7 Comments for “Speech Isn’t Free When Forced by the State”
posted by Tom Jefferson on
I can see crafting an exemption so that no small time business has to do wedding services for any gay or straight couple.
posted by Tom Scharbach on
“I can see crafting an exemption so that no small time business has to do wedding services for any gay or straight couple.”
I absolutely disagree.
I have no problem with a small-business exemptions to non-discrimination laws (many states and the federal government have embedded such exemptions into non-discrimination laws), but small-business exemptions should be class-neutral and issue-neutral.
Otherwise, the government is singling out particular classes for special, government-sanctioned discrimination and singling out particular beliefs for special, government-sanctioned protection. As a matter of constitutional law and as a matter of public policy, the government should not make those distinctions.
posted by Tom Jefferson on
I think i did make it class neutral.
posted by Tom Scharbach on
“I think i did make it class neutral.”
Yes, you did. But it is not issue-neutral to single out small businesses that provide wedding services for special protection under non-discrimination laws while requiring other small businesses that provide other services to comply.
The Civil Rights Act of 1964 and many state non-discrimination laws contain small business exemptions. What those exemptions have in common — correctly, in my opinion — is that the small business are exempted from compliance with the non-discrimination requirements embedded in the particular law as a whole, not piecemeal based on the nature of the service provided.
For example, businesses with less than 15 employees are exempt from complying with Title VII of the Civil Rights Act of 1964. It doesn’t make any difference who owns the business, what customers the business serves, who the business employs (or more pointedly, who the business refuses to employ) or what services the business provides.
It seems to me that is the way it should be — a small business providing wedding services should not be treated differently than any other small business.
Small business exemptions recognize that the businesses are de minimus — too small to bother with, to put it in plain English.
posted by Jorge on
On February 22, the Supreme Court agreed to hear 303 Creative LLC v. Elenis, a case involving a Christian website designer’s refusal, in the face of Colorado’s
Colorado. That’s all I really needed to know.
posted by Tom Jefferson on
Ok. Do it issue and class neutral.
posted by Tom Scharbach on
Ok. Do it issue and class neutral.
I don’t think that there is much choice given constitutional standards.
But why not avoid the constitutional mess and just legislate that “size matters” — define a threshold that exempts small businesses — businesses too small to regulate — and leave it at that?
Depending on the threshold defined (e.g. under 25 employees, 3 or less business locations, and no interstate commerce, for example), exempting small businesses from non-discrimination laws would have little impact on the ability of protected classes to obtain goods, services, employment or public accommodation. Yelp! and other online reviews would allow the market to function reasonably efficiently with respect to discriminating businesses, so that protected classes could avoid the business.
7 Comments for “Speech Isn’t Free When Forced by the State”
posted by Tom Jefferson on
I can see crafting an exemption so that no small time business has to do wedding services for any gay or straight couple.
posted by Tom Scharbach on
“I can see crafting an exemption so that no small time business has to do wedding services for any gay or straight couple.”
I absolutely disagree.
I have no problem with a small-business exemptions to non-discrimination laws (many states and the federal government have embedded such exemptions into non-discrimination laws), but small-business exemptions should be class-neutral and issue-neutral.
Otherwise, the government is singling out particular classes for special, government-sanctioned discrimination and singling out particular beliefs for special, government-sanctioned protection. As a matter of constitutional law and as a matter of public policy, the government should not make those distinctions.
posted by Tom Jefferson on
I think i did make it class neutral.
posted by Tom Scharbach on
“I think i did make it class neutral.”
Yes, you did. But it is not issue-neutral to single out small businesses that provide wedding services for special protection under non-discrimination laws while requiring other small businesses that provide other services to comply.
The Civil Rights Act of 1964 and many state non-discrimination laws contain small business exemptions. What those exemptions have in common — correctly, in my opinion — is that the small business are exempted from compliance with the non-discrimination requirements embedded in the particular law as a whole, not piecemeal based on the nature of the service provided.
For example, businesses with less than 15 employees are exempt from complying with Title VII of the Civil Rights Act of 1964. It doesn’t make any difference who owns the business, what customers the business serves, who the business employs (or more pointedly, who the business refuses to employ) or what services the business provides.
It seems to me that is the way it should be — a small business providing wedding services should not be treated differently than any other small business.
Small business exemptions recognize that the businesses are de minimus — too small to bother with, to put it in plain English.
posted by Jorge on
On February 22, the Supreme Court agreed to hear 303 Creative LLC v. Elenis, a case involving a Christian website designer’s refusal, in the face of Colorado’s
Colorado. That’s all I really needed to know.
posted by Tom Jefferson on
Ok. Do it issue and class neutral.
posted by Tom Scharbach on
Ok. Do it issue and class neutral.
I don’t think that there is much choice given constitutional standards.
But why not avoid the constitutional mess and just legislate that “size matters” — define a threshold that exempts small businesses — businesses too small to regulate — and leave it at that?
Depending on the threshold defined (e.g. under 25 employees, 3 or less business locations, and no interstate commerce, for example), exempting small businesses from non-discrimination laws would have little impact on the ability of protected classes to obtain goods, services, employment or public accommodation. Yelp! and other online reviews would allow the market to function reasonably efficiently with respect to discriminating businesses, so that protected classes could avoid the business.