anything supernatural.
Although I must admit some bias, and so there is doubt (a great movie by the way, if you’ll pardon a token attempt to convert you). Still, you put things quite well, Houndentenor.
posted by Jimmy on
The implications behind quantum theory, like how particles can be connected over vast distances of space, say to me that we should move on from notions of natural/supernatural, either/or, black/white.
How anyone deals with the unknown is most certainly their choice. Does one get to inflict that choice on other people? I don’t think so. That choice also has nothing to do with the choice of whether to operate a business or not. I know of no religion that, among its tenets, includes a commission/obligation to engage in commerce in order to stay in good standing or not be seen as an apostate.
posted by Jorge on
I know of no religion that, among its tenets, includes a commission/obligation to engage in commerce in order to stay in good standing or not be seen as an apostate.
Actually, there’s the prosperity gospel.
Sloth is one of the seven deadly sins. Most Christian religions value industry, even if it is secondary to service. You could not have a functioning society without it.
And if I remember correctly, Jesus was a carpenter by trade. Do you know if carpenters were independent contrators, laborers, or set up their own shop in those days?
You are missing the point. Religion and faith concern questions about how one lives one’s life, not what one’s life should be. They do not turn on and turn off based on one’s profession (assuming it’s not proscribed), working hours, or what have you. They provide guidance on how one should best assume any of the various roles in society.
I would note that Roman Catholicism is generally not cited as being against owning or working in a for-profit business. Yet within such an action, it expects you to follow the doctrine. And when it comes to same sex marriage, and how one should act in places where it is legal, it could not be more clear: “Clear and consistent opposition is a duty.” I would interpret that as an obligation that if you are in a business, you cannot take any action to support same sex marriage. If you cannot avoid legitimizing same sex marriage while in a business, then you must get out.
The Constitution protects against such arbitrary abuses of power as forcing people out of a long-held profession on religious grounds.
(What about the Church being forced out of adoption?)
Adoption as a profession? That’s the government’s own business… most of the time. Hmm.
posted by Jimmy on
“What about the Church being forced out of adoption?”
When was the church forced to be in the business of adoption? That is a choice. If it gets out, that is a choice, too.
It seems religious conviction should be carried out all the way, not just arbitrarily. No cakes for divorcees who are remarrying. No sweets for fornicators and adulterers. It causes doubt as to sincerity when the cherry picking occurs. This sincerity, or lack of, should be held up to public scrutiny.
posted by Tom Scharbach on
It causes doubt as to sincerity when the cherry picking occurs. This sincerity, or lack of, should be held up to public scrutiny.
I agree, but I think that I should point out that none of the proposed “religious belief” laws protect any “religious belief” except opposition to same-sex marriage.
That, in itself, raises doubt about the sincerity of the legislators sponsoring and voting for such laws when they claim that they are interested in protection “religious belief”, and should be held up to scrutiny as well.
Bluntly, I think that the whole “religious belief” crap is nothing more than another exercise in anti-gay legislation wrapped in Republican dishonesty.
posted by Houndentenor on
NO church was forced out of adoption. In some states the rules for receiving TAXPAYER money included nondiscrimination. The Churches could have continued to operate with private funds, but chose to close doors because they weren’t allowed to use taxpayer money and then discriminate against those same taxpayers. The churches tried to make it look like the state closed them down. That is a flat out lie.
posted by Mike in Houston on
I’m going to try and approach this from a rational free-market economics base — which seems to be lost in all this religious freedom nonsense.
The premise of the free market is that sellers are free to offer their wares to buyers. Buyers are free to haggle on price and buy what they want.
Does this mean that a Jewish caterer has to serve pork? No. That particular catering establishment can limit itself to kosher foods only — knowing that it may lose out on some business because they don’t do a double Levitical (Bacon-wrapped shrimp).
A wedding cake baker is likewise free to restrict their cake designs to only have cake toppers with a bride and groom — knowing that they will lose out on cake sales to same-sex couples that want a cake topper that reflects them. But if a same-sex couple wants to buy one of their cakes anyway and replace the topper themselves, that’s the buyers’ business — not the sellers. Having concluded the transaction (money exchanged, cake delivered), the seller is no longer involved — unless there is some quality issue with the product.
That’s how it’s supposed to work. The BUYER is supposed to have freedom of choice in the market (based on ability to pay and availability of product) — all things being equal… but since all things aren’t, public accommodation laws have been put into place in various states and cities to address situations where buyers don’t have free access to products and services in what otherwise would be a free and open market.
If a would-be seller is so consumed with what happens post-transaction, then they really need to think about whether or not they want to participate in a free and open market — a market, which, BTW is pretty antithetical to any orthodox faith anyway.
posted by Jim Michaud on
You bring up an interesting point, Mike. A point that was MIA over at Gay Patriot. Yeah I know I shouldn’t go over at that site, but I just couldn’t help myself. I wanted to see their take in this controversy. I wasn’t surprised by what I saw. All they’re obsessed about is sticking up the middle finger to “leftist gay activists”. They excoriated Gov. Brewer for vetoing the bill. Never mind the fact that she did so for business reasons and not for “caving in” to the “militants”. Lots of pro-business, anti-union Republicans had trouble with this proposal. People who are on Gay Patriot’s side and had real concerns about this weren’t even acknowledged by them. There must be some pro-business GOPers out there that read GP on a regular basis. A feeling of disillusionment must have set in. They went on and on about the “leftists” and didn’t so much as give the pro-business people a hearing. “So that’s how we rate. They side with the soc cons just to piss off the activists and aren’t listening to our arguments” must have went through their heads. No, I’m not going to comment over there. They’ll just fling poop on me and call me a concern troll.
posted by Lori Heine on
Jim, as I’m sure you’re probably discovering, there are commenters on that blog who are actually mentally ill. They can’t even claim they “just feel strongly” about their “convictions.” Some of them lack even the most minimal standards of human decency.
I’ve come to really appreciate that IGF has standards. I don’t even mind being chided — sometimes very strangely — for my convictions here. It’s almost always done in a civilized way.
posted by Mike in Houston on
GP’s commenting is rather like watching howler monkeys at the zoo… only with less coherent language (same amount of poop flinging).
If I ever follow a link there (rarely), I have to brace myself and then feel the need for a shower afterwards.
posted by Houndentenor on
To this we’ve come… (that was an opera reference, btw.)
In lieu of discourse on important issues, people say things just because they know it will piss off the people on “the other side”. People like Ann Coulter and Michelle Malkin have made whole careers out of it. No ideas. No proposals. No solutions. Just the political equivalent of molatov cocktails. I haven’t read GP for quite some time. It was bizarre to go to a gay blog, even a conservative one, and be attacked for being gay and not have moderators do anything about it. Almost all the “conservatives” who post in the comments section are 100% any gay rights. The only gay people were the moderates who thought it might be possible to have a conversation on gay issues. It SHOULD be. The most persuasive argument for gay marriage comes from Ted Olson, after all. (Persuasive as in might win over people who don’t already agree with us.) But not in this environment. Sadly, most gay conservatives I meet are as anti-liberal (and anything to the left of Ted Cruz is considered far left to them) and social conservatives are anti-gay. (and then whine at least once a year that no liberals will date them. You just said last week that I hate America. Why would you want to date someone who hates America? Or was that just nonsense that even you didn’t believe when you wrote it?) Sorry I give up. I only come here because I find the other commenters and a few of the other bloggers (meaning not Stephen) interesting. But Gay Patriot is just insane. I even tried having a civil email conversation with Gay Patriot West once. *shrug* I did try anyway. I don’t think that wing of the GOP is salvageable and my fear is that they will take the rest of the country down with them.
posted by Scotty G on
Jim,
I understand the urged to visit GP. But at the risk of stating the obvious, it simply just isn’t worth it anymore.
Considering the primary ‘guest’ blogger posting there now (though the number of posts he publishes in a day more closely resembles spamming) is not only NOT gay, but is known to be wholly antagonistic to any GLBT recognition whatsoever, should speak volumes to any seasoned GP visitor. The title of the blog has become a misnomer.
I haven’t been there for awhile now, and my last few visits were just to ‘check the waterline’, but from what I could tell, the blog owners are rarely posting anymore; save an obligatory invite to their ‘Meatless Monday’ steak dinners. It could be that I missed their posts due to the sheer number of other posts by the aforementioned blogger. [Seriously, is this guy gainfully employed? If he’s somehow independently wealthy, he obviously doesn’t have enough to fill out his day] But I think it is safe to say that if the blog owners can no longer be bothered with their own site, neither should anyone else.
In short, GP has rendered itself irrelevant. Neither the posts nor the comment sections have any insight to offer; there too busy chasing off the ‘liberal spooks’ that occupy their minds.
So Jim, try staying away for a week; cold turkey. After that week, shoot for two. By that time I promise you, you’ll realize you really haven’t lost anything; and you won’t miss it one bit. If you do find you need a place to sort out your more conservative thoughts, you have IGF or perhaps even The Purple Elephant (it’s growing fast) Here you can post your thoughts and convictions and (usually) get thoughtful responses in return; not a reenactment of ‘Children of the Corn.’
posted by Jim Michaud on
Thanks Scotty. So V the K isn’t gay, huh? How whacked is that? A non-gay ultra-right winger is now the chief blogger of a gay conservative website. Man, that’s like having a vegan activist look over your butcher shop for a while. Bruce and Dan must be watching their creation implode from afar. On to Purple Elephant (my replacement for departed GP). Hey, Lori Heine posts there! My only complaint on PE is the hard to figure out comment thread. PE and IGF are now my go to conservative gay blogs (Towleroad is the liberal component).
posted by Houndentenor on
Thanks, Mike. That may be the sanest thing I’ve read on this issue (and I’ve read a lot!).
posted by Mike in Houston on
We’re getting ready to wade into this here in Houston with a proposed Civil Rights Ordinance from Mayor Parker and the City Council later this Spring.
I’m going to be assisting with the coalition efforts on passage… so I’ll likely be road-testing talking points here in the coming months — so thanks in advance!
posted by Houndentenor on
I was living in Houston when the voters rolled back the modest little antidiscrimination ordinance in the early 90s. Keep up the good work there. It’s a great city, especially if you can stay inside the loop.
posted by Tom Scharbach on
On a side note, the Chicago Tribune reports on the primary challenges to the three Republican Assembly members who voted for marriage equality last year.
I note, in connection with that article, that Equality Illinois contributed $150,000 to the campaigns of the three Republicans.
The election is being held today.