# It's our Constitutional Right to be Jerks to teh Gays - Fulton v. City of Philadelphia **URL:** \ **Category:** Great Debates\ **Created:** [November 4, 2020, 9:59pm UTC](https://boards.straightdope.com/t/its-our-constitutional-right-to-be-jerks-to-teh-gays-fulton-v-city-of-philadelphia/924786 "2020-11-04T21:59:20Z")\ **Posts on this page:** 7\ **Page:** 3
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [June 20, 2021, 10:57pm UTC](https://boards.straightdope.com/t/its-our-constitutional-right-to-be-jerks-to-teh-gays-fulton-v-city-of-philadelphia/924786/41 "2021-06-20T22:57:34Z")
Okay, good. So what, in the law (all of it), makes a municipal contract forbidding the discrimination of gays in the process more or less worthy than the strongly held religious beliefs of a foster agency? Can you point me to something that might help a judge with that? What should a judge look at to determine “compelling interest”? Of course, I’m not really asking you to do that—the test, IMHO, is meaningless. What is or is not “compelling” is a value judgment. The answer should be guided by the meaning and history of these things and not what “compels” the judge’s person. A judge could simply declare that a state has a compelling interest in racial segregation, for example. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [June 20, 2021, 11:08pm UTC](https://boards.straightdope.com/t/its-our-constitutional-right-to-be-jerks-to-teh-gays-fulton-v-city-of-philadelphia/924786/42 "2021-06-20T23:08:12Z")
> [@BigT](#): > > That sort of argument has never worked, though. The fact that there are other places that don’t discriminate has never been considered a valid reason to allow discrimination. There’s a pretty clear precedent for that. > > Similarly, it seems pretty plain from precedent that freedom of religion is not ever going to allow one to circumvent anti-discrimination laws. You can practice your religion without forcing it upon others. I didn’t quote your last two paragraphs because I mostly agree with them. But these two need some definitions. Everyone discriminates whether it is on talent or looks or just a certain something. I’m sure you must mean a sort of invidious discrimination like race or color or others which society has determined has no relevance to other things. But when a petitioner says, “Yeah, me here, that has some relevance on my religious beliefs, which are protected by the Constitution versus this statute” that creates a question. I dispute that such a thing has “never” worked. The argument of, “It’s against my religion to sell a candy bar to a black man” I supposed has been tried, and probably upheld by a _Smith_ sort of test but the _sub rosa_ reason it was upheld was because religion is a sham reason for that and everyone can see it. Putting aside the merits of whether a Christian religion should continue to believe that homosexuality is morally wrong, under your position the government could pass any law, label it an “anti-discrimination” law and undercut any religious belief. I’m not arguing for any absolutes here, but it seems that the Court must answer that question in some meaningful way, as difficult (if not impossible) as it is. ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [June 21, 2021, 12:23pm UTC](https://boards.straightdope.com/t/its-our-constitutional-right-to-be-jerks-to-teh-gays-fulton-v-city-of-philadelphia/924786/43 "2021-06-21T12:23:59Z")
> [@UltraVires](#): > > Okay, good. So what, in the law (all of it), makes a municipal contract forbidding the discrimination of gays in the process more or less worthy than the strongly held religious beliefs of a foster agency? Can you point me to something that might help a judge with that? What should a judge look at to determine “compelling interest”? > > Of course, I’m not really asking you to do that—the test, IMHO, is meaningless. What is or is not “compelling” is a value judgment. The answer should be guided by the meaning and history of these things and not what “compels” the judge’s person. A judge could simply declare that a state has a compelling interest in racial segregation, for example. Are you simply trying to get free Con Law 2 lessons from me? My tutoring rate is $150/hr, if your interested. As we’ve already determined, judges look to precedent to decide what is a “compelling governmental interest”. This is one of the spots where Alito’s opinion is woefully inadequate. He decides to ignore the anti-discrimination part of the anti-discrimination law and found that the only interest the law has is to stop LGBTQ+ people from having hurt feelings because religious people don’t like them. It was the height of conservative blindness to the effects of discrimination. Which brings us back to the question I asked (and you dismissed as irrelevant), about parallels between racial and sexual orientation discrimination. Clearly the government has a compelling governmental interest in stopping racial (and gender based) discrimination (again, precedent). Seems to me that same interest is there for stopping discrimination on the basis of sex orientation. Which is why I asked you about it so long ago. That will be $50. You’re welcome. ---
**Author:** ![Cheesesteak](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/cheesesteak/32/3694_2.png) [@Cheesesteak](https://boards.straightdope.com/u/Cheesesteak)\ **Post date:** [June 21, 2021, 3:44pm UTC](https://boards.straightdope.com/t/its-our-constitutional-right-to-be-jerks-to-teh-gays-fulton-v-city-of-philadelphia/924786/44 "2021-06-21T15:44:20Z")
> [@UltraVires](#): > > the _sub rosa_ reason it was upheld was because religion is a sham reason for that and everyone can see it. How do we separate the sham religious beliefs from the real ones? ---
**Author:** ![LSLGuy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lslguy/32/5813_2.png) [@LSLGuy](https://boards.straightdope.com/u/LSLGuy)\ **Post date:** [June 21, 2021, 8:09pm UTC](https://boards.straightdope.com/t/its-our-constitutional-right-to-be-jerks-to-teh-gays-fulton-v-city-of-philadelphia/924786/45 "2021-06-21T20:09:52Z")
Easy. They’re _all_ sham religions. There can be no other kind. ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [June 28, 2021, 8:08pm UTC](https://boards.straightdope.com/t/its-our-constitutional-right-to-be-jerks-to-teh-gays-fulton-v-city-of-philadelphia/924786/46 "2021-06-28T20:08:07Z")
> [@Martin\_Hyde](#): > > I don’t think there are 5 votes to overturn Employment Division v. Smith or I think they’d have voted that way, I think other than the three who were clearly in favor of overturning Smith, the other two conservatives aren’t solid in that position and probably wouldn’t vote to overturn it in its entirety. Another indication that there aren’t enough votes to overturn Smith was today’s denial of cert. in Ricks v. Idaho Contractor’s Board. The issue in that case was specifically: “Whether the Supreme Court should revisit its holding in Employment Division v. Smith that the free exercise clause generally requires no religious exemptions from laws that are neutral and generally applicable.” By denying cert., SCOTUS left the ruling that Smith applies and a person must provide his social security number to obtain a contractor’s license despite his “religious belief” that SSN’s are a Mark of the Beast. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [June 29, 2021, 12:31am UTC](https://boards.straightdope.com/t/its-our-constitutional-right-to-be-jerks-to-teh-gays-fulton-v-city-of-philadelphia/924786/47 "2021-06-29T00:31:03Z")
Not necessarily. Even if there are five votes to overturn _Smith_, they would want a “clean case” in which to do it. There is no need to take that case if they would simply rule that even under the highest scrutiny that assigning SSNs is a compelling government interest anyways. I mean, would you really think that this Court would consider a finding that we don’t need SSNs so that they can start down that road? [Previous page](https://boards.straightdope.com/t/its-our-constitutional-right-to-be-jerks-to-teh-gays-fulton-v-city-of-philadelphia/924786.md?page=2)