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The Church and the Fundamental Right of Due Process


Anijen

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On a recently closed topic regarding the politically and socially changing church, someone mentioned that due process was not a fundamental right. I cannot remember who stated this (it really doesn't matter), but I wanted to diverge from that topic and speak about due process and is it a fundamental right and within or regarding the church, religion, as used particularly with the First, Fourth, and especially the Fifth, and Fourteenth Amendments of the Constitution.

Due Process is protected through the Fifth and Fourteenth Amendments. each of these Amendments contain a due process clause. For example in the Fifth Amendment the due process clause states; "... nor be deprived of life, liberty, or property, without due process of law" It is exactly the same in the Fourteenth Amendment. The difference between the 5th and 14th amendments is not so much in wording, but in who is the protection from. With the Fifth is is a right and protection from the federal government and with the Fourteenth it is a right and protection from the state.

The due process clauses deals with the administration of justice and are safeguards that means we are given protection from any instance of arbitrarily denial of our lives, liberties, or properties. 

My interests and motivation for this posts and would like to discuss is; how are we protected and not protected as church members, or members of society with these due process rights? Especially with the following scenarios:

  • When we either choose to make a wedding cake or deny making a wedding cake for a same sex couple. From the perspective of a gay couple who was actually searching for a bakery who would deny them this service. They found 29 bakery's who would make them a wedding cake and their 30 bakery they found would not. And from the perspective of the bakery who because of their religious beliefs thought their wedding cake baking skills were considered artistic and wholly an expression of their sacred beliefs they have concerning marriage is between a man and a woman.
  • A privately funded and maintained art museum who denied the hanging of an art piece that had pictures of female genitalia and actual animal feces on the canvas. The artist was wholly funded by the government and thought the denial of of representing his art violated his fundamental rights (like the gay couple in the first scenario, thought the denial of a private owned bakery could not refuse them their services). The artist sues and wants the courts to adjudicate in his favor for forcing the privately run business to show his art and fine the museum if they refuse. Also what is the perspective of the museum, does the museum have a fundamental right to refuse their service?
  • A man who lives in the state of Washington and a woman who lives in the state of Oregon hold similar religious beliefs that eating animal meat is against their religion so both are vegetarians. However, they are located in areas of their states where it is much dryer than the rest of the state. Both the man and the woman try to supplement their water bills by setting up rain barrels at the end of their homes to capture the rain water coming off their roofs when it rains (which is rarely). They do this because they live off the food they grow in their gardens. They have no rivers, lakes or streams nearby and even if they did there is state statutes that prohibit them from using those waterways to water their gardens. Leaders from both states are informed of the use of rain water being captured by 55 galleon barrels at the end of their homes being used to ease and supplement their water bills for gardening. The states enact statutes that prohibit the use of captured rain water for the use of gardening, even though these two people use this water for the food they grow (vegetables) as part of devotion to their religions. Is the state governments justified in their laws? Do the man or woman have any First Amendment (or any constitutional) protection from their states from imposing fines on them?
  • A Baptist minister who sometimes moonlights and supplements his income as a part-time wedding photographer. The minister believes his photos are a product that comes from his own finely tuned talent and he holds his photos as his own unique artistic expression. Similar to the above scenario with the baker and gay couple. The photographer as a Baptist Minister he believes that marriage is between a man and a woman and a gay couple has shopped around for a photographer, one who would deny them a wedding picture. The Baptist minister was the 12th photographer they found, but first one who refused to take the wedding pictures based on his religious beliefs. The gay couple admit their purpose was to try to change some public opinions held by people who they thought were prudes living in the past and needs to be punished (by fines) if they didn't comply. They also wanted to compel such laws that would deny a person from refusing service based on their (same sex couple) fundamental right to marry. The Baptist minister loses in court pays his fines and because he cannot afford any more court costs or fines quits his love of photography all together and even has to turn down congregants of his church the free service he used to do for them.

We have discussed these scenarios before, but it is my belief that religion is being attacked across the country. long held religious rights in these current times to be overruled by newly formed marriage rights. It also appears to me that not just the pro-gay marriage people but legislators, judges, educators, are eager to give equal protection to gay couples (as they should), but have become squeamish and are disinclined to give those same protections to those holding religious values. People of religion are being shamed into inaction because they will be labeled racists, or homophobic. I myself while defending my ownership of a small business was called a racist by one of my law professors when race wasn't even part of the discussion at the time.

Is it time people of religion becomes active in pressing their due process rights? Has their due process rights been violated (that effects their lives, liberty, or property)? When they have been fines so heavily that they have to claim bankruptcy and go out of business? I would argue that it does affect their lives, liberty and property. Or am I a racist and/or homophobic because I think religious rights and gay rights both can be protected without one affecting the other?

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Pardon me, but are you citing the wrong amendment?  Shouldn't you be discussing application of the free exercise of religion clause of the 1st amendment?  Or are you saying that in each of your scenarios, you allege that the aggrieved parties were prevented from going to court for relief?  Were they actually denied due process of law?

The LDS Church, for example, supports the notion that anyone or any company which provides a public accommodation or business must make that same business available to all without distinctions based on race, religion, ethnicity, or gender preference.  Is the Church wrong to take that position, and does it apply in the scenarios you provide?

Edited by Robert F. Smith
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43 minutes ago, Anijen said:

On a recently closed topic regarding the politically and socially changing church, someone mentioned that due process was not a fundamental right. I cannot remember who stated this (it really doesn't matter), but I wanted to diverge from that topic and speak about due process and is it a fundamental right and within or regarding the church, religion, as used particularly with the First, Fourth, and especially the Fifth, and Fourteenth Amendments of the Constitution.

Due Process is protected through the Fifth and Fourteenth Amendments. each of these Amendments contain a due process clause. For example in the Fifth Amendment the due process clause states; "... nor be deprived of life, liberty, or property, without due process of law" It is exactly the same in the Fourteenth Amendment. The difference between the 5th and 14th amendments is not so much in wording, but in who is the protection from. With the Fifth is is a right and protection from the federal government and with the Fourteenth it is a right and protection from the state.

The due process clauses deals with the administration of justice and are safeguards that means we are given protection from any instance of arbitrarily denial of our lives, liberties, or properties. 

My interests and motivation for this posts and would like to discuss is; how are we protected and not protected as church members, or members of society with these due process rights? Especially with the following scenarios:

  • When we either choose to make a wedding cake or deny making a wedding cake for a same sex couple. From the perspective of a gay couple who was actually searching for a bakery who would deny them this service. They found 29 bakery's who would make them a wedding cake and their 30 bakery they found would not. And from the perspective of the bakery who because of their religious beliefs thought their wedding cake baking skills were considered artistic and wholly an expression of their sacred beliefs they have concerning marriage is between a man and a woman.
  • A privately funded and maintained art museum who denied the hanging of an art piece that had pictures of female genitalia and actual animal feces on the canvas. The artist was wholly funded by the government and thought the denial of of representing his art violated his fundamental rights (like the gay couple in the first scenario, thought the denial of a private owned bakery could not refuse them their services). The artist sues and wants the courts to adjudicate in his favor for forcing the privately run business to show his art and fine the museum if they refuse. Also what is the perspective of the museum, does the museum have a fundamental right to refuse their service?
  • A man who lives in the state of Washington and a woman who lives in the state of Oregon hold similar religious beliefs that eating animal meat is against their religion so both are vegetarians. However, they are located in areas of their states where it is much dryer than the rest of the state. Both the man and the woman try to supplement their water bills by setting up rain barrels at the end of their homes to capture the rain water coming off their roofs when it rains (which is rarely). They do this because they live off the food they grow in their gardens. They have no rivers, lakes or streams nearby and even if they did there is state statutes that prohibit them from using those waterways to water their gardens. Leaders from both states are informed of the use of rain water being captured by 55 galleon barrels at the end of their homes being used to ease and supplement their water bills for gardening. The states enact statutes that prohibit the use of captured rain water for the use of gardening, even though these two people use this water for the food they grow (vegetables) as part of devotion to their religions. Is the state governments justified in their laws? Do the man or woman have any First Amendment (or any constitutional) protection from their states from imposing fines on them?
  • A Baptist minister who sometimes moonlights and supplements his income as a part-time wedding photographer. The minister believes his photos are a product that comes from his own finely tuned talent and he holds his photos as his own unique artistic expression. Similar to the above scenario with the baker and gay couple. The photographer as a Baptist Minister he believes that marriage is between a man and a woman and a gay couple has shopped around for a photographer, one who would deny them a wedding picture. The Baptist minister was the 12th photographer they found, but first one who refused to take the wedding pictures based on his religious beliefs. The gay couple admit their purpose was to try to change some public opinions held by people who they thought were prudes living in the past and needs to be punished (by fines) if they didn't comply. They also wanted to compel such laws that would deny a person from refusing service based on their (same sex couple) fundamental right to marry. The Baptist minister loses in court pays his fines and because he cannot afford any more court costs or fines quits his love of photography all together and even has to turn down congregants of his church the free service he used to do for them.

We have discussed these scenarios before, but it is my belief that religion is being attacked across the country. long held religious rights in these current times to be overruled by newly formed marriage rights. It also appears to me that not just the pro-gay marriage people but legislators, judges, educators, are eager to give equal protection to gay couples (as they should), but have become squeamish and are disinclined to give those same protections to those holding religious values. People of religion are being shamed into inaction because they will be labeled racists, or homophobic. I myself while defending my ownership of a small business was called a racist by one of my law professors when race wasn't even part of the discussion at the time.

Is it time people of religion becomes active in pressing their due process rights? Has their due process rights been violated (that effects their lives, liberty, or property)? When they have been fines so heavily that they have to claim bankruptcy and go out of business? I would argue that it does affect their lives, liberty and property. Or am I a racist and/or homophobic because I think religious rights and gay rights both can be protected without one affecting the other?

I was the one who stated it was not a natural right. Not that it was not a "fundamental right" but not a natural right. Natural rights are "Life, Liberty, and the Pursuit of Happiness" among other things. How we pursue and uphold natural rights are a course of law and policies. I very much find due process a fundamental right; I only took contention as how it was framed in the 14th Amendment. That amendment was definitely aimed at freeing slaves and ensuring their freedom. I think that there would be a way to do that without it being used today to force gay marriage across the country and impede on religious liberties our country has traditionally enjoyed. It's the 14th Amendment's push upon the states which I do not agree with.

As for your scenarios:

1) The owner of a product may deny baking a cake to celebrate gay marriage is he or she has religious opposition to it. An employee of that owner may NOT deny making said cake if it is within the owner's policy to allow it and expect continued employment with that owner. So long as the decision is with the owner of the cake/business product, I am OK with whatever decision he or she makes regarding their cake being baked and decorated to celebrate a gay marriage.

Note here that this does not mean to deny gay couples into the bakery to eat. This is an issue in its own category. I only recognize a religious refusal to bake a cake for a celebration.

2) When it comes to tax payer-funded events, all tax payers have a right to speak and to voice where and how their tax dollars are spent. This includes gay and straight tax payers. Whatever the people decide is fine with me. I do not like the courts forcing an event upon the public when a majority of tax payers have spoken against it and their elected representatives have decided accordingly.

3) I think anyone can set up rain barrels to capture water to use on and within their own properties. I think when the EPA steps into this and prohibits that choice of property owners then that's proof positive of how the EPA's powers need to be seriously curtailed. I do recognize local elected authorities in deciding such fines for people who do this. I absolutely think this is foolish and oppressive but it is their authority to do so.

4) Photography falls in the same lines as baking cakes. If a person is the owner of the photography then he or she has the right to refuse to take pictures of a gay wedding or anything he or she deems celebrates gay marriage.

I think your call to stand up is very appropriate and you make an excellent point in how the due process of religious people is not being upheld.

 

 

Edited by Darren10
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14 minutes ago, Robert F. Smith said:

Pardon me, but are you citing the wrong amendment?  Shouldn't you be discussing application of the free exercise of religion clause of the 1st amendment?  Or are you saying that in each of your scenarios, you allege that the aggrieved parties were prevented from going to court for relief?  Were they actually denied due process of law?

The LDS Church, for example, supports the notion that anyone or any company which provides a public accommodation or business must make that same business available to all without distinctions based on race, religion, ethnicity, or gender preference.  Is the Church wrong to take that position, and does it apply in the scenarios you provide?

Isn't that for basic necessities of life like food and shelter? I recall the Church very much standing up to protect business owners in morally objecting to provide goods and services based on their own religious objections to do so.

Edited by Darren10
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28 minutes ago, Robert F. Smith said:

Pardon me, but are you citing the wrong amendment?  Shouldn't you be discussing application of the free exercise of religion clause of the 1st amendment?  Or are you saying that in each of your scenarios, you allege that the aggrieved parties were prevented from going to court for relief?  Were they actually denied due process of law?

The LDS Church, for example, supports the notion that anyone or any company which provides a public accommodation or business must make that same business available to all without distinctions based on race, religion, ethnicity, or gender preference.  Is the Church wrong to take that position, and does it apply in the scenarios you provide?

Hello Robert, (one of my favorite posters)

  Sorry, I am not intentionally trying to be so confusing. I am not citing the wrong amendment, although the First Amendment regarding religion have the "free exercise" clause and the "establishment" clause. It is particularly the Fifth and the Fourteenth Amendment that have a "due process clause." Although the religious rights and their respective clauses found in the First Amendment are important in this thread, and is in the penumbra of the topic, it was mainly my point that the punitive fining of the baker, museum, home gardeners, and photographer, are in fact just as much a violation of their rights.

I think it could be argued that the right to live our lives without fear of being compelled via a court ordered fine, i.e. a baker being forced to pay money fine just because he turned down a gay couples request to be their wedding photographer, particularly when the couple searched for a photographer who would deny them that service and there were many other photographers who would have not turned their business down.

It was my attempt in this thread to show that the life (the right to enjoy life), liberty (if the baker chooses not to pay the fine he could be held in contempt and receive jail time), and property (losing money is in essence losing property), thus, the due process right of life, liberty, and property is being violated under religious held beliefs and not because they were racist or homophobic.

I am all for gay rights, even though I believe marriage is between a man and a woman. I am all for freedom of speech even though I find burning a cross or our flag to be despicable yet still someone has the constitutional right to do so. 

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53 minutes ago, Darren10 said:

Isn't that for basic necessities of life like food and shelter? I recall the Church very much standing up to protect business owners in morally objecting to provide goods and services based on their own religious objections to do so.

 

I do not recall the Church doing that. But that does not mean it did not happen. 

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11 minutes ago, provoman said:

 

I do not recall the Church doing that. But that does not mean it did not happen. 

Quote

SALT LAKE CITY -- Mormon church leaders are making a national appeal for a "balanced approach" in the clash between gay rights and religious freedom.

The church is promising to support some housing and job protections for gays and lesbians in exchange for legal protections for believers who object to the behavior of others.

http://www.cbsnews.com/news/mormon-leaders-vow-support-for-gay-rights-with-conditions/

Quote

Relatively obscured by the same-sex marriage debate has been the pursuit of other rights by LGBT advocates, some of which threaten religious liberties. For example, some have challenged the right of religiously based schools to control their own curriculum. Some have tried to force faith groups to use their religious properties to celebrate same-sex unions. It is coercive measures such as these that have so alarmed people with religious values who wish to live their faith without being threatened. In state after state, advocates for religious liberties on the one side and advocates for LGBT rights on the other have clashed repeatedly. The result has frequently been the failure of either side to advance their cause, and anger and bitterness has been the end product.

(snip)

Church representatives, working under the direction of the First Presidency and the Quorum of the Twelve, then met with Utah legislators and key stakeholders in an effort to support legislation that enshrines vital religious freedom protections while providing fundamental protections to LGBT people in housing and employment. Bills dealing with nondiscrimination and religious freedom, plus protections relating to marriage and parental rights, resulted and were passed by the legislature on March 11. The Church believes that collective protections in these three bills strike a healthy balance between religious freedom and LGBT rights and achieve the “fairness for all” that was being sought.

http://www.mormonnewsroom.org/article/explaining-religious-freedom-and-lgbt-rights

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31 minutes ago, Anijen said:

......................................

  Sorry, I am not intentionally trying to be so confusing. I am not citing the wrong amendment, although the First Amendment regarding religion have the "free exercise" clause and the "establishment" clause. It is particularly the Fifth and the Fourteenth Amendment that have a "due process clause." Although the religious rights and their respective clauses found in the First Amendment are important in this thread, and is in the penumbra of the topic, it was mainly my point that the punitive fining of the baker, museum, home gardeners, and photographer, are in fact just as much a violation of their rights.

I think it could be argued that the right to live our lives without fear of being compelled via a court ordered fine, i.e. a baker being forced to pay money fine just because he turned down a gay couples request to be their wedding photographer, particularly when the couple searched for a photographer who would deny them that service and there were many other photographers who would have not turned their business down.

It was my attempt in this thread to show that the life (the right to enjoy life), liberty (if the baker chooses not to pay the fine he could be held in contempt and receive jail time), and property (losing money is in essence losing property), thus, the due process right of life, liberty, and property is being violated under religious held beliefs and not because they were racist or homophobic.

I am all for gay rights, even though I believe marriage is between a man and a woman. I am all for freedom of speech even though I find burning a cross or our flag to be despicable yet still someone has the constitutional right to do so. 

So each of these scenarios only entails denial of due process, meaning denial of access to courts of law.  They were not allowed trial by jury, etc.  And the LDS Church is mistaken to take the side of open public accommodations.  Or am I misunderstanding you?

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2 hours ago, Robert F. Smith said:

 you allege that the aggrieved parties were prevented from going to court for relief?  

Sorry, I did not mean to neither allege nor imply that the parties were prevented from going to court. Often many people assume that being denied a voice in court is a violation of due process. It is, but not in all cases. For instance; we have heard before the statement; "I'll take this all the way to the Supreme Court." I know Robert you know this, but for clarification for other readers they might not realize that out of the thousands of cases wanting their voices heard in the Supreme Court only a few hundred are chosen. Often cases are not heard due to lack of standing, mootness, or ripeness, etc. Often cases are not heard because perhaps the Supreme Court simply thinks the lower courts have sufficiently answered the issue of the case.

Due process can also be violated when life, liberty and property is being threatened. It is under this meaning I have posted this thread.

 

Quote

Were they actually denied due process of law?

In all of the scenarios I have posted in my initial post, we can find very (almost identical) cases of the same scenario. In all those cases (thus, far) all have been adjudicated where the photographer, baker, museum, and vegetarian gardeners were fined (some over $130,000). I know of one water case that the Supreme Court has agreed to reconsider (a reconsideration is extremely rare).

 

Quote

The LDS Church, for example, supports the notion that anyone or any company which provides a public accommodation or business must make that same business available to all without distinctions based on race, religion, ethnicity, or gender preference.  Is the Church wrong to take that position, and does it apply in the scenarios you provide?

Yes, and I agree with the LDS Church's' policy (I am true blue through and through). I own a business and I personally believe that marriage should be between a man and a woman, just as the The Proclamation to the Family has established. I have never denied my business service based on race, religion, ethnicity, or gender  preference. and no I do not believe the Church is wrong to take that position. No, there is not an application in my above scenarios. In the above scenarios, the refusal of service is based on religious beliefs and not on discrimination.

Should a Muslim song writer (with his monotheistic religious beliefs) who lives on the proceeds his songs make, be compelled by threat of court fines be forced to write songs about Hinduism?  Should a devout Catholic poet who lives on the proceeds of her poetry be compelled by threat of legal action and punitive fines be compelled to write a poem on the evilness of venerating saints? Robert, I think these are drastic examples. yet, If the Muslim song writer and the Catholic poet should not be compelled then where do we draw the line? When is it appropriate to compel through litigation and when is it not?

In my scenarios, it was forced action against either a private business of businessmen just like our songwriter, and poet who that a wedding cake for two men was against their religious belief (in reality the baker said any other cake he would gladly bake for them) The same with the moonlighting Baptist minister he did wedding pictures as an expression of his art and was received some part time income from his art, he would have taken other pictures for the two men, but he thought to take wedding pictures of two same sexually attracted couple would show that he as a Baptist minister encouraged and believed in same sex marriage although his religious beliefs in fact were of only between a woman and a man. He did not refuse because of race, ethnicity, or gender preference,  but on the religious grounds. Would his congregation stop coming because they now consider him a hypocrite, would he be sending a message that he is publicly condoning same sex marriage when he held marriage as a sacred religious ritual between only a man and a woman.

My belabored point is; I believe religious held beliefs can in some cases allow for the refusal of that service and should not instill a fear in a baker because the baker wants to hold to his religious beliefs regarding marriage.

Edited by Anijen
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29 minutes ago, Robert F. Smith said:

So each of these scenarios only entails denial of due process, meaning denial of access to courts of law.  They were not allowed trial by jury, etc.  And the LDS Church is mistaken to take the side of open public accommodations.  Or am I misunderstanding you?

This is a question of if and ehen the courts do not uphold due process. Fair treatment is part of due process and I think it worthy to question fairness or favoritism both by the Legislsture and Judiciary regarding the balancing of religious liberties and gay rights. 

My opposition to the gay rights movement in general has always had mord to do with its threat to other freedoms, particularly religious freedom, than the fact that there are gay people in society seeking equal rights.  

Edited by Darren10
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24 minutes ago, Anijen said:

Sorry, I did not mean to neither allege nor imply that the parties were prevented from going to court. Often many people assume that being denied a voice in court is a violation of due process. It is, but not in all cases. For instance; we have heard before the statement; "I'll take this all the way to the Supreme Court." I know Robert you know this, but for clarification for other readers they might not realize that out of the thousands of cases wanting their voices heard in the Supreme Court only a few hundred are chosen. Often cases are not heard due to lack of standing, mootness, or ripeness, etc. Often cases are not heard because perhaps the Supreme Court simply thinks the lower courts have sufficiently answered the issue of the case.

Due process can also be violated when life, liberty and property is being threatened. It is under this meaning I have posted this thread.

 

In all of the scenarios I have posted in my initial post, we can find very (almost identical) cases of the same scenario. In all those cases (thus, far) all have been adjudicated where the photographer, baker, museum, and vegetarian gardeners were fined (some over $130,000). I know of one water case that the Supreme Court has agreed to reconsider (a reconsideration is extremely rare).

 

Yes, and I agree with the LDS Church's' policy (I am true blue through and through). I own a business and I personally believe that marriage should be between a man and a woman, just as the The Proclamation to the Family has established. I have never denied my business service based on race, religion, ethnicity, or gender  preference. and no I do not believe the Church is wrong to take that position. No, there is not an application in my above scenarios. In the above scenarios, the refusal of service is based on religious beliefs and not on discrimination. Should a Muslim song writer (with his monotheistic religious beliefs) who lives on the proceeds his songs make, be compelled by threat of court fines be forced to write songs about Hinduism?  Should a devout Catholic poet who lives on the proceeds of her poetry be compelled by threat of legal action and punitive fines be compelled to write a poem on the evilness of venerating saints? Robert, I think these are drastic examples. yet, If the Muslim song writer and the Catholic poet should not be compelled then where do we draw the line? When is it appropriate to compel through litigation and when is it not? In my scenarios, it was forced action against either a private business of businessmen just like our songwriter, and poet who that a wedding cake for two men was against their religious belief (in reality the baker said any other cake he would gladly bake for them) The same with the moonlighting Baptist minister he did wedding pictures as an expression of his art and was received some part time income from his art, he would have taken other pictures for the two men, but he thought to take wedding pictures of two same sexually attracted couple would show that he as a Baptist minister encouraged and believed in same sex marriage although his religious beliefs in fact were of only between a woman and a man. He did not refuse because of race, ethnicity, or gender preference,  but on the religious grounds. Would his congregation stop coming because they now consider him a hypocrite, would he be sending a message that he is publicly condoning same sex marriage when he held marriage as a sacred religious ritual between only a man and a woman.

My belabored point is; I believe religious held beliefs can in some cases allow for the refusal of that service and should not instill a fear in a baker because the baker wants to hold to his religious beliefs regarding marriage.

Exactly. In the United States, no religious person should fear retaliatory measures by the state for living by his or her religious conscience and refuse non vital goods snd services to celebrate gay marriage. 

Edited by Darren10
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12 minutes ago, Robert F. Smith said:

So each of these scenarios only entails denial of due process, meaning denial of access to courts of law.  They were not allowed trial by jury, etc.  And the LDS Church is mistaken to take the side of open public accommodations.  Or am I misunderstanding you?

Yes, you are misunderstanding me. I am sorry the fault lies with me.

See my last post concerning access to courts.

A right to a jury trial is not a right given in every instance. There are some times when we do not have a right to a jury trial. I am saying in my scenarios (see my last post) as with refusing service it should, like a jury trial, it should be given the same consideration of circumstance such as a jury trial. At times there should be reasons allowing for refusal, we sometimes are not allowed a jury trial, we should have the right considering the circumstance to refuse a service based on religious beliefs.

The baker will make any other cake in any flavor. The bakers cakes are not only a product of his artistic creation but an expression of him, who he is and his expressions of his faith. If the baker were to bake a wedding cake for two men in love, it would go against his religious beliefs that he holds marriage between a man and a woman to be sacred and the marriage ritual including the wedding cake would also show an expression that because of the bakers religious beliefs he holds the baking of any other cake as okay and he would happily make, but the baker does not want to be forced to bake a wedding cake that he reasonably believes would show to others a fall from grace, and it could show also by way of expression his change of alignment an affiliation with same sex marriage, when it is not true, the baker holds sacred religious beliefs and does not want to be forced to make a creation that expresses something he is religiously opposed to.

No the LDS Church is not wrong to oppose service because of race, ethnicity, or gender preference, but neither is the LDS Church opposed to disallowing of a service because of religiously held beliefs. 

If there are no limits, then any aggressive, assertive group can litigate until they force private businesses to remain open on Sundays, to sell porn magazines in their stores, to say who can work there and who cannot. Limits need to be addressed or their is, well, simply chaos.

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It is the government that owes due process of law, not any business or person.

And when you talk about rights to refuse to do things you are commonly talking about the 1st amendment protection of religious freedom (make no law to help or hurt religion), and sometimes the right to assembly and right to Free Speech.

 

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6 hours ago, Anijen said:

Yes, you are misunderstanding me. I am sorry the fault lies with me.

...................................................................

No the LDS Church is not wrong to oppose service because of race, ethnicity, or gender preference, but neither is the LDS Church opposed to disallowing of a service because of religiously held beliefs. 

Where is that formal position taken by the Church?  I have understood the opposite position being taken by the Church.

6 hours ago, Anijen said:

If there are no limits, then any aggressive, assertive group can litigate until they force private businesses to remain open on Sundays, to sell porn magazines in their stores, to say who can work there and who cannot. Limits need to be addressed or their is, well, simply chaos.

Are you discussing harrassment litigation, or the Constitution here?  Both the totalitarian right and the totalitarian left may presumably harrass businesses until they comply with absurd demands, but that is not a constitutional issue.

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6 hours ago, Darren10 said:

This is a question of if and ehen the courts do not uphold due process. Fair treatment is part of due process and I think it worthy to question fairness or favoritism both by the Legislsture and Judiciary regarding the balancing of religious liberties and gay rights. 

My opposition to the gay rights movement in general has always had mord to do with its threat to other freedoms, particularly religious freedom, than the fact that there are gay people in society seeking equal rights.  

The legislature makes laws, which can be tested for constitutionality by the judiciary.  In addition, when the laws are judged to have been constitutional, then cases of this kind can be litigated.  your personal feelings of fairness may not always fit what a court decides, but that decision is still the law -- regardless of your personal feelings.

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6 hours ago, Anijen said:

Sorry, I did not mean to neither allege nor imply that the parties were prevented from going to court. Often many people assume that being denied a voice in court is a violation of due process. It is, but not in all cases. For instance; we have heard before the statement; "I'll take this all the way to the Supreme Court." I know Robert you know this, but for clarification for other readers they might not realize that out of the thousands of cases wanting their voices heard in the Supreme Court only a few hundred are chosen. Often cases are not heard due to lack of standing, mootness, or ripeness, etc. Often cases are not heard because perhaps the Supreme Court simply thinks the lower courts have sufficiently answered the issue of the case.

Correct.  The appellate courts handle the bulk of such cases, and their decisions are final.

6 hours ago, Anijen said:

Due process can also be violated when life, liberty and property is being threatened. It is under this meaning I have posted this thread.

That is only the case when life, liberty, and property are threatened and due process denied (refusal of access to courts, lack of warrant, unfair eminent domain, etc.).  That a court decision is not to our liking is not denial of due process.

6 hours ago, Anijen said:

..........................................................

Yes, and I agree with the LDS Church's' policy (I am true blue through and through). I own a business and I personally believe that marriage should be between a man and a woman, just as the The Proclamation to the Family has established. I have never denied my business service based on race, religion, ethnicity, or gender  preference. and no I do not believe the Church is wrong to take that position. No, there is not an application in my above scenarios. In the above scenarios, the refusal of service is based on religious beliefs and not on discrimination.

But that was my earlier point:  These are first amendment claims, not due process claims.

6 hours ago, Anijen said:

Should a Muslim song writer (with his monotheistic religious beliefs) who lives on the proceeds his songs make, be compelled by threat of court fines be forced to write songs about Hinduism?  Should a devout Catholic poet who lives on the proceeds of her poetry be compelled by threat of legal action and punitive fines be compelled to write a poem on the evilness of venerating saints? Robert, I think these are drastic examples. yet, If the Muslim song writer and the Catholic poet should not be compelled then where do we draw the line? When is it appropriate to compel through litigation and when is it not?

Artistic expression (free speech) for private persons is not a due process matter.  It is only proper to compel through litigation when a legal right has actually been denied, and the court will decide that issue -- even though we may not like that decision and think it unfair.

6 hours ago, Anijen said:

In my scenarios, it was forced action against either a private business of businessmen just like our songwriter, ...................................

They are not the same issue at law.

6 hours ago, Anijen said:

My belabored point is; I believe religious held beliefs can in some cases allow for the refusal of that service and should not instill a fear in a baker because the baker wants to hold to his religious beliefs regarding marriage.

Only the court may litigate the matter.  Our personal feelings may be bruised, but we are a society, not a bunch of loners.  Our legislative and judicial system is designed to decide such matters on behalf of the entire community in order to prevent the necessity of deciding such issues in less civilized ways.

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12 hours ago, rpn said:

It is the government that owes due process of law, not any business or person.

Yes, I agree. But that is not my issue. The issue is; it is the business, the business man or woman (or any citizen) that is protected by those rights.  It is the government through the judicial and executive branches that adjudicate. Judicial in the courts and the Executive in the policing. However, in civil suit claims it is two citizens who may sue each other (it usually is not of the govt but could be also it could be a state v. fed issue, or could be a person v. govt issue as well). They could be two business, etc. They would use the judicial branch for their lawsuits to be litigated.

My issue I bring up in this post is; when that private person is sued and one of them loses (such as the Baker) the court orders performance (service of making the cake) and fines him $130,000 if he does not comply, and/or could sanction him with contempt of court which could be a fine, jail time, or both. It is in that scenario where the court adjudicates. I am simply saying the Baker refused service on for religious reasons, he is fined and could possibly be incarcerated, thus his due process rights to life, liberty, and property has been violated for following his religious beliefs, and of course his First Amendment Rights as well.

 

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And when you talk about rights to refuse to do things you are commonly talking about the 1st amendment protection of religious freedom

Yes, you are correct. This is a First Amendment protection scenario not based on the "establishment" clause but on the "free exercise" clause of that amendment. In one of the examples that I provided it has a Baker agreeing to make any cake, any size, any flavor, any amount, with the exception of a wedding cake, which the baker refused to do so based on his religious beliefs. In other words he is exercising his right to free exercise of his religion. Then he is sued because a same sex couple, (whose actual purpose is to litigate a case and sought out a baker who would deny them service). The Baker loses in court and results in being fined (a very large amount of money) and also faces possible incarceration. If that happened (and is my main point), the Bakers due process rights which come from the 5th and 14th Amendments have been violated because the Bakers due process rights to life, liberty, and property has been violated.

Due Process is not just access to courts, have a jury trial, or any number of processes that take effect with an investigation, interrogation, and an arrest of a person. Due Process rights can and also include the right to be protected in our lives, liberty, and property.

 

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(make no law to help or hurt religion), and sometimes the right to assembly and right to Free Speech.

Well not technically correct in understanding the First Amendment, but I agree with your point. (note:  the right to assembly is not sometimes, but is always. Meaning it is a permanent right.  However, you are correct in that the  government (either federal, state, or local) do have the ability to regulate that right through time, place, and manner statutes.

Here is a paragraph I had written for my Constitutional Law class describing the First Amendment and its history;

The First Amendment, was added to the Bill of rights to allow criticism of the government without fear of retaliation. This is where the free marketplace of ideas comes from. The reasoning behind this, is a freedom of speech, even critical speech, of the government. If one has the liberty to speak as they feel, then all these ideas will be able to be placed in the marketplace for others to either subscribe to or reject (marketplace of ideas). This competition marketplace, which would allow this free flowing of ideas to become important and have a place of prominence and allow the freedom of those ideas to emerge, evolve, be refined, get perfected all without fear of retaliation from a government. A government that the Colonist just over threw (the madness of King George and of England). It also allows the freedom of religious worship and religious expression, so that individuals may worship and express their religious views without fear of the government from interfering with that freedom. Thus, allowing a criticism from religious leaders of the government and governmental leaders to hear their religious views from pastors, ministers, priests etc so that their congregations can also grow and have a free marketplace of religious ideas, again without the fear of governmental interference. It allows the freedom of individuals to assemble and become a body (group) of people with a similar goal or purpose to express their ideas without fear of retaliation from the government.

 

Robert F. Smith wrote:

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Correct.  The appellate courts handle the bulk of such cases, and their decisions are final.

Sometimes, they are not final, i.e. when the Supreme Court over rules them. Even then the Supreme Court can later over rule past Supreme Court rulings (for example; when the Supreme Court over ruled Plessy v. Ferguson with the Brown v. Board of Education decision).

 

Quote

That is only the case when life, liberty, and property are threatened and due process denied (refusal of access to courts, lack of warrant, unfair eminent domain, etc.).  That a court decision is not to our liking is not denial of due process.

I agree that if we base it on our liking a courts decision, that [liking] is not a violation of due process. However, I respectfully disagree that a bad court decision cannot still continue to violate a due process right. Did not the Dred Scott decision continue to violate Mr. Scotts' due process rights of liberty?

Not to belabor the point, I will try to explain it more fully. The “due process” clause protects life, liberty, and property from impairment by the federal government. Robert, you are correct that the due process clause seeks to preserve and protect fundamental rights and ensure that any deprivation of life, liberty, or property occurs in accordance with procedural safeguards. But also, as such, there are both substantive and procedural considerations associated with the due process clause, and this has influenced the development of two separate tracks of due process jurisprudence, with regards to the procedural and the substantive. Procedural due process pertains to the rules, elements, or methods of enforcement, those are the procedural aspects you are advocating (and you are not wrong). There is more to it than the procedural aspect. 

Consider the elements of a fair trial and related Sixth Amendment protections. As long as all relevant rights of the accused are adequately protected and as long as the procedural rules are followed, then the government may, in fact, deprive a person of his life, liberty, or property. What if the rules are unfair, (being forced to labor)? Is being forced to labor akin to slavery? Being court ordered to make a wedding cake, is being forced to labor. What if the law itself, regardless of how it is enforced, seemingly deprives rights? This raises the issue of substantive due process rights. It is not inconceivable that the content of the law, regardless of how it is enforced, is itself repugnant to the Constitution because it violates fundamental rights. Over time, the Supreme Court, like a rocking chair, has gone back and forth regarding its relationship with liberty-based due process challenges, but it has generally accepted by the principle that certain rights are “implicit in the concept of the protection of life, liberty, and property through both procedural due process and substantive due process. 

 

Quote

But that was my earlier point:  These are first amendment claims, not due process claims.

I'm not disagreeing. It was both. First, a violation of the Bakers First Amendment Right of free exercise of his religion, and second, once he was court ordered to bake the wedding cake (forced labor) and fined (and faces incarceration) it thus also violated his Fourteenth Amendment due process right of life, liberty, and property. Note: I use the 14th Amendment here because it was not the Supreme Court, but was adjudicated by a state court.

 

Quote

Artistic expression (free speech) for private persons is not a due process matter.

Is it not? Being denied the freedom of "artistic expression" denies the artist (a private person) a life he wishes to pursue, the liberty to pursue it, and the right to sell his artistic creations (property). 

 

Quote

 It is only proper to compel through litigation when a legal right has actually been denied, and the court will decide that issue -- even though we may not like that decision and think it unfair.

That is true in most cases, but there have been many, countless cases where the legal right itself has been the question. IOW, there has been litigation of issues that have not been decided even before the legal right was formed. You are correct and I agree, the liking or not liking the decision is irrelevant.

 

Quote

They are not the same issue at law.

I respectfully disagree. The Muslim songwriter, the Catholic poet, the Baptist photographer, and the religious baker, they all have the exact same issue.  All are being compelled to labor, all are compelled against their religious beliefs. Note: the Muslim agrees to write any other song, but not one he feels goes against his religion, he is compelled to labor by writing a song. The Catholic poet will write any other poem, but not one against her religious beliefs. The Catholic poet is compelled to labor, is compelled to write a poem that goes against her religious convictions. The Baker is compelled to labor, the Baker is compelled to make a wedding cake that goes against his religious beliefs.They are the same issue at law.

Conclusion: There are many laws out there that are abhorrent to some of us. I do not like to the U.S. flag burned, or crosses being burned because of racial hate, but they are rights given under the First Amendment as a freedom of expression. If the person who in his racial hatred burns a cross as a manner of expression and is taken to court, ordered to stop, fined, and incarcerated not only has his First Amendment Right been violated but also his due process rights to life, liberty, and property has as well.

I am for fundamental rights for those who are in a same-sex-marriage. I will fight and argue and be their lawyer and will give them 100% of my legal skills to fight for their fundamental right to marriage. However, that is not the issue and it seems here, that some people interpret this as that issue. I am not for intolerance and discrimination. Having said that, I believe that marriage is between a man and a woman. That belief is also religiously held by the church I am a member of. If I believed otherwise I would holding a belief contrary to my religious beliefs. If I am court ordered to labor enforced by a fine or incarceration for going against my religiously held beliefs then not only is my First Amendment been violated but also my 14th or 5th Amendment been violated as well.

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Should a landlord have the right to refuse to rent to a gay couple on that ground alone?  Suppose it is for commercial space for a gay couple to run a tuxedo shop?

How about renting to a Muslim couple for the same purposes?  Or an unmarried couple?  May a religious landlord refuse to rent?

As a libertarian I say yes.  But as a Christian with moral principles I would not count such a landlord as a friend or business partner.   Nor want him as a bishop, mayor or school teacher.  

Edited by Bob Crockett
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6 hours ago, Anijen said:

............................................ However, in civil suit claims it is two citizens who may sue each other (it usually is not of the govt but could be also it could be a state v. fed issue, or could be a person v. govt issue as well). They could be two business, etc. They would use the judicial branch for their lawsuits to be litigated.

My issue I bring up in this post is; when that private person is sued and one of them loses (such as the Baker) the court orders performance (service of making the cake) and fines him $130,000 if he does not comply, and/or could sanction him with contempt of court which could be a fine, jail time, or both. It is in that scenario where the court adjudicates. I am simply saying the Baker refused service on for religious reasons, he is fined and could possibly be incarcerated, thus his due process rights to life, liberty, and property has been violated for following his religious beliefs, and of course his First Amendment Rights as well.

Civil suits do not entail jail time.  That is solely the province of criminal violations.  The court proceedings are his due process.  He has not been denied due process.  He gets his day in court, argues his case.  Loss does not mean denial of due process in any way.

6 hours ago, Anijen said:

Yes, you are correct. This is a First Amendment protection scenario not based on the "establishment" clause but on the "free exercise" clause of that amendment. In one of the examples that I provided it has a Baker agreeing to make any cake, any size, any flavor, any amount, with the exception of a wedding cake, which the baker refused to do so based on his religious beliefs. In other words he is exercising his right to free exercise of his religion. Then he is sued because a same sex couple, (whose actual purpose is to litigate a case and sought out a baker who would deny them service). The Baker loses in court and results in being fined (a very large amount of money) and also faces possible incarceration. If that happened (and is my main point), the Bakers due process rights which come from the 5th and 14th Amendments have been violated because the Bakers due process rights to life, liberty, and property has been violated.

Not so.  Unless it is a criminal prosecution by the state, he does not face incarceration at all.  His civil trial is his due process.

6 hours ago, Anijen said:

Due Process is not just access to courts, have a jury trial, or any number of processes that take effect with an investigation, interrogation, and an arrest of a person. Due Process rights can and also include the right to be protected in our lives, liberty, and property.

False.  The fair trial is his due process.

6 hours ago, Anijen said:

.........................................................

The First Amendment, was added to the Bill of rights to allow criticism of the government without fear of retaliation. This is where the free marketplace of ideas comes from. The reasoning behind this, is a freedom of speech, even critical speech, of the government. If one has the liberty to speak as they feel, then all these ideas will be able to be placed in the marketplace for others to either subscribe to or reject (marketplace of ideas). This competition marketplace, which would allow this free flowing of ideas to become important and have a place of prominence and allow the freedom of those ideas to emerge, evolve, be refined, get perfected all without fear of retaliation from a government. A government that the Colonist just over threw (the madness of King George and of England). It also allows the freedom of religious worship and religious expression, so that individuals may worship and express their religious views without fear of the government from interfering with that freedom. Thus, allowing a criticism from religious leaders of the government and governmental leaders to hear their religious views from pastors, ministers, priests etc so that their congregations can also grow and have a free marketplace of religious ideas, again without the fear of governmental interference. It allows the freedom of individuals to assemble and become a body (group) of people with a similar goal or purpose to express their ideas without fear of retaliation from the government.

Not put quite the way I would have stated it, but not incorrect either.  Just as an aside, are you aware that the Bill of Rights were appended to the U.S. Constitution for the same reason that they were appended to the British Constitution one hundred years earlier?  And consciously so.  Were you even aware that the American Revolution was preceded by a century by the Glorious British Revolution?  To fully understand American jurisprudence, one must fully understand English jurisprudence.

6 hours ago, Anijen said:

...........................................

Sometimes, they are not final, i.e. when the Supreme Court over rules them. Even then the Supreme Court can later over rule past Supreme Court rulings (for example; when the Supreme Court over ruled Plessy v. Ferguson with the Brown v. Board of Education decision).

You miss the point that, for all practical purposes, the appellate court decisions are final.  For, as you yourself pointed out, the U.S. Supreme Court takes few cases.  The few landmark cases are important because the appellate courts follow them.  That is how the rule of law works.  You had made it sound as though complainants were not able to get a court hearing, which was false.  Due process is always available.

6 hours ago, Anijen said:

I agree that if we base it on our liking a courts decision, that [liking] is not a violation of due process. However, I respectfully disagree that a bad court decision cannot still continue to violate a due process right. Did not the Dred Scott decision continue to violate Mr. Scotts' due process rights of liberty?

No.  Scott got a decision which was wrong on the facts and wrong on morals, but he was not denied due process.  The same applies to the Reynolds v USA decision.  The LDS Church did not like that decision, but due process was not denied.

6 hours ago, Anijen said:

Not to belabor the point, I will try to explain it more fully. The “due process” clause protects life, liberty, and property from impairment by the federal government. Robert, you are correct that the due process clause seeks to preserve and protect fundamental rights and ensure that any deprivation of life, liberty, or property occurs in accordance with procedural safeguards. But also, as such, there are both substantive and procedural considerations associated with the due process clause, and this has influenced the development of two separate tracks of due process jurisprudence, with regards to the procedural and the substantive. Procedural due process pertains to the rules, elements, or methods of enforcement, those are the procedural aspects you are advocating (and you are not wrong). There is more to it than the procedural aspect. 

Correct.

6 hours ago, Anijen said:

Consider the elements of a fair trial and related Sixth Amendment protections. As long as all relevant rights of the accused are adequately protected and as long as the procedural rules are followed, then the government may, in fact, deprive a person of his life, liberty, or property. What if the rules are unfair, (being forced to labor)? Is being forced to labor akin to slavery? Being court ordered to make a wedding cake, is being forced to labor. What if the law itself, regardless of how it is enforced, seemingly deprives rights? This raises the issue of substantive due process rights. It is not inconceivable that the content of the law, regardless of how it is enforced, is itself repugnant to the Constitution because it violates fundamental rights. Over time, the Supreme Court, like a rocking chair, has gone back and forth regarding its relationship with liberty-based due process challenges, but it has generally accepted by the principle that certain rights are “implicit in the concept of the protection of life, liberty, and property through both procedural due process and substantive due process. 

I'm not disagreeing. It was both. First, a violation of the Bakers First Amendment Right of free exercise of his religion, and second, once he was court ordered to bake the wedding cake (forced labor) and fined (and faces incarceration) it thus also violated his Fourteenth Amendment due process right of life, liberty, and property. Note: I use the 14th Amendment here because it was not the Supreme Court, but was adjudicated by a state court.

False.  He had his day in court.  He may not like the decision, but he was not denied due process at all, and the court already took into consideration his right to free exercise of religion -- which is not absolute.  He owns a business and must comply with laws requiring him to provide his services to all without bias or prejudice.  He can receive remuneration for his labor (it is not forced labor), and he does not face incarceration -- unless this is a criminal case.

6 hours ago, Anijen said:

Is it not? Being denied the freedom of "artistic expression" denies the artist (a private person) a life he wishes to pursue, the liberty to pursue it, and the right to sell his artistic creations (property). 

That is true in most cases, but there have been many, countless cases where the legal right itself has been the question. IOW, there has been litigation of issues that have not been decided even before the legal right was formed. You are correct and I agree, the liking or not liking the decision is irrelevant.

I respectfully disagree. The Muslim songwriter, the Catholic poet, the Baptist photographer, and the religious baker, they all have the exact same issue.  All are being compelled to labor, all are compelled against their religious beliefs. Note: the Muslim agrees to write any other song, but not one he feels goes against his religion, he is compelled to labor by writing a song. The Catholic poet will write any other poem, but not one against her religious beliefs. The Catholic poet is compelled to labor, is compelled to write a poem that goes against her religious convictions. The Baker is compelled to labor, the Baker is compelled to make a wedding cake that goes against his religious beliefs.They are the same issue at law.

None of the artistic persons or companies which employ them were compelled to be in business.  However, once they opted to open a business, they must comply with local and federal laws.  They do not have permission to discriminate, but must offer their services to all without bias or prejudice.  That is the nature of community.

6 hours ago, Anijen said:

Conclusion: There are many laws out there that are abhorrent to some of us. I do not like to the U.S. flag burned, or crosses being burned because of racial hate, but they are rights given under the First Amendment as a freedom of expression. If the person who in his racial hatred burns a cross as a manner of expression and is taken to court, ordered to stop, fined, and incarcerated not only has his First Amendment Right been violated but also his due process rights to life, liberty, and property has as well.

I am for fundamental rights for those who are in a same-sex-marriage. I will fight and argue and be their lawyer and will give them 100% of my legal skills to fight for their fundamental right to marriage. However, that is not the issue and it seems here, that some people interpret this as that issue. I am not for intolerance and discrimination. Having said that, I believe that marriage is between a man and a woman. That belief is also religiously held by the church I am a member of. If I believed otherwise I would holding a belief contrary to my religious beliefs. If I am court ordered to labor enforced by a fine or incarceration for going against my religiously held beliefs then not only is my First Amendment been violated but also my 14th or 5th Amendment been violated as well.

The court trial itself is your due process which you have not been denied.  The decision may not fit your personal beliefs, but you may be compelled to abide by the court order.  You may be fined in order to gain compliance, and your property may even be seized and sold at a sheriff's auction to satisfy the debt.  All in compliance with due process.  If your property and funds had been seized without due process, that would be another matter entirely.

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4 hours ago, thesometimesaint said:

The Church can not be compelled to accept homosexual acts. A Church member who owns a business open to the public can not refuse to sell to a homosexual customer.

Would you rather be free to choose or be compelled by the government?  What if the government just gets it wrong, you're subject to an overzealous prosecutor and you lose your business and are clapped into jail on the basis of a simple misunderstanding?  Do you trust the government to get it right?

In California, we are compelled to rent to gay or unmarried couples, to Muslims, to bake cakes and even, if a doctor, to provide fertility services.  Is that the way you want it?  Just as a woman should be free to choose an abortion, shouldn't we should be free from tax on sugary sodas, gays should be free to marry, and people should be free to smoke?  Why not the right to be a  bigot?  I'm not talking about government services; I'm talking about private business decisions.  It seems to me that if I just don't want to rent to an overweight gay Methodist tattoo artist, I shouldn't be compelled to do so.

Where people are not truly free to choose, such as at the passport office, the fire station, the police office, the court system, the DMV, or major league baseball (which enjoys antitrust immunity), hospitals (which enjoy local antitrust immunity) these kinds of rules ought to be enforced.  But not at the abortion clinic, the adoption agency, the fertility clinic and such.

When you start trusting the government to regulate personal decisions on unessential matters (cake baking, apartments and fertility doctors when there are plenty of alternatives),  you are headed to regulation on matters of religion and faith.

Edited by Bob Crockett
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Personally I'd rather choose. Do we follow the law because it is the right thing to do or because we fear the consequences of not following it?

Governments often get it wrong. We have legal remedies when they do get it wrong to either change the law or mitigate the punishment.

I have to trust it. Even if I don't always like what it does. A overzealous prosecutor takes my business and throws me into  jail. Who do I appeal to? I have appeal to another branch of government to make me monetarily whole and set me free from that jail.

Yes I want it that way. I think every person in the US should be treated legally the same as every other person. I don't have a problem with a tax on sugary drinks, In California we have a tax on them in the form of a redemption tax, which is returned when we return the empty bottle/can. Adult Gays should be free to marry anyone that will marry them. Heck an consenting adult man should be able to marry as many consenting adult women as will marry them, and an consenting adult woman should be able to marry consenting adult men as will marry them. You have every right to be as bigoted as you want. You can even teach your children to be more bigoted. What you can't legally do is discriminate, in your business, based on your bigotry.

Why exclude an abortion clinic? Even the Church has conditions were abortions is justified. What difference does it make where it is done safely, legally, and rarely or a regular hospital?

The US government isn't compelling me to believe or have faith in anything. As long as we have the First Amendment and the will to enforce it, that isn't likely to happen. Maybe when Jesus comes back and does away with all earthly governments. But not right now..

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  • 2 weeks later...

Let’s try look at it from a different perspective.

In trying to make the point where almost everyone who has replied on this thread has misunderstood me. They are looking at discrimination as an absolute and is disallowed. I want to clarify; I am not prejudice, bigoted, or racist, all I am doing here is making an argument that discrimination is allowed in cases in the Supreme Court and the quick reaction against my arguments have been arguments as if I hold prejudice beliefs. I do not and strongly argue that I am wholly opposed to discrimination as all of you are.

When a case goes to the Supreme Court, the nine judges will have certain procedures that they use in deciding cases. When a case that comes before the courts they will utilize certain standards of review. These standards of review are not always used in the courts that are below them. When a case comes before the court based on individual rights will fall under three categories. They are (1) Procedural Due Process; this is where the focus of the government must follow certain procedures when the individual rights (regarding life, liberty, or property) have been taken away. (2) Substantive Due Process; this is where the focus of the government is on if there is adequate justification when the government takes away one’s life, liberty or property. (3) Equal Protection: is when the focus is on whether the government when differences in treatment of people is justified.

Depending on the category and the individual who has standing to bring an action, the Supreme Court may take the case and when and if it does the procedures they use can be different depending on the above-mentioned factors. (spoiler warning the following could put you to sleep)

The Standard of Review that is used, will almost always dictate the outcome. There are three standards of review, they are; (1) a Rational Basis Review. When a rational basis test is used, the means needs to be rationally related to a legitimate government purpose and the burden of proof is always on the challenger. When the Rational Basis Test is used the government not the challenger will almost always win. (2) Intermediate Scrutiny Review. When an Intermediate Scrutiny Test is used, the government must show an important (actual) purpose and the law must be substantially related to that purpose, and be narrowly tailored to meet that purpose. When an Intermediate Scrutiny Test is used the burden of proof will always be on the government. The last is; (3) the Strict Scrutiny Review. When a Strict Scrutiny test is used, the government must show a compelling (actual) purpose and the means must be the least restrictive alternative means and furthermore needs to be narrowly tailored to meet those means. When the Strict Scrutiny Standard of review is used the burden of proof is always on the government and the challenger will almost always win.

Now here is the important part; When a fundamental right is violated and if that right is brought by a plaintiff of a suspect classification (race, national origin, sexual orientation, religion), they will always get a strict scrutiny standard of review. Thus, when a gay couple takes legal action for the fundamental right to marriage (marriage is a fundamental right) and because they are a suspect class (sexual orientation is considered a suspect class) the Supreme Court by its own procedural rules are obligated to use the Strict Scrutiny level of review and when that level of review is used the challenger almost always wins. We can see the predictable outcome in the Obergefell v. Hodges decision which is the actual case that made same-sex-marriage legal.

The Baker lost his case because he is not a suspect class (heterosexuals are not considered a suspect class) and refusing to bake a wedding cake is not a violation of a fundamental right, thus the baker did not get a Strict Scrutiny level of review thus the government (here the Colorado Appellate Court) used only a Rational Basis level of review and thus when using this standard of review the government almost always wins. So, we can foresee here how the baker lost.

Now here is my point I have been failing miserably trying to make. If the bakers were the gay couple and the customer was a heterosexual man who wanted the bakers to make a cake that had a bible verse on the cake that forbid homosexuality (just the book, chapter, and verse number not the actual words of that verse) and the bakers (the gay couple) refused the customer, the courts would uphold the bakers right to discriminate against the heterosexual religious man. The religious man would lose in court. This was an actual case that was cited in the MasterChef Case which I used as a source when I made my example in my above posts.

Yes, it is true, it is legal for discrimination if the roll was reversed. Another example, If the baker was a big-wig in the KKK organization and an African-American man wanted the baker to bake his wedding cake the baker could not refuse because the African-American is a member of a suspect class. However, if the roll is reversed and the African-American was the baker and a KKK member came and asked the baker to make his wedding cake it would be legal for the baker to refuse the man because he is a KKK member. Note: I am not racially prejudiced against African-Americans or any other race or class and I consider the KKK a disgusting organization. I am only using this as an example.

We see discrimination is sometimes legally acceptable in private businesses. Now, my argument is why has not the Bakers fundamental religious rights were not taken into consideration? When the baker lost his case not only was he ordered to pay over a $135,000 fine, but he and all of his employees were ordered to undergo tolerance counseling, and his books were subject to random inspections (making sure he did not refuse other customers). Has this not affected his rights? And that is my argument.

 

Please google and research these standards of review, substantive due process, and applicable cases and not just reflexively judge me as a bigot and say all discrimination is disallowed under the Constitution, which clearly isn’t the case. I would suggest the following;

The freedom of speech protected by the First Amendment includes the "right to refrain from speaking" and prohibits the government from telling people what they must say. See, Wooley v. Maynard, Rumsfeld v. Forum for Academic & Institutional Rights, Inc., In re Hickenlooper,. This compelled speech doctrine, was first articulated by the Supreme Court in West Virginia Board of Education v. Barnette, Jack Williams v. Azurcue Cakes (a case where the bakers are gay and was legally allowed to refuse to bake a cake for a religious customer)

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On 5/27/2017 at 3:42 PM, Robert F. Smith said:

Civil suits do not entail jail time.  

They could if; a party in the civil-suit was held in contempt, one punishment for contempt is jail. however, you are very much correct generally, they do not involve jail time.

 

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 The fair trial is his due process.

Due Process covers more that a fair trial.

 

 

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are you aware that the Bill of Rights were appended to the U.S. Constitution ...  Were you even aware that the American Revolution was preceded by a century by the British Revolution?  To fully understand American jurisprudence, one must fully understand English jurisprudence.

I am aware. Not to be vain, I just wanted you to know my degrees are in History (focus on the US Colonial era) , Anthropology, and I have a Jurist Doctorate. I am not just blowing hot air). Having said that, I wanted to make it publicly known (well it least here) that you are one of my all time favorite posters on this site, and it pains me that thus far I have been inadequate in trying to explain to you the perspective I am trying to come from. Totally my fault.

 

 

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No, Scott got a decision which was wrong on the facts and wrong on morals, but he was not denied due process.

The judge in the lower court said that Scott had to prove by bringing in witnesses (such as his family) that he was not a slave, but Scott could not bring in his family because the bailiff in that court proceeding took his family back south to their homes (were they were in fact slaves) and his family were unavailable to testify to him being free. Is that not a due process violation, being denied his own witnesses? Once it reached the Supreme Court, that same question came up and the sheriff had kicked Scott out of his home during the case and rented it out for his own pecuniary interests. Is that not a violation of due process (life, liberty, and property)? 

 

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 However, once they opted to open a business, they must comply with local and federal laws.  They do not have permission to discriminate, but must offer their services to all without bias or prejudice.

This is not always true. Discrimination is allowed in some cases and in some instances. It depends on the class of the plaintiff and if a fundamental right was violated. Please see my post right before this one. Warning it is quite boring.

 

 

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The decision may not fit your personal beliefs,

Actually my personal beliefs are not at issue here, and I would imagine my personal beliefs are very much similar to yours. I am against racism, discrimination, hatred.... etc.

 

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but you may be compelled to abide by the court order.  You may be fined in order to gain compliance, and your property may even be seized and sold at a sheriff's auction to satisfy the debt.  All in compliance with due process.  If your property and funds had been seized without due process, that would be another matter entirely.

So when the Colorado bakers employees were also ordered to undergo tolerance counseling and the baker was forced to allow state inspectors into his bakery (without any type of warrant) to search his records (not once but on many random occasions) to ensure that he was not refusing other customers, was that not a violation of his and his employees rights? Not even a little bit? And were subject to more fines if the disobeyed (and possible jail)? 

 

If I am in the business of owning and operating a bakery and I hold the concept that marriage is between a man and a woman, I personally would still bake a cake for the gay couple, but not because I am all that law abiding (I very much try to be, sometimes I have a heavy foot on the gas pedal), but I do have a small twinge of fear that I might be forced to comply because of a fine, compelled counseling for me and my staff, subject to random searches of my financial records, and face more money fines possibly jail if I do not. yes, I find that perhaps in a small way, perhaps in a large way a violation of my right to enjoy life, liberty, and property.

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On 5/27/2017 at 11:37 AM, Bob Crockett said:

Should a landlord have the right to refuse to rent to a gay couple on that ground alone?  

No

 

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Suppose it is for commercial space for a gay couple to run a tuxedo shop?

No

 

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How about renting to a Muslim couple for the same purposes?

No

 

I personally would bake the cake, take the photographs, rent to anyone. I am only trying to argue that the Baker would have baked anything else for the couple but the wedding cake for him was an individual artistic expression and the message on the cake would go against his religious principles thus he too, should have been given a strict scrutiny standard of review and his issue was under the standing (suspect class) of his fundamental religious right to not to go against something he personally felt would go against that right. My second issue is the First Amendment right is to protect the freedom of speech and it is also a protection against compelled speech. 

 

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