News: Unveiling anti-discrimination, religious rights legislation

I came across this new article.

Lawmakers, LGBT advocates, LDS and community leaders unveil anti-discrimination, religious rights legislation

I would love to hear people’s thoughts on it. I would particularly find a liberal Mormon viewpoint interesting here.

I’ve thought a bit about the difference between refusing services to someone for being [fill in the blank] and refusing to produce something that violates one’s personal convictions. Is there a difference? How much of a difference is there?

A recent court case –intentionally created by a Christian trying to make a point — drove this home. In the case a baker refused to produce an anti-gay marriage cake and the Christian took the baker to court to test the law by (obviously) intentionally creating a reverse court case to the ones where a baker refuses to make a gay marriage cake. (See new article here.)

So how much difference is there here? Is the Utah law truly “groundbreaking” or really just a band-aid on a bigger problem? Discuss.

42 thoughts on “News: Unveiling anti-discrimination, religious rights legislation

  1. It’s a bandaid in my opinion. A worthy effort but in the end the law will have to choose between letting people discriminate based on whatever (chose your category) or requiring people engaged in commercial business enterprises within a society to serve the general public. There really isn’t a logically consistent middle ground which allows just “some types” of discrimination.

    My personal view is that religious institutions (in the US) are allowed to discriminate because they have special rights enumerated in the Constitution, the rest of us just need to suck it up and serve all patrons. Just my opinion.

  2. JSH, I believe its a Band-Aid too, but for entirely different reasons.

    You didn’t really address your reasoning on the possible difference between refusing services to a person and refusing to create a specific thing that violates one’s conscience. It sounds like you feel there just isn’t much difference there, for you treat them as one and the same throughout your comment.

    Also, what are your feelings on the reverse situation, i.e. the Christian that was refused services for an “anti-gay marriage” cake?

  3. The article was unclear on what the “religious protections” were. I think I understand what “anti-discrimination in housing and employment” but what are these mysterious religious protections that were part of the compromise?

    But its amazing to see the church at the forefront of a bill supported by the LGBT community, (or is it supported by the LGBT community? That wasn’t clear either.

  4. I think your distinction is irrelevant to the Utah legislation, Bruce; because as I read it the Utah bill doesn’t address discrimination in commerce generally. It address discrimination in two specific areas: Housing, and employment.

  5. JimD, you are correct — for Utah. But the issue in question there was in another state and involves a certain way of interpreting anti-discrimination laws that existed there. (i.e. As a baker you can’t refuse to make a gay marriage cake, but perhaps as a baker you can refuse to produce an anti-gay marriage cake. Or that’s what’s being determined.)

  6. Oh, and JimD, it *is* relevant in that there are already laws against discrimination of one sort, but not necessarily the other. Even in Utah (since it’s civil rights laws, which are federal.)

  7. I believe in the right of association. People should be able to choose who they wish to associate with, who to do business with, etc. So, if someone chooses not to serve Mormons, that should be her right. If I, as a Mormon, do not like it, I am welcome to go elsewhere, or start up my own establishment. The only issue is that government cannot discriminate, as it is supposed to represent all of us. Therefore government should not be involved in most things, as it ends up discriminating against one group or another, depending on which one is politically correct at the moment.

    If LGBT want to establish a community or state that promotes their views, they are welcome to do so. And if a traditional Christian region wishes to not have LGBT as recognized for marriage, then that is proper also. Only when we force everything up to the federal level do we have such cultural clashes. It used to be that people congregated and lived among others like them, hence Chinatown, Little Italy, etc. But we are forcing people into one giant mold that forces everyone to act and think alike, removing freedoms of thought, speech, religion, and association.

  8. I watched the press conference and it appears to the product of a collaborative good faith effort. I agree with Nate its amazing to see the church at the forefront of a such bill! The bill has a non severability clause making it a package deal so it probably won’t stand the test of time but I think this is an admirable beginning.

  9. Bruce, I’m not sure I quite agree with you. Civil rights can arise under either federal or state constitutional guarantees (I believe Massachusetts legalized gay marriage for the first time on state constitutional grounds). On this matter, the federal courts are going to do what they’re going to do, regardless of state law or constitutional civil rights guarantees. As far as I know, Utah does have state constitutional equal protection/due process guarantees (and associated jurisprudence) that more or less mirror the federal constitution; and Utah’s bill takes pains to note that it is *not* designating gays as a protected class under conventional equal protection jurisprudence.

    I think Utah’s provisions are distinguishable from the other sorts of cases you cite because they don’t really require conservatives to aid, abet, and/or celebrate gay sexual unions–they just require that gays be allowed to make a living and obtain the necessities of life for themselves, the same as straights.

  10. Bruce,
    I see little distinction if we are talking about a business. (Note however, that I am an economist by training, not an attorney). I think the critical distinction is if one is *selling* something. I suspect that for people who get really worked up about these issues they may well apply for a very specific business license. Not to be a bakery per se, but to provide food to heterosexual customers (or whatever the business is). Now whether the city in which they live will grant such a license is another matter, but absent something like that I think they generally need to abide by the laws of the society they live in. In order for a city to grant a business license the company generally has to agree to accept the set of laws the society functions under.

    To answer the specific “cake question” – I think both “cakes” should have been made.

  11. “Only when we force everything up to the federal level do we have such cultural clashes”

    I’m not sure it has that much to do with “forcing everything up to the federal level” per se. But rather that it was removed from the political system altogether. The problem is disenfranchisement.

  12. So what about the individuals circa 1840-1850 who refused to aid Mormons because they were considered vile filth (the Mormons, that is)?

    I would refuse to create a hate-speech product (e.g., cake with message to hate a certain class of people) because I would then be an accomplice to hate speech.

    I would not refuse to feed or clothe or house or love or work with an individual because their beliefs and behavior didn’t align with my belief system. On the other hand, if an individual was dangerous to my health, credit history, etc., then I might take such precautions as would be warranted.

  13. A person who refuses to serve a Mormon is a bigot. Why would I want to give my business to such a person? I would happily and gladly go somewhere else rather than give my money to this person.

    I think people are completely missing the point of the 1950s-era civil rights era. Discrimination in the south against African-Americans was of course horrible, but it was especially horrible because there were so few other choices. Segregated busses were controlled by the government, and there were no other busses. Rosa Parks did not have any other choices. Same for public schools and many restaurants, hotels, etc. If you were a black person traveling to Birmingham in 1954 your choices were severely limited.

    Such restrictions simply do not affect florists and bakers. There are dozens of other florists and bakers to choose from. So, if you think the owner is a bigot because he will not serve a Mormon (or a gay person), then boycott the store. Don’t get the government involved.

  14. I’m not saying this is the reason for the Church’s strategy in endorsing these bills (as I believe the Church does not want people denied housing) — But one thing the Church’s activity in this area certainly proves, is that there is no animus or bigotry in the church’s viewpoint regarding gay marriage.

  15. John,

    “religious institutions (in the US) are allowed to discriminate because they have special rights enumerated in the Constitution, the rest of us just need to suck it up and serve all patrons.”

    The first amendment: “Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof.”

    The religion portion of the amendment has two prongs. They have each been argued in courts separately. The establishment clause of course affects religious organizations as you have indicated. However, the free exercise clause is all about the individual. It is the one prisoners love to claim so they can smoke peyote, etc. (and they always lose)

    The free exercise clause is the one that is implicated in forcing an individual to choose between 1) acting against their beliefs, or 2) going out of business in a chosen profession.

    The constitution wasn’t designed to make people do things. It was designed to keep government from interfering where it has no business, e.g., “Congress shall make no law.” Of course “government” infers balancing competing interests, so Congress does make laws which inevitably run counter to some actors cherished beliefs.

    It is interesting to note that the Constitution was designed as both a system of government and a check on government. Cases between people never get to the Supreme Court. They can only hear cases where “the state” was an actor. I can discriminate all I want in my private affairs. They were able to bring civil rights cases because states tried to make laws which restricted behavior or access. States made laws outlawing abortion. These were struck down because the Supremes said states couldn’t make such laws.

    The difference here is that people want laws to compel INDIVIDUALS to act in a certain way NOT government entities. We have always been okay with laws the punish bad behavior in individuals prohibit government sponsored limitations on guaranteed freedoms. They didn’t win the civil rights wars by passing laws to make shopkeepers serve people of color. They took away all their federal funding for roads and stuff and corporations (hotel chains) that had presence in many states until they complied and struck down laws that made it expressly legal to discriminate. They used the commerce and taxation clauses to get what they wanted.

    Religious freedom was put first for a reason–it addresses personal belief and reasonable action based on those beliefs. If anything is to trump that it should be only those things that are basic to other people’s ability to function and exercise their agency. So, housing, access to food, medical care and other necessaries, free travel. Corporations, not being natural persons, have no free exercise rights.
    But, to say the right to cake and flowers trumps a natural person’s free exercise according to their beliefs is the horror (yes, I chose carefully) of Satan’s plan.

  16. Joel,
    Have you read the most recent Ensign? It may change your thoughts about what Satan’s plan was and why it was horrible.

    Given the Church’s practice, I don’t see how we can argue that it is against our religion to bake a cake for a homosexual marriage or provide flowers that a woman sends to her girlfriend. There is no scripture, no counsel, no instruction that I have seen that prohibits those practices. Because of that, I also don’t see how we can argue that requirements such as those discussed violate our religious beliefs.

    That said, I am not a big fan of anti-discrimination laws because I think they just push prejudice into the shadows where it is harder to confront. However, I realize that case law in the U.S. upholds these laws. The Church has now come out in favor of them. I think they are here to stay, at least as long as the current order prevails.

  17. DD it’s not against our religion to bake a cake for someone, but it is awfully close to being against our religion to require someone to bake a cake for someone.

  18. As I closed up and joined my wife in turning out lights and going to sleep, it occurred to me that I left my thoughts incomplete. I should have added that I am okay with requiring cake and flowers to be provided without discrimination but the words upon them, those are mine and mine alone. The example put forward in the link from the OP the individual refused not to bake the cake but refused to use their art to inscribe words offensive to them.

    I took a moment to read the Ensign article. Wonderful. It is what I have believed for many years now. As I don’t really believe in attribution to human sources I don’t even keep track of where I learn or hear of particular ideas. There is only one source that deserves attribution.

    I am sorry if the way I worded my comment lead anyone to mistake my understanding of Lucifer’s continuing efforts to destroy our agency. I don’t believe being subject to laws which would force me to make a cake for either anyone or no one crosses that line. But a law that would dictate what words I am required to put on them is where I would draw my line. I will fight for that line.

  19. DD, I think the Church has indeed pointed to florist/baker incidents as attacks on religious freedom generally. Whether or not the Church teaches that its members should deny service as a matter of morality; it seems clear that the Church’s position is that citizens should be able to deny service as a matter of civil law.

    I do think there’s a subtle difference between “I need twenty vases of tulips, and I’ll pick them up” versus “I need twenty vases of tulips for my gay wedding, and I want you to come to the country club and place them about the room for maximum aesthetic effect”. There’s a difference between “I want a generic sheet cake and it’s none of your business whether it’s for a birthday or retirement or bar mitzvah” and “I want a wedding cake, white, with flowers and decorations and a groom and a groom on it”. And I think Mormons have a sound moral basis for declining to the second request in either scenario.

  20. Geoff,

    Wow. Barely into the second paragraph: “but religious liberty is merely a subset of the right to own and control property, and the right to associate.”

    How backward can that be from true doctrine and even the Constitution?
    Again, confounding the establishment prong with the free exercise prong.
    Free association comes fifth in the list of enumerated rights in the first amendment. How can free exercise (second in the list) be a subset of a “lower” order right? I am not arguing that the founders/writers got it all right (I would put free exercise first because it is directed at the individual) but I don’t think association with others should come before personal action on belief in one’s own space.

    On property rights. How many of us believe that rights to property on the Lord’s footstool are part of our doctrine rather than just a human construct to rely on our own merits or bloodlines, yes, to deny God’s hand in our lives?
    In Zion, there will be no “property rights” as we know them today. Mine, mine, mine, like little children.

    To add to the writing on the cake, I believe flowers must be provided to any who ask but I do not have to set them up at a place I choose not to go, or to use my calligraphy skills to write paeans of praise for that which I do not endorse, nor to play piano or sing at gay weddings because I put myself out as a wedding performer–that or be denied a license to engage my art in commerce.

  21. I’m with Rameumpton. Unless you are an arm of government, or the government has granted you a legal monopoly (e.g. you hold drug patents), you should be free to do business with whoever you choose. Customers already have this choice; no law requires me to patronize a business run by a religious, ethnic, or sexual minority, nor could I imagine such a law being enacted and enforced any time soon. I believe this freedom should be symmetric, extended to businesses as well. It’s an important element of the freedom of association.

    I don’t say this because I’m itching to refuse to do business with the black family in my ward, or the Jewish family down the street, or the gay man who runs the local bakery. (All hypothetical, of course.) I say this because I think there should be limits to the reach of the law. If I feel obligated to respect the freedom of speech of the Westboro Baptism folks — and I do — then I also feel obligated to respect the freedom of association of Christian bakers.

    Will this result in widespread discrimination of all kinds? I suspect not. You generally need some kind of Jim Crow laws to keep the average businessman from seeing the money rather than the person. When the businessman refuses a deal, maybe he has a good reason. Maybe not; but that should be his choice. Irrational discrimination is inherently self-punishing.

  22. Joel, I agree with part of your comment. Locke pointed out that all people have a right to life, liberty and property. So saying “religious liberty is merely a subset of the right to own and control property, and the right to associate” doesn’t seem quite right. Your rights flow from your right to life, liberty and property. So, religious liberty flows from your right to liberty, not from your right to property. Your right to property protects your right of free association, as does your right to liberty.

    “On property rights. How many of us believe that rights to property on the Lord’s footstool are part of our doctrine rather than just a human construct to rely on our own merits or bloodlines, yes, to deny God’s hand in our lives?
    In Zion, there will be no “property rights” as we know them today. Mine, mine, mine, like little children.”

    All property belongs to the Lord, but for now it also belongs to individuals. Property rights are clearly part of our mortal existence, and this has been confirmed by literally dozens of talks from modern-day prophets. The idea of property rights is clearly upheld in the scriptures. And of course basic common sense says that if you don’t believe in property rights, please sell your house, car and computer and send me the money and I will distribute it to people less fortunate than you. People always protect their own property but are very willing to go about telling other people they don’t have rights to *their* property.

    I don’t know what property rights will look like in the Millennium or a perfect Zion world, and neither does anybody else writing or commenting on this blog. But in the meantime, we definitely have property rights.

    “flowers *must* be provided to any who ask.” I always cringe at these types of phrases. Really? They *must* be? No matter the circumstance? If you are a Muslim florist, you *must* sell provide flowers to the guy with a “I kill Muslims” t-shirt? If you are a Jewish florist, you *must* sell flowers to the neo-Nazi with a Hitler t-shirt? You *must* sell flowers to these people even if you live in a city where there are 30 other flower shops within a mile? I think a lot of people are not thinking very carefully about what kind of society we create when we say people *must* provide things to other people.

  23. Does this new law simply put in writing rights already had? For example, was it previously legal to discriminate against gays for housing or employment? Could you previously, in Utah, not refuse to bake a gay wedding cake? What did this law really do?

    Also, if all it did was put in writing that which was already part of the law, how does it differ from the various anti-gay marriage laws that all got struck down?

    It seems that where you made laws that said “we specifically understand marriage between a man and a woman” even though that is how it was legally understood for a very long time without the need to specify it, that when they struck down the new language specifying that that it was assumed that the law of necessity allowed gay marriage now that that language was struck down. Why won’t this turn out to be an identical case? Why shouldn’t we believe that in a couple of years even the LGTB advocates that backed it won’t just turn around and say “this law is specifically discriminatory in that it only protects rights that were already given to gay people but allows discrimination against gay people in other circumstances.”

  24. If a Moslem baker refused to decorate a cake with a cartoon of Mohammed I wonder if a judge would lay a ruinous fine on them?

  25. “If I feel obligated to respect the freedom of speech of the Westboro Baptism folks — and I do — then I also feel obligated to respect the freedom of association of Christian bakers.”

    This was a confusing example, Kent, because the Westboro Baptist folks are the Christian bakers discriminating against gay people by refusing business. That is, discriminating against gay people unites them, so the equivalence doesn’t work rhetorically in your example.

    The example should posit some opposite position to the Westboro folks to be rhetorically effective, such as “If I feel obligated to respect the freedom of speech of the Westboro Baptism folks — and I do — then I also feel obligated to respect the freedom of association of gay people.”

    But does being born gay put someone beyond the pale of human rights and human dignity, and therefore civil and constitutional rights, in your view?

  26. Bruce, the DesNews article contains a link to the text of the bill itself –

    Under current Utah law, there are no state protections against sexual orientation-based discrimination in housing or employment. (There are some municipal restrictions, but nothing state-wide.) There has not been, to my knowledge, any attempt to compel Utah business owners to provide services specifically for same-sex weddings or commitment ceremonies; and this legislation is silent on that particular issue. So, this bill does grant additional state rights to gays–but only in exchange for increased religious protections. The bill also contains a nonseverability clause, so some judge can’t just nix the religious protection protections while leaving the nondiscrimination provisions in place–nullify one part of the bill, and the whole thing automatically goes kaput.

    I think you’re right that gay rights activists, on the whole, hope this will be later trumped by federal action. Nevertheless, the rationales that allow federal judges to trump state gay marriage bans on constitutional grounds are not as readily available on issues like this; because in principle the fourteenth amendment applies to *government* actors and not private citizens or businesses engaged in commerce.

    The legal/economic assault on dissenting bakers, florists, and other service providers will most likely be done on statutory, not constitutional, grounds; by trying to get Congress to amend the Civil Rights Act of 1968 to designate sexual orientation as another forbidden basis for discrimination.

    And, I still look forward to progressive heads exploding when some lesbian in Nevada tries to invoke nondiscrimination jurisprudence to sue a prostitute who refuses to “service” her. THAT’s the reverse court case that conservative/libertarian think-tanks should be looking for.

  27. (Hit “submit” too early)

    . . . because, if a woman cannot discriminate on the basis of sexual orientation to “deny consent” to a paying, would-be sexual partner; how can she discriminate on the basis of sexual orientation to “deny consent” to a nonpaying, would-be sexual partner? And if a whore can discriminate on the basis of sexual orientation to paying customers, then why can’t a baker or a florist discriminate on that same basis in offering their own services?

  28. “But does being born gay put someone beyond the pale of human rights and human dignity, and therefore civil and constitutional rights, in your view?”

    That’s a remarkably ungenerous assumption.

    I suggest that private businesses should be able to decide who they will do business with. I am quite certain that some will decide not to do business with me because I’m a Mormon. I have, in fact, had a business refuse to do business with me in New Mexico because I was Anglo; I went and shopped elsewhere. I’m not saying I celebrate it.

  29. You and I probably agree more than this interchange might suggest.

    Locke pointed out that all people have a right to life, liberty and property.

    You mean that guy from Lost?

    Seriously, I respect Locke but he spoke from his view of the world and without higher truth. I don’t have to agree with his inclusion of property. I might agree with him if we can agree on his intent. I agree we have an inalienable right to not be denied access the necessaries of life by any system of civilization. That’s as far as I’ll admit on property. I don’t believe ownership of property is necessary, only use of property.

    “Property rights are clearly part of our mortal existence, and this has been confirmed by literally dozens of talks from modern-day prophets.”

    I can agree that property rights are part, but not that it necessarily must be. We have examples where property ownership was excised from the mortal existence of certain groups.

    “I don’t know what property rights will look like in the Millennium or a perfect Zion world, and neither does anybody else writing or commenting on this blog.”

    Hmm. You are quite emphatic. But, “…and they had all things in common,” is quite definitive of the doctrine if not the implementation. I can’t imagine a need for property ownership by the individual in this setting, only property stewardship, which changes the discussion from one of rights to one of duty.

    “But in the meantime, we definitely have property rights.” Agreed, as a matter of law but not of governing doctrine.

    Before leaving this topic, let me talk about eminent domain as a doctrinal and philosophical principle. Deity exercises ultimate eminent domain over all resources, all property, real and personal. The Book of Mormon and Bible speak of this. Governments are instituted to manage the affairs of deity in this regard and are permitted to exercise eminent domain over all things within their borders. Individuals may use these resources but any attempt to say they are one’s own possession (if Locke means this he is just wrong) is an attempt to deny authority, indeed to deny God and his hand. Governments can be guilty of this too. The story of Job is illustrative of a man with great possessions who did not forget that he was merely a temporary steward.

    “’flowers *must* be provided to any who ask.’ I think a lot of people are not thinking very carefully about what kind of society we create when we say people *must* provide things to other people.”

    I have thought carefully.

    We live with many musts. Ask any draftee. That is the point of this discussion, where to draw the must line.

    I am attempting to describe and set a line to see how it fits.

    An example of the outcome of my argument. (graphic example follows)

    A man walks into a small private clinic. He has been shot. If not treated he will die. His head is shorn, his blood spattered shirt has a swastika under a picture of the sculpture at Dachau with words calling for death to all Jews. Must the doctor treat? Doctrinally? Legally?

    The same man walks into a cake shop, holds up his bloody shirt, and says he wants this image, blood and all, on the top of a sheet cake to take to his chapter meeting for skin-heads. Must the artist comply? Can he withhold a cake sans art? May he deny the specific request but still supply the cake? Doctrinally? Legally?

    I am trying to draw a line between forcing someone to perform and act against their belief versus prohibiting someone from denying access to God’s undiscriminating rain. The materials of the cake are not mine if we recognize the eminent domain of God. Nor is the labor. But the declaration on its face, that is an extension of my will, my belief. That is where I would draw the line.

  30. There are some situations where you have to sit down and agree to do business or not
    unlike a sit down burger joint that must serve everyone

  31. Joel,
    The problem with your skinhead cake customer is that the country, and increasingly the courts see homosexuality as either an inborn trait, or a deeply personal one that the state has no right to discriminate against (ie. a protected class like gender and race).

    The sun is already setting on the days where vile opinions about others were protected by the first amendment. Hate crimes and the like, go one step further of not only ignoring the right to an opinion, but doling out additional punishment for actions based on certain opinions.

    As most of us fear, it’s probably just a matter of time before religious belief on certain subjects has to be defined extremely narrowly to avoid being targeted as illegal hate speech.

  32. I once had a Mormon friend who attempted to use a general dating service indicate that he never was provided partners. He had reason to believe that the dating service would not permit matches between Mormons and those who were not Mormon (or maybe it was that the service wouldn’t match a Mormon to anyone).

    So if it could be found that a service such as this is explicitly denying service to a particular sector, what would be the appropriate response. In this case, it appeared that they were not publicly refusing to serve the Mormon sector, just that the algorithm severely decreased the probability of a match if the client’s religion was “LDS.”

    Is it worse that the service is accepting money and not providing service, or would it be worse to be up front that no service (or deprecated service) will be provided?

  33. DD, but if the skinhead says that he’s actually being discriminated against because he’s a non-Jew–how is a Jewish doctor or baker going to refute that?

    Naturally, by saying “look, I’ve got nothing against non-Jews; I just don’t want any part in the morally repugnant nonsense that these particular non-Jews want me involved with in this particular instance”.

    Well, that’s what some photographers/bakers have done–they’ve said “look, I’ll make a gay a birthday cake; I’ll do a school photo shoot for a gay kid; I just won’t service a gay wedding”. But it isn’t enough.

  34. Somehow as a Christian I missed the Sunday School where the sacredness of cake baking and flower delivery were taught and so it is confusing to me that this is even a hill to die on. Why so narrowly take a stand against someone’s gay marriage when there are so many other sinners one could refuse to bake for? Possibly it is because the percentage of wedding cakes one would ever bake for the lgbtqia community is so low it doesn’t affect the bottom line to take such a stand. Of course as many have noted the refused patron can always take their business somewhere else. They can go door to door asking is there room for me in your business? For me this is less of a question about legality and more of a question about the face of Christianity and which voices become the loudest. Which person’s rights do we fight harder to protect? Is it the person with the ability to shut the door or the person knocking asking to come in? I suppose that the LDS church was trying to find a way to protect the rights of both. I can appreciate that. I enjoyed this discussion and all the sides that were presented, however, I was struck by the language in Jim D’s post. There are other ways to put across one’s point than to use a word that is now a slur used frequently and hurtfully towards women of all types.

  35. DQ,

    “the courts see homosexuality as either an inborn trait, or a deeply personal one that the state has no right to discriminate against (ie. a protected class like gender and race).”

    “THE STATE” are the operative words here. Without a study of the law it can be hard to grasp that the constitution is not a restriction on private actors. The word “actors” in this sense is a legal term. The constitution is a restriction on government power, “Congress shall make no law,” and not on the actions of individuals. Federal and State statutes impose restrictions on people and it is those law we bring before the supreme court to judge if they are against the rights guaranteed in the constitution to the individual. It is ALWAYS the argument before the supreme court that the government has made a too restrictive law and NOT that a person has violated another’s rights under the constitution.

    When a judge makes a ruling requiring certain behavior of a baker or face heavy punitive fines or civil judgments, that judge has just made what we call judge-made law. I do not use it pejoratively. It is real law that we study from cases and can be created in the absence of statutory law or in order to make sense of a poorly written statute or passé statute. If it passes the appeals process it becomes the law of that jurisdiction. Often statutes are crafted to refine and codify judge-made law.

    If we allow such judge-made law as we are discussing to stand, then we are attempting to force people to behave in a certain way pre-judicially (must be differentiated from the typical meaning of prejudicially). Perhaps you saw the movie “Minority Report”? That was an example of pre-judicial, indeed even pre-individual-action action by the state against a person. We call that “prior restraint” and it is usually directed at laws which would prohibit speech.

    There is a vast difference between punishing bad behavior after the act and punishing failure to perform an act desired by others but not by the participant. If actions are a form of speech (and they legally are, e.g., flag burning) then forcing someone to put words on a cake is government sponsored, nay, suborned speech.

    Honestly, I tried to take the customer out of the equation–on purpose. I intentionally used a customer who could engender no reasonable sympathy because I wanted the focus to be squarely on the beliefs and choice of the vendor. I’m sorry you missed that and reverted to homosexuality. I assure you Aryan Nation white supremacists would argue they were born that way and that it is deeply personal to them!

    Hate speech is still protected by the constitution and we want it to stay that way, else, hate speech will be outlawed and then someone will try to draw a definitive circle-set of hate speech to include what we say about sin, etc.

  36. Radicalpatience –

    Regarding flower-delivery and cake decoration: I think most would acknowledge that on some level, flower arranging and baking/cake decorating are forms of art. Art is art because it is expressive. If you disagree, I would suggest you consider what you would think if you had a wedding and the florist provided twelve dozen dead roses; and the baker submitted a wedding cake covered in black frosting and decorated with a ball-and-chain motif. Wedding cakes and flowers are symbolic objects; and those who make them are expressing a belief.

    The question we *should* be asking is, why are some gay-rights activists so all-fired determined to compel conservatives to express approval of gay sexual unions and gay sex generally–and to participate in celebrations of the same? Do Americans have a right to “deny consent” to do anything that a gay asks of them? If so, what are the contours of that right?

    You may well claim offense because I used the word “whore” to describe a hypothetical woman whose profession is to sell herself for money (I meant it as a descriptor, not a slur; but by all means feel free to substitute “call girl”, or “prostitute”, or “lady of the night”, or even “innocent victim of patriarchal male oppression”, as your conscience demands). But, please keep this in perspective. While you claim offense over my choice of words, you are simultaneously plotting to put me, and people who think like me, in jail for acting on our sincerely-held moral and religious beliefs.

    I find that extremely offensive.

  37. This is a difficult subject to talk about without each side feeling offended by the oppositions point of view. Bruce requested a liberal mormon’s viewpoint and I offered mine. I do not think Bruce requested a liberal mormon’s viewpoint because he intended to offend anyone who’s view point differed. My guess would be he was encouraging a thoughtful discussion. I felt like that occurred here. Before I posted I read the comments policy for this website because I wanted to make sure I posted within those parameters. For this reason I found the language in one particular post to be neither “edifying or uplifting” or “in good taste or decorum.” Of course these matters are very subjective. I would have preferred to have not read the statement and I think JimD offered up some great alternatives for the future.

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