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First Amendment protects God-given moral agency


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1 hour ago, USU78 said:

So ... Driving others out of commerce is good, better or best, in your view?

I am pretty sure there are a lot of bakeries that do just fine not making wedding cakes.  And besides, it was the bakers choice to not sell wedding cakes.  He could have just quit discriminating and started treating people in a more Christ like manner.

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1 hour ago, USU78 said:

So ... Driving others out of commerce is good, better or best, in your view?

That was his choice.  And,  if he believed that he needed to choose between continuing to discriminate against some of his customer base vs. no longer baking wedding cakes, I think he made the wise decision.  He certainly could have continued baking wedding cakes and selling them to all of his customers. 

Edited by ALarson
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1 hour ago, USU78 said:

So ... Driving others out of commerce is good, better or best, in your view?

No one has driven this baker out of business.  He can choose to sell wedding cakes to "everyone" who wishes to buy his cakes or he can choose to be a bigot and not  bake or sell wedding cakes.  But he can't discriminate and sell cakes to only people of whom he personally approves, that is against the law. He chose to stop selling wedding cakes.

Note his religious freedoms are guaranteed by the constitution and have not been infringed upon in any of these situations.  He can continue to believe what so ever he wants to believe in, that has not changed and he can continue to speak out his opposition against marriage equality, whether he sells wedding cakes or not has no bearing on his freedom to exercise his religious beliefs.

Edited by Button Gwinnett
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24 minutes ago, Scott Lloyd said:

What's a Muslim ban?

 

I am not a Trump fan nor supporter of many of his positions, that said, it is not a Muslim ban, it is a ban of people from countries that have shown a tendency to ferment terrorist attacks against the United States of America and have governments who can not vet their traveling populations to the necessary standard required by the state department. That the populations of these countries are predominantly Muslin is immaterial. If terrorism came from predominantly Hindu countries that could not vet their populations, I think we would be seeing bans involving the populations of these countries as well.

Edited by Button Gwinnett
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8 hours ago, california boy said:

 

I think it is perfectly acceptable to start to question the tax exempt entitlement religion has decided it deserves when religion starts to assault people's right to not be discriminated against, which is also in the Constitution. 

 

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The Fifth and Fourteenth Amendments of the United States Constitution limit the power of the federal and state governments to discriminate. The private sector is not directly constrained by the Constitution.

https://finduslaw.com/us-constitution-5th-14th-amendments

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7 minutes ago, Button Gwinnett said:

I am not a Trump fan nor supporter, that said, it is not a Muslim ban it is a ban of people from countries that have shown a tendency to ferment terrorist attacks against the United States of America and have governments who can not vet their traveling populations to the necessary standard required by the state department. That the populations of these countries are predominantly Muslin is immaterial. If terrorism came from predominantly Hindu countries I think we would be seeing bans involving the populations of these countries.

Well stated.

I'm not a Trump fan either, but I don't like to see falsehood incessantly repeated to the point it is no longer scrutinized. The notion that there is a "Muslim ban" is an instance of that.

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Yet another photographer has lost the right to discriminate against gay couples

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A St. Cloud couple will not be able to refuse wedding videography services for same-sex couples after a federal judge on Wednesday dismissed their lawsuit challenging Minnesota’s human rights laws.

In a 63-page ruling, Chief U.S. District Judge John Tunheim wrote that a provision of the Minnesota Human Rights Act (MHRA) prohibiting discrimination by businesses was not unconstitutional. Tunheim rejected the couple’s argument that the law amounted to “a state effort to stamp out expression opposing same-sex marriage.”

Carl and Angel Larsen sued the state’s commissioner of human rights and attorney general in December in an pre-emptive effort to avoid penalties for turning away same-sex customers.

The Larsens, who use their Telescope Media Group to promote their Christian beliefs, want to go into the wedding film business, but serve only heterosexual couples.

Earlier this year, the Larsens asked Tunheim for a preliminary injunction shielding their business from potential penalties under the MHRA. On Wednesday, Tunheim sided with the state’s request that the suit be tossed.

In a statement Wednesday, Kevin Lindsey, the state’s commissioner of human rights, said the Larsens were unable to demonstrate any infringement of their First Amendment rights.

The Larsens have said that they want to post a notice on their website of their intent to deny services to same-sex couples.

On Wednesday, Tunheim described that as “conduct akin to a ‘White Applicants Only’ sign” that may be outlawed without infringing on First Amendment rights.

“Posting language on a website telling potential customers that a business will discriminate based on sexual orientation is part of the act of sexual orientation discrimination itself,” Tunheim wrote. “As conduct carried out through language, this act is not protected by the First Amendment.”

Tunheim concluded that the MHRA forbids discrimination in the basic terms of an agreement, such as charging a higher price or declining services based on sexual orientation.

The Larsens must offer services to couples of all sexual orientation, but Tunheim wrote that they are not required to publish each video online and he suggested that they could even post language on their site expressing opposition to same-sex marriage.

“The Larsens have an obvious, easy way to avoid hardship — the terms of their contracts are within their control, and state law does not compel them to contractually obligate themselves to post videos of same-sex weddings online,” Tunheim wrote Wednesday.

The Alliance Defending Freedom (ADF), a national conservative Christian legal group, has represented the couple. Jeremy Tedesco, an attorney for the Larsens, confirmed that the ADF planned to appeal to the Eighth U.S. Circuit Court of Appeals while also continuing to seek a preliminary injunction.

Tunheim disagreed with the Larsens’ claim that the MHRA would require all public accommodations offering “speech-for-hire” services to create work even if they disagreed with the message conveyed, concluding that the MHRA is content-neutral.

Tedesco, meanwhile, said Tunheim’s suggestion that the Larsens could publish a disclaimer on their site that they disagreed with same-sex marriage merely opens the door to government compelling people to say “whatever it wanted” while adding personal disclaimers.

“People can be for same-sex marriage and at the same time support our clients’ right to create films consistent with their beliefs about marriage,” Tedesco said. “When we allow the government to have the power to compel Carl and Angel Larsen to create and promote expression that violates their beliefs there is no limit on that power.”

The lawsuit was one of the first challenges since Minnesota legalized same-sex marriage in 2013 and since the U.S. Supreme Court ruled in 2015 that there is a fundamental right to marriage for all. Minnesota doesn’t compel religious organizations to perform same-sex weddings but does prohibit “individuals, nonprofits or secular business activities of religious entities” from denying wedding services.

The Larsens maintain that the state’s human rights law excludes them from the marketplace because they cannot “in good conscience” produce speech communicating the message that marriage is anything other than the union of one man and one woman.

The case has drawn parallels to an impending Supreme Court showdownthis fall involving a Colorado baker’s refusal to make a wedding cake for a same-sex couple in the Denver area. The ADF is also representing the baker, Jack Phillips.

On Wednesday, Minneapolis joined an amicus brief in the Supreme Court case. The city said that the brief, being prepared by lawyers in California, will support the Colorado Civil Rights Commission and point to “long-standing legal precedent that businesses cannot discriminate in public services or accommodations” regardless of religious beliefs.

A city spokesperson said the outcome of the Supreme Court showdown will likely have a significant effect on cities and counties nationwide that “seek to ensure that no members of their communities are subjected to discrimination on the basis of their sexual orientation or any other protected status.”

 

 

The bold is mine.  I hope this adds some clarity to this discussion.  To my knowledge I don't think a single one of these "right todiscriminate" cases have won in any court in the country.

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The ironic thing here is that now the LGBT rights movement wants to separate conduct and identity in terms of a protected class. I hear that the baker or photographer all have every right to hold their religious beliefs. But two years ago the arguments in Obergerfell relied heavily on the premise that identity could not be separated from conduct. The Supreme Court upheld that argument then. If it doesn't uphold it here, it opens the door to challenging Obergerfell. 

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16 hours ago, Rivers said:

I have a hard time believing that these loser nazi and white supremacist groups are a legitimate threat. Most people in the country think that they are completely bonkers. 

The real problem is the shutting down of free speech by cry babies that can't handle people voicing opposing opinions.

Loser Nazis and white supremacists murder people every year. Antifa, not so much.

White supremacist movements represent the #1 domestic terrorism threat in America.

Edited by Gray
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7 hours ago, Button Gwinnett said:

I am not a Trump fan nor supporter of many of his positions, that said, it is not a Muslim ban, it is a ban of people from countries that have shown a tendency to ferment terrorist attacks against the United States of America and have governments who can not vet their traveling populations to the necessary standard required by the state department. That the populations of these countries are predominantly Muslin is immaterial. If terrorism came from predominantly Hindu countries that could not vet their populations, I think we would be seeing bans involving the populations of these countries as well.

17 of the 19 terrorists on 9-11 were from Saudi Arabia.Trumps Muslim Ban didn't apply to them. Not one was from Iraq or Afghanistan. Trumps Muslim Ban applied to them.

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10 hours ago, Button Gwinnett said:

No one has driven this baker out of business.  He can choose to sell wedding cakes to "everyone" who wishes to buy his cakes or he can choose to be a bigot and not  bake or sell wedding cakes.  But he can't discriminate and sell cakes to only people of whom he personally approves, that is against the law. He chose to stop selling wedding cakes.

Note his religious freedoms are guaranteed by the constitution and have not been infringed upon in any of these situations.  He can continue to believe what so ever he wants to believe in, that has not changed and he can continue to speak out his opposition against marriage equality, whether he sells wedding cakes or not has no bearing on his freedom to exercise his religious beliefs.

That wouldn't make him a bigot, Mr. Gwinnett.

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Here's how I would solve the "cake conundrum" (and this solution applies to any other business owner who doesn't want his goods or services to be seen as supporting events or causes with which he disagrees).  Let me hasten to add here that nothing in my paradigm demands that I force others to accept it, even though I am a devout Latter-day Saint.  If you came to me asking that I bake a cake (or that I provide another good or service) to celebrate a wedding between gays or lesbians, I probably would agree to do so.  I would be interested in fomenting good will and in preventing ill will toward my business, and I'm too practical to lose business in such a case.

That said, don't want to sell a cake (or to provide another good or service) for a wedding between gays or lesbians because you feel that to do so would violate your deeply-held religious convictions?  Fine.  I would preserve your right of conscience to refuse.  But here's the first catch: I would still allow gays or lesbians refused business under such circumstances to sue.  But here's the second catch: I would limit recovery to the difference between what a refusing business owner would have charged and what an accepting business owner did charge, along with such related expenses as travel.  No more lawfare; no more using the courts as weapons to drive people out of business who fail to hew to the prevailing sociopolitical orthodoxy.  The refusing business owner's right of conscience is protected, and the customer is free to seek out another, willing provider.

To those who would protest that this regime is a step backward into the bad old days of the Jim Crow south, I would argue that isolated, episodic discrimination in fact is different in quality and kind than was the widespread, common discrimination de jure based on invidious criteria that the Fourteenth Amendment now prohibits, because (as well as for, perhaps, other reasons) (1) we're not talking about essential services such as, e.g., emergency medical treatment; and (2) in the overwhelming majority of cases, services which one business owner has refused to provide are readily available from another, willing provider.

Everyone gets what he wants, those suffering a wrong are compensated (but not over-compensated) proportional to the harm suffered, and business owners' conscience rights are protected.  And they all live happily ever after! :D 

Edited by Kenngo1969
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1 hour ago, Benjamin McGuire said:

Kenngo1969 - you seem to be suggesting that we simply start effectively taxing discrimination right? So when someone decides that selling wedding cakes to mixed racial couples is against their religious beliefs, they can pay a small fee and simply refuse to do it. And if someone doesn't want to cut the hair of a black kid, they can pay a small fee, and refuse, and so on. Where does it stop?

 

 

Thoughtful, articulate, reasoned and convincing.  (note I deleted your comments to conserve space but I agree with your entire post)

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9 hours ago, thesometimesaint said:

17 of the 19 terrorists on 9-11 were from Saudi Arabia.Trumps Muslim Ban didn't apply to them. Not one was from Iraq or Afghanistan. Trumps Muslim Ban applied to them.

Nor did we have the vetting requirements in place pre-2001.  The Saudi government is a trusted partner in the fight against terrorism and certainly capable of vetting its citizen to our required standards, whereas the countries on the ban list are not.  I believe that is the difference. [I can't believe I'm arguing in support of Trump's right to make this policy]

Edited by Button Gwinnett
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1 hour ago, Benjamin McGuire said:

Kenngo1969 - you seem to be suggesting that we simply start effectively taxing discrimination right? So when someone decides that selling wedding cakes to mixed racial couples is against their religious beliefs, they can pay a small fee and simply refuse to do it. And if someone doesn't want to cut the hair of a black kid, they can pay a small fee, and refuse, and so on. Where does it stop?

The problem is that this is not episodic. It is not narrow and limited. It is quite widespread. And for the idea that this is just present in the Jim Crow south, we might point out that the last state to remove it's laws against was Alabama who repealed its miscegenation law in 2000 (South Carolina did so in 1998), and when Alabama voters ratified the change, more than a half million voters voted against it (only 59% voted for repealing the law). These kinds of things are not limited in scope, and if you provide a relatively painless way to allow discrimination, then discrimination will happen. Especially since, in the specific example you cite, the easiest thing to do would be to make sure that your rates were simply never cheaper than your competitors - and so there would never even be a penalty for this kind of behavior. We do not want state approval of discrimination in any form ever. But that is exactly what you are proposing. And as you will see from the rest of my comments, what we do not want is to establish some sort of precedent where the claim of protection under the free exercise clause trumps everything else. In the end, this is no different from segregation (with the suggestion that while you can treat them differently, you should treat them equally). Equal, but different, is always a discriminatory idea. And it is an oxymoron in the sense that when you separate like that, it is never really equal.

Everyone will not get what they want, those who are in same-sex relationships will be treated like second-class citizens and will lose some of their freedoms because others will insist that their own closely held religious beliefs means that they should be allowed to freely discriminate. And do we really want this? Do we really want to be on the other side of this coin, as Mormons, who are discriminated against (for a fee of course) in our society?

The real question in this case (or at least the issue that it is likely to be decided on), has little to do with actual religious belief (at least as I see it). I would much rather have something said about what constitutes a burden on the practice of religion, since I find the idea that making a same-sex wedding cake as a burden on the practice of religion to be rather ludicrous on its face. At the same time, I find the question of making a doctor perform an abortion (who believes that abortions are equivalent to murder) to be a legitimate claim of a burden on the practice of religion. So I would like to see something about how the courts might distinguish between a real burden and something contrived to allow continued discrimination. I see nothing in the LDS faith, for example, that suggests that making a cake for a same-sex wedding would be sinful (for the cake maker), or that a parent of a child who is entering into a same-sex relationship would be in violation of their beliefs by being present and participating in the wedding. And of course, I see nothing in Christianity more generally that assigns some sort of guilt to this sort of thing either (which is why the appeal to the free exercise clause is forced to take the torturous route through free speech). I think that there would be benefit in the court clarifying what is meant by something becoming burdensome to the practice of religion.

On the other hand, in this case, what is being argued is that the free exercise clause is being violated through some sort of forced speech. The problem is that the courts have a long history of denying that the free exercise clause is being violated when the law is neutral. To use a better example (but one that is clearly related), if a cake-maker refused to make a wedding cake for a mixed race couple, it would be considered discriminatory whether or not the reason behind the refusal was a closely held religious belief, or if was some other belief (say the cake-maker was a white supremacist). In this case, the law would treat the cake maker the same whether they are refusing on a religious ground or because they had a hatred of gays for other reasons - and so the law is considered neutral over the question of the free exercise clause (and historically, SCOTUS has made the claim that a neutral law can create burden in any specific circumstance without violating the free exercise clause). Because of this, it is an upward battle to claim that there is real entanglement between the free practice clause and the notion of free speech in this case. And without that entanglement, the free speech claim is going to fail on its own (the free speech issue is what is used to try and show how making a cake could potentially be a burden to the practice of religion - and so violate the free practice clause).

Finally, the courts have pretty firmly established the idea that once same-sex marriage was recognized by SCOTUS, it creates a requirement that same-sex marriage be treated like all other marriages under the law - it cannot be treated differently, or separately. So in this case, we could substitute my earlier example of a mixed racial marriage and see if the arguments line up just as neatly, or look at how the court would look at one and understand how they would look at the other. And this is why (in getting back to kenngo1969) the issue of being different from the Jim Crowe era doesn't really establish the point you are trying to make.

Given all of this, I think (sadly) that we aren't likely to see the court provide us with additional clarity on the question of what actually constitutes a burden to the practice of religion. It is going to be decided over the fact that law itself is neutral to the question of religion, and so the question of whether or not the practice of religion in this instance is burdened by the requirement will be rather irrelevant to the outcome, and the cake maker will lose. And while the decision will be helpful moving forward, we will still require additional decisions to really flesh out some of the questions we still face.

I could be wrong of course. But this is my expectation.

And I think it will be the right decision.

Thank you for taking the time to thoughtfully write this out.  I think you have presented an accurate explanation on what this kind of discrimination is about.

I just wanted to comment on the paragraph I put in bold.  I agree with you on this as well.  I don't think that a doctor should be required to perform an abortion.  I do think the baker should be compelled to bake a cake for a gay couple.  So what is the difference?  Well the doctor is actually the one performing something that he feels is sinful.  The baker is not.  He is not asked to perform the wedding.  He is only baking a cake.  What it is used for should be of no concern of his.  His stewardship over that cake ends when it walks out the door of his store.  If someone wants to throw it at someone once it leaves his establishment, he has no liability for that.  If someone drops the cake on an overpass and by hitting the windshield of a car below causes an accident, he has no liability for that.  To think that he has some control over how any of his products is used after they leave the store is ludicrous.  I don't think anyone is suggesting that the baker be liable for anything that his cake is used for after it leaves the shop.  Yet some are suggesting that he should have that control.  

 

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16 hours ago, Button Gwinnett said:

I am not a Trump fan nor supporter of many of his positions, that said, it is not a Muslim ban, it is a ban of people from countries that have shown a tendency to ferment terrorist attacks against the United States of America and have governments who can not vet their traveling populations to the necessary standard required by the state department. That the populations of these countries are predominantly Muslin is immaterial. If terrorism came from predominantly Hindu countries that could not vet their populations, I think we would be seeing bans involving the populations of these countries as well.

https://www.csmonitor.com/USA/Politics/2017/0225/No-evidence-of-terrorist-threat-from-travel-ban-countries-says-DHS-draft-report

Quote

No evidence of terrorist threat from travel ban countries, says DHS draft report

A Department of Homeland Security draft report obtained by The Associated Press concludes that citizenship is an "unlikely indicator" of terrorism threats to the US. 

It's specifically engineered to ban only Muslims from those countries, though.

Edited by Gray
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2 hours ago, Button Gwinnett said:

Bigotry = "Intolerance toward those who hold different opinions from oneself" 

I'm not intolerant.  I simply disagree, strongly.  Obergefell v. Hodges is the law of the land, so anyone who wishes to enter into a same-sex union is legally welcome to do so, and I will not attempt to prevent it. I disagree with the majority in Obergefell v. Hodges, but that simple disagreement, standing alone, does not make me a bigot. Bigotry is utter contempt for viewpoints other than one's own.  If I were to use that disagreement as an excuse to disrupt (a) gay wedding(s) by screaming and holding a sign that says, "God hates fags!" a la members of the Westboro Baptist Church, that would make me a bigot. Accusations of bigotry do absolutely nothing to further dialogue.  Much of the time, they're simply intended to demonstrate, putatively, that anyone who disagrees with the position of the alleged illuminati on a given issue is nothing more than a knuckle-dragging Neanderthal.  I reject that accusation and its implications.

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Ben McGuire,

I'm not ignoring you.  The transmission on my car failed utterly and completely last night, so I have been trying: (a) to arrange service; (b) figure out how to get it to where it can be serviced (since Das auto ist vollstandig kaput); (c) to figure out how I was going to get to work this morning ... :rolleyes: 

More later.

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2 hours ago, Button Gwinnett said:

Nor did we have the vetting requirements in place pre-2001.  The Saudi government is a trusted partner in the fight against terrorism and certainly capable of vetting its citizen to our required standards, whereas the countries on the ban list are not.  I believe that is the difference. [I can't believe I'm arguing in support of Trump's right to make this policy]

The US supported the Saudi Wahhabi brand of Islam for many years.

SEE https://www.democraticunderground.com/1017310933

Donald J. Trump calls for the complete and total shutdown of Muslims entering the US.

https://video.search.yahoo.com/yhs/search;_ylt=AwrT6VqRR8VZMYUAeHMPxQt.;_ylu=X3oDMTByNWU4cGh1BGNvbG8DZ3ExBHBvcwMxBHZ0aWQDBHNlYwNzYw--?p=trump+total+and+comple+shudown+of+muslims+entering+our+country&fr=yhs-adk-adk_sbnt&hspart=adk&hsimp=yhs-adk_sbnt#id=1&vid=7388bc1534a6f2ef00a1dc97ef7c347d&action=view

Actually we've had vetting of Syrian refugees for a while.

SEE https://www.cbsnews.com/news/what-is-the-syrian-refugee-vetting-process/

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56 minutes ago, Kenngo1969 said:

I'm not intolerant.  I simply disagree, strongly.  Obergefell v. Hodges is the law of the land, so anyone who wishes to enter into a same-sex union is legally welcome to do so, and I will not attempt to prevent it. I disagree with the majority in Obergefell v. Hodges, but that simple disagreement, standing alone, does not make me a bigot. Bigotry is utter contempt for viewpoints other than one's own.  If I were to use that disagreement as an excuse to disrupt (a) gay wedding(s) by screaming and holding a sign that says, "God hates fags!" a la members of the Westboro Baptist Church, that would make me a bigot. Accusations of bigotry do absolutely nothing to further dialogue.  Much of the time, they're simply intended to demonstrate, putatively, that anyone who disagrees with the position of the alleged illuminati on a given issue is nothing more than a knuckle-dragging Neanderthal.  I reject that accusation and its implications.

When I used the term it was not directed at you.  However I do feel that the homophobic bias from this baker is a form of bigotry.

Edited by Button Gwinnett
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