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linkster
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 Posted: 03/26/15 10:00 pm ::: |
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| Those whose devout beliefs compel them to refuse to associate with gays, or any other group are free to do so. But if they also want to run a business they need to choose between their right to earn a profit and their right to their religious beliefs. There is no constitutional right to both.
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GlennMacGrady
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| Posted: 03/26/15 10:11 pm ::: |
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| linkster wrote: |
| Those whose devout beliefs compel them to refuse to associate with gays, or any other group are free to do so. But if they also want to run a business they need to choose between their right to earn a profit and their right to their religious beliefs. There is no constitutional right to both. |
All three of your sentences are legally incorrect. |
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Ex-Ref
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linkster
Joined: 27 Jul 2012
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| Posted: 03/26/15 10:40 pm ::: |
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| GlennMacGrady wrote: |
| linkster wrote: |
| Those whose devout beliefs compel them to refuse to associate with gays, or any other group are free to do so. But if they also want to run a business they need to choose between their right to earn a profit and their right to their religious beliefs. There is no constitutional right to both. |
All three of your sentences are legally incorrect. |
LOL I figured that.
I subscribe to Eldridge Cleaver's comment about American justice. He explained the statue of Justice by saying that the reason the bitch is blindfolded is because she has dollar signs for eyeballs.
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GlennMacGrady
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| Posted: 03/26/15 10:57 pm ::: |
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| beknighted wrote: |
| GlennMacGrady wrote: |
| pilight wrote: |
| It makes no more sense now than it did when people were claiming religion as an excuse to refuse service to black people |
I'm genuinely curious. Can you identify any case where the Free Exercise of Religion Clause of the Constitution was held to justify an otherwise illegal refusal to service black people?
As I've tried to explain above, the only thing this proposed statute does is to specify which of two available judicial standards the Indiana courts must use when adjudicating whether a state law is constitutional under the FER Clause. |
Sure. Bob Jones University used to refuse to admit blacks on religious grounds, and once it started admitting blacks, refused anyone who engaged in interracial dating, also on religious grounds.
In any event, the purpose of these laws is quite clear, and it's not to protect religious freedom generally. It's to let people refuse to serve gays. |
Re your first paragraph: Name the "case" where a court allowed the Free Exercise of Religion Clause to allow otherwise unlawful discrimination against blacks. THAT was my challenge to Pilight.
You can't, and in fact, by referring to Bob Jones University, you are legally hoisted on your own seemingly politically biased petard. In the 1983 Bob Jones case, the Supreme Court applied the strict scrutiny test of Sherbert-Yoder -- that is, of the Indiana statute under discussion -- and held that the Free Exercise of Religion Clause does NOT allow admission discrimination against blacks. The Indiana statute would produce exactly the same result in Indiana state courts -- for blacks and for gays.
Re your second paragraph, shame on you for parroting completely misleading gay activist political talking points. Please explain how 97 U.S. Senators and a unanimous House of Representatives wanted to "refuse to serve gays" when they passed language identical to the Indiana statute in RFRA in 1993.
Again, you can't. The immediate trigger of RFRA then was to overturn Justice Scalia's opinion in Smith, which allowed Oregon to criminalize the use of peyote by Native Americans, and to force the federal courts to return to the strict scrutiny test of Sherbert-Yoder in future Free Exercise cases. It had nothing to do with gays.
The most recent use of RFRA by the Supreme Court was in the Hobby Lobby case, in which Obamacare's alleged abortifacient mandate was held to violate the Free Exercise of Religion rights of certain closely held small businesses. Nothing to to with gays.
Name one case where the strict scrutiny FER test of RFRA, or of any state's little RFRA, was held to invalidate a law protecting gays. If you can't, why would anyone be predicting -- much less hysterically asserting -- that such a case would arise in Indiana?
This whole thing is nothing more than uniformed legislators alarming even more uninformed voters via even more informed journalists, repeated by even more uninformed internet bloggers, about a fundamental religious right to freely practice religion, upon which this country was literally -- LITERALLY -- founded by Pilgrims and other religious groups seeking to escape the religious intolerance and tyranny of European monarchs.
Last edited by GlennMacGrady on 03/27/15 10:49 am; edited 1 time in total |
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GlennMacGrady
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| Posted: 03/26/15 11:07 pm ::: |
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| justintyme wrote: |
| pilight wrote: |
| justintyme wrote: |
From the above article:
| Quote: |
| Supporters say discrimination concerns are overblown and that the Indiana measure merely seeks to prevent the government from compelling people to provide such things as catering or photography for same-sex weddings or other activities they find objectionable on religious grounds |
This is the very definition of discrimination: refusing to provide a service to people based upon their sexual orientation. If you provide a public good, you need to provide that good to all people, and not refuse your service to people just because you dislike who they are and what they represent.
So, what these people are essentially saying is "This isn't about discrimination, we just want the right to discriminate if our religion objects to it." |
That's going too far. You can't mandate that a photographer take every job that's offered to him, for example. |
No, but you can mandate reasons why a person cannot be turned down.
Say I run a motel. I can absolutely turn away people because I don't have rooms available or the staff required to run the place. Heck, I could turn people away just because I don't feel like working that day.
What I cannot do is turn people away because they are homosexual and might have the evil sodomies in my establishment.
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The motel issue is even more complicated than the intra-state photographer situation because Congress has the power to regulate an interstate motel under the Commerce Power.
The Free Exercise of Religion issue would be most sharply raised if the motel were owned by a religious institution. Then, the religious morality interest of the motel owner would be probably be much stronger to a court. |
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Howee
Joined: 27 Nov 2009
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| Posted: 03/26/15 11:40 pm ::: Re: Republicans hate gays, Part 567,204 |
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| GlennMacGrady wrote: |
| linkster wrote: |
| Those whose devout beliefs compel them to refuse to associate with gays, or any other group are free to do so. But if they also want to run a business they need to choose between their right to earn a profit and their right to their religious beliefs. There is no constitutional right to both. |
All three of your sentences are legally incorrect. |
Oh? How is sentence #1 legally INcorrect?
From the 'comments' section, "HoosierHelen" writes:
| Quote: |
| Our religious beliefs are safe within our church and within our hearts. |
While I like the her overall sentiment, this part is really NOT true: MY religious belief (to be gay and celebrate a marriage in a public venue that is open to most people) is NOT safe in IN any more.
And I stress again:
| Howee wrote: |
| Where is the delineation of what/when/how YOUR religion's practices clashes with MY religion's practices, and WHOSE values should prevail? |
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Howee
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taropatch
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TonyL222
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| Posted: 03/27/15 6:37 am ::: |
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Forget are the legal mumbo jumbo. I'm having a hard time reconciling in my mind how refusing service to citizens based upon their sexual preference would be an expression of my Christian convictions.
Will I now refuse service to all non-Christians? To the married man with his girlfriend? WWJD?
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pilight
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| Posted: 03/27/15 6:57 am ::: |
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He probably wouldn't exchange His services for money
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pilight
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| Posted: 03/27/15 8:18 am ::: |
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| GlennMacGrady wrote: |
| pilight wrote: |
| It makes no more sense now than it did when people were claiming religion as an excuse to refuse service to black people |
I'm genuinely curious. Can you identify any case where the Free Exercise of Religion Clause of the Constitution was held to justify an otherwise illegal refusal to service black people? |
If you mean court cases, I'll leave that to the lawyers.
If you mean instances of people refusing service to those they claimed were under the Curse of Ham, there are far too many for you be ignorant of them.
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TonyL222
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| Posted: 03/27/15 8:40 am ::: |
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| pilight wrote: |
He probably wouldn't exchange His services for money |
Maybe - but that doesn't relate to the discussion at hand either.
Since you saw this point from me, then I can assume you saw my Libertarian questions and ignored answering. This new Indiana law is in harmony with the Libertarian platform right? Business people should be free to associate or not associate with whomever they want for ANY reason they want - not directly as a religious freedom but as an individual right.
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pilight
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| Posted: 03/27/15 8:54 am ::: |
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| TonyL222 wrote: |
| pilight wrote: |
He probably wouldn't exchange His services for money |
Maybe - but that doesn't relate to the discussion at hand either.
Since you saw this point from me, then I can assume you saw my Libertarian questions and ignored answering. This new Indiana law is in harmony with the Libertarian platform right? Business people should be free to associate or not associate with whomever they want for ANY reason they want - not as a religious freedom but as an individual right. |
The LP platform is generally against anti-discrimination laws. David Bernstein laid out the basics of why here:
http://www.cato-unbound.org/2010/06/16/david-e-bernstein/context-matters-better-libertarian-approach-antidiscrimination-law
| Quote: |
| to concede the general power of government to redress private discrimination through legislation would be to concede virtually unlimited power to the government. Libertarians, however, are often willing to make certain exceptions to their opposition to antidiscrimination laws, so long as they can identify an appropriate limiting principle. |
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beknighted
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| Posted: 03/27/15 9:27 am ::: |
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I don't know about all of the other states, but my understanding is that this particular version of the law is intended to reach private transactions, while other ones (notably the federal version) are about interactions with the government. If that's correct, the breadth of this one is much greater than the others.
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norwester
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| Posted: 03/27/15 9:46 am ::: |
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| While I can say that Glenn makes compelling legal arguments, everything is undermined by the quote upon the signing that specifically references instances of marriage equality. Based on the current environment, that's the clear driver and to assert otherwise is disingenuous no matter how many cases or legal examples one uses.
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TonyL222
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| Posted: 03/27/15 10:19 am ::: |
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| pilight wrote: |
The LP platform is generally against anti-discrimination laws. |
Which would make them favor the Indiana law and object to (as noted in your link) Title II of the 1964 Civil Rights Act on philosophical grounds.
Whether you actively support racism, or philosophically support the right to be racist toward the general public, the results are the same. That's a distinction without a difference.
When you decide to operate in the public sector, you give up some individual rights, don't you? You have to get a business license, maintain city ordinances, etc. Why then should you have the individual right to discriminate based on religious expression and where is the line? Can I object to serving Muslims, fornicators, Catholics?
Last edited by TonyL222 on 03/27/15 11:40 am; edited 1 time in total |
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GlennMacGrady
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| Posted: 03/27/15 10:25 am ::: |
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| pilight wrote: |
| GlennMacGrady wrote: |
| pilight wrote: |
| It makes no more sense now than it did when people were claiming religion as an excuse to refuse service to black people |
I'm genuinely curious. Can you identify any case where the Free Exercise of Religion Clause of the Constitution was held to justify an otherwise illegal refusal to service black people? |
If you mean court cases, I'll leave that to the lawyers.
If you mean instances of people refusing service to those they claimed were under the Curse of Ham, there are far too many for you be ignorant of them. |
Well, you should be concerned and only concerned about court cases, because the only place the Indiana statute has any applicability is when a court is deciding whether a defendant in a litigated case can claim a Free Exercise of Religion exemption from a generally applicable law that is compelling or forbidding that defendant from taking some public action. If you don't understand that, you don't understand this law or issue at all.
Neither this statute nor the federal RFRA can control how individuals treat each in their private lives, or who tries to refuse services to whom in commercial transactions for whatever reasons. These are not public conduct regulatory laws.
A RFRA-type statute only applies in Free Exercise of Religion court cases and, again, is simply a definitional instruction to judges in those cases as to what rule of decision they should apply in those FER cases.
I don't have any valid statistics, but I'll guess that less than 1% of the historical body of Free Exercise of Religion cases in American jurisprudence have involved anything to do with refusing services to gays, or anything to do with gays at all.
Please demonstrate your understanding of this law by clearly explaining how the defeat of this statue would have resulted in fewer of your hypothesized "instances of people refusing service to those they claimed were under the Curse of Ham".
Last edited by GlennMacGrady on 03/27/15 10:54 am; edited 1 time in total |
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GlennMacGrady
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| Posted: 03/27/15 10:42 am ::: |
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Correct, and as I've already said above, based on the map in Professor Volokh's linked article, Indiana courts have already adopted the strict scrutiny (= Sherbert-Verner = RFRA = Indiana statute) judicial review standard for Free Exercise of Religion cases. Here is the Washington Post's map of the states that already implement, by statute or court decision, the RFRA-type strict scrutiny standard:
The Indiana statute merely codifies the already-existing judicial law in Indiana. That means it will prevent Indiana courts from changing that standard to one less protective of FER in future Indiana cases (as Justice Scalia's majority opinion had done in the 1990 Smith case for federal courts).
Last edited by GlennMacGrady on 03/27/15 10:54 am; edited 1 time in total |
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pilight
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| Posted: 03/27/15 10:45 am ::: |
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| GlennMacGrady wrote: |
| pilight wrote: |
| GlennMacGrady wrote: |
| pilight wrote: |
| It makes no more sense now than it did when people were claiming religion as an excuse to refuse service to black people |
I'm genuinely curious. Can you identify any case where the Free Exercise of Religion Clause of the Constitution was held to justify an otherwise illegal refusal to service black people? |
If you mean court cases, I'll leave that to the lawyers.
If you mean instances of people refusing service to those they claimed were under the Curse of Ham, there are far too many for you be ignorant of them. |
Well, you should be concerned and only concerned about court cases, because the only place the Indiana statute has any applicability is when a court is deciding whether a defendant in a litigated case can claim a Free Exercise of Religion exemption from a generally applicable law that is compelling or forbidding that defendant from taking some public action. If you don't understand that, you don't understand this law or issue at all.
Neither this statute nor the federal RCRA can control how individuals treat each in their private lives, or who tries to refuse services to whom in commercial transactions for whatever reasons. These are not public conduct regulatory laws.
A RCRA-type statute only applies in Free Exercise of Religion court cases and, again, is simply a definitional instruction to judges in those cases as to what rule of decision they should apply in those FER cases.
I don't have any valid statistics, but I'll guess that less than 1% of the historical body of Free Exercise of Religion cases in American jurisprudence have involved anything to do with refusing services to gays, or anything to do with gays at all.
Please demonstrate your understanding of this law by clearly explaining how the defeat of this statue would have resulted in fewer of your hypothesized "instances of people refusing service to those they claimed were under the Curse of Ham". |
Therein lies the problem. We're talking at cross purposes. I'm only mildly concerned with the law. Laws can and do get changed all the time. As always, they lag behind larger societal changes. I am far more bothered by people justifying their hatred with seelctive interpretation of Scripture. They're not really any different from people who say "Death to the Infidels!"
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Howee
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| Posted: 03/27/15 11:03 am ::: |
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Screw all the *mumbo-jumbo* intellectualizing of what is hate-filled discrimination couched in "Religious Freedom".
Erstwhile legislation be damned: The People WILL decide. With their money. With the first flagrant display of assholiness, Big Bucks will say, "To hell with Indiana, we're going elsewhere!", and the laws will be repealed to accommodate those with $$. And suddenly, even the Devout will capitulate, because after all, it's your $$ they were really after.
To the Religious Purists who cannot bear to be REALLY Christ-like and serve all of humanity, I recommend cloistering yourselves. To the Religiously Devout who want to be out-and-about in the World? Be prepared for whatever The World brings to your doorstep.
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GlennMacGrady
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| Posted: 03/27/15 11:11 am ::: |
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| pilight wrote: |
| GlennMacGrady wrote: |
| pilight wrote: |
| GlennMacGrady wrote: |
| pilight wrote: |
| It makes no more sense now than it did when people were claiming religion as an excuse to refuse service to black people |
I'm genuinely curious. Can you identify any case where the Free Exercise of Religion Clause of the Constitution was held to justify an otherwise illegal refusal to service black people? |
If you mean court cases, I'll leave that to the lawyers.
If you mean instances of people refusing service to those they claimed were under the Curse of Ham, there are far too many for you be ignorant of them. |
Well, you should be concerned and only concerned about court cases, because the only place the Indiana statute has any applicability is when a court is deciding whether a defendant in a litigated case can claim a Free Exercise of Religion exemption from a generally applicable law that is compelling or forbidding that defendant from taking some public action. If you don't understand that, you don't understand this law or issue at all.
Neither this statute nor the federal RCRA can control how individuals treat each in their private lives, or who tries to refuse services to whom in commercial transactions for whatever reasons. These are not public conduct regulatory laws.
A RCRA-type statute only applies in Free Exercise of Religion court cases and, again, is simply a definitional instruction to judges in those cases as to what rule of decision they should apply in those FER cases.
I don't have any valid statistics, but I'll guess that less than 1% of the historical body of Free Exercise of Religion cases in American jurisprudence have involved anything to do with refusing services to gays, or anything to do with gays at all.
Please demonstrate your understanding of this law by clearly explaining how the defeat of this statue would have resulted in fewer of your hypothesized "instances of people refusing service to those they claimed were under the Curse of Ham". |
Therein lies the problem. We're talking at cross purposes. I'm only mildly concerned with the law. Laws can and do get changed all the time. As always, they lag behind larger societal changes. I am far more bothered by people justifying their hatred with seelctive interpretation of Scripture. They're not really any different from people who say "Death to the Infidels!" |
Okay, pilight, we agree that the problem is that I'm talking about the topic -- which is the intent, meaning and effect of a specific Indiana law -- and you're not. Perhaps you should thus consider remaining silent on this narrow and technical legal topic instead of stirring the pot of misunderstanding with off-topic cultural complaints.
I have no idea what your politics or religion are, and I'm not talking about my personal political or religious beliefs in my legal analysis in this thread of what I perceive to be a profoundly misunderstood and incompetently reported Indiana statute. I'd be willing to more generally discuss the Constitutional free exercise of religion or the interpretation of biblical texts in another thread. However, I feel confident that neither the passage or defeat of this particular Indiana statute would affect your cultural concerns one way or the other. |
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GlennMacGrady
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| Posted: 03/27/15 11:31 am ::: |
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duplicate
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GlennMacGrady
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| Posted: 03/27/15 11:34 am ::: |
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| Ex-Ref wrote: |
http://www.wsbt.com/news/business/businesses-indianas-gay-discrimination-is-bad-for-all-of-us/32044784
| Quote: |
| Businesses say the law will make it harder to attract employees and customers. They also note that Indiana doesn't currently have any laws prohibiting discrimination against gay people. |
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This is the hope of all political lobbyists: that their most extreme and hysterically extrapolated talking points will be filtered through low-information reporters to no-information citizens.
The strict scrutiny rule for FER judicial adjudications already exists in Indiana via judicial common law, in 30 other states, and throughout the federal government via RFRA. How many of these fearful Indiana business owners know or even partially understand that?
I think a much more probable prediction is: that microscopically few small business owners will refuse to service gays for religious reasons, that most of those who do would lose in court under the RFRA strict scrutiny standard, and that gays will have no problem finding equivalent services from the overwhelming majority of small service providers who have absolutely no interest in refusing business or getting into religious court fights. |
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