Update on Masterpiece Cake Shop Case

[Scott Lloyd]

3 hours ago, Scott Lloyd said:

Ah, pulling the NAZI card. 
 

Didn’t there used to be a board reg about this? Something to do with Godwin’s Law? 

 

2 hours ago, The Nehor said:

The creator of Godwin’s Law specifically clarified that it is allowed when referring to actual Nazis or Nazi-adjacent persons.

Maybe a more apt characterization of what you are doing here is the reductio ad Hitlerum:

https://en.m.wikipedia.org/wiki/Reductio_ad_Hitlerum

[The Nehor]

9 minutes ago, Scott Lloyd said:

 

Maybe a more apt characterization of what you are doing here is the reductio ad Hitlerum:

https://en.m.wikipedia.org/wiki/Reductio_ad_Hitlerum

Hitler whined about how intolerant the tolerant left is?

[Scott Lloyd]

31 minutes ago, The Nehor said:

Hitler whined about how intolerant the tolerant left is?

You try to shut down an argument when you demonize people by unjustly comparing them to Hitler or Naziism. That you think you are doing it justly says more about you than them. 

[The Nehor]

16 minutes ago, Scott Lloyd said:

You try to shut down an argument when you demonize people by unjustly comparing them to Hitler or Naziism. That you think you are doing it justly says more about you than them. 

I mocked the “so much for the tolerant left” bit as Nazism because it was coined by actual Nazis. If one finds themselves angry at resistance to the sentiment that one should not tolerate even horrid intolerance then that person should probably be more comfortable being called a Nazi. It is likely to happen a lot.

Edited March 16, 2021 by The Nehor

[halconero]

On 3/15/2021 at 11:53 PM, Kenngo1969 said:

What?

Actually let legislatures, like, do stuff? 

Why, that's just crazy talk!

Wild right? It also turns out that putting the onus on legislatures rather than unelectable courts reduces polarization.

For the curious, in the Northern Irish case, the devolved legislature passed a law saying that businesses had to serve anyone regardless of their orientation or gender identity, but they were not obligated to violate their conscience on the type of service offered. In the Colorado scenario, the bakery couldn’t deny the gay couple a cake based on their orientation, but the bakery would not be obligated to decorate it with say, two grooms on top.

In the Germany case, the West German government kept abortion illegal, but were obligated to hash out alternative services that supported the life of the child, including employment protections for expecting mothers, health care and social services, child allowances, etc. When it merged with East Germany, abortion remained mostly illegal, but decriminalized. In order to access an abortion, an expecting mother must go through mandatory counselling at a state-approved center. In later trimesters it is banned except in cases of medical necessity.

The compromise of illegal-but-decriminalized, with the addition of state-sponsored health, employment, and social services to make the life of an expecting mother easier, has made the abortion debate much less polarized in Germany, especially as it was hashed out in the electoral process instead of mandated via courts.

[Kenngo1969]

2 hours ago, halconero said:

Wild right? It also turns out that putting the onus on legislatures rather than unelectable courts reduces polarization.

For the curious, in the Northern Irish case, the devolved legislature passed a law saying that businesses had to serve anyone regardless of their orientation or gender identity, but they were not obligated to violate their conscience on the type of service offered. In the Colorado scenario, the bakery couldn’t deny the gay couple a cake based on their orientation, but the bakery would not be obligated to decorate it with say, two grooms on top.

That seems like a sensible solution, but likely, the Human "Rights" Commissions in areas of the United States where such bodies exist would call it discrimination.

2 hours ago, halconero said:

In the Germany case, the West German government kept abortion illegal, but were obligated to hash out alternative services that supported the life of the child, including employment protections for expecting mothers, health care and social services, child allowances, etc. When it merged with East Germany, abortion remained mostly illegal, but decriminalized. In order to access an abortion, an expecting mother must go through mandatory counselling at a state-approved center. In later trimesters it is banned except in cases of medical necessity.

The compromise of illegal-but-decriminalized, with the addition of state-sponsored health, employment, and social services to make the life of an expecting mother easier, has made the abortion debate much less polarized in Germany, especially as it was hashed out in the electoral process instead of mandated via courts.

The allure of being able to win a relatively quick legal victory is too enticing when compared with the slow, laborious, cumbersome process of attempting to win enough public and legislative support for a statute, even when the statute would better protect the rights of all parties and likely would get more public "buy in" because it wasn't imposed by judicial fiat.

[nuclearfuels]

On 3/5/2021 at 11:37 AM, smac97 said:

Thoughts? 

No, he should not be compelled.

If I were him, I'd hire ghostwriters to detail the events. Then go on book tours, happily closing my cake shop or selling it to the highest bidder - those with the resources to legally defend free speech. 

Businesses often reserve the right to refuse service. There's no reason he can't do the same. I think he refers cake requests to other bakers who don't share his religious views, no?

[Scott Lloyd]

On 3/16/2021 at 1:33 AM, The Nehor said:

I mocked the “so much for the tolerant left” bit as Nazism because it was coined by actual Nazis. If one finds themselves angry at resistance to the sentiment that one should not tolerate even horrid intolerance then that person should probably be more comfortable being called a Nazi. It is likely to happen a lot.

I’m having trouble making sense of this comment. I’m thinking you may have inadvertently placed a stray “not” in there, but I have no way of knowing. Care to reword it? 

Edited March 20, 2021 by Scott Lloyd

[Scott Lloyd]

16 hours ago, nuclearfuels said:

No, he should not be compelled.

If I were him, I'd hire ghostwriters to detail the events. Then go on book tours, happily closing my cake shop or selling it to the highest bidder - those with the resources to legally defend free speech. 

Businesses often reserve the right to refuse service. There's no reason he can't do the same. I think he refers cake requests to other bakers who don't share his religious views, no?

Do you really think a “reserve the right to refuse service to anyone” disclaimer would be sufficient to protect him from the woke predators in today’s climate? I doubt it. 

[Scott Lloyd]

On 3/18/2021 at 6:52 PM, Kenngo1969 said:

That seems like a sensible solution, but likely, the Human "Rights" Commissions in areas of the United States where such bodies exist would call it discrimination.

The allure of being able to win a relatively quick legal victory is too enticing when compared with the slow, laborious, cumbersome process of attempting to win enough public and legislative support for a statute, even when the statute would better protect the rights of all parties and likely would get more public "buy in" because it wasn't imposed by judicial fiat.

I think the Church of Jesus Christ has set a good example in this regard with its “fairness for all” initiative as an alternative to measures favored by those who would wage judicial warfare in the matter of gay rights. 

[The Nehor]

On 3/19/2021 at 11:33 PM, Scott Lloyd said:

Do you really think a “reserve the right to refuse service to anyone” disclaimer would be sufficient to protect him from the woke predators in today’s climate? I doubt it. 

It never has been since the Civil Rights era.

[smac97]

Here's a development in Arizona that includes ties to both the Masterpiece Cakeshop case and the Church:

Quote

LDS Church leader, Sinema call for LGBTQ equality as Mesa faces challenge to non-discrimination law
Interfaith letter is addressed to 'Arizona residents.' But it comes as a campaign seeks to put Mesa's new civil rights ordinance to a citywide vote.
Author: Brahm Resnik
Published: 3:09 PM MST March 21, 2021
Updated: 3:09 PM MST March 21, 2021

A regional leader of the Church of Jesus Christ of Latter-day Saints and Democratic U.S. Sen. Kyrsten Sinema have signed an interfaith letter affirming their support for both LGBTQ civil rights and the right to religious freedom.

Kyrsten Sinema grew up a member of the Church, graduated from BYU, thereafter left the Church, but apparently remains on good terms with it.  She identifies as bisexual.

Quote

The letter, released on Saturday, is addressed to "Arizona residents," but it comes as the city of Mesa faces a campaign to toss out an LGBTQ civil rights ordinance passed earlier this month. 

Here is a link to the city ordinance (#5609).

Quote

The month-long campaign has just 10 days left to collect the more than 13,000 signatures needed to put the ordinance to a citywide vote.

Elder Dale Willis, a regional leader of the LDS Church, said, "LGBTQ rights and religious freedom do not have to be in conflict."

“Simply put, protecting people from discrimination is about treating others as we want to be treated," Willis said in a prepared statement. "...we can come together to protect all people and unify our community on what has for too long been a divisive issue."

Here is a link to the full text of the letter quoted above.  It is signed by the following:

• United States Senator, Kyrsten Sinema
• The Church of Jesus Christ of Latter-day Saints, Elder Dale Willis
• The Right Rev. Jennifer A. Reddall, VI Bishop of the Episcopal Diocese of Arizona
• Robert T. Hoshibata, Resident Bishop The Desert Southwest Conference, United Methodist Church
• The Rev. Deborah K. Hutterer, Bishop, Grand Canyon Synod, ELCA
• Rev. Dr. William Lyons, Conference Minister Southwest Conference UCC
• Rabbi Robert L. Kravitz, D.D. Past-president, Board of Rabbis of Greater Phoenix
• Angela Hughey, President, ONE Community
• Michael Soto, Executive Director, Equality Arizona

Elder Willis is an Area Seventy called in 2016. 

Quote

Sinema, the first openly bisexual member of the U.S. Senate, supported the federal Equality Act after she was elected in 2018. The House-approved, non-discrimination legislation now awaits action in a divided Senate, where Sinema could hold a key to passage.

Willis' statement carries both religious and political significance in historically conservative Mesa, home to a large number of Mormon families and the faith's first temple in Arizona. 

Within days of Mesa City Council voting 6-2 in favor of the ordinance protecting LGBTQ civil rights, Arizona's leading opponent of those rights, Cathi Herrod of the Center for Arizona Policy, called on residents to sign petitions for a citywide vote to kill the ordinance. 

Herrod and other faith-based opponents mobilized against a similar non-discrimination ordinance in Phoenix. That battle was decided by a narrowly crafted Arizona Supreme Court decision that allowed a wedding-invitation business to skirt the ordinance.

The link to the AZ Supreme Court matter pertains to a September 2019 case: Brush & Nib Studio v. City of Phoenix.  From that link:

Quote

A Phoenix ordinance that protects lesbian, gay, bisexual and transgender people from discrimination cannot be used to force artists to create custom wedding invitations for same-sex couples, the Arizona Supreme Court ruled Monday. 

The high court's decision overturns multiple lower-court decisions that protected the portion of Phoenix's nondiscrimination ordinance that applies to the LGBTQ community. 

An attorney for Phoenix insisted that the ruling was narrow and did not strike down the city law. Rather, the court ruled that "one company" could refuse to make "one type of product" for LGBTQ couples, he said. 

"Today's decision is not a win, but it is not a loss. It means we will continue to have a debate over equality in this community," Mayor Kate Gallego said. 

However, LGBTQ community advocates fear that the decision, however narrow, creates a pathway for other lawsuits.

Here is a link to the actual decision from the AZ Supreme Court.  It cites extensively to the Masterpiece case.  The decision addresses Free Speech (i.e. compelled speech),

The decision also addressed "Protected Speech" under the First Amendment (whether "custom wedding invitations" qualify as "pure speech" (which is fully protected under the First Amendment) or a "business activity" (which is generally not given any constitutional free speech protection)).  The Court found that the wedding invitations "constitute pure speech" because the plaintiffs "use  their  original  artwork,  paintings,  hand-drawn  images,  words,  and  calligraphy  as  a  means  of  personal  expression."

The decision also addresses an argument made by the City of Phoenix "that Plaintiffs’ refusal is not really based on speech, but rather discriminatory conduct directed at a customer’s sexual  orientation."  The Court found no evidence of this in the record: "Duka and Koski neither testified nor argue that their faith prohibits them from serving a customer based on their sexual orientation.  Rather, Duka and Koski have testified that  they  are  willing  to  serve  any  customer,  regardless  of  status, and no  contrary  evidence  has  been  presented.    Additionally,  the  record  contains   no   complaints against   Plaintiffs   for   discriminating   against   customers based on their sexual orientation."

The decision also addresses a related argument made by the City that "Plaintiffs’  discriminatory intent is shown by the fact that, apart from one name, a custom invitation for a same-sex couple is identical to one for a heterosexual couple."  The Court rejected this argument:

Quote

We reject this rather myopic view of the invitations, which defies the very nature of speech and art.  Speech must be viewed as a whole, and even one word or brush  stroke  can  change  its entire  meaning.    See Cohen,  403  U.S.  at  26; see also Telescope  Media  Group,  2019  WL  3979621  at  *4  (stating  that  owners  of  wedding  videography  business  did  not  create  “simple  recordings,  the  product  of  planting  a  video  camera  at  the  end  of  the  aisle  and  pressing  record.  Rather, they intend to shoot, assemble, and edit the videos with the goal  of  expressing  their  own  views  about  the  sanctity  of  marriage”).    For example,  in Hurley,  the  Supreme  Court  determined  that  one  banner  in  a  parade of 20,000 participants changed the expressive content of the entire parade.  515 U.S. at 560–  61, 572–75.  Thus, for Duka and Koski, writing the names  of  two  men  or  two  women  (even  when  the  names  could  refer  to  either a male or female) clearly does alter the overall expressive content of their wedding invitations. Cf. Kaahumanu v. Hawaii, 682 F.3d 789, 799 (9th Cir.  2012)  (stating  that,  in  the  context  of  expressive  conduct,  “[w]edding ceremonies convey important messages about the couple, their beliefs, and their relationship to each other and to their community”).

This section of the brief concludes:

Quote

Ultimately, the   City’s   analysis   is   based   on   the   flawed assumption   that   Plaintiffs’   custom   wedding   invitations   are   fungible   products, like a hamburger or a pair of shoes.  They are not.  Plaintiffs do not  sell  “identical”  invitations  to  anyone;  every custom invitation  is  different and unique.  For each invitation, Duka and Koski create different celebratory messages, paintings and drawings; they also personally write, in calligraphy or custom hand-lettering,  the names of the specific bride and groom who are getting married.  In short, Plaintiffs do not create the same wedding  invitation  for  any couple,  regardless  of  whether  the  wedding  involves a man and a woman or a same-sex couple.

I think this is an important point.  A few more salient excerpts:

• Next, both the City and  the  dissent  contend  that while  the  custom invitations themselves may  contain  protected  speech,  Plaintiffs’ refusal  to  create  them  for,  and sell  them  to,   a  customer  for  a  same-sex wedding does not implicate speech.  We disagree.  The process of creating and selling pure speech, which undeniably involves decisions about what to  create  and  what  not  to  create,  is protected  by  the  First  Amendment.  
• The  City  also argues  that because  Plaintiffs’  refusal  affects only same-sex couples, their refusal is essentially a proxy for discrimination based on sexual orientation.  We disagree.  The fact that Plaintiffs’ message-based refusal primarily impacts customers with certain sexual orientations does not deprive Plaintiffs of First Amendment protection.  For example, in Hurley,   the   Council’s   decision   to   exclude   GLIB’s   banner   effectively excluded any other parade participants who may have wanted to express their pride in their sexual orientation by marching behind similar banners.  But because the impact was based on message, not status, it was protected.  
• Here,  Plaintiffs’  objection  is  based  on  neither a  customer’s  sexual orientation nor the sexual conduct that defines certain customers as a class.  Plaintiffs will make custom artwork for any customers, regardless of their sexual  orientation,  but  will  not,  regardless  of  the  customer,  make  custom  wedding  invitations  celebrating  a  same-sex marriage ceremony.  Thus, although Plaintiffs’ refusal may, like Hurley, primarily impact same-sex  couples,  their  decision  is  protected  because  it  is not  based  on  acustomer’s sexual orientation. 
• The remaining arguments raised  by  the  dissent  are  equally  unavailing.    For  example,  the  dissent  claims  that  there  is  no  compelled  speech  because  “nothing  requires  Brush  &  Nib  to  identify  itself  as  the  supplier  of  an invitation  or  precludes  it  from  disclaiming  that  its  sales  constitute an  endorsement  of  the  beliefs  of  its  customers.”    Infra  ¶  201.  However, the essence of free speech protection is a person’s autonomy over what  to  say  and  when  to  say  it.  

As regarding the plaintiffs' "Free Exercise" arguments, the Court applied a state statute ("FERA" - the "Free Exercise of Religion Act"), which involves a two step process:

Quote

First, the party raising a  free  exercise  claim  must  prove  that:  (1)  their  action  or  refusal  to  act  is  motivated by a religious belief, (2) the religious belief is sincerely held, and (3)  the  government’s  regulation  substantially  burdens  the  free  exercise  of  their religious beliefs. 
...
 If  the  claimant  proves  these  elements,  then  the  burden  shifts  to  the  government  to  show  that  the  law  (1)  furthers  a  compelling governmental interest and (2) is the “least restrictive means of furthering that compelling governmental interest.”

The AZ Supreme Court held that Plaintiffs established that they were "motivated by a religious belief," and that these beliefs are "sincerely held."  The Court also held that "the  coercion  the  Ordinance places  on  Plaintiffs  to  abandon their religious belief is unmistakable."

Quote

The Ordinance, as applied by the City, presents Plaintiffs with a stark choice.  On one hand, they can choose to forsake their religious convictions and create wedding invitations celebrating  same-sex  marriage.    But,  on  the  other  hand,  if  they  choose  to  remain  faithful  to  their  beliefs  and  violate  the  Ordinance  by  refusing  to make such invitations, they face severe civil and criminal sanctions.  Indeed, for every day Duka and Koski are in violation of the Ordinance, they may be  ordered  to  serve  up  to  six  months  in  jail.  Thus,  for  example,  if  Plaintiffs  post  their  proposed  Statement  on  theirwebsite  for  a  month,  Duka  and  Koski  could  face  up  to  fifteen  yearsin  jail.  See id. Even if placed on probation, Plaintiffs face a possible fine of $2,500; for a continuing violation, the fine could be tens of thousands of dollars.Id.§§ 1-5, 18-4(B).      Alternatively,   the   City   has   the   authority   under   the   Ordinance’s  nuisance  provision  to  simply  shut  down  Duka  and  Koski’sbusiness altogether.  Seeid. § 1-5.  

The Court then moved to the second step noted above.  The Court found that the ordinance "generally serves   the   compelling  purpose  of  eradicating  discrimination  in  the  provision  of  publicly  available  goods  and  services," but then found that the ordinance was not "the 'least restrictive means'" of furthering that interest.  The Court found that the "the  Ordinance  is  properly  served  by  permitting a narrow exemption for Plaintiff’s creation of the single productwe consider in this case—Plaintiffs’ custom wedding invitations."

Interesting stuff.

Thanks,

-Smac

[Daniel2]

Another update:

Colorado Baker Loses Case On Trans Birthday Cake

June 17, 2021

Denver’s CBS News affiliate reports:

A Colorado baker who won a partial victory at the U.S. Supreme Court in 2018 for refusing to make a wedding cake for a same-sex couple violated the state’s anti-discrimination law by refusing to make a birthday cake for a transgender woman, a state judge has ruled.

Denver District Judge A. Bruce Jones said Autumn Scardina was denied a cake that was blue on the outside and pink on the inside to celebrate her gender transition on her birthday because of her transgender status in violation of the law.

The Colorado Sun reports:

Scardina, an attorney, attempted to order the cake on the same day in 2017 that the U.S. Supreme Court announced it would hear Phillips’ appeal in the wedding cake case.

Scardina said she wanted to “challenge the veracity” of Phillips statements that he would serve LGBT customers, but her attempt to get a cake was not a “set up” intended to file a lawsuit, Jones said.

The baker reportedly accepted the initial order for the cake but then refused to make it after being told what it was for. The cake was to bear no message. The fine is $500.
 

Edited June 17, 2021 by Daniel2

[Fair Dinkum]

What impact will this decision have on the Cake case?  https://www.nytimes.com/2021/06/17/us/supreme-court-gay-rights-foster-care.html?action=click&module=Spotlight&pgtype=Homepage

[bsjkki]

11 minutes ago, Fair Dinkum said:

What impact will this decision have on the Cake case?  https://www.nytimes.com/2021/06/17/us/supreme-court-gay-rights-foster-care.html?action=click&module=Spotlight&pgtype=Homepage

Yes. This will be interesting. https://apnews.com/article/supreme-court-catholic-agency-same-sex-foster-care-004b978239e41675524859ae79a5333b?utm_campaign=SocialFlow&utm_medium=AP&utm_source=Twitter

 

Edited June 17, 2021 by bsjkki

[bsjkki]

The foster care decision was unanimous. In my opinion, the court is also sending a message with a controversial, unanimous opinion to those threatening to pack the court. 

[Daniel2]

46 minutes ago, Fair Dinkum said:

What impact will this decision have on the Cake case?  https://www.nytimes.com/2021/06/17/us/supreme-court-gay-rights-foster-care.html?action=click&module=Spotlight&pgtype=Homepage

I saw that and was trying to copy and paste that article but couldn’t on my phone.

It will certainly be interesting to see how the bakery decision plays out before the Supreme Court…. While the foster/adoption agency case and the bakery situation both lay claims to religious liberties, the public accommodation circumstances related to the bakery are certainly different than those in the agency case.

[Vanguard]

3 hours ago, bsjkki said:

The foster care decision was unanimous. In my opinion, the court is also sending a message with a controversial, unanimous opinion to those threatening to pack the court. 

Wow. That it was unanimous blows me away and prompts me to believe I am missing a crucial piece in the reasoning. How would the decision have been different - if at all - were it an issue with a mixed racial union and the religion in question believes mixed racial unions were inappropriate?

Edited June 17, 2021 by Vanguard

[Daniel2]

LGBT Groups Call Today’s Supreme Court Ruling A Win

June 17, 2021 LGBT News, Religion

 

From the National Center for Lesbian Rights:

“Properly understood, today’s decision is a significant victory for LGBTQ people,” said Shannon Minter, NCLR Legal Director.

“The Court ruled in favor of Catholic Social Services, but on the narrowest possible ground, based on language in the City of Philadelphia’s contract that authorized individualized exemptions for any provider.

“The Court did not change the current constitutional framework, which permits governments to enforce antidiscrimination laws that prohibit discrimination against LGBTQ people even when doing so may have a disparate burden on those who hold certain religious beliefs.

“As a result of today’s decision, those who feared the Court might create a sweeping new religious exemption to such laws can breathe a sigh of relief.”

From the ACLU:

“We are relieved that the court did not recognize a license to discriminate based on religious beliefs,” said Leslie Cooper, deputy director of the ACLU LGBTQ & HIV Project.

“Opponents of LGBTQ equality have been seeking to undo hard-won non-discrimination protections by asking the court to establish a constitutional right to opt out of such laws when discrimination is motivated by religious beliefs.

“This is the second time in four years that the court has declined to do so. This is good news for LGBTQ people and for everyone who depends on the protections of non-discrimination laws.”

From Justice Alito’s ruling:

“This decision might as well be written on the dissolving paper sold in magic shops. The City has been adamant about pressuring CSS to give in, and if the City wants to get around today’s decision, it can simply eliminate the never-used exemption power. If it does that, then, voilà, today’s decision will vanish — and the parties will be back where they started.”

[bsjkki]

8 minutes ago, Daniel2 said:

LGBT Groups Call Today’s Supreme Court Ruling A Win

June 17, 2021 LGBT News, Religion

 

From the National Center for Lesbian Rights:

“Properly understood, today’s decision is a significant victory for LGBTQ people,” said Shannon Minter, NCLR Legal Director.

“The Court ruled in favor of Catholic Social Services, but on the narrowest possible ground, based on language in the City of Philadelphia’s contract that authorized individualized exemptions for any provider.

“The Court did not change the current constitutional framework, which permits governments to enforce antidiscrimination laws that prohibit discrimination against LGBTQ people even when doing so may have a disparate burden on those who hold certain religious beliefs.

“As a result of today’s decision, those who feared the Court might create a sweeping new religious exemption to such laws can breathe a sigh of relief.”

From the ACLU:

“We are relieved that the court did not recognize a license to discriminate based on religious beliefs,” said Leslie Cooper, deputy director of the ACLU LGBTQ & HIV Project.

“Opponents of LGBTQ equality have been seeking to undo hard-won non-discrimination protections by asking the court to establish a constitutional right to opt out of such laws when discrimination is motivated by religious beliefs.

“This is the second time in four years that the court has declined to do so. This is good news for LGBTQ people and for everyone who depends on the protections of non-discrimination laws.”

From Justice Alito’s ruling:

“This decision might as well be written on the dissolving paper sold in magic shops. The City has been adamant about pressuring CSS to give in, and if the City wants to get around today’s decision, it can simply eliminate the never-used exemption power. If it does that, then, voilà, today’s decision will vanish — and the parties will be back where they started.”

So the same thing they did with the original Masterpiece court case. Found a way around ruling on broad grounds. Making cities and states follow the laws as written.

Edited June 17, 2021 by bsjkki

[california boy]

It is definitely a two edged sword.  From the Huffington Post article.

“If the court opens the door to discrimination based on a religious test, it would be devastating for millions of people who rely upon critical government services... people in need of taxpayer-funded services like homeless shelters or food banks could also be turned away because they are LGBTQ, Jewish, Mormon or otherwise don’t meet the provider’s religious criteria.”

 

When discrimination is allowed by law, there is no distinction on who can be discriminated against.  I am curious if members of the Church celebrate this case as a victory or as a dangerous direction the Court could take.

[bsjkki]

4 minutes ago, california boy said:

It is definitely a two edged sword.  From the Huffington Post article.

“If the court opens the door to discrimination based on a religious test, it would be devastating for millions of people who rely upon critical government services... people in need of taxpayer-funded services like homeless shelters or food banks could also be turned away because they are LGBTQ, Jewish, Mormon or otherwise don’t meet the provider’s religious criteria.”

 

When discrimination is allowed by law, there is no distinction on who can be discriminated against.  I am curious if members of the Church celebrate this case as a victory or as a dangerous direction the Court could take.

The court ruled Catholic Charities were being discriminated against by a government entity due to their religious beliefs. https://www.supremecourt.gov/opinions/20pdf/19-123_g3bi.pdf

Held: The refusal of Philadelphia to contract with CSS for the provision of foster care services unless CSS agrees to certify same-sex couples as foster parents violates the Free Exercise Clause of the First Amendment. Pp. 4–15.(a) The City’s actions burdened CSS’s religious exercise by forcing it either to curtail its mission or to certify same-sex couples as foster parents in violation of its religious beliefs. Smith held that laws incidentally burdening religion are ordinarily not subject to strict scrutiny under the Free Exercise Clause so long as they are both neutral and generally applicable. 494 U. S., at 878–882. This case falls outside Smith because the City has burdened CSS’s religious exercise through policies that do not satisfy the threshold requirement of being neutral and generally applicable. Church of Lukumi Babalu Aye, Inc. v. Hia-leah, 508 U. S. 520, 531–532. A law is not generally applicable if it invites the government to consider the particular reasons for a person’s conduct by creating a mechanism for individualized exemptions. Smith, 494 U. S., at 884. Where such a system of individual exemptions exists, the government may not refuse to extend that system to cases of religious hardship without a compelling reason.

...

b) The contractual non-discrimination requirement burdens CSS’s religious exercise and is not generally applicable, so it is subject to “the most rigorous of scrutiny.” Lukumi, 508 U. S., at 546. A government policy can survive strict scrutiny only if it advances compelling interests and is narrowly tailored to achieve those interests. Ibid. The question is not whether the City has a compelling interest in enforcing its non-discrimination policies generally, but whether it has such an interest in denying an exception to CSS. Under the circumstances here, the City does not have a compelling interest in refusing to con-tract with CSS. CSS seeks only an accommodation that will allow it to continue serving the children of Philadelphia in a manner consistent with its religious beliefs; it does not seek to impose those beliefs on anyone else. The refusal of Philadelphia to contract with CSS for the provision of foster care services unless the agency agrees to certify same-sex couples as foster parents cannot survive strict scrutiny and violates the Free Exercise Clause of the First Amendment. The Court does not consider whether the City’s actions also violate the Free Speech Clause.

 

[Amulek]

First Amendment ninja Eugene Volokh provides a concise (and unbiased) run-down of the recent history involving free exercise rights along with a summary of the major holdings in the case over on The Volokh Conspiracy, here.

By my count, it sounds like there are now at least 5 (possibly 6) justices who have expressed an interest in going back to reexamine Smith.

That would be a big deal. Something to keep an eye on going forward for sure.

 

[provoman]

3 hours ago, Amulek said:

First Amendment ninja Eugene Volokh provides a concise (and unbiased) run-down of the recent history involving free exercise rights along with a summary of the major holdings in the case over on The Volokh Conspiracy, here.

By my count, it sounds like there are now at least 5 (possibly 6) justices who have expressed an interest in going back to reexamine Smith.

That would be a big deal. Something to keep an eye on going forward for sure.

 

Isn't Smith the ruling the President Oaks - as an Apostle - spoke against a Congressional hearing?

[provoman]

4 hours ago, california boy said:

It is definitely a two edged sword.  From the Huffington Post article.

“If the court opens the door to discrimination based on a religious test, it would be devastating for millions of people who rely upon critical government services... people in need of taxpayer-funded services like homeless shelters or food banks could also be turned away because they are LGBTQ, Jewish, Mormon or otherwise don’t meet the provider’s religious criteria.”

 

When discrimination is allowed by law, there is no distinction on who can be discriminated against.  I am curious if members of the Church celebrate this case as a victory or as a dangerous direction the Court could take.

I agree about the slippery slope ( do not mean it in a derogatory way) about religious exemption to discriminate could as was stated in Reynold's against polygamy

 “Can a man excuse his [illegal] practices…because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances….”

 

Edited June 17, 2021 by provoman