A Solid Win for Free Speech and Religious Liberty (8th Circuit Case)

[Amulek]

2 hours ago, Meadowchik said:

The context is religious belief and businesses.

That's a pretty broad topic, but I would be more than happy to share my thoughts about the cases you mentioned. Sorry for missing them earlier. I thought yours was a duplicate post from CB; you're avatars share a similar color scheme (like both of them by the way - someday I'll get around to picking one myself).

 

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Can a business refuse entry and services to women who don't cover their faces? Can they refuse public speaking positions of employment to women?

So, these are two different ways in which a business could conceivably discriminate: (1) discrimination with respect to customers and (2) discrimination with respect to employees. It's important to distinguish between the two.

And, even then, there are lots of things that can come into play that affect how the law is applied. For example, the law often makes distinctions between private companies and publicly owned companies; how many employees you have can make a difference; what kind of business you are in; whether or not you are affiliated with a religious institution can make a difference as well; and there's a whole lot of other things that come into play when the government is acting as an employer. And that's just a sampling. To make this generic, I'll just comment about the two generic cases, rather than the specific examples you have brought up. 

For case (1) discrimination with respect to customers, you generally can refuse service to anyone - even if they are in a protected class - but the refusal can't be arbitrary, and you need to be consistent in applying it. This is why you may have seen a sign somewhere saying, 'No shirt. No shoes. No service.' This kind of discrimination is generally allowed. Because while anti-discrimination laws keep you from refusing service based on certain characteristics (e.g., race, gender, age, etc.), 'how you look' isn't on the list. So, for safety / liability reasons, a home improvement store may require customers to wear shoes; or, to maintain a sense of decorum, a posh restaurant may require a certain dress code (e.g., dresses for women / jacket or tie required for men). Again, that's perfectly fine. 

For case (2) discrimination with respect to employees, employers generally cannot discriminate in their hiring (or any other employment) practices. Remember, anti-discrimination laws only apply to members of a protected class (e.g., race, gender, age, etc.). If an employer doesn't like your personality then they don't have to hire (or promote) you, regardless of whether or not you are a woman, a minority, gay, or anything else. Now, when it comes to employees with religious objections to their required duties, see my previous post to CB where I covered that. 

Sorry if I didn't exactly answer your question. I'm trying to keep it generic and brief, and it's already a bit more than anyone probably wants to read. If you want me to address something specifically though, just let me know and I'll try to oblige. 

[Calm]

Speaking of religious freedom and employment:

https://www.deseret.com/2019/8/30/20837553/religious-belief-freedom-supreme-court-constitution-bible

[Amulek]

8 minutes ago, Calm said:

Speaking of religious freedom and employment:

https://www.deseret.com/2019/8/30/20837553/religious-belief-freedom-supreme-court-constitution-bible

Native Americans have already been down this road and lost. See Bowen v. Roy (1986). The facts aren't perfectly identical, but they're pretty close and I don't see the Supreme Court wanting to revisit this area anytime soon.

 

[Calm]

8 minutes ago, Amulek said:

Native Americans have already been down this road and lost. See Bowen v. Roy (1986). The facts aren't perfectly identical, but they're pretty close and I don't see the Supreme Court wanting to revisit this area anytime soon.

 

So that case pushes out the one referred here as the stronger precedent?

Quote

Laycock cited a 1981 case involving Jehovah’s Witnesses as an example. It involved a man who, for religious reasons, quit his job after being transferred to a role in which he was required to help assemble a tank. The state of Indiana tried to deny him unemployment benefits, noting that other Jehovah’s Witnesses at the factory were willing to be part of the production line. 

“Other members of his church who were working there thought it was OK, but that didn’t mean it was OK for him,” said Laycock, who is also a professor of law emeritus at the University of Texas. 

The Supreme Court ruled that the state was unlawfully violating the man’s religious exercise rights. Justices focused on his concerns, rather than trying to determine what a reasonable Jehovah’s Witness would do.

https://en.m.wikipedia.org/wiki/Thomas_v._Review_Board_of_the_Indiana_Employment_Security_Division

Edited September 1, 2019 by Calm

[Amulek]

1 hour ago, Calm said:

So that case pushes out the one referred here as the stronger precedent?

The 1981 case would have been back when the Sherbert/Yoder rule was the norm (if you're interested, the two cases are Sherbert v Verner and Wisconson v Yoder). During this time period religious exemptions were generally presumed to be constitutional, though the government could still deny them if doing so was necessary to serve a compelling government interest. It was during this time period when the SSN case (Bowen) came before the court (which, historically, would have been a favorable time to bring such a case), yet the court still shot it down.

The case involving the JW is more about how the courts have gone about establishing whether or not the free exercise clause comes into play. For example, courts can't simply dismiss a case as not implicating the free exercise of religion simply because other JWs (or Jews, or Mormons, or Catholics, etc.) do not believe that X is required/forbidden by their faith. All that matters is that the individual's religious belief be sincerely held (note: and later cases make it clear that it doesn't even have to be a 'religious' belief; a sincerely held secular belief, say, against participating in violence/war would be just as protected as a religious belief which holds the same).

Anyway, the Sherbert/Yoder rule was in effect until 1990 when the Supreme Court overruled those cases in Employment Division v Smith. Here the court ruled that a sincere religious belief, in and of itself, is not enough to carve out an exception to a "neutral law of general applicability." There are a couple of exceptions, technically: (1) if the law is facially neutral but was really written to target religionists (say, a law against private schools which was really designed to target Catholics), then these may still be a violation; and (2) if other constitutional rights are in play beyond just the free exercise clause (though, those are really rare and there has been some disagreement among the courts as to how those are handled).

Employment Division is current / controlling precedent. I said before that I didn't think the Court would be interested in revisiting this area, but I had forgotten about a case last term where a few of the conservative justices (along with one other) intimated that they might be interested in revisiting Employment Division. However, if they did, I don't think it would be to overturn it, and I don't think this would be the case to take - though I could certainly be wrong (it's known to happen even to me from time to time).  

 

[Calm]

5 minutes ago, Amulek said:

The 1981 case would have been back when the Sherbert/Yoder rule was the norm (if you're interested, the two cases are Sherbert v Verner and Wisconson v Yoder). During this time period religious exemptions were generally presumed to be constitutional, though the government could still deny them if doing so was necessary to serve a compelling government interest. It was during this time period when the SSN case (Bowen) came before the court (which, historically, would have been a favorable time to bring such a case), yet the court still shot it down.

The case involving the JW is more about how the courts have gone about establishing whether or not the free exercise clause comes into play. For example, courts can't simply dismiss a case as not implicating the free exercise of religion simply because other JWs (or Jews, or Mormons, or Catholics, etc.) do not believe that X is required/forbidden by their faith. All that matters is that the individual's religious belief be sincerely held (note: and later cases make it clear that it doesn't even have to be a 'religious' belief; a sincerely held secular belief, say, against participating in violence/war would be just as protected as a religious belief which holds the same).

Anyway, the Sherbert/Yoder rule was in effect until 1990 when the Supreme Court overruled those cases in Employment Division v Smith. Here the court ruled that a sincere religious belief, in and of itself, is not enough to carve out an exception to a "neutral law of general applicability." There are a couple of exceptions, technically: (1) if the law is facially neutral but was really written to target religionists (say, a law against private schools which was really designed to target Catholics), then these may still be a violation; and (2) if other constitutional rights are in play beyond just the free exercise clause (though, those are really rare and there has been some disagreement among the courts as to how those are handled).

Employment Division is current / controlling precedent. I said before that I didn't think the Court would be interested in revisiting this area, but I had forgotten about a case last term where a few of the conservative justices (along with one other) intimated that they might be interested in revisiting Employment Division. However, if they did, I don't think it would be to overturn it, and I don't think this would be the case to take - though I could certainly be wrong (it's known to happen even to me from time to time).  

 

Appreciate the lesson.

[Kenngo1969]

22 minutes ago, Amulek said:

... Employment Division is current / controlling precedent. I said before that I didn't think the Court would be interested in revisiting this area, but I had forgotten about a case last term where a few of the conservative justices (along with one other) intimated that they might be interested in revisiting Employment Division. However, if they did, I don't think it would be to overturn it, and I don't think this would be the case to take - though I could certainly be wrong (it's known to happen even to me from time to time). [Emphasis added by Kenngo1969.]

 

You?

Wrong?

Neeeevvvvvvvverrrrr!!!!

For what it's worth (precedent is precedent, but even the most seemingly-secure precedent hardly is written in stone [no pun intended ]) more than a few erudite folks who have a lot on the ball and are not simply up in the night long have believed that Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990) was wrongly decided.

[Stargazer]

On 8/28/2019 at 10:12 PM, mfbukowski said:

Duh

Go somewhere else.  How many LDS bakers are there in Utah?   Heck there is one major pastry chef in my stake alone.  The temple cake business is huge.

That actually gives me an idea for a product line: edible temples that you can put on your wedding cake!  I wonder if the Church has copyrighted the design of the temples?  Would I have to pay royalties to make and sell, say, an edible Salt Lake Temple?

Well, I'm not a confectioner, so ...

[mfbukowski]

31 minutes ago, Stargazer said:

That actually gives me an idea for a product line: edible temples that you can put on your wedding cake!  I wonder if the Church has copyrighted the design of the temples?  Would I have to pay royalties to make and sell, say, an edible Salt Lake Temple?

Well, I'm not a confectioner, so ...

Good idea, but I have no clue!

I know a patent attorney if I remember I will ask him. Hmm. I have the pastry chef and I have the attorney. And your idea. Bwaaaahhaaaaa. 👿👹👺

J/K.

Sounds too much like actual work to me.

Besides eating all those pointy Towers would be uncomfortable. 

And Moroni's trumpet? Ouch!

 

 

 

Edited September 1, 2019 by mfbukowski

[Stargazer]

Just now, mfbukowski said:

Good idea, but I have no clue!

I know a patent attorney if I remember I will ask him.

I posted this before Calm (I think) posted a Pinterest page showing photos of similar things, so I might be too late.

https://www.pinterest.co.uk/pin/368239707003451484/?autologin=true

[mfbukowski]

35 minutes ago, Stargazer said:

I posted this before Calm (I think) posted a Pinterest page showing photos of similar things, so I might be too late.

https://www.pinterest.co.uk/pin/368239707003451484/?autologin=true

Yes and there are all kinds of Temple Toppers that are made of glass or other materials so the image of the temple must be possible to reproduce without too much difficulty

[MiserereNobis]

Just saw this. A wedding hall refused services to a mixed race couple and the owner cited his Christian beliefs as the reason. The end result is unclear and it appears that the owner was surprised that there is nothing in the Bible that prohibits mixed race marriages.

https://www.newsweek.com/no-gay-mixed-race-weddings-boones-camp-event-hall-mississippi-1457252

 

[california boy]

A venue refuses to rent their facility to an inter racial couple because of their "closely held religious beliefs"

Citing ‘Christian Belief,’ Mississippi Event Hall Refuses Service To Interracial Couple

 

 

Quote

 

In a video filmed by Welch and posted on Facebook, a woman identified as someone who worked at the event hall said the venue did not allow LGBTQ or interracial couples to host weddings there.

“First of all, we don’t do gay weddings or mixed race, because of our Christian race — I mean, our Christian belief,” the woman is heard telling Welch in the clip.

“Okay, we’re Christians as well,” Welch responds. “So what in the Bible tells you that ...”

The woman interrupts: “Well, I don’t want to argue my faith. We just don’t participate. We choose not to.”

 

And so it continues....

 

[Amulek]

14 hours ago, MiserereNobis said:

Just saw this. A wedding hall refused services to a mixed race couple and the owner cited his Christian beliefs as the reason. The end result is unclear and it appears that the owner was surprised that there is nothing in the Bible that prohibits mixed race marriages.

https://www.newsweek.com/no-gay-mixed-race-weddings-boones-camp-event-hall-mississippi-1457252

Venue renting isn't an expressive activity, so they cannot discriminate. 

You see, the slope isn't nearly as slippery as the doomsayers would have you believe. The First Amendment shields refusals to speak, but generally not refusals to do things.

As such, those who are engaged in Constitutionally protected expressive activities (e.g., videographers, musicians, writers, etc.) are the only ones who are going to have a First Amendment right to refuse to provide services for these kinds of events. Limo drivers, caterers, and hotel operators...not so much.