Daniel2 Posted December 30, 2016 Author Posted December 30, 2016 (edited) 19 hours ago, Calm said: Daniel (sorry, lost track of who was talking).., So if a bakery stocks frosting used to write messages and do so for some messages on cakes like "happy birthday" or have even used the same words in different configurations, do you believe this means they are required to write any message at all using those same words, even if this changes the message into something offensive such as a vulgarity? A rainbow theme on a kid's birthday cake most likely means something different than a rainbow theme on the wedding cake of a gay couple (if there is doubt, easily clarified). Is the intended meaning of a symbol irrelevant in your view and only the actual symbol relevant? No, I don't believe a bakery that stocks frosting and writes customized messages on cakes legally can OR legally should be compelled to write whatever messages in frosting that a customer requests, if said bakery finds the messages offensive, vulgar, etc. That would be a violation of personal freedom of speech. Just like the T-Shirt-maker I posed about previously wasn't under any legal obligation to print "Gay Pride" T-Shirts at the request of customers. And yes, rainbows symbolize and mean different things to different people... But as I understand the law, if a business offers a product for sale to the general public (in this case, a rainbow cake), the business can't refuse to sell that product to an individual customer if the basis for doing would be discrimination against any of the protected classes (age, sex, race, religion, ability/disability, veteran's status, national origin, and in some states, sexual orientation). So, if I'm an Evangelical baker that sells cakes in the shape of a cross, and a customer comes in and tells me, "I'd like to order a cross cake for my daughter's First Communion," I CAN'T say "I'm an evangelical Christian, and because we don't respect the authority of the Pope, I don't sell cross cakes for Catholic communions. But I'd be happy to sell you any other type of cake for any event that isn't celebrating anything to do with Catholicim." I don't get to pick and choose who I'm selling my cakes to based on what they're going to use the cake for, if the reason for my withholding is on the basis of a protected class. At the end of the day, I would imagine that all of these questions and nuanced scenarios we're discussing would and should apply equally to religious objections to any of the protected classes. I honestly don't know how many of them have been previously answered when dealing with race or religion, for example... But MY main point is that I see no reason for sexual orientation to be treated ANY differently than ANY of the other protected classes. That is, if the law ultimately decides that it's OK for Masterpiece to discriminate against a same-sex marriage (on the basis of 'it's not discrimination, cuz it's an event, and the business well sell gays and lesbians products for any other reason"), then businesses should be able to likewise refuse service to ANY of the protected classes based on the "deeply-held religious beliefs" of business owners. That means that bakeries can refuse specific goods and services for events based on race, religion, age, sex, national origin, etc.... Interracial couple getting married? Sorry--no wedding cakes for them, if the owner objects. LDS missionary going on a mission? Sorry, I won't sell you any clothing or other supplies, because Mormonism is against my religion and I won't support the event of an LDS mission. Supplies for baptisms, communions, bar mitsvahs, weddings, temple sealings, missionary farewells, or any other religious 'events'? Nope, we don't sell goods or services for ANY of those, because those are all against our personal beliefs. What's good for the goose (allowing discriminating against 'gay' events/occasions/celebrations) is (and should be) good for the gander (allowing discriminating against 'religious' events, events specific to different national heritages, events of people of a certain age, events celebrating individuals of certain genders... ability status, etc.). Again: I see no reason for sexual orientation to be treated ANY differently than ANY of the other protected classes. And I've yet to see any reasonable, rational defense that sexual orientation SHOULD be treated differently. So, if public accommodations laws regarding sexual orientation TRULY are a violation of religious freedom, then in the name of religious freedom, I believe public accommodations laws protecting all the other classes are also a violation, and should be done away with. Smac, I feel like I owe you an apology. I know you've asked me to provide several things in some of your lengthier responses. I am still planning on doing so, but yesterday, I was using my phone and I hope you can appreciate that it's not easy to cut and paste and toggle back and forth between articles, cutting and pasting, as necessary. I had hoped to get to at least some of your responses today, but with the holiday, my workload isn't going to allow it, and over the weekend, I won't really be in front of a computer, though I will likely check the message board on my phone from time to time. I intend to respond as best I can and plan on doing so this coming Tuesday. My apologies for the wait. Happy New Year, everyone! Edited December 30, 2016 by Daniel2 1
Calm Posted December 30, 2016 Posted December 30, 2016 "And yes, rainbows symbolize and mean different things to different people... But as I understand the law, if a business offers a product for sale to the general public (in this case, a rainbow cake), the business can't refuse to sell that product to an individual customer if the basis for doing would be discrimination against any of the protected classes (age, sex, race, religion, ability/disability, veteran's status, national origin, and in some states, sexual orientation). So, if I'm an Evangelical baker that sells cakes in the shape of a cross, and a customer comes in and tells me, "I'd like to order a cross cake for my daughter's First Communion," I CAN'T say "I'm an evangelical Christian, and because we don't respect the authority of the Pope, I don't sell cross cakes for Catholic communions. But I'd be happy to sell you any other type of cake for any event that isn't celebrating anything to do with Catholicim." I don't get to pick and choose who I'm selling my cakes to based on what they're going to use the cake for, if the reason for my withholding is on the basis of a protected class." Seems to me you see the rainbow theme as part of the structure of the cake while I see it as the same as a written message. The cross cake is an interesting example. Does the message of the cake change significantly whether it is in the hands of a Catholic or an Evangelical or does it mean the same thing and the baker is simply in your case deciding who can say the message? I interpret it as the latter. I would see it as comparable to the baker refusing to put "Blessings on your wedding" on a cake for a gay couple, but doing so on a straight couple's cake. Same message for different people. A cake for a straight couple may be rainbow, but not intending to be a celebration of gay marriage while a cake that looks identical for a gay couple is. Different message, though identical in appearance symbol. If the gay couple insisted they only wanted the rainbow cake because they loved the coloring and were not making a statement about gay marriage, then imo it becomes the same as the straight couple's cake and the issue is not the specific message it is sending, but the fact the presence of a cake is meant as a symbol of celebration of the event. It may be a fine line, but legal arguments often follow those types of distinctions.
kllindley Posted January 8, 2017 Posted January 8, 2017 Maybe this deserves its own thread, but I think it falls squarely into the category of emerging skirmishes between religious liberty and LGBT rights. As I understand it, this is somewhat similar to and different from the bakery/photography cases. Different in that it doesn't concern freedom of speech as an issue. Similar that he hospital clearly distinguishes between providing health care to an LGBT individual and performing a specific procedure. https://www.google.com/amp/s/www.washingtonpost.com/amphtml/news/morning-mix/wp/2017/01/06/catholic-hospital-okd-his-hysterectomy-then-denied-him-because-he-was-transgender-suit-says/ Thoughts?
california boy Posted January 9, 2017 Posted January 9, 2017 If the Catholic hospital is totally funded by the Catholic church, then I think they should be allowed to discriminate against someone if they wish. If the Catholic hospital receives any federal funds with the condition that they do not discriminate against anyone, then they should not be allowed to discriminate. A church owned business should be treated a bit differently than a private or corporate owned business. Just my opinion. 1
Daniel2 Posted March 1, 2017 Author Posted March 1, 2017 (edited) I have been absent from my regular volume of contributions on the board lately for a variety of reasons in real life, but I have been keenly aware that this thread has several CFRs directed at me that have been left unanswered and pending. Specifically, Smac has asked me to provide legal evidence or precident that providing goods and services in the wedding industry (specifically, baking cakes, arranging flowers, or taking photographs of or for same-sex couples’ weddings) a) don’t fall under constitutionally-protected freedoms of speech, B) don’t fall under constitutionally-protected freedom of religion, and c) are accurately classified as discrimination based on a legally protected class, and business owners’ arguments that they aren’t discriminating against a class but merely on a “behavior” (in these cases, same-sex weddings) have been dismissed as without having compelling legal merit. Here are my answers, offering links to the two main and most-recent legal cases that provide the answers to the requested CFRs. This post will contain information on the first case, and a follow-up post will contain info the second: First, Elane Photography v. Willock. This is case out of New Mexico, ultimately decided at the State Supreme Court level . After four separate regional appeals, the Supreme Court of the United States decline to hear on it’s final appeal in 2014, thus leaving New Mexico’s State Supreme Court ruling to stand. Elane Photography attempted to suggest that her photography skills were tantamount to art which is covered under her First Amendment rights of freedom of speech, in keeping with her constitutionally-protected “deeply held religious beliefs.” The multiple rulings all reject these notions, and SCOTUS refused to rule otherwise. The rulings specifically say that business owners who choose to do business with the public must abide by the laws and regulations which govern businesses in the public square, and that public accommodation laws do not violate the First Amendment rights of business owners. First, a few links, followed by a quoted legal summary: The full and final ruling by New Mexico's State Supreme Court can be ready by clicking here. [EDITED to add: Oops... the Court's actually ruling is actually here. The previous link was to a Harvard Law Review article analyzing the ruling. Sorry for my mistake.] See Also: https://www.washingtonpost.com/politics/supreme-court-wont-review-new-mexico-gay-commitment-ceremony-photo-case/2014/04/07/f9246cb2-bc3a-11e3-9a05-c739f29ccb08_story.html?utm_term=.d243a05b4b7f http://www.scotusblog.com/case-files/cases/elane-photography-llc-v-willock/ http://www.slate.com/blogs/the_slatest/2014/04/07/elane_photography_scotus_declines_to_hear_appeal_in_new_mexico_case_involving.html Quote New Mexico Supreme Court: Wedding Photographer May Not Decline Business from Same-Sex Couple’s Commitment Ceremony State Court Docket Watch Article By Jordan Lorence January 31, 2014 TweetEmailLikePrint On August 22, the New Mexico Supreme Court handed down a noteworthy opinion in a case involving the First Amendment rights of business owners. In Elane Photography v. Willock,1 the court unanimously upheld a ruling against a small company, Elane Photography LLC, for declining to shoot a same-sex commitment ceremony due to the owners’ beliefs on marriage. The New Mexico Supreme Court rejected the photographer’s arguments that the company’s rights to freedom of speech and religious liberty under federal and state law protected it from being forced to produce images. I. Background Elane Photography LLC is a small photography business in Albuquerque operated by husband and wife, Jon and Elaine Huguenin. Elaine works as the photographer. She specializes in the “photojournalistic” style of wedding photography, in which the photographers take expressive or spontaneous shots during the wedding day in the manner that news photographers do. Many believe the photojournalistic approach to wedding photography better communicates the emotions, interpersonal dynamics and ideas of the day than the traditional set shots of the wedding party standing together, etc. Elane Photography advertises its artistic skills on its website. Vanessa Willock, a lesbian looking for a photographer to shoot her commitment ceremony to Misti Collingsworth, found the Elane Photography website, liked the examples of work that she saw, and then wrote an email inquiring whether Elaine would be “open to helping celebrate” her same-sex “commitment ceremony.” Upon receiving this email, Elaine wrote an email politely declining to shoot their ceremony. Elaine did not want to use her photographic skills to communicate the message that marriage can be defined as other than one man and one woman as this was contrary to Elaine and Jon’s beliefs. Two months later, Willock sent Elaine another email, asking whether Elane Photography offers its “services to same-sex couples.” Elaine responded that the Company does “not photograph same-sex weddings” and thanked Willock for her interest. Although Willock and her partner found another photographer at a lower price than what Elane Photography would have charged, Willock filed a complaint with the State, claiming Elane Photography violated the state public accommodations law by engaging in sexual orientation discrimination. The State found probable cause, and accordingly subjected Elane Photography to a one day trial before a hearing examiner. Based on the hearing examiner’s report, the New Mexico Commission on Human Rights found Elane Photography guilty of sexual orientation discrimination by a public accommodation, and ordered it to pay $6,637.94 in attorneys’ fees. Elane Photography appealed, and lost at both the state district court and the New Mexico Court of Appeals. The New Mexico Supreme Court granted review and heard oral arguments in March 2013. On August 22, 2013, the New Mexico Supreme Court unanimously ruled against Elane Photography. II. Decision A. Public Accommodation The New Mexico Supreme Court found that Elane Photography was a public accommodation subject to New Mexico’s Human Rights Act. By way of background, a public accommodation in general is a commercial enterprise that provides goods or services to the public. The New Mexico Human Rights Act prohibits “public accommodations” from discriminating against its customers based on “sexual orientation,” among other characteristics. Elane Photography did not appeal the issue of whether it was a “public accommodation” under state law to the New Mexico Supreme Court, but did appeal the issue of whether it had engaged in “sexual orientation” discrimination under New Mexico law. Elane argued that it turned down the request because of the ceremony’s message it would have to communicate via its photography, not the sexual orientation of the participants. Elane argued that it would photograph homosexuals in other contexts (e.g., shooting head shots for business advertising), but would not photograph stills of heterosexual actors depicting a same-sex wedding in a play. The high court disagreed, and upheld the lower court rulings that Elane had engaged in sexual orientation discrimination. The New Mexico Supreme Court then addressed the various free speech and religious liberty defenses Elane raised in the case. B. Compelled Speech Elane first argued that the public accommodations statute, as applied to this situation, violated the company’s First Amendment rights protecting it from compelled speech. The United States Supreme Court has ruled that the government may not force people to say the government’s own message, in West Virginia Board of Education v. Barnette2 (prohibiting public schools from forcing unwilling students to recite the Pledge of Allegiance) and Wooley v. Maynard3 (New Hampshire cannot fine drivers who cover the state motto, “Live Free or Die” on their auto license plates, because of their opposition to that message). Also, the U.S. Supreme Court has ruled that the First Amendment protects corporations from governmental compelled speech, even if the speech comes from private individuals and not the state actors.4 Elane Photography also relied on the Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557 (1995), in which a unanimous Supreme Court reversed the decision by the Massachusetts courts that found the privately-run Boston St. Patrick’s Day Parade in violation of the state public accommodation law for declining to allow a group with a pro-homosexual message to march in the parade. The Supreme Court ruled that the public accommodations law, as applied to the parade organizers, violated the First Amendment prohibition on compelled speech. Additionally, Elane Photography argued that it did more than convey a message on marriage that it disagreed with—it created the expression itself, which is a greater violation of the protection against compelled speech. The New Mexico Supreme Court carefully examined the compelled speech defense and rejected it. It ruled that this case is most like Rumsfeld v. FAIR,5 in which the Supreme Court upheld a federal law requiring universities receiving federal funding to allow military recruiters to come on campus to interview students interested in joining the military. The U.S. Supreme Court rejected the universities’ compelled speech claim. The New Mexico Supreme Court reasoned that state law merely required Elane Photography to offer the same services to all of its customers, the way the universities had to treat the military recruiters the same as all other recruiters, by providing them meeting space, sending out their meeting notices, etc. Like the schools in Rumsfeld, the New Mexico Supreme Court stated, the law here did not require Elane Photography to express support or opposition to any idea. This equal treatment requirement applies to businesses that create expression, the court ruled. “The reality is that because [Elane Photography] is a public accommodation, its provision of services can be regulated, even though those services include artistic and creative work,” the court stated. C. Religious Liberty Religious liberty provisions also provided no defense for the photography company, according to the New Mexico Supreme Court. The Huguenins are evangelical Christians, who believe that the Bible teaches that marriage can only be defined as one man and one woman. Because the Huguenins believe they must live in accord with Biblical teaching in order to please the Lord, they could not in good conscience use their work to promote an alternative definition of marriage. Elane Photography asserted protection under two religious liberty provisions—the First Amendment’s Free Exercise Clause, and the New Mexico Religious Freedom Restoration Act (“NMRFRA”), a state statute that grants great protection than the First Amendment’s Free Exercise Clause. The court rejected Elane’s defense under the Free Exercise Clause because the public accommodation law is a neutral law of general applicability, which means no Free Exercise protection exists under the U.S. Supreme Court’s decision in Employment Division v. Smith.6 Businesses generally must treat customers alike under the state public accommodations law. The New Mexico Religious Freedom Restoration Act provides much broader protection than the federal Free Exercise Clause, because it protects those with religious objections even against laws that are neutral on their face about religion and apply generally to all. That statute requires the government to justify infringements on religious liberty with a compelling state interest, implemented by the least restrictive means. However, Elane Photography could not benefit from the protections provided by the NMRFRA, the New Mexico Supreme Court ruled, because the statute applies only to legal actions in which the government was a party. Therefore, the statute did not to apply to this case, because Vanessa Willock, not the State of New Mexico, was Elane Photography’s opponent in court. The concurring opinion by Justice Bosson included a widely-reported discussion of the clash of rights in this case between the lesbian couple and the Huguenins’ efforts to live their lives consistent with their religious beliefs. Justice Bosson wrote that in the “more focused world of the marketplace . . . the Huguenins have to channel their conduct, not their beliefs, so as to leave space for other Americans who believe something different. That compromise is part of the glue that holds us together as a nation. . . . In short, I would say to the Huguenins, with utmost respect: it is the price of citizenship.”7 Alliance Defending Freedom, which has represented Elane Photography throughout this litigation, appealed the compelled speech claim to the U.S. Supreme Court. ADF expects the Supreme Court to decide whether to grant review of the case or not in late March 2014. Edited March 1, 2017 by Daniel2
Daniel2 Posted March 1, 2017 Author Posted March 1, 2017 (edited) The second case that I believe even MORE fully answers Smac’s CFRs is Ingersoll vs. Arlene’s Flowers, and it was actually only very recently decided. The final ruling by the Washing State Supreme Court was issued just a couple weeks ago on February 16, 2017. However, it’s likely that the Liberty Counsel (the law firm representing Arlene’s Flowers) will attempt to appeal it to the Supreme Court of the United States. It will be interesting to see whether or not SCOTUS will decide to hear it. A timeline can be found on the ACLU site, here, and the ruling can be found here. https://www.aclu-wa.org/cases/ingersoll-v-arlenes-flowers-0 I believe this case is even more applicable to Smac’s CFRs, because it made the decision on five issues, which are directly tied to the issues we were discussing, namely: Are the goods and/or services which incorporate cake baking, floral arranging, or photography by businesses serving the general public legally classified as ‘artistic expression’ protected by the First Amendment? Do public accommodation laws forcing business owners with deeply held anti-same-sex-marriage religious beliefs to provide goods and services to same-sex weddings violate said business owners’ constitutionally-protected free exercise of religion? Do public accommodation laws forcing business owners with deeply held anti-same-sex-marriage religious beliefs to provide goods and services to same-sex weddings violate said business owners’ constitutionally-protected freedom of speech? Is it a legally-compelling or accurate argument to claim that ‘Business owners aren’t discriminating based on sexual orientation if they are only discriminating against a behavior/event, since said business owners are willing to serve gays and lesbians goods and services that aren’t related to same-sex weddings’? The Ingersoll vs. Arlene’s Flowers decision clarifies and refines the above four points even more than the Elane Photography vs. Willcock case by delving deeper into the arguments as made by the plaintiff… And the Washington Supreme Court ruled against the business owner in each case… The ruling—which is even more worth reading that the previous, in my opinion, for those interested in how the law is examining so-called “religious liberty” as it relates to public discrimination—can be read by clicking here. https://www.nytimes.com/interactive/2017/02/16/us/document-ArlenesFlowersWSCopinion.html Here’s a few more informative links: https://www.nytimes.com/2017/02/16/us/florist-discrimination-gay-couple-washington-court.html?_r=0 https://www.aclu.org/cases/ingersoll-v-arlenes-flowers In sum, thus far, the four arguments I summarized above have not proven to be legally compelling. It will be interesting to see whether or not SCOTUS chooses to take up this or another similar case in the future to either affirm or overturn such rulings, or if they will simply continue to decline to hear them, as they've done in the past. Edited March 1, 2017 by Daniel2
Daniel2 Posted March 1, 2017 Author Posted March 1, 2017 On 12/29/2016 at 2:14 PM, smac97 said: If you want to have a substantive discussion, you actually have to . . . be familiar with the substance of the discussion. That involves reading. Study. Analysis. Efforts which you dismiss as "immaterial."... Thanks, -Smac Although the above post wasn't directed at me, you had issued several CFRs to me over the course of several pages. As previously requested, I offer the above two rulings and posts as my substantive responses, coupled with the reading, studying, and analysis that I put into them. Again, I'm sorry for the time it took for me to get back to you. Not only was there a lot of research to do, but events in real life kept me pretty occupied until now. I welcome your response after you've read the two court rulings above and my posts about them. Also, are there any aspects of your previous CFRs that you feel I have left unanswered? Thanks, Daniel 1
Daniel2 Posted March 9, 2017 Author Posted March 9, 2017 (edited) I wanted to get around to quoting directly from Washington State's Unanimous Supreme Court ruling upholding the constitutionality of public accommodation laws, including such law's refusal allow discrimination against same-sex weddings based on appeals to either constitutionally-protected religious liberty, freedom of speech, and a rejection of the arguement that baking cakes for same-sex weddings, arranging flowers for same-sex weddings, or photographing same-sex weddings fall under "protected 'artistic expression' or 'free speech'," because the rulings are VERY explicit in their language about such claims. Again, the link to the ruling can be found by clicking here: Ingersoll vs. Arlene’s Flowers (and this links allows cutting and pasting directly from the ruling, which is what I'll do). From pages 7-9: Quote PROCEDURAL HISTORY After the State became aware of Stutzman's refusal to sell flowers to Ingersoll and Freed, the Attorney General's Office sent Stutzman a letter. It sought her agreement to stop discriminating against customers on the basis of their sexual orientation and noted that doing so would prevent further formal action or costs against her. The letter asked her to sign an "Assurance of Discontinuance," which stated that she would no longer discriminate in the provision of wedding floral services. Stutzman refused to sign the letter. As a result, the State filed a complaint for injunctive and other relief under the CPA and WLAD against both Stutzman and Arlene's Flowers, in Benton County Superior Court on April 9, 2013. Stutzman filed an answer on May 16, 2013, asserting, among other defenses, that her refusal to furnish Ingersoll with wedding services was protected by the state and federal constitutions' free exercise, free speech, and freedom of association guaranties. Ingersoll and Freed filed a private lawsuit against Arlene's Flowers and Stutzman on April 18, 2013, which the trial court consolidated with the State's case on July 24, 2013. The parties filed various cross motions for summary judgment. The trial court ultimately entered judgment for the plaintiffs in both cases, awarding permanent injunctive relief, as well as monetary damages for Ingersoll and Freed to cover actual damages, attorneys' fees, and costs, and finding Stutzman personally liable. When it granted the plaintiffs' motions for summary judgment, the trial court made seven rulings that are at issue in this appeal. First, it issued two purely statutory rulings: ( 1) that Stutzman violated the WLAD' s public accommodations provision (RCW 49.60.215(1)) and the CPA (see RCW 19.86.020 and RCW 49.60.030) by refusing to sell floral services for same-sex weddings and (2) that both Stutzman (personally) and Arlene's Flowers (the corporate defendant) were liable for these violations. CP at 2566-600. Next, the court made five constitutional rulings. It concluded that the application of the WLAD's public accommodations provision to Stutzman in this case: (1) did not violate Stutzman's right to free speech under the First Amendment to the United States Constitution or article I, section 5 of the Washington Constitution, (2) did not violate Stutzman's right to religious free exercise under the First Amendment, (3) did not violate her right to free association under the First Amendment, (4) did not violate First Amendment protections under the hybrid rights doctrine, and (5) did not violate Stutzman's right to religious free exercise under article I, section 11 of the Washington Constitution. Edited March 9, 2017 by Daniel2 2
Daniel2 Posted March 9, 2017 Author Posted March 9, 2017 Regarding the claim that has been made in this and other threads that: Business owners aren’t discriminating based on sexual orientation if they are only discriminating against a behavior/event (such as a same-sex wedding), since said business owners are willing to serve gays and lesbians goods and services that aren’t related to same-sex weddings. The ruling explicitly rejects this argument and cites ample legal precedent for rejecting such claims. Specifically, "In accordance with this precedent, we reject Stutzman's proposed distinction between status and conduct fundamentally linked to that status." In other words, the vast majority of people getting married to a member of their same gender are gay or lesbian, to such an extent that the law considers that discrimination against a same-sex wedding is the same as discriminating against a gay or lesbian individual/s. Pages 13-16 detail the ample legal precedent and the court's finding (see below). A. By refusing to provide services for a same-sex wedding, Stutzman discriminated on the basis of "sexual orientation" under the WLAD Stutzman argues that the WLAD distinguishes between discrimination on the basis of "sexual orientation" - which the statute prohibits - and discrimination against those who marry members of the same sex. But numerous courts-including our own-have rejected this kind of status/conduct distinction in cases involving statutory and constitutional claims of discrimination. E.g., Hegwine v. Longview Fibre Co.) Inc., 162 Wn.2d 340, 349, 172 P.3d 688 (2007) ("under the plain language of the WLAD and its interpretative regulations, pregnancy related employment discrimination claims are matters of sex discrimination"); Elane Photography) LLC v. Willock, 2013-NMSC-040, 309 P.3d 53 (2013) (rejecting argument identical to Stutzman's, in context of New Mexico's Human Rights Act (NMHRA), N.M. STAT. ANN.§§ 28-1-1 to 28-1-13)3; Christian Legal Soc) y Chapter of Univ. of Cal. v. No. 91615-2 Martinez, 561 U.S. 661,672,688, 130 S. Ct. 2971, 177 L. Ed. 2d 838 (2010) (student organization was discriminating based on sexual orientation, not belief or conduct, when it excluded from membership any person who engaged in "'unrepentant homosexual conduct"'; thus, University's antidiscrimination policy did not violate First Amendment protections); see also Lawrence v. Texas, 539 U.S. 558, 575, 123 S. Ct. 24 72, 156 L. Ed. 2d 508 (2003) (by criminalizing conduct typically undertaken by gay people, a state discriminates against gay people in violation of protections under the Fourteenth Amendment to the federal constitution); Romer v. Evans, 517 U.S. 620, 641, 116 S. Ct. 1620, 134 L. Ed. 2d 855 (1996) (Scalia, J., dissenting) ("'After all, there can hardly be more palpable discrimination against a class than making the conduct that defines the class criminal.'" (quoting Padula v. Webster, 5SC738 (Colo. Apr. 25, 2016). No. 91615-2 261 U.S. App. D.C. 365, 371, 822 F.2d 97 (1987))); Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 270, 113 S. Ct. 753, 122 L. Ed. 2d 34 (1993) (summarizing that some conduct is so linked to a particular group of people that targeting it can readily be interpreted as an attempt to disfavor that group by stating that "[a] tax on wearing yarmulkes is a tax on Jews");4 Bob Jones Univ. v. United States, 461 U.S. 574,605, 103 S. Ct. 2017,76 L. Ed. 2d 157 (1983) ("discrimination on the basis of racial affiliation and association is a form of racial discrimination").5 Finally, last year, the Supreme Court likened the denial of marriage equality to same sex couples itself to discrimination, noting that such denial "works a grave and continuing harm," and is a "disability on gays and lesbians [that] serves to disrespect and subordinate them." Obergefell v. Hodges,_ U.S. _, 135 S. Ct. 2584, 2604, 2607-08, 192 L. Ed. 2d 609 (2015) (fundamental right to marry includes same-sex couples and is protected by due process and equal protection clauses of Fourteenth Amendment; abrogating the equal protection and due process holdings in Andersen v. King County, 158 Wn.2d 1, 30, 138 P.3d 963 (2006) (plurality opinion) to the contrary).6 In accordance with this precedent, we reject Stutzman's proposed distinction between status and conduct fundamentally linked to that status. This is consistent with the language of the WLAD itself, which, as respondents observe, states that it is to be construed liberally, RCW 49.60.020; that all people, regardless of sexual orientation are to have ''full enjoyment of any of the accommodations, advantages, facilities, or privileges" of any place of public accommodation, RCW 49.60.030 (emphasis added); and that all discriminatory acts, including any act "which directly or indirectly results in any distinction, restriction, or discrimination" based on a person's sexual orientation is an unfair practice in violation of the WLAD, RCW 49.60.215 (emphasis added). _____________________________ Footnotes: 2 Stutzman also argues that by compelling her to furnish flowers for a same-sex marriage ceremony, the State "endorses" same-sex marriages and also requires her to "endorse" them. Br. of Appellants at 18. She claims that this conflicts with the WLAD provision stating that "[t]his chapter shall not be construed to endorse any specific belief, practice, behavior, or orientation." RCW 49.60.020. But tutzman cites no legal authority for this interpretation of the term "endorse" in the WLAD. 3 In Elane Photography, the New Mexico Supreme Court addressed the question of whether a wedding photographer discriminated against a lesbian couple on the basis of their sexual orientation by refusing to photograph their wedding under a state public accommodations law similar to Washington's WLAD. 309 P.3d 53. The proprietor of Elane Photography argued, much like Stutzman here, that she was not discriminating against Willock and her fiancee based on their sexual orientation, but rather was choosing not to "endorse" same-sex marriage by photographing one in conflict with her religious beliefs. !d. at 61. The court rejected Elane Photography's attempt to distinguish status from conduct, finding that "[t]o allow discrimination based on conduct so closely correlated with sexual orientation would severely undermine the purpose of the NMHRA." Elane Photography was represented on appeal by the same organization-Alliance Defending Freedom-that represents Stutzman before this court. at 58; see also Mullins v. Masterpiece Cakeshop, Inc., 2015 COA 115, ~~ 1-2, 370 P.3d 272 (2015) (holding that baker's refusal to make wedding cake for same-sex marriage violated public accommodations provision of state Anti-Discrimination Act (Co. REV. STAT. §§ 24-34-401 to 24-34-406) and rejecting free speech and free exercise defenses), cert. denied, No. 4 Stutzman argues that Bray actually supports her position because the Bray Court rejected the argument that a group's antiabortion protests outside clinics reflected an '"invidiously discriminatory animus"' towards women in general. 506 U.S. at 269 (quoting Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S. Ct. 1790, 29 L. Ed. 2d 338 (1971)); Reply Br. of Appellants at 3 9. This is related to her argument in the opening brief that because she generally lacks animus towards gay people, and because her refusal to provide service to Mr. Ingersoll was motivated by religious beliefs, she cannot be said to have discriminated "because of' sexual orientation as required by the WLAD. See Br. of Appellants at 19-21. From Bray, Stutzman concludes that her decision to decline Mr. Ingersoll's "artistic commission" was acceptable because it was "reasonable" and she bore "no underlying animus" towards gay people in general. Reply Br. of Appellants at 40. However, Bray dealt with a question of statutory interpretation of 42 U.S.C. § 1985(3), which has been interpreted to require a showing of animus. See Bray, 506 U.S. at 267-68; Griffin, 403 U.S. at 102. In contrast, we have already addressed this question of an animus requirement with regards to the WLAD and have held that it contains no such requirement (see discussion below). 5 See also Blackburn v. Dep't of Social & Health Servs., 186 Wn.2d 250, 258-59, 3 7 5 P .3d 107 6 (20 16) (discrimination on basis of race occurs even where racially motivated staffing decision might have been based on benign reason). 6 In response to the authority cited here, Stutzman cites two cases for the proposition that other courts have drawn a distinction between conduct and status. See Reply Br. of Appellants at 36-37. She draws our attention to two trial court decisions from Kentucky and Virginia. ld.
Daniel2 Posted March 10, 2017 Author Posted March 10, 2017 Freedom of Speech & Is Creating a Good/Service a form of "Artistic Expression" which falls under Constitutionally Protected Freedom of Speech? Regarding the claim that has been made in this and other threads Do public accommodation laws forcing business owners with deeply held anti-same-sex-marriage religious beliefs to provide goods and services to same-sex weddings violate said business owners’ constitutionally-protected freedom of speech? Are the goods and/or services which incorporate cake baking, floral arranging, or photography documenting a wedding or family portraits by wedding businesses serving the general public legally classified as ‘artistic expression’ protected by the First Amendment? Are such creations legally held to be "inherently expressive"? Again, the rulings and legal precedent demonstrate that such claims do not have legal merit. This one is longer--spanning 10 pages, 23-33--but I have quoted it (and fixed formatting errors by posting it here), because I think it's important to understand the seriousness and level of scrutiny the court gives to weighing the very serious charge that public accommodation laws requiring business owners to sell their goods and services to all members of the public, especially in consideration of discriminating against a protected class, potentially violate business owners' constitutionally-protected freedom of speech. In particular, it draws a distinction between "expressive conduct" that has been ruled to be "constitutionally-protected free speech" (i.e. flag burning) vs. the allegedly (but not legally-compelling) 'expressive conduct' of business owners refusing goods and services who are bound by public accommodation law: (Note: the colored, underlined and bolded text are my highlights) II. Stutzman Fails To Show That the WLAD, as Applied in This Case,Violates Her State or Federal Constitutional Right to Free Speech As noted above, Stutzman raises five constitutional challenges to the WLAD as applied to her. She is correct that if the State statute violated a constitutional right, the constitutional right would certainly prevail. U.S. CONST. art. VI, cl. 2 (federal constitutional supremacy); Davis v. Cox, 183 Wn.2d 269, 294-95, 351 P.3d 862 (2015) (state constitutional provision prevails over state statute to the contrary). We therefore analyze each of Stutzman's constitutional defenses carefully. The first of these defenses is a free speech challenge: Stutzman contends that her floral arrangements are artistic expressions protected by the state and federal constitutions and that the WLAD impermissibly compels her to speak in favor of same-sex marriage. A. As applied to Stutzman in this case, the WLAD does not violate First Amendment speech protections "Free speech is revered as the 'Constitution's most majestic guarantee,' central to the preservation of all other rights." Pub. Disclosure Comm 'n v. 119 Vote No! Comm., 135 Wn.2d 618, 624, 957 P.2d 691 (1998) (plurality opinion) (quoting Nelson v. McClatchy Newspapers, Inc., 131 Wn.2d 523, 536,936 P.2d 1123 (1997)). "The government may not prohibit the dissemination of ideas that it disfavors, nor compel the endorsement of ideas that it approves." Knox v. Serv. Emps. Int'l Union, LocallOOO, _U.S._, 132 S. Ct. 2277, 2288, 183 L. Ed. 2d 281 (2012). Indeed, the First Amendment protects even hate speech, provided it is not "fighting words" or a "'true threat."' Virginia v. Black, 538 U.S. 343, 359, 123 S. Ct. 1536, 155 L. Ed. 2d 535 (2003) (quoting Watts v. United States, 394 U.S. 705, 708, 89 S. Ct. 1399, 22 L. Ed. 2d 664 (1969) (per curiam). Stutzman argues that the WLAD, as applied to her in this case, violates First Amendment protections against "compelled speech" because it forces her to endorse same-sex marriage. Br. of Appellants at 24-31. To succeed in this argument, she must first demonstrate that the conduct at issue here-her commercial sale of floral wedding arrangements-amounts to "expression" protected by the First Amendment. Clarkv. Cmty.for Creative Non-Violence, 468 U.S. 288,293 n.5, 104 S. Ct. 3065, 82 L. Ed. 2d 221 (1984) ("t is the obligation ofthe person desiring to engage in assertedly expressive conduct to demonstrate that the First Amendment even applies. To hold otherwise would be to create a rule that all conduct is presumptively expressive.") She fails to meet this burden. The First Amendment's plain terms protect "speech," not conduct. U.S. CONST. amend. I ("Congress shall make no law ... abridging the freedom of speech."). But the line between speech and conduct in this context is not always clear. Stutzman contends that her floral arrangements are "speech" for purposes of First Amendment protections because they involve her artistic decisions. Br. of Appellants at 24. Relying on the dictionary definition of "art," as well as expert testimony regarding her creativity and expressive style, she argues for a broad reading of protected speech that encompasses her "unique expression," crafted in "petal, leaf, and loam." !d. at 25-26. Ingersoll and the State counter that Stutzman's arrangements are simply one facet of conduct-selling goods and services for weddings in the commercial marketplace-that does not implicate First Amendment protections at all. We agree that the regulated activity at issue in this case-Stutzman's sale of wedding floral arrangements-is not "speech" in a literal sense and is thus properly characterized as conduct. But that does not end our inquiry. The Supreme Court has protected conduct as speech if two conditions are met: "[(1)] [a]n intent to convey a particularized message was present, and [(2)] in the surrounding circumstances the likelihood was great that the message would be understood by those who viewed it." Spence v. Washington, 418 U.S. 405,410-11,94 S. Ct. 2727, 41 L. Ed. 2d 842 (1974) (per curiam). Recent cases have characterized this as an inquiry into whether the conduct at issue was "inherently expressive." Rumsfeld v. Forum for Acad. & Institutional Rights, Inc. (FAIR), 547 U.S. 47, 64, 126 S. Ct. 1297, 164 L. Ed. 2d 156 (2006). Stutzman's floral arrangements do not meet this definition. Certainly, she argues that she intends to communicate a message through her floral arrangements. But the major contest is over whether Stutzman's intended communications actually communicated something to the public at large-whether her conduct was "inherently expressive." Spence, 418 U.S. at 410-11; FAIR, 547 U.S. at 64. And her actions in creating floral arrangements for wedding ceremonies do not satisfy this standard. The leading case on the "inherently expressive" standard is FAIR. The plaintiffs in FAIR-an association of law schools and faculty members-challenged the constitutionality of a law that required higher education institutions to provide military recruiters on campus with access to facilities and students that was at least equivalent to that of the most favorably treated nonmilitary recruiter. 547 U.S. at 52, 55. The FAIR Court ruled that the law schools' conduct in denying military recruiters most-favorable-recruiter access to students was not protected by the First Amendment because it was not "inherently expressive." Id. at 66. It explained that additional speech would be required for an outside observer to understand that the schools' reason for denying military recruiters favorable access was to protest the military's "Don't Ask, Don't Tell" policy. Id. Stutzman's refusal is analogous. The decision to either provide or refuse to provide flowers for a wedding does not inherently express a message about that wedding. As Stutzman acknowledged at deposition, providing flowers for a wedding between Muslims would not necessarily constitute an endorsement of Islam, nor would providing flowers for an atheist couple endorse atheism. Stutzman also testified that she has previously declined wedding business on "[m]ajor holidays, when we don't have the staff or if they want particular flowers that we can't get in the time frame they need." CP at 120. Accordingly, an outside observer may be left to wonder whether a wedding was declined for one of at least three reasons: a religious objection, insufficient staff, or insufficient stock. Stutzman argues that FAIR is inapposite and that we should instead apply Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557, 115 S. Ct. 2338, 132 L. Ed. 2d 487 (1995). Hurley held that a state antidiscrimination law could not be applied so as to require a private parade to include marchers displaying a gay pride message. Id. at 568. Stutzman claims Hurley recognizes her First Amendment right "to exclude a message [she] did not like from the communication [she] chose to make." Reply Br. of Appellants at 11 (citing Hurley, 515 U.S. at 574).10 Hurley is similar to this case m one respect: it involved a public accommodations law like the WLAD.II But the Massachusetts trial court had ruled that the parade itself was a place of public accommodation under state antidiscrimination law-a ruling that the Supreme Court called "peculiar." 515 U.S. at 561-62, 573. The Court noted that the parade's "inherent expressiveness" distinguished it from the places traditionally subject to public accommodations laws-places that provide "publicly available goods, privileges, and services." Id. at 568-72. Hurley is therefore unavailing to Stutzman: her store is the kind of public accommodation that has traditionally been subject to antidiscrimination laws. See Elane Photography, 309 P.3d at 68 (rejecting photographer's reliance on Hurley because state antidiscrimination law applies not to defendant's photographs but to "its business decision not to offer its services to protected classes of people"; concluding that "[w]hile photography may be expressive, the operation of a photography business is not"). 12 United States Supreme Court decisions that accord free speech protections to onduct under the First Amendment have all dealt with conduct that is clearly expressive, in and of itself, without further explanation. See Hurley, 515 U.S. at 568 (parades); United States v. Eichman, 496 U.S. 310, 110 S. Ct. 2404, 110 L. Ed. 2d 287 (1990) (burning the American flag); Texas v. Johnson, 491 U.S. 397, 109 S. Ct. 2533, 105 L. Ed. 2d 342 (1989) (burning the American flag); United States v. Grace, 461 U.S. 171, 103 S. Ct. 1702, 75 L. Ed. 2d 736 (1983) (distributing leaflets outside Supreme Court building in violation of federal statute); Nat'! Socialist Party of Am. v. Vill. ofSkokie, 432 U.S. 43, 43,97 S. Ct. 2205, 53 L. Ed. 2d 96 (1977) (per curiam) ("[m]arching, walking, or parading" while wearing Nazi uniforms); Smith v. Goguen, 415 U.S. 566, 588, 94 S. Ct. 1242, 39 L. Ed. 2d 605 (1974) (White, J., concurring in judgment) (treating flag "'contemptuously"' by wearing a small American flag sewn into the seat of one's pants); Wooley v. Maynard, 430 U.S. 705, 97 S. Ct. 1428, 51 L. Ed. 2d 752 (1977) (state motto on license plates); Spence, 418 U.S. 405 (displaying American flag upside down on private property with peace sign superimposed on it to express feelings about Cambodian invasion and Kent State University shootings); Cohen v. California, 403 U.S. 15, 26, 91 S. Ct. 1780, 29 L. Ed. 2d 284 (1971) (wearing jacket emblazoned with the words "'F--k the Draft"'); Schacht v. United States, 398 U.S. 58, 90 S. Ct. 1555, 26 L. Ed. 2d 44 (1970) (wearing army uniform in short play criticizing United States involvement in Vietnam, inasmuch as it does not tend to discredit the armed forces); Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 505, 89 S. Ct. 733, 21 L. Ed. 2d 731 (1969) (wearing black armbands to protest Vietnam conflict); Brown v. Louisiana, 383 U.S. 131, 141-42,86 S. Ct. 719, 15 L. Ed. 2d 637 (1966) (sit-in to protest "whites only" area in public library during civil rights struggle); Cox v. Louisiana, 379 U.S. 536, 552, 85 S. Ct. 453, 13 L. Ed. 2d 471 (1965) (giving speech and leading group of protesters in song and prayer in opposition to segregation); Edwards v. South Carolina, 372 U.S. 229, 83 S. Ct. 680, 9 L. Ed. 2d 697 (1963) (peaceful march on sidewalk around State House grounds in protest of discrimination); W. Va. State Bd. ofEduc. v. Barnette, 319 U.S. 624,63 S. Ct. 1178,87 L. Ed. 1628 (1943) (refusing to salute the American flag while saying pledge of allegiance); Stromberg v. California, 283 U.S. 359, 51 S. Ct. 532, 75 L. Ed. 1117 (1931) (peaceful display of red flag as a sign of opposition to organized government). Stutzman's conduct hether it is characterized as creating floral arrangements, providing floral arrangement services for opposite-sex weddings, or denying those services for same-sex weddings-. is not like the inherently expressive activities at issue in these cases. Instead, it is like the unprotected conduct in FAIR, 54 7 U.S. at 66. 13 Finally, Stutzman asserts that even if her case doesn't fall neatly within the contours of these prior holdings, we should nevertheless place her floral artistry within a new, narrow protection. The "narrow" exception she requests would apply to "businesses, such as newspapers, publicists, speechwriters, photographers, and other artists, that create expression" as opposed to gift items, raw products, or prearranged [items]." Reply Br. of Appellants at 45. In her case, she proposes that she would be willing to sell Mr. Ingersoll "uncut flowers and premade arrangements." !d. at 46. But, as amicus Americans United for Separation of Church and State (Americans United) points out, Stutzman's rule would create a "two-tiered system" that carves out an enormous hole from public accommodations laws: under such a system, a "dime-store lunch counter would be required to serve interracial couples but an upscale bistro could turn them away." Br. of Amicus Curiae Ams. United in Supp. of Resp'ts at 13. Indeed, the New Mexico Supreme Court also grappled with this question, ultimately finding that "[ c ]ourts cannot be in the business of deciding which businesses are sufficiently artistic to warrant exemptions from antidiscrimination laws," and noting that this concern was hardly hypothetical in light of the proliferation of cases requesting exceptions for "florists, bakeries, and other wedding vendors" who refused to serve gay couples. Elane Photography, 309 P.3d at 71. Because Stutzman's sale of floral arrangements is not expressive conduct protected by the First Amendment, we affirm the trial court and hold that the WLAD does not violate free speech protections as applied to Stutzman in this case. ____________________ Footnotes: 9 To the extent Stutzman argues that her religious free exercise rights supersede Ingersoll's and Freed's statutory protections, we address that argument in the constitutional analyses [that follows in the body of the ruling after this footnote]. IO Stutzman relies on Redgrave v. Boston Symphony Orchestra, 855 F.2d 888 (1st Cir. 1988), in which the Boston Symphony (BSO) refused to perform with Vanessa Red grave in light of her support of the Palestine Liberation Organization. Redgrave sued the BSO for breach of contract and consequential damages in federal court. Redgrave v. Boston Symphony Orchestra, Inc., 602 F. Supp. 1189 (D. Mass. 1985), affirming judgment in part, vacated in part, 855 F.2d 888 (1st Cir. 1988). The First Amendment issue in that case arose from the district court's concern that Red grave's novel theory of consequential damages was sufficiently related to defamation cases so as to implicate First Amendment concerns. at 1201. However, as the attorney general here notes, the First Circuit resolved that case on statutory interpretation of the Massachusetts Civil Rights Act, MASS. GEN. LAWS, ch. 12, §§ 11H~11J, not on First Amendment grounds. Att'y Gen.'s Resp. Br. at 26. In fact, the court ultimately chose to "decline to reach the federal constitutional issues," given the complex interaction between First Amendment doctrine and state law, and saw "no need to discuss the existence or content of a First Amendment right not to perform an artistic endeavor." 855 F.2d at 911. Accordingly, Stutzman's references are, at best, out~of~circuit dicta. II Stutzman cites both Hurley and Boy Scouts of America v. Dale, 530 U.S. 640, 657, 120 S. Ct. 2446, 147 L. Ed. 2d 554 (2000), as examples of cases in which the Supreme Court vindicated First Amendment rights over state antidiscrimination public accommodations laws. In fact, both cases involved state courts applying public accommodations laws in unusually expansive ways, such that an individual, private, expressive association of people fell under the law. Dale, 530 U.S. at 657 (New Jersey Court "went a step further" from an already "extremely broad" public accommodations law in applying it "to a private entity without even attempting to tie the term 'place' to a physical location"); Hurley, 515 U.S. at 572 (noting that Massachusetts trial court applied a public accommodations law "in a peculiar way" to encompass a privately sponsored parade). This case is distinguishable because Arlene's Flowers is a paradigmatic public accommodation. 12 The Supreme Court has drawn this distinction between expressive conduct and commercial activity in the context of First Amendment freedom of association claims, and likewise rejected the notion that the First Amendment precludes enforcement of antidiscrimination public accommodations laws in that context as well. E.g., Dale, 530 U.S. at 657 (distinguishing between "clearly commercial entities" and "membership organizations" in cases involving the intersection between state public accommodations laws and First Amendment rights); Roberts v. US. Jaycees, 468 U.S. 609, 627, 104 S. Ct. 3244, 82 L. Ed. 2d 462 (1984) (finding that even private membership organizations may be regulated by public accommodations laws where such regulations will not impair its ability "to disseminate its preferred views" and holding that there was no such impairment where young men's social organization was required to accept women members). 13 Stutzman and amici point to a handful of cases protecting various forms of art and some of them do seem to provide surface support for their argument. See Br. of Appellants at 6-7; Mot. for Leave to File Br. & Br. for Cato lnst. as Amicus Curiae in Supp. of Appellants (Cato) at 7 (citing Wardv. Rock Against Racism, 491 U.S. 781,790-91, 109 S. Ct. 2746, 105 L. Ed. 2d 661 (1989) (music without words); Se. Promotions, Ltd. v. Conrad, 420 U.S. 546, 557-58, 95 S. Ct. 1239, 43 L. Ed. 2d 448 (1975) (theater); Anderson v. City of Hermosa Beach, 621 F.3d 1051, 1060 (9th Cir. 2010) (tattooing); Piarowski v. Ill. Cmty. Coil. Dist. 515, 759 F.2d 625, 627-28 (7th Cir. 1985) (stained glass windows on display in an art gallery at a junior college)). But, on closer examination, those cases do not expand the definition of "expressive conduct." For example, Piarowski held that stained glass windows were protected in the context of a college's demands that the artist move some of his pieces from a gallery to an alternate location on campus because they were objected to as "sexually explicit and racially offensive." 759 F.2d at 632. And the Anderson court reached its finding that tattoos receive First Amendment protections by pointing out that they "are generally composed of words, realistic or abstract images, symbols, or a combination of these, all of which are forms of pure expression that are entitled to full First Amendment protection." 621 F.3d at 1061. Stutzman's floral arrangements do not implicate any similar concerns.
kllindley Posted March 10, 2017 Posted March 10, 2017 Daniel, I see from these rulings that at least according to the New Mexico and Washington courts, these acts are not considered speech or given religious protections. These courts do interpret the law to mean that neither freedom of speech nor of religion are relevant to objections to anti-discrimination laws. The fact that this is so clearly stated in these opinions is proof to me that the General Authorities are fully justified in warning members that freedom of religion is under assault. I'm shocked by how casually and matter of factly they dismiss religious belief. And to think that some members still doubt the Brethren! 1
Gray Posted March 10, 2017 Posted March 10, 2017 (edited) 13 hours ago, kllindley said: Daniel, I see from these rulings that at least according to the New Mexico and Washington courts, these acts are not considered speech or given religious protections. These courts do interpret the law to mean that neither freedom of speech nor of religion are relevant to objections to anti-discrimination laws. The fact that this is so clearly stated in these opinions is proof to me that the General Authorities are fully justified in warning members that freedom of religion is under assault. I'm shocked by how casually and matter of factly they dismiss religious belief. And to think that some members still doubt the Brethren! These court decisions protect precious freedoms. I don't wish to be discriminated when I shop because of my religion or anything else about me. There is, however, a clear and present threat to religious freedoms of Muslims right now. Edited March 10, 2017 by Gray
Daniel2 Posted March 10, 2017 Author Posted March 10, 2017 3 hours ago, Gray said: These court decisions protect precious freedoms. I don't wish to be discriminated when I shop because of my religion or anything else about me. There is, however, a clear and present threat to religious freedom coming from the executive branch right now, aimed at Muslims. Jewish Americans are also experiencing it as well, from the emboldened alt right. Hi, Gray, Thanks for the comments... but please, let's keep the politics of the current administration out of this thread so it doesn't get shut down for being political. I'd like to keep it focused on religious freedoms and how Mormonism interprets religious freedom to stay on topic and within board guidelines. I have more to share and will do so tomorrow. Daniel
Gray Posted March 10, 2017 Posted March 10, 2017 9 hours ago, Daniel2 said: Hi, Gray, Thanks for the comments... but please, let's keep the politics of the current administration out of this thread so it doesn't get shut down for being political. I'd like to keep it focused on religious freedoms and how Mormonism interprets religious freedom to stay on topic and within board guidelines. I have more to share and will do so tomorrow. Daniel Thanks Daniel, I edited my comment to be less political 1
Daniel2 Posted March 10, 2017 Author Posted March 10, 2017 (edited) 16 hours ago, kllindley said: Daniel, I see from these rulings that at least according to the New Mexico and Washington courts, these acts are not considered speech or given religious protections. These courts do interpret the law to mean that neither freedom of speech nor of religion are relevant to objections to anti-discrimination laws. The fact that this is so clearly stated in these opinions is proof to me that the General Authorities are fully justified in warning members that freedom of religion is under assault. I'm shocked by how casually and matter of factly they dismiss religious belief. And to think that some members still doubt the Brethren! Hi, Kllindley, Thanks for your post. While I agree with you that it's clear that "at least according to" "these [two] courts," this issue is settled, it's ALSO worth noting that the Supreme Court declined to hear the appeal of the ruling by the New Mexico Supreme Court, and chose not to get involved further, thus letting that ruling stand. Of course, we don't yet know whether or not they'll agree to hear the appeal of the Washington Supreme Court's ruling, but given that both rulings were unanimous in favor of the plaintiffs, SCOTUS is likely to reject that appeal, as well (given that SCOTUS usually doesn't get involved until there's a plurality of rulings in the appeals courts--that is, that there are rulings which disagree with and/or contradict one other). In the meantime, the growing number of rulings by different judges and appeals courts upholding the constitutionality of public accommodation laws prohibiting using religion as justification for withholding goods and services establishes increasing legal precedent that SCOTUS will likely consider, if it ever does choose to weigh in on the matter. That being said, I'd like to understand the rest of your position better, because I'm always a little unclear when people express opinions like those you've shared above. 1. Do you believe our government should interpret "religious freedom" as allowing business owners the ability to withhold goods and services on the basis of religious objections if they disapprove of ANY their customer's beliefs and/or actions, regardless of any of the federally-protected classes? That is, regardless of: Race Color Religion or creed National origin or ancestry Sex Age Physical or mental disability Veteran status...? Said differently: 2. Do you believe that "religious freedom" means that government should allow wedding business owners to refuse goods and services to Mormon, Jewish, Catholic, Athiest (etc) customers because any given business owners disagree on the basis of religious objections with their customers' religious Faith traditions (or lack thereof) as related to their wedding services? 3. Do you believe that "religious freedom" means that government should allow wedding business owners to refuse goods and services to interracial marriages among whites, Latinos, Asians, Black/sAfricans/African Americans, Native Americans, Native Hawaiian/Pacific Islanders (etc) because any given business owners object to interracial marriages on the basis of religious objections? 4. Do you believe that "religious freedom" means that government should allow wedding business owners to refuse goods and services to customers in cross-generational relationships (between very young and very old individuals) because any given business owners disagree on the basis of religious objections with said customers' inability to procreate? Etc. Etc. Etc. 5. In other words, does your definition of "religious freedom" as "business owners should retain the ability to refuse goods or service to weddings which contradict said business owner's deeply-held religious convictions" apply equally to ALL weddings regardless of any of the protected classes, OR do you believe that so far as the wedding industry is concerned, "religious freedom" is limited to "business owners should retain the ability to refuse goods or service to same-sex weddings based on deeply-held religious convictions"? I'd love to hear how you'd answer the above, as well as welcoming any other thoughts you'd like to offer. Thanks, D Edited March 10, 2017 by Daniel2
Daniel2 Posted March 10, 2017 Author Posted March 10, 2017 2 hours ago, Gray said: Thanks Daniel, I edited my comment to be less political Thanks!
kllindley Posted March 10, 2017 Posted March 10, 2017 51 minutes ago, Daniel2 said: Hi, Kllindley, Thanks for your post. While I agree with you that it's clear that "at least according to" "these [two] courts," this issue is settled, it's ALSO worth noting that the Supreme Court declined to hear the appeal of the ruling by the New Mexico Supreme Court, and chose not to get involved further, thus letting that ruling stand. Of course, we don't yet know whether or not they'll agree to hear the appeal of the Washington Supreme Court's ruling, but given that both rulings were unanimous in favor of the plaintiffs, SCOTUS is likely to reject that appeal, as well (given that SCOTUS usually doesn't get involved until there's a plurality of rulings in the appeals courts--that is, that there are rulings which disagree with and/or contradict one other). In the meantime, the growing number of rulings by different judges and appeals courts upholding the constitutionality of public accommodation laws prohibiting using religion as justification for withholding goods and services establishes increasing legal precedent that SCOTUS will likely consider, if it ever does choose to weigh in on the matter. That being said, I'd like to understand the rest of your position better, because I'm always a little unclear when people express opinions like those you've shared above. 1. Do you believe our government should interpret "religious freedom" as allowing business owners the ability to withhold goods and services on the basis of religious objections if they disapprove of ANY their customer's beliefs and/or actions, regardless of any of the federally-protected classes? That is, regardless of: Race Color Religion or creed National origin or ancestry Sex Age Physical or mental disability Veteran status...? Said differently: 2. Do you believe that "religious freedom" means that government should allow wedding business owners to refuse goods and services to Mormon, Jewish, Catholic, Athiest (etc) customers because any given business owners disagree on the basis of religious objections with their customers' religious Faith traditions (or lack thereof) as related to their wedding services? 3. Do you believe that "religious freedom" means that government should allow wedding business owners to refuse goods and services to interracial marriages among whites, Latinos, Asians, Black/sAfricans/African Americans, Native Americans, Native Hawaiian/Pacific Islanders (etc) because any given business owners object to interracial marriages on the basis of religious objections? 4. Do you believe that "religious freedom" means that government should allow wedding business owners to refuse goods and services to customers in cross-generational relationships (between very young and very old individuals) because any given business owners disagree on the basis of religious objections with said customers' inability to procreate? Etc. Etc. Etc. 5. In other words, does your definition of "religious freedom" as "business owners should retain the ability to refuse goods or service to weddings which contradict said business owner's deeply-held religious convictions" apply equally to ALL weddings regardless of any of the protected classes, OR do you believe that so far as the wedding industry is concerned, "religious freedom" is limited to "business owners should retain the ability to refuse goods or service to same-sex weddings based on deeply-held religious convictions"? I'd love to hear how you'd answer the above, as well as welcoming any other thoughts you'd like to offer. Thanks, D Daniel, I'm willing to answer and have a discussion. To be upfront, your questions seem to be gotcha questions rather than actual attempts at achieving understanding. However, I'll see where this goes. 1. No 2. No 3. No 4. No 5. Neither of the two options you provide. I hope that was as fulfilling for you as you expected it to be.
Daniel2 Posted March 10, 2017 Author Posted March 10, 2017 (edited) Regarding: Is allowing business owners the ability to refuse goods and services a matter of "Religious Freedom" which falls under Constitutionally Protected "Freedom of Religious Freedom"? Regarding the claim that has been made in this and other threads: Do public accommodation laws forcing business owners with deeply held anti-same-sex-marriage religious beliefs to provide goods and services to same-sex weddings violate said business owners’ constitutionally-protected free exercise of religion? The ruling also speaks directly to this claim, and I will quote those portions (and add colored, bolded, and underlined emphasis to the applicable parts) below (which are pages 34-41 of the ruling). By the way, it’s interesting to note that on page 36, Washington’s Supreme Court cited a 1987 case involving the LDS church (Corp. of Presiding Bishop of Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327, 335-38, 107 S. Ct. 2862, 97 L. Ed. 2d 273 (1987)--highlighted in purples and blue below--within the legal precedent portions as they considered the constitutional aspects of whether or not Ms. Stutzman’s religious freedom was violated in this aspect of the ruling. Ironically, the precedent of the LDS case is referenced right alongside the previous case against Elane Photography from New Mexico in making the relevant point. For me, one of the most significant aspect in situations attempting to judge whether or not religious freedom is being violated are those set out in this legal test: “Laws that burden religion are subject to two different levels of scrutiny under the free exercise clause. (U.S. Ca NST. amendI.) Neutral, generally applicable laws burdening religion are subject to rational basis review, 14 while laws that discriminate against some or all religions (or regulate conduct because it is undertaken for religious reasons) are subject to strict scrutiny.” The following section of the ruling demonstrates why Ms. Stutzman and others like her who assert a right to discriminate against customers in certain situations err in attempting to inappropriately apply legal allowances designed for religions and private organizations to companies operating within the public realm, and therefore subject to public accommodation laws. It also demonstrates how public accommodation laws do not target any specific religion, are neutral and equally applicable to any and all, and therefore subject to rational basis review. Quote III. As Applied in This Case, the WLAD Does Not Violate Stutzman's Right to Religious Free Exercise under the First Amendment to the United States Constitution In her second constitutional claim, Stutzman argues that the WLAD, as applied to her in this case, violated her First Amendment right to religious free exercise. We disagree. The free exercise clause of the First Amendment, which applies to the States through the Fourteenth Amendment, Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S. Ct. 900, 84 L. Ed. 1213 (1940), provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." Laws that burden religion are subject to two different levels of scrutiny under the free exercise clause. U.S. Ca NST. amend I. Neutral, generally applicable laws burdening religion are subject to rational basis review, 14 while laws that discriminate against some or all religions (or regulate conduct because it is undertaken for religious reasons) are subject to strict scrutiny .15 Stutzman argues that the WLAD is subject to strict scrutiny under a First Amendment free exercise analysis because it is neither neutral nor generally applicable. She is incorrect. A law is not neutral, for purposes of a First Amendment free exercise challenge if "the object of [the] law is to infringe upon or restrict practices because of their religious motivation." Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 533, 113 S. Ct. 2217, 124 L. Ed. 2d 472 (1993) (emphasis added). Stutzman does not argue that our legislature passed the WLAD in order to target religious people or people whose religions dictate opposition to gay marriage. Instead, she argues that the WLAD is unfair because it grants exemptions for "religious organizations"16-permitting these organizations to refuse marriage services-but does not extend those same exemptions to her. Br. of Appellants at 37. We disagree. The cases on which Stutzman relies all address laws that single out for onerous regulation either religious conduct in general or conduct linked to a particular religion, while exempting secular conduct or conduct associated with other, on targeted religions. E.g., Lukumi Babalu Aye, 508 U.S. at 532-42 (law was not neutral where legislative history, including enactment of numerous exemptions for members of other religions, evidenced a clear intent to target practitioners of Santeria faith). They recognize that the "[t]he Free Exercise Clause forbids any regulation of beliefs as such," and that this unconstitutional regulation may sometimes be accomplished through a law that appears facially neutral. Blackhawk v. Pennsylvania, 381 F.3d 202, 208-09 (3d Cir. 2004). But blanket exemptions for religious organizations do not evidence an intent to target religion. Instead, they indicate the opposite. Corp. of Presiding Bishop of Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327, 335-38, 107 S. Ct. 2862, 97 L. Ed. 2d 273 (1987) (exemption in Civil Rights Act for religious organizations does not violate the establishment clause because it serves a secular purpose-to minimize governmental interference with religion-and neither advances nor inhibits religion); Elane Photography, 309 P.3d at 74-75 ("Exemptions for religious organizations are common in a wide variety of laws, and they reflect the attempts of the Legislature to respect free exercise rights by reducing legal burdens on religion."). Stutzman also argues that the WLAD is not "generally applicable" because it does not apply to businesses that employ fewer than eight persons, employees working for a close family member or in domestic service, people renting out certain multifamily dwellings, and distinctly private organizations. Again, the authority Stutzman cites is inapposite. That authority stands for two principles, neither of which is implicated here. First, a law may fail the "general applicability" test, and thus trigger strict scrutiny, if it adopts a patchwork of specific exemptions that conspicuously omits certain religiously motivated conduct. As with non-neutral laws, such an omission is evidence that the government has deliberately targeted religious conduct for onerous regulation, or at the very least devalued religion as a ground for exemption. Lukumi Babalu Aye, 508 U.S. at 544-46 (holding that ordinance was not generally applicable because it "pursues the city's governmental interests only against conduct motivated by religious belief' (emphasis added)); Fraternal Order of Police Newark Lodge No. 12 v. City of Newark, 170 F.3d 359, 365-66 (3d Cir. 1999) (police department policy prohibiting officers from wearing beards triggered strict scrutiny because it allowed individual exemptions for medical but not religious reasons; because the medical exemption undermined the policy's purpose-to create uniformity of appearance among its officers-just as much as a religious exemption would, the disparity evidenced the department's preference for medical (secular) objections over religious ones). Second, a law is not "generally applicable" if it permits individual exemptions but is then applied in a manner that is needlessly prejudicial to religion. Lighthouse Inst.for Evangelism, Inc. v. City of Long Branch, 510 F.3d 253,276 (3d. Cir. 2007) ("What makes a system of individualized exemptions suspicious is the possibility that certain violations may be condoned when they occur for secular reasons but not when they occur for religious reasons. In Blackhawk, it was not the mere existence of an exemption procedure that gave us pause but rather the fact that the Commonwealth could not coherently explain what, other than the religious motivation of Blackhawk's conduct, justified the unavailability of an exemption." (citing Blackhawk, 381 F.3d at 211)). In this case, Stutzman seeks an exemption that would allow her to refuse certain customer services to members of a WLAD-protected class on religious grounds. Under a First Amendment free exercise analysis, the WLAD would trigger strict scrutiny if it permitted that sort of discrimination only for nonreligious reasons, and thus indicated the government's preference for secular discrimination. But the WLAD does not do this. Three of the alleged "exemptions" Stutzman cites have nothing at all to do with the exemption she seeks (an exemption permitting discrimination in public accommodations). The exemption for "[people] renting [out] certain multifamily dwellings," Br. of Appellants at 38 (citing RCW 49.60.040(5))-is not really an exemption from the WLAD at all. RCW 49.60.040(5) defines a "'[c]overed multifamily dwelling'" to exclude all buildings with fewer than four units and certain buildings with no elevators. In conjunction with RCW 49.60.222(2)(c), this provision requires that "covered multifamily dwellings" be designed and constructed in compliance with state and federal disability access laws. This is not a license for certain landlords to discriminate. With respect to public accommodations, the same is true of the WLAD' s "exemptions" for individuals employed in domestic service or by family members and for "employers" with fewer than eight employees. See Br. of Appellants at 38 (citing RCW 49.60.040(10), (11)). These exemptions protect employers from WLAD liability as employers-that is, liability to their employees-in the context of family relationships, domestic service, and very small businesses; they have nothing to do with Stutzman's liability as the proprietor of a public accommodation. Compare RCW 49.60.180 (listing prohibited "unfair practices of employers," all of which discriminate against employees or potential employees-not customers), with RCW 49.60.215 (listing prohibited "nfair practices of places of public resort, accommodation, assemblage, amusement"; completely omitting any reference to "employers"). Thus, these exemptions are distinguishable from the exemptions at issue in Lukumi Babalu Aye, Blackhawk, or Fraternal Order of Police because none is an exemption that Stutzman would actually like to invoke. And the other "exemption" Stutzman identifies-for distinctly private organizations, Br. of Appellants at 38 (citing RCW 49.60.040(2))-does not undermine the purposes of the WLAD' s public accommodations provision: to prevent discrimination in public accommodations. Thus, it does not trigger strict scrutiny under a First Amendment free exercise analysis, either. Fraternal Order of Police, 170 F.3d at 366 (contrasting exemptions that undermine a law's purpose and thus trigger strict scrutiny-with exemptions for "activities that [the government] does not have an interest in preventing"; holding that police department's exemption permitting undercover officers to wear beards did not trigger strict scrutiny because the governmental interest served by the shaving requirement-making officers readily recognizable as officers-did not apply to undercover officers). For these reasons, we reject Stutzman's claim that the WLAD, as applied to her, triggers strict scrutiny under the free exercise clause of the First Amendment. The WLAD is a neutral, generally applicable law subject to rational basis review. Empt Div., Dep 't of Human Res. of Or. v. Smith, 494 U.S. 872, 110 S. Ct. 1595, 108 L. Ed. 2d 876 (1990). And the WLAD clearly meets that standard: it is rationally related to the government's legitimate interest in ensuring equal access to public accommodations. See Lighthouse, 510 F.3d at 277 (to withstand free exercise challenge, neutral, generally applicable law "must be reasonable and not arbitrary and it must bear' a rational relationship to a [permissible] state objective"' (alteration in original) (quoting Belle Terre v. Boraas, 416 U.S. 1, 8, 94 S. Ct. 1536, 39 L. Ed. 2d 797 (1974))). Footnotes: 15 Church of the Lukumi BabaluAye, Inc. v. City of Hialeah, 508 U.S. 520, 532, 113 S. Ct. 2217, 124 L. Ed. 2d 472 (1993). 16 See RCW 26.04.010(6) ("A religious organization shall be immune from any civil claim or cause of action, including a claim pursuant to chapter 49.60 RCW, based on its refusal to provide accommodations, facilities, advantages, privileges, services, or goods related to the solemnization or celebration of a marriage."). "Religious organization" is defined as including, "but . . . not limited to, churches, mosques, synagogues, temples, nondenominational ministries, interdenominational and ecumenical organizations, mission organizations, faith-based social agencies, and other entities whose principal purpose is the study, practice, or advancement of religion." RCW 26.04.010(7)(b). Edited March 10, 2017 by Daniel2
Daniel2 Posted March 10, 2017 Author Posted March 10, 2017 6 minutes ago, kllindley said: Daniel, I'm willing to answer and have a discussion. To be upfront, your questions seem to be gotcha questions rather than actual attempts at achieving understanding. However, I'll see where this goes. 1. No 2. No 3. No 4. No 5. Neither of the two options you provide. I hope that was as fulfilling for you as you expected it to be. Thanks for answering my questions. It's definitely helpful, and I have a follow up request. Although I didn't intend for them to be "gotcha" questions, from my point of view, your answers to questions 1 to 4 would lead me to believe that Question 5 naturally leads to the two possible options I shared. Meaning, from my perspective and understanding, if you answered "no" to all of the scenarios involving allowing religious exemptions to serving weddings based on any of the other protected classes, but you presumably feel that that religious-objection exemptions to providing goods and services to same-sex weddings SHOULD be allowed, it seems to me that what you're actually doing is carving out a religious-objection exemption which singles out discrimination against same-sex weddings, but prohibits religious-objection exemptions in any of the other cases. However, based on your answer, I understand that from your perspective, you have an additional, alternative option in mind. Can you clarify what that additional option/explanation is?
kllindley Posted March 10, 2017 Posted March 10, 2017 9 minutes ago, Daniel2 said: Thanks for answering my questions. It's definitely helpful, and I have a follow up request. Although I didn't intend for them to be "gotcha" questions, from my point of view, your answers to questions 1 to 4 would lead me to believe that Question 5 naturally leads to the two possible options I shared. Meaning, from my perspective and understanding, if you answered "no" to all of the scenarios involving allowing religious exemptions to serving weddings based on any of the other protected classes, but you presumably feel that that religious-objection exemptions to providing goods and services to same-sex weddings SHOULD be allowed, it seems to me that what you're actually doing is carving out a religious-objection exemption which singles out discrimination against same-sex weddings, but prohibits religious-objection exemptions in any of the other cases. However, based on your answer, I understand that from your perspective, you have an additional, alternative option in mind. Can you clarify what that additional option/explanation is? Well, I think that you assumed that I believe religious freedom should mean that businesses are free to refuse goods or services from a protected class. I don't. Far more troubling for me personally is the language used in the opinion and the out of hand dismissal of religious freedom issues. The flower case is pretty clear-cut to me. I was particularly bothered by the photography case, which is more of a creative, expressive act in my mind. While the outcome of the rulings may have been entirely appropriate in this case, I see a high probability that this becomes the basis for more egregious cases of compelled behavior without regard to religious belief. Secondly, I'm not a fan of over-regulation. This seems highly related to a recent news story that a University in California is going to be removing free courses as a result of a complaint that they were in video only form and therefore not equally accessible by deaf individuals. The University decided that it was more burdensome to invest in creating transcripts of each video and easier to just stop offering the courses. Likewise, the only solution available for individuals who are not willing to violate conscience is to exit the public market. Ultimately, though, my biggest disagreement with the whole topic isn't as much about religious freedom as it is about the highly suspect "class" of homosexual. This is a prime example of policy based on popular opinion rather than sound science.
Daniel2 Posted March 10, 2017 Author Posted March 10, 2017 (edited) 1 hour ago, kllindley said: Well, I think that you assumed that I believe religious freedom should mean that businesses are free to refuse goods or services from a protected class. I don't. Far more troubling for me personally is the language used in the opinion and the out of hand dismissal of religious freedom issues. I appreciate you clarifying that businesses shouldn't be free to refuse goods (such as in the flower case). Regarding the second paragraph, it appears that in reading through both rulings, it sounds like I had a different reaction than you. I wouldn't characterize the language used in the rulings as an "out of hand dismissal of religious freedom issues." To me, they both read as though both State Supreme courts meticulously spent a lot of time, thought, and effort in reviewing an ample body of legal rulings and carefully weighed how to balance two seemingly conflicting American values: freedom of religion and freedom from discrimination. Quote I was particularly bothered by the photography case, which is more of a creative, expressive act in my mind. While the outcome of the rulings may have been entirely appropriate in this case, I see a high probability that this becomes the basis for more egregious cases of compelled behavior without regard to religious belief. Again, in trying to understand your position: do you think you would you be equally bothered if the courts ruled that photographers couldn't refuse to photograph LDS weddings? or interracial weddings? Is the concern you feel is or should be applied equally to all photographers? Is it a concern you feel is or should be applied equally to all protected classes? Or something else? (If something else, can you elaborate?) Personally, I don't see this ruling as being the basis for compelled behavior without regard to religious belief; rather, I see the courts elevating discrimination on the basis of 'sexual orientation' to the same (or 'equal') level as they do any of the other protected classes--no more preference, and no less. In case the multi-quote feature doesn't work for the rest of this post, going forward I've bolded your comments, and my responses remain un-bolded below: Quote Secondly, I'm not a fan of over-regulation. This seems highly related to a recent news story that a University in California is going to be removing free courses as a result of a complaint that they were in video only form and therefore not equally accessible by deaf individuals. The University decided that it was more burdensome to invest in creating transcripts of each video and easier to just stop offering the courses. I agree that I'd prefer less regulation wherever possible, but as I said earlier, I find it hard to see this as anything other than giving equal consideration to the status of 'sexual orientation' as it gives to other protected classes. But if you feel the government shouldn't compel business owners who choose to enter the public square to abide by the rules of public commerce with regards to violations of conscience concerning sexual orientation as a protected class, I struggle with understanding any argument that wouldn't apply equally to removing laws as the apply to prohibiting discrimination based on religion, race, gender, or any other protected class. Quote Likewise, the only solution available for individuals who are not willing to violate conscience is to exit the public market. Well... for the last 50+ years, that is the way that public accommodation law has applied to any business owner who's 'conscience' would be violated by serving any of the protected classes. Quote Ultimately, though, my biggest disagreement with the whole topic isn't as much about religious freedom as it is about the highly suspect "class" of homosexual. This is a prime example of policy based on popular opinion rather than sound science. I'm not sure I follow, here... I don't believe that anyone is saying that "homosexuality" should be a protected class... but "sexual orientation" certainly has been added in some states and regions as a protected class, and is increasingly being considered as a protected class on a federal level in some circles. I see the distinction between the two ('homosexual' vs 'sexual orientation') as significant, because "sexual orientation" isn't elevating any one orientation over any of the others--'sexual orientation' as a class protects discrimination against all sexual orientations (to say it another way, it's similar to how "race" doesn't single out "Black" or "Asian" for special or priviledged treatment, rather 'race' as a protected class prohibits discriminations against any and all races). Additionally, I'm not understanding what role you're suggesting that science should play in identifying newly-recognized protected classes of people. Immutability isn't the only determining factor of protected classes. After all, "religious affiliation" isn't immutable and can be fluid, but it is still a protected class. I agree with you that 'homosexual' should not be a protected class. I do believe that 'sexual orientation' should be a protected class. Do you agree, disagree, or other? (I'd love to hear you explain if 'other'). Kllindley, I just wanted to close with an expression of my appreciation for your efforts to engage in respectful and substantive dialogue. We may have different views, and it may not always be easy, but I always welcome ongoing discussion with you. I look forward to your response and the continued dialogue. Edited March 10, 2017 by Daniel2
kllindley Posted March 11, 2017 Posted March 11, 2017 2 hours ago, Daniel2 said: I appreciate you clarifying that businesses shouldn't be free to refuse goods (such as in the flower case). In the interest of fully understanding each other I want to further clarify that I honestly am not settled with this. Neither answer really feels right to me. 3 hours ago, Daniel2 said: Again, in trying to understand your position: do you think you would you be equally bothered if the courts ruled that photographers couldn't refuse to photograph LDS weddings? or interracial weddings? Is the concern you feel is or should be applied equally to all photographers? Is it a concern you feel is or should be applied equally to all protected classes? Or something else? (If something else, can you elaborate?) Yes. If there is a person who feels it would violate their religious conscience to take photographs at an LDS Temple or in an LDS Church, I think it is unconscionable that anyone would want to force them to do that. I don't get it. At all. 3 hours ago, Daniel2 said: I'm not sure I follow, here... I don't believe that anyone is saying that "homosexuality" should be a protected class... but "sexual orientation" certainly has been added in some states and regions as a protected class, and is increasingly being considered as a protected class on a federal level in some circles. I see the distinction between the two ('homosexual' vs 'sexual orientation') as significant, because "sexual orientation" isn't elevating any one orientation over any of the others--'sexual orientation' as a class protects discrimination against all sexual orientations (to say it another way, it's similar to how "race" doesn't single out "Black" or "Asian" for special or priviledged treatment, rather 'race' as a protected class prohibits discriminations against any and all races). Additionally, I'm not understanding what role you're suggesting that science should play in identifying newly-recognized protected classes of people. Immutability isn't the only determining factor of protected classes. After all, "religious affiliation" isn't immutable and can be fluid, but it is still a protected class. I agree with you that 'homosexual' should not be a protected class. I do believe that 'sexual orientation' should be a protected class. Do you agree, disagree, or other? (I'd love to hear you explain if 'other'). I do disagree that sexual orientation should be a protected class. I have read the definition of protected class to be "a group of people with a common characteristic who are legally protected from discrimination." What would the common characteristic in this case?
carbon dioxide Posted March 11, 2017 Posted March 11, 2017 5 hours ago, Daniel2 said: do you think you would you be equally bothered if the courts ruled that photographers couldn't refuse to photograph LDS weddings? or interracial weddings? Is the concern you feel is or should be applied equally to all photographers? Is it a concern you feel is or should be applied equally to all protected classes? Or something else? (If something else, can you elaborate?) I would not want to hire an photographer that did not want to do the job. I would want them to be there so they take good pictures. It is very easy for any photographer to take subpar pictures and once it is done, one can't do the wedding day again. Also there are plenty of other people who would be willing to provide the service. That is what the free market system is good at. Wherever there is money to be made, it will be filled by someone to do it. 1
Daniel2 Posted March 13, 2017 Author Posted March 13, 2017 (edited) On 3/10/2017 at 5:33 PM, kllindley said: In the interest of fully understanding each other I want to further clarify that I honestly am not settled with this. Neither answer really feels right to me. I can appreciate that "neither answer really feels right" to you. However the courts ultimately rule in these types of cases, one of my main points is I see no compelling legal reason why sexual orientation should NOT be listed as a protected class. On 3/10/2017 at 5:33 PM, kllindley said: Yes. If there is a person who feels it would violate their religious conscience to take photographs at an LDS Temple or in an LDS Church, I think it is unconscionable that anyone would want to force them to do that. I don't get it. At all. I can appreciate and actually related to this sentiment. In fact, in previous threads here on the board, I've indicated that my own personal reservation about the issue of public accommodations law as related to the wedding industry would be those requiring individuals to attend weddings (regardless of venue or the type of couple getting married). However, after reading through numerous rulings, I've discovered that the courts have ruled that individuals who choose to engage in commerce related to weddings ARE exercising a choice to do business in the wedding industry, and the legal requirements for professions related to the wedding industry (including photographers and caterers) includes prohibitions on discriminating on the basis of race, religion, and all the other protected classes. That means that if you're a wedding photographer, you can't refuse to photograph a wedding within a house of worship with which you personally, morally, or even religiously disagree. The same is true of photographers who may be anti-Semitic (they still can't refuse to photograph Jewish weddings), photographers who are racist (they still can't refuse to photograph interracial marriages or marriages between races they feel are inferior), etc. etc. etc. Now... you and I (as well as Carbon Dioxide, per this post just following yours) may feel those requirements are unsettling or unappealing, but that is how the courts currently rule. And even if none of the three of us would want anti-LDS or anti-gay (or anti-any-protected-class-personality-trait-by-which-any-of-us-may-self-identify) photographers to take pictures at OUR own weddings--and as consumers, we're entirely free to find other photographers to do so--the law and the U.S. Constitution prohibit businesses from discriminating. If that aspect of the law is eventually overturned, then so be it. But again, in the meantime, I haven't seen or heard any legally-compelling argument as to why individuals' sexual orientation should be treated any differently than the other protected classes. On 3/10/2017 at 5:33 PM, kllindley said: I do disagree that sexual orientation should be a protected class. I have read the definition of protected class to be "a group of people with a common characteristic who are legally protected from discrimination." What would the common characteristic in this case? I agree with your definition of "protected class," which is an accurate quotation of how the law defines the term. In answer to your question of "what would be the common characteristic" in the case of "sexual orientation," the definition of "sexual orientation" in Wikipedia does a fine job of describing "the common characteristic" that you're asking for: Quote Sexual orientation. Sexual orientation is an enduring pattern of romantic or sexual attraction (or a combination of these) to persons of the opposite sex or gender, the same sex or gender, or to both sexes or more than one gender. These attractions are generally subsumed under heterosexuality, homosexuality, and bisexuality,[1][2] while asexuality (the lack of sexual attraction to others) is sometimes identified as the fourth category.[3][4] There are plenty of other resources, but for the purposes of answering your question, it clear that "the gender of one's spouse," is "the common characteristic," here. With that in mind, I think it's hard to deny that people have been and continue to be discriminated against (specifically in the case of public accommodation laws, denied goods and services) based on the gender of their spouse. In this context, then, "sexual orientation" as a 'protected class' means that gay people, straight people, bisexual people, and/or asexual people cannot discriminate against others on the basis of sexual orientation, or the gender of other's spouse, or the decision not to pursue romantic interests at all (the latter is similar to how 'religious affiliation' simultaneously protects both those who self-identify with any given religion AND those who choose not to identify with any, including atheists and agnostics or those that choose not to religiously identify one way or the other). It's also worth noting that the legal burden to falls on the government to demonstrate that discrimination against potentially-protected classes of people is/should be anywhere from rational to constitutionally-JUSTIFIED... not the other way around. In other words, once any given class of people shows that they're being discriminated against based on the characteristic that defines the classification, it's the GOVERNMENT that needs to demonstrate a legally-compelling reason as to why the discrimination is and should continue to be justified, depending on the level of scrutiny being applied. From The Legal Dictionary: Quote The U.S. Supreme Court has held that certain kinds of government discrimination are inherently suspect and must be subjected to strict judicial scrutiny. The suspect classification doctrine has its constitutional basis in the Fifth Amendment and the equal protection clause of the Fourteenth Amendment, and it applies to actions taken by federal and state governments. When a suspect classification is at issue, the government has the burden of proving that the challenged policy is constitutional. Strict Scrutiny of a suspect classification reverses the ordinary presumption of constitutionality, with the government carrying the burden of proving that its challenged policy is constitutional. To withstand strict scrutiny, the government must show that its policy is necessary to achieve a compelling state interest. If this is proved, the state must then demonstrate that the legislation is narrowly tailored to achieve the intended result. Although strict scrutiny is not a precise test, it is far more stringent than the traditional Rational Basis Test, which only requires the government to offer a reasonable ground for the legislation. To date, I believe the courts have yet to officially clarify exactly where "sexual orientation" falls (Rational, Intermediate, Strict, or Suspect), but in so far as same-sex marriage is concerned, Quote The Supreme Court has held that governmental action infringing upon fundamental rights is subject to strict scrutiny,26 and thus must be narrowly tailored to a compelling government interest.27 Under strict scrutiny, the government must generally show that it has a “substantial” and “legitimate” need for its action to be in furtherance of a compelling government interest.28 If the government successfully establishes a compelling interest, its action cannot encumber fundamental rights any more than is necessary to achieve the government’s need.29 Additionally, the government could not have possibly taken alternative action that would similarly further its interest while being less burdensome on fundamental rights.30 Otherwise, the government’s action is not narrowly tailored to the government’s interest.31 The Supreme Court has recognized a number of rights as fundamental, including the right to have children,32 use contraception,33 and marry.34 In Obergefell, the Court considered whether the Fourteenth Amendment’s substantive due process guarantees require states to issue marriage licenses to same-sex couples and require states to recognize same-sex marriages that were legally formed in other states. Regarding the gender of one's spouse (the common characteristic defining "sexual orientation" as a protected class which should not be discriminated against), the arguments proffered or argued all over the country before numerous state courts, appellate courts, state supreme courts, and the Supreme Court of the United States even as a rational basis ALL failed, in the vast majority of cases. Lawyers at both State and Federal levels could not offer any compelling arguments as to why the government should allow discrimination due to customers' sexual orientation. With all of the above in mind, given your objection to holding sexual orientation as a protected class.... upon what basis do you believe it shouldn't be constitutionally-protected...? What has the government overlooked? Daniel Edited March 13, 2017 by Daniel2
Daniel2 Posted March 13, 2017 Author Posted March 13, 2017 On 3/10/2017 at 7:44 PM, carbon dioxide said: I would not want to hire an photographer that did not want to do the job. I would want them to be there so they take good pictures. It is very easy for any photographer to take subpar pictures and once it is done, one can't do the wedding day again. Also there are plenty of other people who would be willing to provide the service. That is what the free market system is good at. Wherever there is money to be made, it will be filled by someone to do it. As I mentioned in my post to Kllindley, we all may feel those requirements prohibiting photographers from discriminating are unsettling or unappealing, but that is how the courts currently rule. And even if none of the three of us would want anti-LDS or anti-gay (or anti-any-protected-class-personality-trait-by-which-any-of-us-may-self-identify) photographers to take pictures at OUR own weddings--and as consumers, we're entirely free to find other photographers to do so--the law and the U.S. Constitution prohibit businesses from discriminating. If that aspect of the law is eventually overturned, then so be it. But again, in the meantime, I haven't seen or heard any legally-compelling argument as to why individuals' sexual orientation should be treated any differently than the other protected classes. In the meantime, the free market entirely allows you, I, and any other consumers to choose to take our business elsewhere if we feel unhappy about forcing someone to be at our wedding which may violate their personally-held religious convictions, but the laws of commerce still currently require businesses not to discriminate.
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