A Small Victory for Freedom

I agree with Walter—the ruling should have been broader. Laws violate the First Amendment when they force people to print or utter words in which they disbelieve.

23 Comments for “A Small Victory for Freedom”

  1. posted by JohninCA on

    I’d argue that the problem with the Hands On Originals case is that a t-shirt printer shouldn’t be a public accommodation.

    That said? The whole thing with refusing a message but not a customer requires a good-faith attempt to accommodate. The Colorado baker who said “I won’t bake that cake, but lets find a cake I can make for you”? That was a good-faith attempt to not discriminate against the customer.

    Hands On Originals? They didn’t want anything to do with the gay pride group, specifically because they were a gay pride group. There was no possible message the group could reasonably have wanted that would have been acceptable, and Hands On Originals had no interest in even trying.

    So yes. It was rank discrimination against a group because the owners don’t like gay people and want us to be ashamed and hiding, regardless of how they justify it.

    And that should have been acceptable. Not because of some lame “love the sinner, hate the sin” bullshit excuse, but because a t-shirt printer shouldn’t be a fucking public accommodation.

    • posted by Lori Heine on

      Exactly. We shouldn’t need to be exposed to the dark and twisted psyches of those who don’t want to serve us.

      I’ve heard far too much about these people as it is. Letting them off the hook as “public accommodations” means that they would basically shut the hell up and go away.

      Small price to pay, in my opinion. And nobody ever died because they couldn’t get a t-shirt printed from some particular shop.

      That is almost certain to be the viewpoint of 90% of us. Not that most of the “religious freedom” crusaders are going to bother asking us. Our opinion would be inconvenient. Whatever their notion of “religious freedom” might be, concern for the actual truth obviously plays little part in it.

    • posted by TJ on

      This particular business had a religious message from its start and it was publicy part of its mission. The First Amendment right is obvious and their isn’t a public health or saftey problem and the business did not take the gays money and then suddenly develop a non-refundable religious objection.

      Yet, the religuous unliberty bills are not just talking about businesses with a clear longstandinfreligious message.

  2. posted by TJ on

    1. Again, having an public accommodation exemption for a self employed/small business assumes that LGBT are generally a part of civil rights laws (not quite nationally, yet).

    2. Not getting your first choice of a shirt maker for an event is unique because (in all likelyhood) you begin looking for a shirt making weeks, if not months, ahead of the event.

    The problem becomes what happens when you don’t have another shirt maker around the corner that you can give your money to.

    Also, what happens when the local doctor or say, animal doctor decides that he cant offer health care services?

    • posted by Lori Heine on

      TJ, surely you didn’t just equate getting a t-shirt made with getting healthcare for yourself or your pet.

      If you honestly can’t tell the difference between the two, I feel sorry for you.

      • posted by TJ on

        1. I can tell the difference, but the propsed religious freedom laws and most of their supporters either don’t know the distinction or can’t be bothered to set limits on their faith based exemption.

        • posted by Lori Heine on

          And of course you think that they have magical power to do absolutely anything they want.

          The limits would very quickly be set for them by hospitals, clinics and municipalities that don’t want the living crap sued out of them, or potential charges filed against them for criminal negligence.

          I am well aware what amoral slimeballs some of the proponents of these bills are. I am also aware that they can’t just chant some magic words, do the hokey-pokey and turn themselves around, and implement everything they want to do.

          You might as well be talking about unicorns.

          • posted by TJ on

            I prefer my unicorns in underappreciated, early 1980s animated films, thank you very much.

            The forces calling for religious unfreedom have a tremendous amount of clout.

            We have already had doctors seeking the “religious freedom” right to to treat gay people.

      • posted by JohnInCA on

        … After she learned I was gay, my grandmother told me a story from when she worked as a nurse back in the 80s, of sneaking in the partners of gay men after hours to allow them some time together, because the nurses in other shifts were keeping them apart.

        It’d be nice to think such stories are strictly “of the past”, but then I remember that President Obama’s executive order about hospital visitation was fiercely opposed by all the usual suspects. Then I remember about the Florida case, where the hospital refused to respect the paperwork a pair of lesbians had set up, and kept them separate as one died alone. Then I remember about how going to a Catholic hospital if you’re having a miscarriage is dangerous, as they will often refuse to induce a medically necessary abortion. I remember the Michigan pediatrician who dropped an infant patient because her parents were lesbians.

        Fact is, there’s an awfully ugly record of hospitals being real dicks about this sort of thing, so I really can’t share your faith that they would never again do what they’ve already done.

        • posted by Lori Heine on

          Tell me again what this has to do with a printer of t-shirts. As I said before, there is no correlation.

          My point stands. They are entirely different scenarios. You are attempting to muddy the waters by dragging it all together and mixing it up.

          If laws are needed to make medical health professionals behave like grownups and do their jobs, then in those instances perhaps laws are needed. We live in an infantile world.

          T-shirts? No. Learn to differentiate between one type of service and another. You do yourself and your cause no favors by scrambling them up together.

          • posted by JohnInCA on

            “Tell me again what this has to do with a printer of t-shirts. “
            I didn’t mention t-shirts. I was rejecting your confidence that we don’t need them to cover hospitals.

  3. posted by Tom Scharbach on

    It looks like the case will be appealed to the Kentucky Supreme Court, and I’ll be interested in seeing that opinion.

    Unless the Kentucky Supreme Court comes up with a line of reasoning that is totally unexpected, I don’t see this case having much precedent value, even in Kentucky, because the facts of the case are too limited to be expanded into a broader application.

    Hands On Originals is not, in any meaningful sense, a t-shirt printer, if the company’s website is any indication.

    The company self-describes as “Christian Outfitters”, and the product lines that the company produces are all directed at Christian schools, Christian camps, and Christian ministries. The company does not purport to serve the general public, but instead Christian institutions of one sort and another. The company clearly sees itself as a ministry as much as a business. I think that John’s asserting that HOO is not a public accommodation is accurate.

    Within that context, I can see a successful legal argument that asking the company to print a message in conflict with the religious convictions of the owners would constitute a “substantial burden” on the owner’s exercise of religion.

    Showing that baking a cake, arranging flowers or taking photographs of a same-sex marriage creates a “substantial burden” is much more difficult in those contexts, and has been the downfall of business owners trying to assert a religious exemption in other cases.

    The Kentucky case is also distinct from other state-level cases to date because Kentucky as a state-level RFRA that imposes the Sherbert/Yoder “substantial burden, compelling state interest, least restrictive means” test on public accommodations laws. The other state cases (see the Boerne decision) are decided under the Employment Division “substantial burden, rational basis” test. The decision would likely have been decided differently if it had been decided under that test.

  4. posted by Lori Heine on

    “[T]he ruling should have been broader.”

    The entire farce that passes for a debate on the subject misses the mark by a country mile.

    These antichrists–these frauds–define their religious freedom as consisting chiefly of refusing to serve certain specially-designated sinners. What a joke.

    But real Christians, who define their faith as Jesus did–in modern parlance, walking the talk–are getting hauled off in handcuffs and locked in cages for feeding the homeless.

    I will never again make the mistake of taking seriously anyone who can take seriously the religious right. It has sunk into a pit of utter absurdity.

  5. posted by Tom Scharbach on

    “What remains to be fully confronted by the courts, I think, is the expressive status of ceremony, the fact pattern in most of the wedding cases. If ceremony and ritual are fraught with public message and moral significance, as many religious believers and not a few secularists would hold, then participation therein, even if in the role of an incidental walk-on, might convey expressive significance that is just as intense, or even more so, than the decision to display a license plate or print a message on a garment.”

    I’m curious about this observation. As far as I know, none of the vendors who have refused to provide goods (cakes, flowers) and services (photographers, reception caterers) have been asked to participate in the wedding ceremony, civil or religious. So I’m not quite sure what Olson is talking about … is it some kind of Christian thing?

    • posted by Lori Heine on

      I think it’s largely a conservative scare tactic. A great many LGBT folks are either non-religious or are members of some faith other than Christianity. Those wouldn’t want a church ceremony anyway.

      Most LGBT Christians already go to a church, and their congregation welcomes them. They’re going to want to get married at their own church.

      Very, very few are going to go to a hostile church and ask to get married there. Some may, perhaps–maybe just to cause trouble so they can sue, and this might need to be an issue. I doubt it, however, because it isn’t going to happen very often.

      To hear the fundies talk, huge hordes of us are going to stampede into their churches demanding to be married there. (Remember, these people don’t see inclusive churches as “real” churches, anyway. In order to understand their mindset, it must be borne in mind just how closed-minded they are.) It’s probably far more likely that a zombie apocalypse will really happen.

    • posted by Tom Scharbach on

      Thanks, Lori.

      I’ve been to about three dozen weddings over the years, most of them religious ceremonies, but I have little experience with Christian ceremonies or expectations regarding those ceremonies. I think I’ve attended only five or six Christian ceremonies, all but one in Catholic churches.

      I don’t recall a vendor of any kind taking part in any of the ceremonies, unless you count the celebrant/officiant as a “vendor”, which I do not.

      In my relgious tradition, baking a cake for a wedding reception, or creating/delivering flower arrangements, or catering the reception, and so on, would not be considered “participation” in a “ceremony and ritual … fraught with public message and moral significance”, although I understand that the ceremonies and rituals involved are “fraught with public message and moral significance”. Even attending the “ceremony and ritual” would not be considered “participation”, assuming that the person attending did not take part in the rituals, the prayers and so on, except in the sense that everyone at a wedding wishes the couple well.

      So I was puzzled about the link Olson seemed to be making. It would never have occurred to me, based on my religious tradition, and I wondered whether it was different for Christians.

    • posted by Throbert McGee on

      As far as I know, none of the vendors who have refused to provide goods (cakes, flowers) and services (photographers, reception caterers) have been asked to participate in the wedding ceremony, civil or religious.

      Okay, say that Brenda is marrying Bill in a church wedding. You think that the whole plan is an ill-conceived farce because you have some reason to think that Bill is already maintaining two mistresses and a cluster of children in another state, and you have some reason to think that Brenda is a gold-digger — all signs point towards acrimonious divorce.

      So do you decide, “Okay, I’ll boycott the wedding ceremony in the church because it’s so phony-baloney, but to be polite, I’ll still go to their reception dinner and bring a nice present — after all, the reception has NOTHING to do with the marriage ritual.”

      Do you endorse that line of reasoning, Tom? I don’t think most folks would see things that way. They recognizer — correctly — that the reception is a public show of approval for the validity of the marriage ceremony that occurred prior to the reception.

      • posted by JohnInCA on

        Hrm… looking at 2016 GOP Presidential Candidates, there’s multiple “I don’t support same-sex marriage, but I would still attend the ceremony”, at least one “I would go to the reception, but not the ceremony”. And of course, if we remember 2012 we had a nominee that had his religious ceremony in one state, the civil ceremony in another, and a reception attached to neither.

        So yeah, I think most people are quite able to distinguish the ceremony/ritual from the after-party.

        That said? Off the top of my head, we had a number of goods-and-services delivered to our venue site (in-laws backyard). There was the company for the tent rental, the outhouses, the food warmers, the baker, and the pizza delivery guy†. To a one, they were all there and gone hours before the ceremony started. The rental guys showed up again the day after to pick up their equipment, and someone had to swing by the bakery to drop off the set-piece for the cupcakes/cake.

        So you’re arguing that the baker was a “participant”? Was the pizza delivery guy? The tent rental folks? The guys that dropped off the outhouse? All of them had the same story: contracted to deliver goods to venue for wedding.

        And this gets worse… if they are all participants, does that mean we were ethically bound to say “this is for a wedding of two men who have been living in sin for ten years”? I’m serious! The guests, the DJ (my brother-in-law), the officiate… they all knew the score. These incidental “participants”? Didn’t. So if they are indeed participants, it seems only fair to bring up to speed on that score so they can make an informed decision on whether or not they want to “participate”.

        Even if you restrict the “participant” bit only to bakers, florists, venues, photographers and caterers, doesn’t that mean that straight folks are being terribly rude for not doing the full disclosure thing? I mean, what if they’re right, and they’re “participating” in a wedding by delivering a cake, and that if they “participate” in a wedding their God wouldn’t approve of they’ll go to hell. If you don’t fully disclose to them when arranging services, you’re risking their soul.

        So yeah. If we take these claims at face value, it’s a huge ethical problem for, well, everyone.
        †”In lieu of gifts, we request everyone bring their favorite pot-luck food item”. Someone “brought” pizza.

        • posted by Tom Scharbach on

          I understand the gravity of the situation for Christian vendors, but it seems to me that caveat venditor should control in these situations, although I won’t be surprised to a Christian public interest law firm file a lawsuit asserting a duty to disclose, claiming that a buyer’s failure to disclose is an actionable tort.

          Accordingly, buyers of goods and services from Christians would be well advised to make basic disclosures (sexual orientation, sexual history, race, religion and so on, as well as the direct and indirect purposes for which the goods and services will or may be used) to Christian vendors before contracting for goods and services.

    • posted by Tom Scharbach on

      So do you decide, “Okay, I’ll boycott the wedding ceremony in the church because it’s so phony-baloney, but to be polite, I’ll still go to their reception dinner and bring a nice present — after all, the reception has NOTHING to do with the marriage ritual.”

      Do you endorse that line of reasoning, Tom? I don’t think most folks would see things that way. They recognizer — correctly — that the reception is a public show of approval for the validity of the marriage ceremony that occurred prior to the reception.

      We are discussing the role of vendors, not a dotty aunts agonizing over attending a wedding and/or reception.

      A vendor provides goods and services to a wedding venue (typically flowers) and/or a wedding reception or wedding reception venue (flowers, a wedding cake, food and drink, chairs and tables, table linens, and so on).

      In most cases the vendors provide the services (deliver the flowers, a wedding cake, chairs and tables, table linens, and so on, for example) in advance of the wedding and/or wedding reception and do not attend the wedding and/or reception. In other cases (catering) the vendor may be present at the wedding reception, but is present in the role of vendor not guest.

      I recognize that some (Houndentenor, for example, who sings at wedding, or a band playing for a reception) are participants in the wedding and/or wedding reception, and probably meet the legal definition of vendor. I am not, however, talking about those people, because such people are not typically covered by public accommodations laws. I am talking about vendors like bakers, cakers, caterers, florists and others who do not play an active role in the ceremony or reception entertainment.

      In my relgious tradition, vendors of the type I’m describing are not considered “participants” in the wedding and/or wedding reception. In the Christian religious tradition, it seems that such vendors are considered participants. I asked about the theological reasoning behind that view. I obviously don’t get it.

      So let me ask you: What Christian theology (Bible-based or otherwise) leads to that result? How far out does that result extend?

      … I’ll still go to their reception dinner and bring a nice present — after all, the reception has NOTHING to do with the marriage ritual. …

      As an aside, and irrelevant to the topic, I am old enough to remember the day when Catholics were discouraged from attending any Protestant religious services, including weddings and funerals, and vice versa, but were allowed to attend the wake reception. In those days, the different religious traditions made a distinction between a wedding (a religious ceremony) and a reception (an after party). Enough said.

  6. posted by TJ on


    • posted by Tom Scharbach on


      It behooves us not to get distracted by the political drama playing out in Washington.

      We need to close pay attention to what the Trump administration does with respect to LGBT issues, specifically the policies and practices at the departmental level.

      President Trump issued an executive order a few weeks ago that charged Attorney General Sessions with reviewing departmental practices and policies to ensure that the maximum effect be given to the administration’s preference to ensure that the religious freedom of conservative Christians be as broad as is possible under existing law.

      The action, accordingly, will be at the departmental level, and anti-equality practices and policies will dribble out, little by slowly, over time.

  7. posted by Tom Scharbach on

    As an aside and only indirectly related to the Kentucky case, Masterpiece Cakeshop (the Denver religious freedom by cake case) is setting something of a record for the number of times the case has been distributed for conference, with no cert granted/denied order or other disposition.

    The case was distributed for eight conferences prior to Justice Gorsuch joining the Court (Conferences of January 6, 2017, January 13, 2017, February 17, 2017, February 24, 2017, March 3, 2017, March 17, 2017, March 24, 2017, and March 31, 2017) and five conferences since (Conferences of April 13, 2017, April 21, 2017, April 28, 2017, May 11, 2017, and May 18, 2017). The case is now scheduled for the Conference of May 25, 2017.

    Nobody knows why, of course, except the Justices and the Clerks, and they don’t talk.

    Early on, the speculation was the the Court was awaiting a 9th Justice (Justice Gorsuch) before acting, but that explanation is getting dated now that Justice Gorsuch has been on the Court for a month and a half. The speculation now focuses on the possibility that the Court has yet again denied cert in a “baker, florist, photographer” case (as it did in Elaine Photography), and one or more of the Justices will issue a dissent.

    The Court may decide something at the May 25 Conference. After May 25, only four conference days (June 1, June 8, June 15, June 22) are scheduled before the end of the Term, so the wait won’t drag on forever.

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