Sorry, I think I misunderstood the message you were trying to convey.
You’re right that it was a California Law, but I still don’t see how that’s different from
When framed that way, it certainly seems clearer. But has it always? Have the courts actually dealt this? Or the legislature? Surely these issues were brought up during earlier civil rights battles?
There is no federal law preventing you from stuffing Twizzlers up your nose. That does not mean you have a federal right to shove Twizzlers up your nose, a state could ban it if they felt like it.
As a matter of fact, there is no federal law against murder (unless it’s a federal agent or on federal property, or in DC) - I assure you that you have no federal right to murder though - states are well within their authority to legislate all kinds of things.
eta: What’s the over / under on the number of posts before someone misinterprets the dormant commerce clause in this thread?
I think we’re getting bogged down in definitions. If I can refuse service to someone legally, I consider that a right. Here’s a definition that seems appropriate:
If the US federal system worked the way the OP apparently believes it does, then there would be no point to the existence of state laws at all. If there were a federal law that said the same thing as the state law, then the state law would be unnecessary, and if there were not a federal law that said the same thing, then by the OP’s reasoning, the lack of a federal law would override the state law.
That is not what a right is. A right cannot be taken away. Your ability to drive down a highway at 65 may exist now, and you can legally do it, but they can change that law tomorrow and make the speed limit 55. Therefore, you have no “right” to drive at 65 mph, simply the ability to do so legally. The distinction is huge.
For comparison - you have the right to practice your religion freely. It can’t be taken away from you - not by law, not by treaty, not by the state and not by an ordinance. The only way you could lose that right is if the Constitution were to be amended - which would be a change to the definitions of what is or is not a right.
I disagree with this statement. I’m protected by the First Amendment.
I’m still looking for legal precedent or something written somewhere that explains why citizens of a state can’t make the arguments I have made in court -not just common sense or anecdotes, but legitimate reasons backed by court decisions or legal code.
Didn’t the Founders debate these things?
So rights are impermanent and can be taken away. There’s nothing divine about our constitution -just because it is UNLIKELY you’ll have you rights taken away doesn’t mean that they can’t be. See: recent civil rights history
You want a cite that the state can set speed limits on the highway?
Yes there is - it’s called the Supremacy clause.
Here:
Happy?
Then you should see your goal in this thread as learning what the difference is.
In 1850, there was no law prohibiting the manufacture, sale, or use of opium, morphine, heroin, or cocaine. So if a prosecutor brought a charge against you of possessing an illegal substance based on your possession of morphine, heroin, and cocaine, a court would have said, “Well, it’s perfectly lawful for Sinisternik to possess those substances.”
Several decades later, legislatures at both the federal and state level enacted laws that regulated the manufacture, distribution, and use of those substances. Thus, today, if a cop found you in possession of morphine, heroin, and cocaine and charged with the appropriate crimes, a court would say, “Okay, the evidence shows that Sisternik was in possession of these substances in violation of such-and-such statutes. Thus, he is guilty, and I will sentence him appropriately.”
So, you understand how there is no “right” under the law to possess these substances, either now or in 1850? Just because something isn’t illegal doesn’t mean that there is an affirmative right involved. The government can use its police/plenary power (if we’re talking about state governments) to make that activity illegal if they want to.
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We have to get “bogged down in definitions” because practically the entire exercise of lawmaking is an exercise of writing and understanding definitions. And a definition from thefreedictionary.com is going to yield to several higher authorities of definition-writing bodies, such as executive agencies, courts, and legislatures.
When you’re talking about American law, if you speak of a legal “right,” then you are saying that the government to some extent is limited in regulating something. Just because something happens to be legal doesn’t necessarily mean there is a right involved.
And that’s where this comes in—
And the state legislature could today enact a law saying, “No food service establishment open to the public may deny service based on whether a putative customer is wearing a shirt or shoes.”
If you, as the owner of Sisternik Bar and Grill, then refuse to serve a Shirtless Joe Patron, then Shirtless Joe can sue you for violating this law. If you then appear and court and say, “I don’t have to obey this law because I have a federal right to withhold service,” the court is going to say, “Really? Where does this right come from? I don’t see it in the Bill of Rights or any other provision of the U.S. Constitution. I don’t see it in any federal statute. I don’t see it in any federal regulation. I don’t see it in any court opinion. I’m afraid you’re mistaken. Guilty.”
Here’s a random Alabama (that liberal hotbed) law preventing age discrimination in the workplace - it is broader than the federal right.
http://alisondb.legislature.state.al.us/acas/CodeOfAlabama/1975/25-1-21.htm
The confusion appears to be between:
There are “rights” granted by the constitution (or state constitutions) which (a) supercede all other laws of the body in question and (b) explicitly ALLOW you the right to do certain things - speak freely, bear arms, etc . A federal law or state law cannot override a “constitutional right”. A state law cannot override a state “right”.
There is the common law right to do what is not explicitly forbidden by either a state or federal law.
There is a limit to what the federal government is allowed to pass laws about (it’s just hard to tell there is, sometimes). There is a limit to what the state can pass laws about. The division of these responsibilities is laid out in the US Constitution.
If there is an argument about whether a (superior) constitutional right is being infringed by an (inferior) mere law, there is a Supreme Court, ultimately, to decide if this is so… in the specific instance, or if the law is incompatible with the right.
If it is not a constitutional right, as specified in the constitution, there is no argument. As many others have stated, any common law rights end when laws terminate them, unless the law is also unconstitutional.
Where the bakers might have an argument is in being asked to do something offensive to their religion. They cannot refuse service to muslims, nor to gays. They might have an argument that they should not be forced to decorate cakes with “There is no God but Allah”. They might say they should not be forced to decorate cakes with “Adam and Steve” and two groom caketoppers.
The argument is not “I can refuse service to anyone I like” but rather"I am being forced to do something against my religion - I have a constitutional right to exercise my religion without interference".
Then the legal beagles come out of the woodwork.
OT1H, many CHristians have no problem with gay marriage; many groups are ecumenical and tolerant and allow others to express themselves about different religions without being offended. Simply decorating a cake does not mean you are espousing a view; in the conflict between rights A and B, the right not to be discriminated against is more important than the right to not have to decorate a certain cake in a certain way; the request is not inherently offensive or designed to offend; if I’d asked a Jewish baker to decorate a cake with a swastika and holocaust denial slogans deliberately knowing it was grossly insulting, maybe they have a right to refuse. Simply asking for a common and popular islamic tenet is not. Asking for a cake that is no different than non-gay couples ask for, is no provocative or insulting.
OTOH, it depends how seriously the person takes thier religion. If a person espouses themselves to take seriously every literal word in the Bible, they are asking for trouble in court. Matthew 19:21, the “letter to Dr. Laura”, the scene from “inherit the Wind”, the “love thy neighbour” clause… I would suggest someone espousing a certain religious POV should override anti-discrimination laws better be ready and able to defend against arguments it is just a convenient cover for plain discrimination.
IANAL, but I believe when two “rights” are in conflict, the usual compromise decision hinges on which is the greater wrong or right in the eyes of society (or at least, the eyes of the Supreme Court).
No, that’s not the “usual compromise.” In fact, there’s “usually” no compromise. First, you look to the source of the right. The U.S. Constitution trumps federal statute. Federal statute trumps federal regulation. Federal law trumps state law. Et cetera.
If two rights derive from the same source, then there are still all kinds of ways of determining which one is superior. There are many, many other steps before you seek any kind of “compromise,” especially one based on “the eyes of society.”
It’s almost always as simple as which one is more recent.
I think most lawyers would disagree with you and agree with Darth Panda. There may be certain situations where you could make a claim that stuffing Twizzlers up your nose was a valid First Amendment expression, and a court might even buy it. But that’s very different from saying you have a general right to stuff Twizzlers up your nose, and in most situations a court wouldn’t in fact buy that nose stuffing is speech (as protected by the First Amendment).
After all, I don’t think anyone has successfully argued that stuffing cocaine up their nose was protected First Amendment speech.
No. I was talking only about the Twizzlers. The speed limit issue actually confirms what I said about the government being able to take away our rights. We used to have a right to drive as fast as cars could take us, but they have slowly taken away those rights in the interest of public safety. In the wake of 9-11 we’ve sacrificed a lot of our rights to privacy for the same reason.
Again, you seem to have a different definition for the word “right” than I do. “Because I said so” is not going to persuade me.
I’m sorry, but I don’t see how that’s relevant to the quote you’re addressing. I’m not even sure what the “Yes there is” is in response to -that our constitution is divine?
Happier, yes. Thank you for providing a cite. Has there ever been an argument that granting one individual’s rights infringes on another’s? When laws against racial discrimination in the marketplace were passed, did any shop owners say that it infringed on their personal liberties? I’m curious as to whether this legal fight ever played out or if it’s just been accepted since the beginning.
For pete’s sake, every damn law infringes on “personal liberties.” You need more than that if you’re going to make a legal argument for striking down a law.
No, I’m afraid I don’t understand. The state/federal government had to pass those laws to restrict the rights of citizens -in this case because of public safety issues. We had a right to get all coked up and then we lost it when the legislation was passed. Again I think this is an issue of definition, where your definition for “right” is only one that is explicitly defined.
Cite? I’d like to see the legal definition.
A very good point.
Let’s take our First Amendment, though. The phrase “freedom of expression” is pretty ambiguous. Courts have changed over the years exactly what it means/protects.
Likewise, businesses have always had a right (err… ability protected by our court of law?) to refuse service -if the courts agree that they had good cause (like my example of the bar that was allowed to refuse service to prevent a fight breaking out with their patrons). So Sinisterniik would use legal precedent to support himself against that damn Shirtless Joe. Is that not a reasonable way to present a case?