Did CP raise a good point?

[phank]

Before the polite thread was closed due to lack of politeness, CP posted an interesting excerpt from LawCornell.edu, where the point was made that legal scholars and jurists are of the opinion that, in certain respects, the establisment clause of the First Amendment prohibits what the free expression clause following it requires. That there can be clear conflicts here.

The argument was made that, as a matter of secular law, anti-discrimination laws trump religious expression. And this was certainly true during the civil rights conflict, where free expression of religion was indeed used as an argument to support refusing to sell to negroes.

The problem with that, in the cases of our poster child baker, florist, and photographer, is that none of these people was refusing to serve gays! In fact, in the case of the florist, the gay man had been a long-time steady customer whose sexual orientation was known and not a problem. As far as I can tell, none of the discrimination in these cases was against any people at all. Instead, these merchants refused to serve the event of same-sex marriage, on the grounds of religious expression.

So the question is, does the free expression clause cover refusal to serve ONLY specific events, by someone freely willing to serve these people in any other respect (and presumably, to continue to serve them after the marriage, for example for a birthday party)? This is distinctly NOT discrimination on the grounds of sexual orientation. Should that make a difference?

[Darth Xena]

You should wait until the thread is reopened. It will be.

[HMS_Beagle]

I'm not sure you can separate the event from the people in these cases. The event didn't attempt to buy a wedding cake or hire a photographer, the people did. The event wasn't denied service, the people were.

Possibly you could argue the baker or photographer might be given some sort of a "conscientious objector" exemption (as may be done for unwanted military service) but as of now there is no legal avenue to do so. They are obliged to follow the law until the law changes, the same as everyone else in the country.

[phank]

I'm not sure you can separate the event from the people in these cases. The event didn't attempt to buy a wedding cake or hire a photographer, the people did. The event wasn't denied service, the people were.

And yet, had the cake been for a birthday party, the sale would have taken place without incident. The florist's refusal was to a long-time steady customer known to be gay, but buying flowers for different occasions without religious implications.

Possibly you could argue the baker or photographer might be given some sort of a "conscientious objector" exemption (as may be done for unwanted military service) but as of now there is no legal avenue to do so. They are obliged to follow the law until the law changes, the same as everyone else in the country.

Yes, no problem there. My question (and I think it's CP's question as well, though it's hard to say) is whether there SHOULD be some event-specific (rather than orientation-specific) free expression exemption.

Dee Dee, I think this much of my thread could easily be tacked to the end of the old thread, since it seems focused on what a well-written law might say.

[HMS_Beagle]

And yet, had the cake been for a birthday party, the sale would have taken place without incident.

Not saying you're wrong but how do you know that to be true?

[Pinoy]

I'm not sure you can separate the event from the people in these cases. The event didn't attempt to buy a wedding cake or hire a photographer, the people did. The event wasn't denied service, the people were.

Possibly you could argue the baker or photographer might be given some sort of a "conscientious objector" exemption (as may be done for unwanted military service) but as of now there is no legal avenue to do so. They are obliged to follow the law until the law changes, the same as everyone else in the country.

right!?, like refusing to cater to a piano lesson (CP example); you are rejecting the person not the event. or refusing to take a picture in a strip club (you are always rejecting the people not the event).

[phank]

Not saying you're wrong but how do you know that to be true?

I don't. It's something I gathered from reading about that particular case. Something about the baker not discriminating against gays, to whom he sold baked goods regularly, but rather his refusal to play any role in a gay marriage. He objected to the marriage, not the people. Even if I'm wrong about this, the question still stands as to whether event-specific exemptions make sense.

[Darth Xena]

Phank up to you, I just think CP would like you to wait. We can merge this thread though into that one… as long as it stay polite.

And I think CP's point was excellent and a good way to satisfy competing interests.

As I said before, I would have just baked the cake, but I am not another man's conscience.

[HMS_Beagle]

right!?, like refusing to cater to a piano lesson (CP example); you are rejecting the person not the event. or refusing to take a picture in a strip club (you are always rejecting the people not the event).

Not sure what you point is. If in your normal business you've catered to piano lessons or photographed in strip clubs in the past then you are turning down the people, not the event.

In secular law there is no fundamental difference between a hetero wedding and a same-sex wedding. Legally they are equivalent in all aspects. AFAIK it's the application of secular law we're discussing here.

[phank]

right!?, like refusing to cater to a piano lesson (CP example); you are rejecting the person not the event. or refusing to take a picture in a strip club (you are always rejecting the people not the event).

I'm, assuming a bit of sarcasm here!

If I were a professional photographer with a squeamish stomach and someone wanted me to photograph an autopsy, I might flat refuse. So sue me! But if the law demands that I am required to photograph the autopsy, I could probably limit my business to strict portrait photography and that would be acceptable.

[phank]

In secular law there is no fundamental difference between a hetero wedding and a same-sex wedding. Legally they are equivalent in all aspects. AFAIK it's the application of secular law we're discussing here.

Yes. The question CP's quote raised was, under what circumstances (if any) should the free expression of religion be granted specific exceptions to secular law.

[HMS_Beagle]

I don't. It's something I gathered from reading about that particular case. Something about the baker not discriminating against gays, to whom he sold baked goods regularly, but rather his refusal to play any role in a gay marriage. He objected to the marriage, not the people. Even if I'm wrong about this, the question still stands as to whether event-specific exemptions make sense.

OK, thanks.

What do people here think about some sort of "same-sex marriage conscientious objector" exemption? One that could be applied for in specific cases instead of the hopelessly vague SB 1062 that allowed blanket discrimination.

Such a new law would undoubtably have its own problems with definitions and applicability but it might be a reasonable compromise.

[JimL]

Before the polite thread was closed due to lack of politeness, CP posted an interesting excerpt from LawCornell.edu, where the point was made that legal scholars and jurists are of the opinion that, in certain respects, the establisment clause of the First Amendment prohibits what the free expression clause following it requires. That there can be clear conflicts here.

The argument was made that, as a matter of secular law, anti-discrimination laws trump religious expression. And this was certainly true during the civil rights conflict, where free expression of religion was indeed used as an argument to support refusing to sell to negroes.

The problem with that, in the cases of our poster child baker, florist, and photographer, is that none of these people was refusing to serve gays! In fact, in the case of the florist, the gay man had been a long-time steady customer whose sexual orientation was known and not a problem. As far as I can tell, none of the discrimination in these cases was against any people at all. Instead, these merchants refused to serve the event of same-sex marriage, on the grounds of religious expression.

So the question is, does the free expression clause cover refusal to serve ONLY specific events, by someone freely willing to serve these people in any other respect (and presumably, to continue to serve them after the marriage, for example for a birthday party)? This is distinctly NOT discrimination on the grounds of sexual orientation. Should that make a difference?

I don't think that individuals conducting business in the public arena can decide for themselves who they can or cannot discriminate against. If we go down that path then, as an example, a cake maker, could decide that being gay itself is against his religion and therefore reserve for himself the right to refuse service to gays period, regardless of whether the cake was for a wedding or a birthday.

[HMS_Beagle]

I don't think that individuals conducting business in the public arena can decide for themselves who they can or cannot discriminate against. If we go down that path then, as an example, a cake maker, could decide that being gay itself is against his religion and therefore reserve for himself the right to refuse service to gays period, regardless of whether the cake was for a wedding or a birthday.

That was probably the main reason SB 1062 was vetoed. There was no oversight as to what one could claim as a "legitimate" religious objection. It was basically open season for discrimination on anyone you disliked for any reason as long as you said it was religiously motivated.

[phank]

I don't think that individuals conducting business in the public arena can decide for themselves who they can or cannot discriminate against. If we go down that path then, as an example, a cake maker, could decide that being gay itself is against his religion and therefore reserve for himself the right to refuse service to gays period, regardless of whether the cake was for a wedding or a birthday.

Yes, but the question is whether a law CAN allow specific exemptions. What I'm suggesting here is that the exemption be specific to something OTHER than the person himself. I would go so far as to suggest that each of these cases was constructed specifically for the purpose of being a test case, to test the law and to test public sentiment. It should be clear (and I've been trying to make it as clear as I can) that the discrimination cannot be against the individual per se, for any characteristic inherent in the individual. Once we get Christians refusing to serve Jews, who refuse to serve Muslims, we're out of control.

So we're really focusing here on whether it's sensible to have a religious "I don't do same-sex weddings" exemption is acceptable.