Should private businesses be allowed to discriminate

[Iggy]

@Really_Not_All_That_Bright

Not exactly. Courts can and do look into the question of whether a particular belief is sincerely held, and may find that a belief is insincere based on the totality of an adherent’s behavior. If the adherent professes to follow a particular belief system, that may well inform that inquiry. For example, a prisoner who demands not to be fed spam because he keeps kosher is not going to prevail if the court finds that he willingly eats lobster (or something else non-kosher; shellfish are prohibited, right?)

Wrong.

Beliefs need not be (pardon the pun) religiously adhered to. The EEOC notes, “A religious practice may be sincerely held by an individual even if newly adopted, not consistently observed, or different from the commonly followed tenets of the individual’s religion.”

That seems to pull language from Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520 (1993) where Justice Kennedy of the SCOTUS wrote “religious beliefs need not be acceptable, logical, consistent or comprehensible to others in order to merit First Amendment protection”

So just because he eats lobster does not inherently mean a prisoner cannot object to eating spam on the basis of a religious desire to keep kosher.

[Iggy]

@Valgard

As noted many times, in the Oregon case the issue was not what the bakers believed. It was that they knowingly broke Oregon law which says you cannot discriminate based on sexual orientation and while I only looked at the BOLI’s posted information on this quickly I’m pretty sure that there wasn’t an asterisk with a note saying “Except if you think your religion justifies it, in which case discrimination is OK”.

If instead of the bakery quoting Leviticus at the woman and calling her an abomination, they had said “We’re atheists and we think queers are disgusting, we will not sell you a wedding cake” would you find that more or less acceptable, since it doesn’t involve any religious belief? Do you think that one of those positions should be Constitutionally protected and the other should not? Which one?

You are missing the legal point. The government of the state of Oregon is attempting to force the bakery owners to act in a manner that they believe violates a sincerely held religious belief. In essence the religious objection *might *act as an affirmative defense for the person accused of violating a law.

Governments can, under limited circumstances, force someone to violate a belief but there are criteria which must be met. The power is not absolute. One key criteria is that the government must not have a less intrusive way to accomplish its goal.

The issue of a religious objection has played out under various aspects of law. Compulsory schooling, military service under the draft, and providing contraceptives under PPACA are all examples where the court has upheld someone’s right to violate a law based upon religious (or deeply held non-religious) belief.

And atheism has, under certain circumstances, be considered to be a “religion” for the purposes of certain aspects of law. Pissed of the Freedom from Religion Foundation

[Jonathan_Chance]

@andros

Weddings are not public church services. No church will ever be forced to perform religious ceremonies against its collective will. Nice effort, I suppose, but the sky is not falling. Your cites are alarmist hogwash and, frankly, breaking the spirit of the Commandment against bearing false witness. If not its letter.

Andros, this is riiiight on the edge of earning a warning for accusing another poster of lying. I’m only refraining because I can see the slightest bit of daylight between ‘false witness’ and ‘lying’.

Please don’t do it again.

[andros]

@Jonathan_Chance

Andros, this is riiiight on the edge of earning a warning for accusing another poster of lying. I’m only refraining because I can see the slightest bit of daylight between ‘false witness’ and ‘lying’.

Please don’t do it again.

Thanks, JC, sorry.
Particular apologies to Omar Little. I intended only to refer to the content of the linked articles, and I did not mean to suggest you were being dishonest in any way. I’m sorry it came across that way.
.

[Ruken]

@Iggy

Wrong.

Beliefs need not be (pardon the pun) religiously adhered to. The EEOC notes, “A religious practice may be sincerely held by an individual even if newly adopted, not consistently observed, or different from the commonly followed tenets of the individual’s religion.”

That seems to pull language from Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520 (1993) where Justice Kennedy of the SCOTUS wrote “religious beliefs need not be acceptable, logical, consistent or comprehensible to others in order to merit First Amendment protection”

So just because he eats lobster does not inherently mean a prisoner cannot object to eating spam on the basis of a religious desire to keep kosher.

@Iggy

You are missing the legal point. The government of the state of Oregon is attempting to force the bakery owners to act in a manner that they believe violates a sincerely held religious belief. In essence the religious objection *might *act as an affirmative defense for the person accused of violating a law.

Governments can, under limited circumstances, force someone to violate a belief but there are criteria which must be met. The power is not absolute. One key criteria is that the government must not have a less intrusive way to accomplish its goal.

The issue of a religious objection has played out under various aspects of law. Compulsory schooling, military service under the draft, and providing contraceptives under PPACA are all examples where the court has upheld someone’s right to violate a law based upon religious (or deeply held non-religious) belief.

And atheism has, under certain circumstances, be considered to be a “religion” for the purposes of certain aspects of law. Pissed of the Freedom from Religion Foundation

IIRC there is some court or draft board determination if conscientious objection is a sincerely held religious belief. But this is scraping memories of when brought in a speaker to talk about the draft back when I was helping run some quaker club in college. The wiki article mentions it, but it’s lacking in detail.

Conscientious objector

[Hentor_the_Barbarian]

@andros

Thanks, JC, sorry.
Particular apologies to Omar Little. I intended only to refer to the content of the linked articles, and I did not mean to suggest you were being dishonest in any way. I’m sorry it came across that way.
.

It was eminently clear that you were referring to the cites. This was apparent in the way you wrote “your cites” to orient the reader to what you were talking about.

When Omar Little replied with “good point”, I took that to mean that he was agreeing that you made a good point. If he had thought you called him a liar, he probably wouldn’t have written “good point.”

[Omar_Little]

@andros

Thanks, JC, sorry.
Particular apologies to Omar Little. I intended only to refer to the content of the linked articles, and I did not mean to suggest you were being dishonest in any way. I’m sorry it came across that way.
.

No worries. I understood where your criticism was directed. I personally don’t take the position proposed by the cite, was just posting it for the discussion, as apparently some people in churches are worried about their rights.

[Damuri_Ajashi]

@msmith537

Yes, as in “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”. IOW, your religion is not the business of the government, but we won’t do anything to keep you from practicing it.

exactly and that includes protecting religious freedom.

[Damuri_Ajashi]

@msmith537

Freedom from religion is the main reason we have a separation of church and state. Well, supposed to. We all know how God-ferin’ folks love letting other people do what they want.

No, no its not. Freedom to practice your religion without the state telling you that you are doing it wrong is what the establishment clause prevents. It does not prevent politicians from letting their religion guide their policies, it does not prevent people from exercising their religion even if it mean some people get their feelings hurt.

[Damuri_Ajashi]

@Robert163

You are concerned about what is technically legal or illegal. I am concerned about what is fair.

So what is unfair about letting someone keep their job as a clerk if other clerks are issuing marriage licenses to gay couples? Why does every clerk have to be willing to issue a marriage license to a gay couple or be fired?

[Damuri_Ajashi]

@simster

Where did you get that impression ?

Currently, we are going beyond the pale to ‘protect’ religioous followers from having to do the things it should just do in the secular marketplace - we’re allowing it - in cases like Hobby Lobby, etc - to put undo pressure on people that may not believe the way the ‘owner’ does in the name of “protecting” that persons “faith”.

As for your hiring practices, I would hope that the considerateion on that aspect would be due to a direct conflict in the job responsibilities with the person’s ‘faith’ - I would no more hire a muslim to slaughter pigs or a catholic at a trojan factory unless I was assured, by the individual, that they would be able to do the job in question.

A person’s relgious belief should not even be a consideration except under the umbrella of a generic question of -

“The job you are applying for will include X, do you have any reasons that you may not be able to do X?”

If its not clear to you by now - I have no issues hiring anyone of any faith - as long as they are willing to do the job they are hired for - which may include keeping thier “faith” to themselves.

The owners in hobby lobby were the ones bring the case

[running_coach]

@Damuri_Ajashi

So what is unfair about letting someone keep their job as a clerk if other clerks are issuing marriage licenses to gay couples? Why does every clerk have to be willing to issue a marriage license to a gay couple or be fired?

Because it’s their job.

[Damuri_Ajashi]

@simster

Thier employees are unable to get the needed medical coverage they may want to get under insurance, because the owner ‘believes’ they are wrong to provide.

While in general I would agree that the person “chose” to work there (or continue to) - the notion that the owner of the business can dictate what medical procedures/medicines, etc that the employees may have is beyond ridiculous. Even more so in the fact that Hobby Lobby is a public facing business with thousands of employees.(to head off the “catholic school” or other examples where “faith” is a pre-condition of employment).

The owner doesn’t get to choose what medical care the employees have, they only get to choose which ones the owners pay for.

It wasn’t that long ago that owners didn’t have to provide any medical insurance at all. It really seems like you are saying that freedom of religion always loses when it pushes up against anything, the rights of others, laws passed by congress, employers, employees, etc.

Is religion something that should be kept in places of worship and not affect the real world outside of places of worship?

[running_coach]

@Damuri_Ajashi

Is religion something that should be kept in places of worship and not affect the real world outside of places of worship?

Nailed it.

[Czarcasm]

@Damuri_Ajashi

So what is unfair about letting someone keep their job as a clerk if other clerks are issuing marriage licenses to gay couples? Why does every clerk have to be willing to issue a marriage license to a gay couple or be fired?

Yes, otherwise you’d have to hire a shitload of clerks to cover for those that hate gay couples, those that hate African-American couples, those that hate Jewish couples, those that hate atheist couples etc.
Since when is bigotry a recognized handicap that the government must compensate for?

[Damuri_Ajashi]

@Saint_Cad

I asked a similar question in one of the numerous threads on this topic but I phrased it as: Can I legally prevent menstruating women (both workers and potential customers) from being inside my store as they are unclean?

Gender is a protected class and menstruation is pretty gender specific.

[Damuri_Ajashi]

@Moriarty

That seems reasonable. I think, in applying this standard to people who claim a religious basis to refuse service to a gay person (or, to be more pedantic, to refuse to serve a gay person in furtherance of their wedding plans), that there is no legitimate basis for relying on religious beliefs:

A baker is not substantially burdened by being legally obligated to bake a cake to someone who is willing to pay for it; baking cakes is what they have otherwise voluntarily chosen to do.

It is a compelling government interest to encourage commerce and prevent people from being denied services due to their identity.

There is not a more restrictive way to enforce this interest then to require somebody who opens the doors of their business to the public to actually accept members of the public without regard to their sexual orientation.

That is simply not how legal rights analysis works. That is how “do what I say” works.

I think there are two situations. One where the religious objector is breaking a law to comply with their religious beliefs. And another where the religious objector is doing something you don’t like to comply with their religious beliefs.

Hobby Lobby wanted to actually break the law to comply with their religious beliefs and the court said they could.

If I am happy to serve scones and cronuts to the gay community every morning but I refuse to make a wedding cake for a gay wedding, I don’t see what laws are being broken.

One day soon, I suspect that sexual orientation will become a protected class (you couldn’t get past congress right this minute but I suspect we are only a few election cycles away from legislation protected homosexuality as a protected class).

[boytyperanma]

@Damuri_Ajashi

If I am happy to serve scones and cronuts to the gay community every morning but I refuse to make a wedding cake for a gay wedding, I don’t see what laws are being broken.

No one is arguing you can’t legally refuse service to gays in states that don’t have sexual orientation as a protected class.

In the specific instances where this has come up sexual orientation was a protected class and the bakers broke that law.

In states where it’s against the law to refuse service, they are breaking the law when they refuse service.

[Damuri_Ajashi]

@iiandyiiii

Yes, but the government (including the Supreme Court) has already determined that this protection does not apply in all cases (for example, it’s not lawful to deny service to interracial couples even if your religious beliefs mandate that interracial marriage is wrong or not legitimate marriage), so it seems reasonable to me that this would apply to gay marriages as well.

Perhaps it should (it does not) but that is largely a matter of opinion right now. The tide of opinion seems to be heading towards protected class status for sexual orientation. It seems imminent but imminent could mean next year or it could mean next century.

[Damuri_Ajashi]

@Gyrate

No it isn’t. This is an entirely inaccurate metaphor.

Their religious beliefs prohibit homosexuality. They are not being forced to be gay or to marry someone of the same sex. They are being forced to sell someone a cake in the same way they sell all their other customers a cake. In other words, they are being forced to treat their customers equally. At no point in the process are they being asked to violate their religious strictures.

Well that’s not insulting at all. :rolleyes:

One’s religious beliefs are protected, but that protection ends at the point it causes harm to others. And that’s also a foundational principle of the founding of the country and is enshrined in the Constitution.

I understand the harm of alienation and stigmatization that might occur if there was widespread discrimination against homosexuals by businesses. Its a stigmatization that occurs in other contexts related to overweight. But other than this stigmatization, How is the the shopkeeper harming others by refusing to sell a wedding cake (while still being perfectly willing to sell a cheese cake).