The Equality Act Targets Service Providers


Moreover:

“And while the Equality Act doesn’t alter the exceptions in the Civil Rights Act for religious organizations, it specifically notes that the Religious Freedom Restoration Act of 1993 cannot be invoked as a defense for discriminating under these laws.”

In other words, courts can consider the “discrimination” of a LGBT activist being told “Sorry, I don’t want to decorate a cake with a same-sex couple because it’s against my religion but they’d be happy to bake you one next store,” but won’t be able to consider the religious freedom rights of the service provider with regard to the protections provided under the Religious Freedom Restoration Act.

RFRA requires that the authorities meet the high standard of showing that the government has a compelling interest to justify infringing on religious freedom when enforcing federal law. If stripping defendants of RFRA protections in these cases wasn’t a big deal—that is, if it were obvious that compelling service providers to craft messages in support of same-sex marriage or gender transitions clearly trumped any rights to religious protection—why would progressives be insisting on a RFRA exclusion?

More. In the comments to an earlier post, reader “Sebastian” wrote a response to the argument that conservative Christians have had a long record of working to deny LGBTQ people their legal rights, replying that:

Your identity is so bound up with being “the victim” that you’re unable to see that, in this situation, you’re now the oppressor. It reminds me of the communists who were persecuted and then took power and persecuted those who were of the class that had persecuted them. They couldn’t see that they were now the oppressor — they had no mental picture in which it was conceivable to them that good communists, who had been targeted and persecuted all of their adult lives, could now be the oppressor.

I think that’s spot on. When I hear the argument that we must force bakers to craft same-sex wedding cakes in order to “stop their hate”—as, for instance, a recent episode of Will & Grace reiterated the “need to struggle” against the “haters” who won’t bake same-sex cakes—it seems clear that LGBTQ activists (and those who go to court to force religious conservatives to craft supportive messages are by definition “activists”) have no mental template in which it’s possible to consider that they themselves have become the persecutors.

9 Comments for “The Equality Act Targets Service Providers”

  1. posted by Tom Scharbach on

    I don’t think that conservative homosexuals need fret. The Equality Act will pass the House, and might pass the Senate, but it won’t pass either by a veto-proof margin.

    Reply
  2. posted by Kosh III on

    Either be open to all or don’t open at all.

    Reply
  3. posted by JohnInCA on

    In other words, courts can only look at the “discrimination” of a LGBT activist being told “Sorry, I don’t want to decorate a cake with a same-sex couple because it’s against my religion, but they’d be happy to bake your one next store” but won’t be able to consider the religious freedom rights of the service provider.

    Change it from an LGBT person† to a black or Jewish person, and you get the status quo for the last fifty years.

    Which is to say… if that status quo is so bad when it comes to gay people, then it’s obviously that bad when it comes to female/Jewish/black/Irish/disabled/pregnant/unmarried/veteran/etc. people. If you want those exceptions for non-discrimination law when it comes to gay folk? Then make them standard for all folk. Don’t single out gay folk for having extra hurdles to jump.

    That said, the whole thing is pretty disingenuous. Saying “this part here is so bad!” implies that the whole would be more acceptable if it didn’t have that part. But we know that Republicans and Conservatives think it’s “so bad” no matter how many carve-outs and exceptions you give. So if folks don’t take your objections seriously, it’s because you’ve trained people to not take them seriously.
    ________
    †I love the myth that all LGBT folk that are refused services are “activists” and “specifically targeting” folks. Apparently the idea that a gay couple might look up a bakery on Yelp and say “that sounds good, lets check that out” is just outrageous for folks. Or maybe they think that only gay activists would sue? That’s kind of a compliment, actually. I mean, Americans (as a group) are pretty litigation happy, so if it’s only gay activists that sue, that means that gay folk, as a group, are less litigation happy then everyone else.

    Reply
  4. posted by Tom Scharbach on

    Although (1) I support applying the RFRA standard (substantial burden, compelling state interest, least restrictive means) to all laws, with the exception that I would extend the standard to all exercise of conscience, not just religious conscience, and (2) I do not, accordingly, support exempting the Civil Rights Act of 1964 from operation of the RFRA standard, I note that the Equality Act, in removing the RFRA standard from application to the Civil Rights Act of 1964, would not protect conservative Christians in the “Bake the Cake” cases.

    RFRA (and the Sherbet/Yoder test that RFRA codifies into law) requires that a person claiming exemption from a law must show that the law substantially burdens his/her free exercise of religion.

    As courts have interpreted that standard over the years, it is hard to see how a Christian owning a bakery serving the general public, baking cakes for all and sundry, can make a plausible “substantial burden” argument with a straight face, either in the case of a cake served at a wedding reception (Masterpiece I) or in the case of a cake baked for a private celebration of successful gender transition (Masterpiece II.

    A number of amicus briefs filed in Masterpiece I (the wedding reception cake) attempted to make that argument, and the attempts were almost laughable. The Petitioner’s brief in Masterpiece I also briefly touched on the argument (“His role as a cake artist is to design a celebratory centerpiece for the wedding festivities, and he considers himself “an active participant” in that sacred event.”), but was not central to the brief’s primary argument, which was centered on “compelled speech”.

    It is almost impossible to fathom how the “active participant in a sacred event” analysis, such as it is, could be plausibly applied in the Masterpiece II (the pink/blue gender transition cake) situation.

    In a word, RFRA or not, bakers and other suppliers of goods and services to the general public seeking exemption under the Civil Rights Act of 1964 are unlikely to succeed on “free exercise” grounds.

    I can’t help but think that the emerging RFRA battle with respect to the Civil Rights Act of 1964 is anything other than political theater. That goes for both sides, in my opinion.

    In my opinion, the Equality Act should be written to do two (and only two) things: (1) include sex, sexual orientation, and gender identity among the prohibited categories of discrimination or segregation in places of public accommodation, and (2) modernize the categories of public accommodations to include (a) exhibitions, recreation, exercise, amusement, gatherings, or displays, (b) goods, services, or programs offered to the general public, and (c) transportation services.

    I agree with JohninCA’s comments, on all counts.

    Reply
    • posted by Tom Scharbach on

      I guess I should also note, in fairness to those attempting to remove RFRA application to the Civil Rights Act of 1964, the only effect of the change would be return the Civil Rights Act of 1964 to the applicable pre-RFRA constitutional “rational basis” standard articulated by Justice Scalia in Employment Division v Smith. Although I disagree with the Employment Division standard as a matter of public policy, removing RFRA can not, in my opinion, be characterized as “anti-Christian” or any change in the constitutional standard.

      Reply
  5. posted by Tom Scharbach on

    More. In the comments to an earlier post, reader “Sebastian” wrote a response to the argument that conservative Christians have had a long record of working to deny LGBTQ people their legal rights, replying that:

    Your identity is so bound up with being “the victim” that you’re unable to see that, in this situation, you’re now the oppressor. It reminds me of the communists who were persecuted and then took power and persecuted those who were of the class that had persecuted them. They couldn’t see that they were now the oppressor — they had no mental picture in which it was conceivable to them that good communists, who had been targeted and persecuted all of their adult lives, could now be the oppressor.

    I think that’s spot on.

    You would.

    But let me tell you something: A person is not a victim if he/she works hard to right wrongs and succeeds in doing so. A person is a victim if he/she sits and whines about how unfair life is without doing anything to right wrongs, as you and other conservative homosexuals do.

    Gays and lesbians on the left, in stark contrast to conservative homosexuals, worked hard — often at personal risk — to change things for the better. It is because of those men and women that gays and lesbians live in relative freedom today, and enjoy a measure of equal treatment under the law.

    Conservative Christians and their political allies continue to fight equal treatment for gays and lesbians every step of the way, as is evidenced by the scores of anti-equality bills proposed in red state legislatures year after year. Do conservative homosexuals utter so much as a peep in protest or disagreement?

    No, they don’t. Instead conservative homosexuals engage in a relentless attack on the gays and lesbians on the left who are responsible for the progress made in the blue enclaves in which most conservative homosexuals live, and whine constantly about how they aren’t welcomed with open arms by the gays and lesbians who worked hard to create those blue enclaves.

    Get real.

    Reply
  6. posted by Jorge on

    I’ve said this sentiment before about transgender rights and gay marriage and I will say it again:

    In situations where there are evolving norms on controversial social issues, a person or a business has more than one logical and reasonable choice before it as to which proper social norms it will embody, encourage, and uphold. In such situations where there is more than one correct and equally valid choice to make, it is not, and should not be, the government’s role to put its finger on one side of the scale of what an individual or private business shall and shall not do.

    The government should instead either wait for the social cause to be settled and then legislate the middle ground, or otherwise legislate in as minimalist a way as possible on specific, broadly on values.

    Reply
    • posted by Tom Scharbach on

      In such situations where there is more than one correct and equally valid choice to make, it is not, and should not be, the government’s role to put its finger on one side of the scale of what an individual or private business shall and shall not do.

      Logically, you would, of course, apply the “evolving norms on controversial social issues” reasoning to the Civil Rights Act of 1964, in 1964. When the Civil Rights Act of 1964 was enacted, a significant percentage (both of states and of population) opposed imposition of the Act upon business owners with an objection to serving blacks.

      Resistance to desegregation of facilities and business was the norm in about a third of the states, and (as you may have learned in your history courses) the Act invoked the longest filibuster in Senate history. The Civil Rights Act was enacted over the objection of folk making exactly the argument you are now making, and the Act remained controversial in the Southern states for years afterward.

      The government should instead either wait for the social cause to be settled and then legislate the middle ground, or otherwise legislate in as minimalist a way as possible on specific, broadly on values.

      How long should the government have waited to enact the Civil Rights Act of 1964, and what would have been “the middle ground” you think appropriate?

      Reply
  7. posted by CraigR on

    So the Equality Act expands the Civil Rights Act’s definition of public accommodation to include bakers, florists and such, and then strips these service providers of protections under the Religious Freedom Restoration Act. And that’s not a vindictive overreach of federal power to smite the enemies of the progressive faith?

    Reply

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