Religious Liberty Means Religious Privilege

Cakeinwhitesatin-1So far two bakeries have faced legal challenges to their refusal to make wedding cakes for same-sex weddings. Opponents of same-sex marriage see these cases as the start of a fast approaching widespread persecution. Personally, I don’t see how the act of baking a cake for a wedding implies approval of that wedding, but the owners of these bakers believe it would be a violation of conscience to participate in a same-sex wedding, even remotely by way of making the wedding cake, so let’s go with their complaints for the sake of argument.

Let’s say that, if the owners of these bakeries are legally forced to provide same-sex wedding cakes, they would be in a position of having to choose between violating their conscience and closing down their business. Would this situation qualify as an offense against religious liberty? I would say yes, but that in and of itself is not necessarily an intolerable state of affairs. If a bakery refused, the grounds of the owner’s religious beliefs, to make a wedding cake for an interracial couple, no doubt that this owner would be met with a lawsuit. And well he should, I think. This lawsuit and its consequences would also be an infringement of religious liberty, but not one most opponents of same-sex marriage would protest.

The fact is not every infringement of religious liberty is morally problematic. Sometimes religious liberty ought to be curtailed. Sometimes justice demands it. Religious liberty can never be absolute, and so those whose religious liberty is culturally and legally recognized benefit from their beliefs being privileged by society. Christians in the United States (and elsewhere) are discovering what it means that their religious beliefs no longer hold social dominance sufficient to give them legal privilege. Going forward, they will have to discern which limitations of their freedom are worth fighting and which are tolerable costs of living in a pluralistic society.

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188 thoughts on “Religious Liberty Means Religious Privilege

  1. If Westboro Baptist Church came to my cake shop and asked me to bake them a cake, should I be allowed to say “you people aren’t welcome here”?

    I’d like to think that I would be able to tell what’s-his-face to pound sand.

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    • I don’t think so. If a member of WBC walks in quietly and says, “I’d like to buy a cookie,” I would disagree with refusing service to him or her.

      Now, if the member walked in carrying a “GOD HATES FAGS!” sign, I think you could say, “We have expectations for the behavior of our patrons, which you are not currently meeting. We insist that you leave.”

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      • You’ve never seen this movie (it came out in 1986, after all) and, as such, can’t be expected to catch the references. But I’m pleased to be able to work two of them in. (If I could only use one, well… there’d be no point.)

        “Jr erfreir gur evtug gb ershfr freivpr gb nffubyrf yvxr lbh.”
        “Chg gubfr pbbxvrf onpx, Zbgureshpxre!”

        Edit: The movie is “Hamburger: The Motion Picture” (a spiritual sequel to “Hot Dog: The Movie”) and the quotes contain saucy language.

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      • You’re right. I don’t get it.

        But assuming you think that businesses should be able to deny service to “nffubyrf”, must they not first demonstrate that the person in question IS an nffubyr?

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      • Who knows what that means, but this has always been a tough one for me. On the one hand, I have always had a certain tug in my heart for the idea that if you have a business, you should be able to choose who you want to sell to. But at the same time, it has seemed utterly clear to me that I have no tug in my heart for someone who wouldn’t serve someone just because of their race or creed, etc. Basically, for me, that latter intuition just roundly defeated the prior one. As Kazzy said, expectations for actual behavior in the establishment are something different.

        Jaybird’s example does pluck the string for my sympathy for the business owner who wants control over whom he serves, but Kazzy’s reminder that identity != behavior reminds me of my previous conclusion. That still stands for me.

        To Jaybird, my question would be, if you could deny service to a well-behaved, non-vocal member of the WBC, by what argument could you do that but not deny service to a well-behaved, non-vocal Orthodox Jew who came in, or a Hindu or a Sikh? I think the basic injunction to treat folks based on how they act in your presence holds in quasi-public/quasi-private settings like a formal business transaction between a consumer and a formally constituted business entity that announces itself as a public business.

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      • Michael, my belief is that all commercial establishments should have to accept as a customer anybody who can pay and that the prices should be the same for everyone. I don’t believe that any commercial business should be a safe haven for any particular community. A business could cater to a particular community but it can’t deny its services to anybody with money. If a scantily clad woman wants to buy meat from kosher butcher fir supper than the kosher butcher must sell her the meat.

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      • Eh, I think that the problem is when I not only refuse service to half the town, I use my influence with city hall to prevent a second bakery from being built.

        A bakery that discriminates against gay people will be vilified, a bakery that discriminates against WBC will have people cheering (with a handful of “to be sure”s).

        Saying that people should be forced to engage in commerce despite their creeds strikes me as a violation… now, of course, if these same people have a monopoly due to licensing (e.g., pharmacies that wish to not carry birth control) or influence (zoning, etc), then that’s another story… is that the story here? Is this bakery a monopoly?

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      • “A bakery that discriminates against gay people will be vilified”

        If you live in the nightmare James Aitxh calls Frisco, then yes.

        If you libe lots of other places, then no.

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      • Lee,

        You mention the “scantily clad” woman. What do you make of dress codes in general? Do you think they are allowable? Many restaurants, bars, and clubs have them. I generally find them annoying but, so long as they’re universal, I don’t object.

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      • Kazzy

        I generally find them annoying but, so long as they’re universal, I don’t object.

        “No hats. Sorry Mister, it’s a universal rule. Yes I realize your religion requires you wear a turban. No hats.”
        “Yes ma’am, I realize your religion requires you cover your hair. No hats.”

        A ridiculous example, perhaps, but a real one. First one to come to my mind – in some Canadian Legion halls, Sikh veterans who had been allowed to wear a turban when laying down their lives in whatever war, were not allowed to drink a beer with their fellow veterans.

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  2. I’m a little bit baffled by the idea that there are customers out there who go somewhere, get treated like absolute garbage, and then decide to “force” that particular institution to deliver. Doesn’t it seem more likely that they go somewhere, get treated like garbage, file a complaint, then get their cake from somewhere else?

    Meanwhile: if these businesses want to discriminate, they should own that, ideally with plenty of signage. “No Gays Welcome Here” or something like that. The marketplace will almost certainly reward that bakery’s provision of additional information.

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    • See it as the same drive for the desegregation of commercial businesses. On one level you could say why bother when you could go to a business friendly to you. At the same time, it’s not the point. People should not be excluded from a business because of an innate characteristic. If they could pay, they should be able to patronize. It’s a fight against segregating the LBGT community.

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      • LeeEsq gets it exactly right.

        Cascadian, religious preference may or may not be an innate characteristic, but the law treats it like one. For those for whom belief is sincere and deep, it may not be a matter of conscious choice. I’m an atheist, which isn’t exactly a religious preference, but my own outlook on matters pertaining to the supernatural is not one in which I think I have much choice, either — despite well-intentioned and sincere efforts of the faithful to convince me, and despite honest searching on my own part, I cannot find it in myself to perceive the world in any other way. In that sense, it’s more than a little bit like sexual preference.

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      • The law may treat it as such. Funny how they fail to accommodate my Pagan licentiousness which I guarantee is innate. I have a hard time believing that people are of different religions or denominations because of an innate character, that there is a material reason that makes one Hindu vs Muslim vs Christian.

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      • Maybe your right but doing the proper thing to ensure equality on the law sometimes requires things like treating religion as an innate characteristic to prevent things like discrimination based on race, gender, sexual presence, or physical and mental disability. Considering how strongly some people feel about their religious beliefs and that religious groups form communities, its close enough even if it isn’t as permanent as race or something else.

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    • 1. Maybe they did not know the bakeries would refuse service when they first entered.

      2. LeeEsq is right. This is like desegregation and standing up for your rights. It is about being accepted by mainstream and everyday society. It is about not being relegated to a shadow society because of your minority status. Equal rights and civil liberty means the ability to go places and expect to be treated like a human being.

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    • This.

      As much as I can understand a desire to press for justice, um… I don’t want some guy who hates me baking my wedding cake. And I’m perfectly happy to tell all my friends and relations if the guy would rather do without my business because I’m gay, so he can do without their business and their friends’ and relations’ business as well.

      This is where my vestigial libertarianism makes itself known. I think people should be given a lot of leeway to be horrible without legal penalty. If these guys want to be discriminatory assholes with their private business and should turn away custom as a result, I think they should have that right.

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      • I think a big part of it is what the overall atmosphere is like. In most places, the number of shops that would actively dump on a gay customer like that is probably not that large. During desegregation, the problem was so pervasive that has the potential to maintain a permanent underclass of people without access to certain services.

        As distasteful as the problem is today, it doesn’t seem to be quite the same. Soon enough, these folks being on record as discriminating against gays will start to hurt them more than it helps them and the problem will solve itself.

        I can understand the instinct to want to make them do whatever annoys them the most (losing a few hundred dollars over a wedding cake, or having to cry uncle in public and make a wedding cake), but it just doesn’t seem worth bringing the government in on this one.

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      • This is where my vestigial libertarianism makes itself known.

        Heh, mine shows up here also.

        And then I want to swing back the other way and say ‘You are not ‘your business’. Your corporation is a legal entity that has separate legal liability, finances, and now, stupidly, personhood. Corporations are allowed to exist only as public good. Just like we do not let legal liability of the corporation bleed over into you, we do not let your personal prejudices bleed over into the business. ‘

        I.e., someone selling roasted peanuts on the side of the road, sure, they can discriminate. A _corporation_ selling something? No.

        And, when I swing back the other way….what I do think that, _if_ we want to give corporations the right to refuse service to classes to people, they, _at minimum_, should be required to post that information in a visible place. ‘We do not serve gay people’.

        And, hell, they should probably have to put it in their corporate charter. Corporations are _supposed_ to be operated strictly for a single purpose, and for most for-profit corporations that purpose is ‘making money’. If they have an exception to ‘making money’ because of ‘gay cooties’, they need to put that in their charter.

        Yes, plenty of charters have wiggle room that would let them do stuff like that (For the same reason they can donate to charity…it makes them look good, so in theory makes them even more money than they donated.)…but it’s perfectly reasonable to require them to _explicitly_ put specific sorts of behavior in their charter, as long as there is a long enough phase-in that existing corporations can modify their charter.

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      • Agreed!

        With the one exception being that of critical services in under-served areas (a sticky definition if there ever was one). Take the case of Pharmacists & contraception. In a big city, there are enough pharmacies per square mile that the occasional stick in the mud is no big deal, in a small town with only one pharmacy within 20 miles, it’s a different story.

        However, wedding services are not critical, so let them be dicks.

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      • However, wedding services are not critical, so let them be dicks.

        Perhaps we could do a case-by-case examination. Will the reception have an open bar? Then we should force the bakery to bake the cake. Oh, it’s a cash bar? I guess religious freedom is a two-edged sword.

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      • Russell,

        I’m wondering if your position here would be modified given any circumstances. For instance, what if a particular bakery is located in an area that’s predominately conservative and instead of losing customers for its refusal to make same-sex wedding cakes, it gains customers once its protest becomes public? Or what if all of the bakeries in a specific area discriminate against same-sex weddings?

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      • Re: Wedding Cakes

        What happens when the cake designer is forced to make a cake for a gay wedding, and on the day of the pickup, the couple gets a cake with a passage from Leviticus written on it in gel frosting.

        Nothing is gained by forcing a privately held business to not be a dick, except to further promote dickish behavior.

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      • Yeah, that’s basically right. The way juries are instructed in California is:

        “Outrageous conduct” is conduct so extreme that it goes beyond all possible bounds of decency. Conduct is outrageous if a reasonable person would regard the conduct as intolerable in a civilized community. Outrageous conduct does not include trivialities such as indignities, annoyances, hurt feelings, or bad manners that a reasonable person is expected to endure.
        In deciding whether [name of defendant]’s conduct was outrageous, you may consider, among other factors, the following:
        (a) Whether [name of defendant] abused a position of authority or a relationship that gave [him/her] real or apparent power to affect [name of plaintiff]’s interests;
        (b) Whether [name of defendant] knew that [name of plaintiff] was particularly vulnerable to emotional distress; and
        (c) Whether [name of defendant] knew that [his/her] conduct would likely result in harm due to mental distress.

        In theory, that’s supposed to limit application of the tort to truly world-class dickery. But the Leviticus cake scenario seems to me like a good candidate for this. (By the way, this law is not new at all. I find overt references to this tort in California law going back to Bowden v. Spiegel (1950) 96 Cal.App.2d 793, and that refers to the Restatement of Torts, which is an academic summary of even older law.)

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      • As a general rule, I think people should have the freedom to be awful. They should not be awful in such a way as to infringe on the inalienable rights of others, but insofar as they are awful in a way that does not cause harm to other people then I am loath to use the force of law to stop them.

        So if a bakery is situated in an area that is densely populated with people who are all inclined to be awful in a certain way (but somehow has a judiciary sympathetic to same-sex couples seeking redress), I would still err on the side of letting them be awful. I don’t live in the state where I was born anymore because, in part, there are far too many people who live there who are awful in a way I cannot tolerate. But I would grant them that freedom. As a result, the area where I live now enjoys a hefty bite of my taxes, local businesses get my custom, I patronize and support the museums and charities hereabouts, etc. I contribute to this community because it has decided not to be awful, but rather to be wonderful in a way that matters to me.

        Put it this way — Virginia (as I understand it) has such a draconian and anti-gay law that I feel unsafe traveling there, because it nullifies not only my marriage but any legal agreement I have with my husband that even approximates a marriage. Lord knows if they’d even let him in the hospital were I to be injured in a car accident while we drove through. This being the case, not only do I refuse to travel to Virginia, when I have been in a position to suggest locations for conferences for professional organizations of which I am a member of some standing, I have explained why I refuse to travel to Virginia and advocated (successfully) for other locations to be chosen.

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      • So, what does one do with the less fortunate? Recently read a piece about yet another boat sinking on the way to Christmas Island. How many people in Africa would like to move to Europe? Obviously this is not possible. What does one do?

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      • My point is that many, many people are in this position. How could we possibly accommodate all? How much should one be willing to pay? What liberties should we give up so that others can have more? Is there in fact any thing we can do? There are awful situations all over the world.

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      • We can control for some of that awfulness, e.g., making it illegal.

        Rather than telling the black guy stuck living in a town full of racists that he should just move to a more friendly place, we can outlaw as much of the racism is reasonable. We can’t require people to smile at him on the street, but we can require that they serve him in their restaurants.

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  3. I remember a few discussions about this at the League back in 2009 or so. If I recall, the issue isn’t same-sex marriage per se but rather anti-discrimination law.

    I won’t buy off on the religious persecution arguments unless I see churches being forced to marry same-sex couples against their beliefs and/or directives. I have a hard time believing that will become a reality.

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  4. I think the two main concerns I have with this are that (1) One of the big arguments that we used in support of gay marriage is that it would not affect others (except county clerks and the like). And second, my support of anti-discrimination law stems from the concern of people not having reasonable access to goods and services because denial of access is systemic. So, back in the 60’s, something had to be done because the denial was systemic. I’m not yet convinced that’s the case here.

    Absent evidence of systemic discrimination, I tend to support the ability of businesses to choose their clientele. And I support responding ferociously when businesses abuse that privilege.

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    • But this doesn’t really have anything to do with gay marriage, does it? If they wanted it for a gay commitment ceremony or a gay birthday, could they still be denied? Could they be denied cupcakes after a lovely gay date?

      Furthermore, how do we define systemic? Three businesses? 50% of businesses? If something becomes systemic, do we reject it outright? Or just cutback on it such that it’s no longer systemic? “We’ll let the first three bakeries deny gay patrons but after that, the issue is systemic, and no more can be given the opportunity to do so.”

      Lastly, how does one “abuse the privilege” of choosing their clientele? Either you can or you can’t. If rejecting gay patrons isn’t abuse, I struggle to see what would be.

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      • It does relate to gay marriage in that we have allowed for this new thing, and now places that do weddings have to do something that they didn’t have to do before.

        Systemic is defined by the populace, pretty much. Necessarily. I would define systemic as being related to the ability of the targeted individual to get business elsewhere. If gay couples cannot find a place to host their weddings, that’s a problem. If they have to go to a second place because the first place refused to serve them, then that’s less of a problem.

        Refusing to serve gay couples is abusing the privilege, in my view. Which is why I think we should respond ferociously in terms of boycotting and naming-and-shaming those that do. However, I don’t think “abuse of privilege” necessarily means the privilege should be revoked.

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      • 1. Is it unreasonable to have suspected? if you feel very strongly that some marriages are valid and others are invalid and you’re in the wedding business certainly you should consider that you may encounter marriages you don’t feel good about…even before SSM came along.

        2. Discrimination laws addressed a systemic problem but also non-systemic problems. For example, whites have charged discrimination and won. It’s certainly not the case that it was ever very common for a white person to have trouble being served because they were white, but discrimination laws applied not just to the more common types of discrimination but also eccentric ones.

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      • But Will, gay people could have gotten “wedding” cakes long before SSM was legal. I know many people who had commitment ceremonies, complete with cake, long before it was legal.

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    • What Will said. The continued support for antidiscrimination law isn’t about making sure that people have access to certain goods and services—that ceased to be a real problem long ago. What it’s really about now is:

      1. People signaling that they’re on the side of the angels.
      2. Making sure that Bad People don’t get away with doing Bad Things.
      3. Keeping people from getting their feelings hurt.

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      • I disagree and dissent. A large part of the Civil Rights Act of 1964 was to make sure that minorities could have access to private and mainstream business. Read Ollie’s BBQ and Heart of Atlanta. Being given separate access or access to a limited number of places is second-class citizenry.

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      • Except we cannot compare today against an alternate today where those laws were removed. If you say, “Look, blacks can shop anywhere; we don’t need those laws!” — well, perhaps you are missing what those laws are doing.

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  5. And since I haven’t said it yet, this is a really great piece, Kyle, that with few words tackles a variety of complex issues with both nuance and rationality.

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  6. I don’t see any harm done by telling someone you won’t make them a cake. Who’s hurt thereby? The idiot baker, seems to me. My mother the anesthesiologist wouldn’t participate in abortions — the other anesthesiologist would, and did.

    But then a series of odd cases arrived. Sometimes not all of the placenta can be extracted in an abortion and these women were turning up in surgery with post-abortion complications. She didn’t want to handle these cases, either. Thing is, she alternated taking call with the other anesthesiologist. The doctor who was doing the abortions approached her and told her this would compromise his abortion practice: if any of his abortion patients developed complications of this sort — and it’s not an uncommon thing to see post-abortion complications — he couldn’t do abortions any more in that town.

    My mother told him her conscience prohibited her from handing his post-abortion complications. The abortionist ended up leaving town.

    I am pro-choice, always have been. This isn’t about abortion. It’s about conscience. I’m a big old Liberal: for me, denying the right to same sex marriage is abhorrent. But forcing someone to sell a cake in violation of their conscience, be it ever so bigoted and reprehensible — rights are easy to defend when everyone agrees with yez. It’s harder to defend the stupid, the bigoted, the speech we don’t like — that’s when the First Amendment comes into play and I’m pretty sure the USA is the only nation with any provision in law so broad and so compelling.

    I’d never buy anything from that bakery. That’s my right, to not patronise bigots. I might remonstrate with the baker, saying he’s not going to change anything and he’s a buzzkill and a killjoy. But when it comes to matters of conscience, I’ve always drawn a distinction between Ethics and Morality. Ethics is me telling you something is wrong. But Morality, well, that’s me refusing to do something, under any circumstances.

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  7. Let me put forth an absurd case. Google’s star programmer converts to Amish. He tells his employer he will continue to work for them, but with the following conditions:

    * He will submit code handwritten on paper, he will not actually compose any digital files.

    * He will not accept email, Google must print out any email and send it to him as paper correspondence.

    * He will not participate in teleconferences, instand message meetings etc. Any meetings held after sundown must be in a room with candle lights.

    Google will likely say no. He claims his newfound religious beliefs require him to avoid using computers. Who wins?

    Google does. Why? Well what if Google didn’t? Google would have to hire admins to retype the guys code, print out emails, work around his ‘daylight schedule’ etc. In other words, Google’s customers and shareholders would pay the cost of his religious beliefs.

    Therein lies the key to the matter. Funding your religious beliefs are your problem, not mine. Your Kosher beliefs are so strong that not only won’t you eat a cheeseburger, you feel you can’t even cook one. Well you’re not getting a job at McDonalds. You feel it’s immorally immodest to expose your chest. Hooters doesn’t have to hire you as a waitress in a burka.

    Society can make some special exemptions. For example maybe nurses working in public hospitals don’t have to participate in abortions. OK. How about the guy at the electric company? Can he declare he won’t work on any grid that has an abortionist as a customer? Again the principle is your belief, your cost, your issue. If you feel it’s immoral to work on supplying electricity if any of it is going towards sin, then that’s your business. Abide by that if you wish. But at your dime. That may mean you can only be a small-time electrician who hand picks his customers while your less religious counterpart enjoys the option to work for large power companies. Not our problem.

    We can say that when accomodation is not a serious cost, say when a business can reasonably accomodate religious requirements (i.e. wearing a small cross that doesn’t clash with the uniform, taking Sunday’s off when there’s plenty of coverage) but that’s not a requirement of religious freedom. That’s a nice thing, not an entitlement, not something ‘owed’.

    So I can go either way on the cake. I think if you’re a private baker, no storefront, you take on your clients one at a time, you should be able to choose whoever you want. Likewise if your baking is exclusive to a religious venue, again I think you should be able to discriminate based on your customers. But if you’re publically operating a storefront, a ‘public accomodation’ then the answer is no, you don’t get to pick your customers anymore than you can open a coffee shop that doesn’t serve blacks.

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    • The rest of the comparison to hiring I think is a little bit more complicating than illuminating, but I also arrived at the act of advertising as a public business as the thing that makes discriminating among clients just based on identity problematic compared to, say, sometimes cutting hair for money in your living room. It turns the discrimination into a public act. (Here is a place where the rubber meets the road for me in defining the question Jaybird often asks about where there is a private space that the government presumptively has no jurisdiction over.)

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      • So here’s the test I propose. Think of the most odious discrimination you can imagine. Would it be ok? If so then allow it.

        So imagine the bakery with a big sign “No cakes for Jews” or “No Blacks allowed!”. That’s not going to fly with me. But imagine someone in an Amish community who only bakes for other Amish members….or a person baking for their friends out of their own kitchen…I’d be good with it.

        What if the bakery owner said “I think the Jewish religion is misguided, anything that lends credibility to it just makes it harder for people to find Christ and save their souls. I can’t in good conscience bake cakes for Jewish services. Every moment lost puts souls at risk!” I’d say I respect that you have such strong beliefs but YOU pay the cost of them. That means you’re going to have to get out of the public bakery business. Let the downtown storefront be occupied by some business that serves everyone.

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      • Are cakes with burning crosses part of your normal lineup?

        Note discirmination laws are usually limited to a predefined set of characteristics; race, religion, orientation, vetern status. That would mean you’re free to put up a sign saying “No Republicans need apply here” while a “No Irish” sign would be a problem. Discriminating based on viewpoint may allow the cake shop to get away with it.

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      • “Does the person decorate cakes with crosses for Easter? Does the person decorate cakes with burning buildings for various fireman events? I don’t see how asking them to mingle the two types of cakes could possibly be seen as a violation of their belief system!”

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      • Doesn’t matter if it is or isn’t, you’re not required to have any particular product. You’re free to say to the KKK guy you may buy a cake with a burning building and firetruck, you may buy a cake with a big Easter Cross but I don’t ‘mix’ the two decoration styles.

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      • “(Here is a place where the rubber meets the road for me in defining the question Jaybird often asks about where there is a private space that the government presumptively has no jurisdiction over.)”

        Here is what I’d say:
        – If you operate as a tax-exempt organization, you sacrifice any and all right to discriminate on any bounds. This includes you, religious institutions. (Of course, this would likely be a step towards eliminating tax-exemptions, something I would welcome.)
        – If you operate in a jurisdiction where commercial property taxes are lower than residential property taxes (Google sleuthing tells me 19 out of 50 states fit the bill, but I could be wrong), you can’t discriminate.
        – If you incorporate as an LLC or otherwise take advantage of government created institutions that privilege you over a private individual, you can’t discriminate.

        Basically, in a nut shell, should the government bestow upon you any unique privilege as a business owner, you sacrifice a certain amount of domain over your “private” space. There would probably need to be more rules to cover everything, but that would be the ultimate goal.

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      • Discriminate against whom, Kazzy? Whenever you are selective in your clientele or in your staff, you are discriminating. It is either that you are using your own criteria or the court’s.

        As for tax exemptions, I am not aware of any class of people who are exempt from property or income taxes. As for corporations, they are tax collection conduits. A justification for taxing a corporation is that they acquire limited liability by incorporating. The thing is, philanthropies do not have a corps of owners to whom they pay dividends or who reap capital gains. They are generally far more conservative about compensation than commercial companies (and you could incorporate compensation limits into the corporation law).

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      • Will,

        I could get up on my soapbox about how not all discrimination is harmful, yada, yada, yada. But in service to the specifics of your question, I would support it insofar as it was part of a broader elimination of tax exemptions. As a rule, I don’t much like the government making social policy via the tax code. This includes income tax, as well. Despite being someone who benefits from it, I’d support eliminating the mortgage tax deduction, among most other deductions. Ideally, the phase out would be gradual so you are not ripping the rug out from people. But, yea, the fewer tax exemptions/deductions, the better.

        I hope James or Roger don’t see this.

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      • Kazzy, for what it’s worth I chose the UNCF in part because I would consider it among the more benign of discriminatory groups. Thanks for your answer. I appreciate a moral distinction between discriminatory groups but wanted to establish that you weren’t supporting policy on the basis of whether we consider the group to be benign

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      • I do not think you have sorted out in your thinking making use of tax preferences to privilege some people’s investment and expenditure decisions over others and the issues that form a component of whether or not to tax a corporation. Philanthropic entities other than schools and hospitals generally do not have much of a revenue stream. To impose taxes on their assets is to destroy them. To destroy them selectively is an affront to principles of free association.

        Their personnel still pay income taxes. If they sell goods or services, you can collect excises on that, but many are donating, not selling.

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      • Will,

        I’d still make arguments that certain forms of discrimination (e.g., Affirmative Action) ought to be legally permissible while others ought not be.

        But this shouldn’t happen via the tax code.

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      • Deco, “To destroy them selectively is an affront to principles of free association.” Um, could you unpack this for me. Isn’t selectively including or excluding others what free association is? Or are you arguing that we’ve been too selective in what religions we afford these perks to in the past and should make it up to the Rastas and followers of
        Aphrodite and Bachus ?

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    • I have a moral compunction about writing a homing algorithm. They’re used in guided missiles and all sorts of weapons. I won’t work on weapons systems at all. I’ve done lots of work with DoD and government agencies, just no more weapons for me.

      The Amish live off the grid, quite literally. They use electricity, I’ve seen it. They have electric washing machines and home lighting. They generate their own power. They just won’t connect to to public grid for anything. Keeps them independent from the outside world and dependent on each other.

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      • Like Kim said, it depends on the Amish. Or more precisely, it depends on the dictates of the elder(s) of a particular congregation.

        A few years back when I was pulling a flat-bed trailer I delivered a load of lumber to an Amish guy that had a workshop/factory set up on his farm to make “genuine Amish” knick-knacks to sell to tourists. (This was in Bird-in-hand, PA. Ya gotta love PA town names.) On the way there I was imagining this thing being unloaded by block and tackle or something.

        So I get there and the dude trundles out with a a diesel-powered forklift. Just as modern as can be. Upon questioning I learned that his whole operation was powered by diesel engines driving hydraulic pumps that drove hydraulic motors turning the saws, etc.

        They tend to get pretty legalistic about their moral prohibitions. He could have a pretty modern factory setup that was “kosher” because none of it relied on electricity. Never mind that much of his equipment was run by devices (the hydraulic motors) that post-date electric equivalents.

        Oh, and then he had a phone up in the cornfield. Literally. Apparently, convenience is a factor in determining sinfulness.

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    • The programmer here is requesting unreasonable accommodations. The employer is required to make reasonable accommodations but can refuse unreasonable ones.

      As to the sale of goods and services to the general public, that is treated somewhat differently than employer-employee relations, because now we’re into the realm of general commerce; see LeeEsq’s succinct explanation above. Would the denial of service, if aggregated to the commercial environment generally, result in a functional segregation of the disfavored group from general society?

      Bona fide private or religious entities can discriminate and are exempted from antidiscrimination laws. A Roman Catholic parish is not required to hire a woman to serve a priest, even if that woman has completed all of the academic work that would have been required of a man to attain ordainment and has fantastic people skills. An actual church need not suffer a same-sex wedding within its walls because it can say that services are for members of the church only — but a banquet hall that offers its services to the general public cannot refuse a same-sex marriage any more than it could an interracial marriage, and for the same reason. That reason is the same reason the Kleagle’s Kar Kleaners cannot refuse to wash an African-American’s car: the KKK may be a private entity that can exclude members as it likes, but the car wash is a general business and part of the commercial and economic environment.

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      • Where some businesses seem to be taking this is suggesting that their business is essentially the same as a religious org. That seems to be what Hobby Lobby is saying in their insistence on not providing some sorts of birth control. That seems a bit far to me. Churches are one thing and businesses are another but they want to mush them together.

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      • To call a business membership-based is insufficient to immunize it from application of anti-discrimination laws. Costco, for instance, offers memberships to the general public. If Costco were to decide that it didn’t want to sell memberships to African-Americans, there would be a real problem.

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    • Whose compelling anything? The idea is you are not allowed to discriminate in certain respects if you’re running a public business. No one is required to have a public business.

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      • If they are ‘not allowed’, they are being compelled. The concept is not that difficult.

        Circumstances being what they are, people generally have to earn a living, so you are prohibiting them from following their vocation in a manner they see fit. Calling it a ‘public business’ may please you, but it does not change the essential reality. What’s the justification for this sort of legislation? Well, the justification here is that the sensibilities of pushy homosexuals will be injured if someone does not bake them a cake. Which is to say we privilege the feelings of this mascot group over anyone else’s autonomy. This goes down well with a certain bourgeois type.

        There is not any problem with allowing one party to restrict their custom and telling the other they can purchase from a vendor that does this sort of work, except of the desire of you, Burt Likko, sundry other members of the legal profession, and the gay lobby, to harass members of subcultures you dislike. Suffice to say, your opposition is not impressed with such ambitions.

        As for Mr. Cupp, it should occur to a soi-disant member of the Catholic Church that some of his parishioners might just be subject to legal harassment from measures such as this; but I am assuming that Mr. Cupp has some residual loyalty to and regard for the interests of other people in the pews.

        And that’s to say that the Church intelligentsia and the church-o-cracy actually identify with parishioners instead of seeing them as the object of a ministry with esoteric objects or as a source of income. One of these days the marks might just tire of these charades.

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      • Deco,

        Customs are precisely how we got ourselves into this problem in the first place. If the customs hadn’t been so outrageously exclusive, perhaps laws necessitating their destruction wouldn’t have been necessary. In other words, blame the exclusionary nature of the customs for where we’ve arrived.

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      • My point still stands Deco. If these people – your people? – hadn’t been such hateful bigots in the first place, we wouldn’t be in this mess. But they were, to the point that governmental intervention was necessary to staunch the behavior. What you’re basically arguing for is a scenario in which one side is allowed to make whatever decision it wants and never, at any point, pay a price for those decisions. And the other side? It isn’t allowed to do anything, even briefly, to push back against those decisions.

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      • No. People will pay a price in terms of business foregone.

        Hateful bigots? G.K. Chesterton once wrote that every sane man believes he is right. A bigot is once who cannot understand how the other fellow came to be wrong. The most bigoted man I know is a hospital psychologist currently resident in the urban complex around San Francisco Bay. There is nothing hateful about him. He is a perfectly pleasant man, long married, and has a durable circle of friends one of whom he has known since 1960. He is perfectly immersed in the nexus of attitudes held by those among whom he has spent his life.

        I knew this man’s father and his grandmother. These two were not at ease with the world as he is. They had their own attitudes toward various and sundry. They were not hateful, either. Their thinking also had more depth.

        Now, that man’s father and his grandmother had little time for homosexuality. For his grandmother, it was an oddity remote from her life, and it took up almost no space inside her head. His father was repelled by it, but also adhered to a code of manners, and tended to believe you’d best be politic and sparing in your confrontations with others in this world.

        Which is to say, people had their ad hoc ways of dealing with these questions as recently as thirty years ago. Why get the lawyers involved?

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      • That ruling essentially said that given the Rotary Club’s size, rate of turnover, and extensive activities it was more public business than private club. OK so then what’s the problem?

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      • There’s quite a bit more to the ruling than that. The Court also said that the Rotary Club was a place where all kinds of business got done. The Rotary was a place where business contacts were made. Not allowing women in to such an environment excluded them from both formal and functional equality in the commercial realm.

        By analogy, a gay couple that isn’t able to get a wedding cake can’t get a wedding with all the bells and whistles, the way straight couples can, so in that sense their wedding isn’t on the same equal footing as a straight couple. Assuming, of course, that they want a cake in the first place and that they can afford a cake in the second place, which are issues that confront straight couples getting married too. If they want a cake and can afford it, then a cake should be as available to them as it is to a straight couple. To allow a private business to exclude them from that commerce sanctions a segregated commercial environment, as Art Deco pointed out above.

        That is the policy justification to answer Art Deco’s question, which is why should the state compel “x” (the bakery, or the Rotary club) to do business with “y” (the gay couple, or women). You can certainly argue against that policy justification. I find it difficult to come up with a response to that argument as to selling cakes to gay couples that does not also necessarily also sanction whites-only soda fountains. But maybe you can.

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      • Inapt analogy, though. The Rotary Club is where a significant number of local businessmen hang out, socialize, and make contacts. Excluding women puts them at a significant handicap. Some amount of that also goes on at the locker room of the 24-Hour Fitness, but not enough that it’s legally required to allow women in.

        If a significant number of bakers refused to make cakes for same-sex weddings, it might be necessary to take legal actions. Since in all likelihood it’ll be a small number of bigoted cranks, no one’s harmed by just letting them lose the business.

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      • Mike — I disagree. If Google only hires white programmers, but an African-American programmer can easily get an equivalent job at Apple or Oracle, then it’s cool to let Google discriminate on the basis of race?

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      • If a significant number of bakers refused to make cakes for same-sex weddings, it might be necessary to take legal actions. Since in all likelihood it’ll be a small number of bigoted cranks, no one’s harmed by just letting them lose the business.

        This is the most sensible take (because it’s mine too) — discrimination for any reason ought to be allowed, except when it creates a significant burden on the excluded group (because of the wide extent of the discrimination or perhaps because the would-be discriminator has a virtual monopoly on a given good or service).

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      • Burt, people are denied employment for all sorts of asinine reasons, not just the melanin content of their skin.

        Its clever to invoke blacks, because they have been subject to a great deal of abuse (though most saliently in venues other than employment). The thing is, you have to establish who has a cause of action and what demonstrates it. In composing the statute, you have to recall what gaming lawyers might make of it. The appellate courts are not trustworthy

        http://www.nationalreview.com/bench-memos/276821/en-banc-rehearing-ruling-against-michigan-s-colorblind-amendment-ed-whelan

        Attorneys can also be quite inventive in their second guessing:

        http://www.nationalreview.com/bench-memos/331374/dojs-partisan-disparate-impact-litigation-agenda-part-1-ammon-simon

        And cough up some interesting principles of action:

        http://www.nationalreview.com/corner/338937/eeocs-new-rule-background-checks-peter-kirsanow

        Which induces some problems in recruitment and promotion, most particularly in the public services:

        http://isteve.blogspot.com/2009/07/vulcan-society-v-fire-department-of-new.html

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      • @kenb: In principle I agree with you on this. However, it’s worth noting that the reason gays were added to various anti-discrimination laws around the country was precisely because overt employment and accommodation discrimination against gays was typically not limited to just a few cranks. That may or may not be as much a concern now, particularly in states that have legalized SSM, but it’s important to emphasize that situations like this are just an application of existing democractically enacted laws rather than any kind of new infringement on religious liberty.

        I don’t see any way of permitting the discrimination in cases like this without also overturning all prohibitions on discrimination against gays.

        The law, unfortunately, is a blunt instrument.

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      • Mark, yeah, I was making a general statement of principle — how we determine when that line is reached, what the right remedy is, and how we know when the remedies are no longer necessary are all difficult practical questions that I do my best to avoid.

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      • I’m sorry, not buying it. The act the court found applied, applied to all ‘business establishments’. The court essentially found that the club had grown so large, engaged in so many business transactions and had so much turnover in members it was essentially a business establishment rather than a private social club.

        Note true private clubs are free to this day to discriminate. Trying to tie this to buying cakes doesn’t fly. By definition ‘selling cakes’ is a business, in contrast to a private non-business entity that may occassionally do things like sell cakes as only tangentally related to its purpose (say for a fund raiser).

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      • Google, I’d have a hard time with, because they’re such a large player. But CODE-R-US that has four guys when they’re lucky enough to get a contract? Sure.

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  8. Well, the Bible tells us that at some point you won’t be able to get any services without the mark of the beast. So, I guess, these bakers are just getting their kicks in before things go hard the other way. I’m sure they’ll be stoic when the shoe is on the other foot.

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  9. I think that if you are in business selling anything, you are obliged to serve all customers within legal bounds (obviously, no selling beer to the teens, etc.). And if you are not prepared to do such; then perhaps you shouldn’t be in business.

    I get people want to cling to their beliefs. But they are their beliefs; not the beliefs of others, and those others have the freedom to believe (or not believe) as they choose. If you cannot separate the sacred from the secular to run a business, then you should not be in business in a country with religious freedom.

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    • You mean I cannot earn a living unless I do it according to your specifications. I am really not understanding where came this notion that I can have the clientele defined in law or I can have no clientele (even if I am willing to sell and they are willing to buy).

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    • “I think that if you are in business selling anything, you are obliged to serve all customers within legal bounds”

      So, Westboro Baptist Church’s “GOD HATES FAGS” cake is OK, then? Sounds good.

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      • No, because you are allowed to define the services you provide. You can be forced to provide service to WBC. You cannot be forced to do something you wouldn’t do normally for them. If the WBC wants a cake, they can purchase the cake. They don’t get to require me to write things on it I don’t want to write on it.

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  10. I’m surprised you’re not getting more pushback on this remark, Kyle:

    Sometimes religious liberty ought to be curtailed. Sometimes justice demands it. Religious liberty can never be absolute, and so those whose religious liberty is culturally and legally recognized benefit from their beliefs being privileged by society.

    I have no real problem with this, either as an abstract statement of philosophy and social structuring in a pluralistic society, nor in (most of) the cases where that abstraction must be embodied in actual governmental activity. What is interesting to me is where you go next from there — you see a) religious liberty is a function of that religion’s cultural dominance, and b) Christianity is losing a degree of that dominance within our culture, thus c) Christianity is over time losing is ability to enjoy the legal privileges that it used to.

    Conclusion c) may seem to be correct, taking a longer view of the arc of the past century or so of American legal history. But I would disagree with both a) and b). Religious liberty is hardly a function of a particular religion’s cultural dominance. Most developments and advances of religious liberty in our constitutional legal history have come as a result of people whose religious beliefs fall outside of the mainstream: Jehovah’s Witnesses probably earn pride of prominence among them, but also Muslims, atheists, Santerians, orthodox Jews, Amish, and so on. Comparatively few landmark religious liberty cases on either the Establishment Clause or the Free Exercise Clause cases involve claims by aggrieved members of mainstream Christian sects.

    I also do not see Christianity’s influence over culture diminishing in any way. Church memberships are going up, particularly in suburban and exurban megachurches. Atheism is no longer trendy or fashionable. Many states, Texas most prominently among them, are aggressively legislating strong pro-life laws intended to push the envelope of what the Supreme Court will allow. Local governments are adopting overtly sectarian prayers as part of the opening of governmental business sessions in ways intended to publicly assert their ability to do so. Studios are creating special divisions for the creation of “wholesome” or “family-friendly” entertainment and there are competing TV networks all over my Direct TV package selling “positive” or “uplifting,” if not overtly religiously-themed, entertainment, and a lot of it is of very high quality.

    I wouldn’t dispute the notion that Christianity’s influence over the general culture is transforming into something different than it once was. But it’s still the case that something between three-fifths and three-quarters of Americans self-identify as Christians, it’s still the case that a proportion of our policymakers and public officeholders even greater than that of the general population are Christians, and it’s still the case that people seeking to purvey cultural products like mass-marketed entertainment are very solicitous of the opinions and preferences of Christians.

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    • Really? Culturally relevant? You saw that Rick Santorum is starting up a religious entertainment business? I’m on the edge of my seat in anticipation.

      Some churches may still be growing. I don’t think anyone is claiming that overall attendance is growing. Atheism not trendy? Maybe your neighborhood looks different than mine. The PNW has the lowest church attendance/belief in the nation. The fact that there are so many religious law makers is a serious problem from this perspective. It is definitely not representative of our population and a source of tension.

      Fortunately, up here in Canuckistan we have Beverley McLachlin who seems to favor the freedom to worship with reservations.

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      • Rick Santorum may be many things that you and I dislike, Cascadian, but “dumb” is not one of them. Neither is “unambitious.” If he’s starting up a religious entertainment business, it’s because he perceives an opportunity for success — whether economic or otherwise — in doing so.

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      • Well I’ll give you ambitious but that’s about as far as it goes.

        I’m sure Christian entertainment does better in some parts of North America. I have a hard time believing that it will gain much purchase outside of the Bible belt and small fundamentalist communities. This is part of the problem. There are larger and larger cracks in a shared social understanding between different parts of the US. I’d support that the trajectory is for continued distancing between the coasts and the rest. Perhaps you perceive a different reality from your location.

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      • California isn’t exactly the Bible Belt. Granted that my corner of California is quite conservative, but I get down into the big city often enough. Cultural bubbles are much more often the result of self-selection of social companions, reading material, and daily activities than geography, as I see it.

        I won’t deny that there are regional differences, but I’d also be very surprised if there weren’t thriving megachurches even in the Pacific Northwest where you’re at, and substantial numbers of people who absent themselves from the edgier, more liberal public culture for which that region is famous — but do not absent themselves from the ballot box, resulting in public officials who seem a little bit out of step with the general community. IIRC, there’s also a substantial cultural divide running along the ridge of the Cascade Range — eastern Oregon and eastern Washington are a good deal more culturally and politically conservative than the western regions of those states. Their votes count the same as yours.

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      • I’m a PK from Orange County. My family did church planting/financing (criminal) in the 70s. It’s not a belt but it’s a big bubble.

        We have the infamous Mars Hill in one of the hippest neighborhoods in Seattle. It’s a travesty. We also have SPU which is an even bigger transgression.

        I don’t think our local politicians are guilty of being overly religious; that wouldn’t be tolerated. It’s those from other parts of the country that have such a disjoint with our culture.

        My impression is that the Eastern sectors are more libertarian than theocratic. I’m fine with that. Plus, they love all the high price localvore foods they can sell. Of course, all the organic farms are starting to have some down stream effects on the make up of those communities.

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    • I wouldn’t say that the religious liberty of a particular institution is merely a function of its cultural dominance, but in some cases they are related. Take the kerfuffle over Christians who object to birth control having to help pay for it. This conflict arose, in part, because of two conflicting beliefs: 1) that legitimate health care includes birth control, and 2) that legitimate health care does not include birth control (because birth control is immoral). The latter view used to be the norm among a number of Christian denominations and, at times in U.S. history, was enshrined in civil law with the criminalization of contraception. Obviously this view no longer holds the sway it once did, even among committed Christians. The Catholic hierarchy continues to preach its evil, but most of the laity pays their protestations no mind. Now maybe I’d be wrong, but if the vast majority of Americans, Christian and otherwise, believed that birth control was immoral, I don’t think you’d have seen the HHS mandate requiring businesses to pay for contraceptives as part of their health care plans.

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      • I do not know about you, Burt, but it’s not exactly an unusual circumstance that someone tells me that they do not wish to do business with me for one reason or another. Since they are not indentured to me, I tend to regard that as their prerogative. It is not a tort. Measures like this create business for lawyers, some of whom indubitably lie to themselves and do not acknowledge that these are bullying measures.

        You want to understand ‘anti-discrimination law’?: it is a means for everyone’s discretion to be second-guessed by attorneys. Thanks for nothing.

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      • …but it’s not exactly an unusual circumstance that someone tells me that they do not wish to do business with me…

        I can’t imagine why.

        That said, how about giving us some of the reasons that your business is refused, such that we might better understand your scenarios against those of these rejected gay couples.

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      • Well, it is a tort, Art Deco, because Title VII and other anti-discrimination laws make it so.

        Attacking the lawyers who enforce those laws may be fun, but it doesn’t get at what you’re really arguing for: people should have the right to discriminate against other people and the government has no legitimate interest in that private transaction. A baker should not be compelled to sell a cake to a gay couple. The Rotary Club should be allowed to exclude women. A restaurant should be able to serve only white people.

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      • “The reason it is a cause of action is that statutory law unjustly defines it as such. It is not properly a cause of action.”

        There’s a guy arguing that he shouldn’t be prosecuted for terrorism because the laws, not founded on his holy text, don’t apply to him. Is this the area you’re coming from?

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      • No, I am arguing for free association, and for not having to explain myself to an attorney.

        You may think ‘discrimination’ is bad, but people discriminate as a matter of course in their daily business and associations, and if you tell me you do not, I am happy to tell you to stop lying. It ends up being argued over by lawyers when the fancied object of it is part of a designated mascot group. Also, few of us could offer a finely detailed explanation of every preference we have satisfying to every observer. You just do not resolve normative questions. You can have a consensus on such questions, but that is a sociological phenomenon. Anthony Kennedy may fancy that a JD degree gives one a franchise to assess everyone else’s ‘rationality’, but if he does, he’s a clueless bourgeois and not fit for the office he holds.

        Look, Burt, you can try to manage and adjudicate cultural conflicts by allowing people their own discretion, or you can have twits in the legal profession bossing everyone else around according to the current tastes of the professional managerial bourgeoisie. Nothing fun about it.

        Some of us might like to be left alone by the legal profession and various others. Kyle Cupp should get that. He professes to hang with some of us. The Catholic Church being the social organism that it is, some of us can see he does not and from previous interaction get an idea of why he does not. He professes not to understand the analogy between the readily suborned in one setting and the readily suborned in another.

        There is one difference. Many years ago, Andrew van Rijn, then writing for a Dutch magazine and distributing religious literature in Eastern Europe, related a frustrating exchange he had with a local cleric. During it, he glanced at the man’s hands and could see that his fingernails had been at one time pulled out. He figured, well, I do not live in the circumstances he does. No one had to pull Kyle Cupp’s fingernails out to induce him to write these cruddy little apologias.

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      • Woah. Quel courage!. Taking on an actual lawyer — are you an attorney, Artie? On what grounds is such a law unjust?

        BlaiseP, an attorney is not in a position to tell you what justice is, though he may be more adept because he is trained to make argument. He is in a position to tell you what the case law says and the ways in which it can be turned to your advantage. Different skill set.

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      • I dunno. When a large ship comes in to port, it does so under the guidance of a licensed harbour pilot. Doesn’t matter how smart you think you are. Everyone who’s faced with legal issues needs a lawyer. Only an idiot would believe otherwise. As much as I’ve paid attorneys over the years, I feel I got great value for money.

        Justice be damned. Fairness is for weeping willies and losers. If I was a gay man trying to buy a wedding cake and some doofus told me he wouldn’t make me one, I wouldn’t resort to some complaint to the Director of Civil Rights Commission, though I’m glad such a commission actually exists in Colorado. I’d do my very best to ruin this bastard. I suppose we should all be glad I’m not that gay guy because by the time I got through with that baker, he wouldn’t be in front of some Civil Rights Commissioner. He’d be in front of a bankruptcy court.

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      • Cascadian, you mean we have a civil war if Bruce Fenwick does not get his wedding cake? We cannot function as a political and social unit unless the legal profession imposes its tastes on us?
        Why the legal profession’s tastes?

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      • Art Deco, it is one thing to say that a statute creates an unjust law. It is something far more ambitious to say that a statute is not a law at all. Title VII is the law, right or wrong, for good or for ill. If you want to argue that Title VII is an unjust law, that’s a normative argument — but Title VII is objectively the law, your distaste for it notwithstanding. Since Title VII’s enactment by a democratically elected Congress forty-nine years ago, twenty-four successive Congresses have not yet seen fit to repeal it and indeed very few people have tried. It’s fair to infer from that fact that more people like it than don’t and therefore that the principle of governmental intervention to eliminate certain kinds of discrimination in private transactions enjoys broad and enduring democratic support.

        The majority can be wrong, sometimes, by valuing that which is popular as more important than the fundamental rights of individuals I fully appreciate that you are arguing for freedom of association and I don’t dispute that this is a fundamental right of individuals. There is no right that is absolute. We can identify lots of important values. Sometimes, some of those values compete with one another and it falls to the law to balance them.

        Someone might say, “Freedom of association for the baker to do business with only the customers of her choosing, in this particular case and under these circumstances, is more important than the right of the gay couple to stand on equal footing with anyone else in the community when it comes to access to goods and services.” You’ve left that limited argument well behind with your sweeping condemnations of anti-discrimination laws generally.

        Alternatively one might say, “Discrimination and segregation are regrettable, but the value of free association is so high that we as a society must tolerate discrimination and segregation as the price we must pay for liberty.” Such an argument domesticates the discrimination and segregation that history demonstrates will result from such an elevation of free association against other competing interests.

        What’s more, the argument that the government lacks any interest in the effects of discrimination and segregation is a ship that sailed two generations ago. Anti-discrimination law is well and thoroughly a part of not only well-established statutory and case law, but also well and thoroughly a part of our culture. Indeed, the enactment of Title VII in particular was a significant factor in that change in our culture: thanks in no small part to the passage of that law, most of society has come to believe or at least overtly avow that certain kinds of discrimination are both morally wrong and properly redressed by the government.

        So please don’t pretend that by arguing for the elevation of free association over other interests, you’re doing something other than expressing a willingness to tolerate overt discrimination. That is what you’re arguing for, no matter what label you put on top of it. In so doing, you’re arguing against a very strong cultural norm, and against a very basic principle of justice, the principle that all people are created equal and therefore deserve to be treated equally until and unless some good reason appears justifying inequal treatment. Discrimination should not be thus domesticated.

        And please don’t pretend that the law is not the law simply because you deem it unjust. You are no more a lawmaker than I am. Who appointed you to the Supreme Court? Who elected you to Congress? At minimum, don’t presume to dictate what is or is not the law based upon your own personal preference in the same breath you sneer at Justice Kennedy for doing exactly the same thing (not that I think that’s what Kennedy’s trio of gay rights opinions have done).

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      • Burt Likko, what are you talking about? I do not pretend the statute is not the statute or that the case law is not the case law. I am saying the statute stinks, the case law stinks, the principles behind it stink, and the people who make the law (largely judges and their collaborators) stink. My point was not that obscure.

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      • The people who made this particular law were the same people (no, literally, the same exact people) you like to tout in pointing out that a higher percentage of Republicans than Democrats voted for the Civil Rights Act, and that therefore the Democrats are the real racists. So which is it? Did the Republicans who voted for the CRA “stink”? Or are they people who would be totally acceptable within modern conservatism?

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      • What am I talking about?

        Art Deco, July 26, 2013, at 1:57 pm: “It is not a tort.”

        Art Deco, July 26, 2013, at 3:02 pm: “The reason it is a cause of action is that statutory law unjustly defines it as such. It is not properly a cause of action.”

        That sure looks to me like you’re saying Title VII is not a tort, not a cause of action at all. And it is. To say a Title VII action is not a tort is different than to say it ought not be a tort.

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      • The people who made this particular law were the same people (no, literally, the same exact people) you like to tout in pointing out that a higher percentage of Republicans than Democrats voted for the Civil Rights Act, and that therefore the Democrats are the real racists. So which is it? Did the Republicans who voted for the CRA “stink”? Or are they people who would be totally acceptable within modern conservatism?

        And when I make that point, I am usually addressing a different subject, which is the argument that the Republican Party has it in for the blacks and is responsible for sour race relations and what not. That simply is not true and never has been.

        And you are not distinguishing between the impetus of the 1964 statute (abuse of blacks in public places), the legislation passed (adding two or three other preference categories) and the metastatic reality of contemporary ‘anti-discrimination law’ and the subculture from which that case law arises (some of which is referred to in the links).

        Nor are you taking account of the antecedent situation. Segregation was not just custom, it was written into the positive law in the Southern United States and local free-booting also induced private companies to ignore federal law which prohibited segregation within certain spheres. Nor was it, pace Russell Kirk, some antique social practice. The last components of it were put in place during the Wilson Administration and the first swing of the axe against it occurred just prior to the 2d World War.

        There is not now, nor has there ever been, a body of law prohibiting sexual deviants from buying baked goods or requiring they only patronize homosexual bakers. The closest you get to anything of that nature is sex offender registries, which are fairly novel (and a pretty wretched business, btw).

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      • Ignoring for the moment the rank bigotry in your comment, your links are all about disparate impact litigation, which is an evidentiary issue- a way of proving intent, not a separate cause of action itself.

        Regardless, the case we’re talking about here is a case where the discrimination at issue is direct and fully acknowledged – it’s not disparate impact litigation at all, and the Civil Rights Act has to my knowledge always been explicit in granting a cause of action for direct discrimination. Additionally, to my knowledge, all or nearly all states that have extended private sector anti-discrimination laws to protect gays have done so through direct legislation, not through the courts.

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      • Also, when people are making the point that the GOP has it in for blacks, they are making the point that the GOP of 2013 has it in for blacks, not that the GOP of 1964 had it in for blacks. If the Republicans that voted for the CRA would no longer be Reoublicans in good standing, then you can’t use them to defend the GOP of 2013.

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      • Ignoring for the moment the rank bigotry in your comment,

        Ignoring for the moment malicious little non sequiturs.

        your links are all about disparate impact litigation, which is an evidentiary issue- a way of proving intent, not a separate cause of action itself.

        Your way of ‘proving’ intent has led to endless litigation over the content of civil service examinations and the essential abandonment of them in certain loci (e.g. recruiting Chicago firefighters). The latest bit of try-every-door from ‘civil rights’ shysters is lawfare against the use of criminal background checks. Who signed on for that mess in 1964?

        Regardless, the case we’re talking about here is a case where the discrimination at issue is direct and fully acknowledged – it’s not disparate impact litigation at all, and the Civil Rights Act has to my knowledge always been explicit in granting a cause of action for direct discrimination. Additionally, to my knowledge, all or nearly all states that have extended private sector anti-discrimination laws to protect gays have done so through direct legislation, not through the courts.

        It has proved to be a bad idea as well. You are not getting my point. The sociology of the bar is such that this sort of thing cannot be contained by the wording of statutory legislation. You have to take all their tools and toys away from them, or the lawyers’ conventicles give you ‘affirmative action’, ‘disparate impact’, &c. Too bad, but that’s the way it is. The simplest solution is simply to restore free association and freedom of contract. As is, much of our bourgeoisie has completely lost sight of the notion of free association and collective action. You see this when some flyspeck in the student affairs apparat debars some student club from campus because they ‘discriminate’. Of course they discriminate, because their associations have discrete purposes and they only want people who subscribe to them.

        People in 1962 were repelled by systematic insult directed at a largely poor and politically quiescent minority, conjoined to the corruption of the legal system in its dealings with them both as plaintiffs and defendants. The legal profession leveraged legislation initially proposed to address that sort of thing in to a legal architecture animated by the social vision of bourgeois liberals. Bourgeois liberals think of the relationship between themselves and the public at large as that which obtains between school administrators and high school students. Nobody associates accept on terms approved by the principal and the dean. Nobody exercises discretion except according to esoteric notions of ‘rationality’ determined by the principal and the dean. Principal Kennedy will explain it all for you. Repulsive bit of business.

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      • Also, when people are making the point that the GOP has it in for blacks, they are making the point that the GOP of 2013 has it in for blacks, not that the GOP of 1964 had it in for blacks. If the Republicans that voted for the CRA would no longer be Reoublicans in good standing, then you can’t use them to defend the GOP of 2013.

        Of course, the GOP of 2013 does not have it in for blacks and public advocacy for eliminating the edifice of civil rights law is limited to a few libertarians like Richard Epstein. Prof. Epstein is no more likely to find himself in elective office than yours truly. Four of the last five Republican administrations have manifested scant antagonism to contemporary practice in civil rights law except in tiny little increments. The Reagan Administration had initiatives contra ‘affirmative action’, but there is nothing sinister about that.

        The Nixon Administration gave you the Philadelphia Plan, the Ford Administration ‘innovative’ interpretations of reconstruction era legislation, and Robert Dole the Americans with Disabilities Act. George Bush the Younger salvaged political patronage for you all in the admissions practices of higher education in Texas, George Bush the Elder and Mitt Romney are a pair of windsocks, and John McCain makes it a point to not to embarrass his media fan club. These guys were never a threat to the civil rights establishment.

        While we are at it, promotion of mass immigration is injurious to the interests of blacks, as Barbara Jordan and Coretta Scott King understood.

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      • People in 1962 were repelled by systematic insult directed at a largely poor and politically quiescent minority

        In other words, the difference between blacks and gays is that blacks used to know their place.

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      • No, the difference is that homosexuals are a behaviorally defined group, not manifestly lacking in means, not manifestly despised by the patriciate or the professional managerial bourgeoisie, and not denied coffee in luncheonettes if they did not conduct themselves like Quentin Crisp.

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      • So calling a group of people “sexual deviants” = not malicious; pointing out that this is malicious= malicious. Yeah, we’re done here.

        Also, “disparate impact” rules of evidence are not my creation, and at least as applied to private Title VII actions, are not dispositive of a case. They exist only because of the obvious fact that one who wishes to avoid liability in a Title VII case usually isn’t going to be so stupid as to outright admit liability. So you show a disparate impact. But that doesn’t end the case – the employer still gets to produce evidence that it has a non-discriminatory explanation for that disparate impact. The plaintiff then can only win if they can show that the employer’s explanation is a mere pretext, ie, a lie. That is not easy in the least bit.

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      • In other words, the difference between blacks and gays is that blacks used to know their place.

        “First liberalism came to free the slaves,
        and I spoke out because slaves had no voice.

        Then it came for women’s suffrage,
        and I spoke out because women had been politically silenced.

        Then liberalism came for same sex marriage,
        and I spoke out against because gays have a loud voice and they sure-as-hell aren’t silent.”

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      • So calling a group of people “sexual deviants” = not malicious; pointing out that this is malicious= malicious. Yeah, we’re done here.

        What’s your point, Mark, that there is no such thing as sexual deviance or that I am honor bound to draw the lines where you do?

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      • Also, “disparate impact” rules of evidence are not my creation, and at least as applied to private Title VII actions, are not dispositive of a case. They exist only because of the obvious fact that one who wishes to avoid liability in a Title VII case usually isn’t going to be so stupid as to outright admit liability. So you show a disparate impact. But that doesn’t end the case – the employer still gets to produce evidence that it has a non-discriminatory explanation for that disparate impact.

        Mark, the Chicago city government is not using a lottery to select its firefighters because conventional examinations are unfair by any standard anyone would have articulated as recently as 1965.

        And, no, city government’s should not have to demonstrate a ‘non-discriminatory’ reason for disparate impact, because between-group differences in performance metrics are banal and fairly universal. If everyone is taking the same bloody test and there are no questions that do not partake of acquirable knowledge and skills, the test is not properly second-guessed by judges. But, the law being what it has mutated into being, the judges feel free to appoint themselves city psychometrician.

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      • “First liberalism came to free the slaves,
        and I spoke out because slaves had no voice.

        Then it came for women’s suffrage,
        and I spoke out because women had been politically silenced.

        You’ve a talent for anachronism.

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      • Articulating a non-discriminatory reason for a disparate impact isn’t difficult in the least. I struggle to recall a case where the employer was unable to offer one. Once they’ve done that, the only way they can lose is if the plaintiff shows that they are lying.

        And one of the reasons they can articulate is that the test is relevant and objective. You seem to think that a court or a plaintiff should be required to just take the employer’s word on that and should be allowed to evaluate whether the employer is lying.

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      • No, I am arguing for free association

        That explains a lot about your comments.

        Gay. Deviant!
        Liberal. Fascist!
        Lawyer. Scumbag!
        Democrat. Racist!

        And so on.

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    • Also, my argument is not that Christians or Christianity is losing cultural dominance, but that particular beliefs of some Christians don’t have the dominance they once did (in part because these beliefs are no longer held by as many Christians).

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    • . Church memberships are going up, particularly in suburban and exurban megachurches. Atheism is no longer trendy or fashionable

      I would enjoy seeing your sources on this, as it seems to contradict the polling and research I am familiar with. (Caveat: Church memberships among mega churches ARE rising, yes — at the expense of smaller churches and denominations. It’s not growth, it’s..concentration). The numbers I’ve seen have shown that the number of ‘non religious’ is continuing to rise, not fall, and that the number of butts in pews (especially, ESPECIALLY among the sub-30 crowd) continues to plummet.

      Maybe I’m remembering that wrong, however.

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    • I also do not see Christianity’s influence over culture diminishing in any way. Church memberships are going up, particularly in suburban and exurban megachurches. Atheism is no longer trendy or fashionable.

      I don’t think this is necessarily true; at least from looking at PEW’s study on religion, found here:

      The survey finds that the number of people who say they are unaffiliated with any particular faith today (16.1%) is more than double the number who say they were not affiliated with any particular religion as children. Among Americans ages 18-29, one-in-four say they are not currently affiliated with any particular religion.

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      • His line about megachurches might be the key. Mega-church populations are thriving, as they’re basically sucking dry smaller churches — and they’re a highly competitive, big visibility entity. They might be growing steadily while overall church goers (as a %) fall.

        But yeah, that PEW study was one of the first ones that came to mind.

        Which suggests a second possible rationale — I can’t imagine the various major religious denominations are unaware as to their…well, shrinking market share? Falling attendance? Whatever you want to call it — if so, you’d see a flurry of desperate legislation and lobbying, as part of a push-back.

        Given the recent set-backs in terms of gay marriage (not just legislatively, but in pure poll numbers and support) and homosexuality in general, I’m not really seeing the religious right having nearly anything like it’s old power. (And the religious left is, of course, about as active and totally unnoticed as always. They exist, they do good work, nobody cares or writes newspaper articles about them).

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      • Since the early 1980’s, what I’ve seen in the northeast is shrinking congregations in all but a few evangelical churches; and while those churches do seem to be growing, they’re not replacing the numbers of congregants lost from the local churches they’re replacing. Membership in those evangelical churches strikes me, also, as highly economic; they seem to attract people when times are tough by providing some economic cushion; so it’s a trend I’d guess might well reverse with improving economies.

        But the real story here isn’t the shifts in populations amongst small community churches vs. mega churches; it’s the shift in populations of the loosely religious raising children who identify with religion even less then their parents; a generation who call themselves religious because that’s how they were raised, who might attend service a couple times a year, raising children who don’t need to identify that way at all.

        And for that population, stands on conservative social issues like gay marriage are not big sellers; they’re non-starters.

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      • Yup, I think overall the numbers are plummeting. Read a piece yesterday of Rod’s that claimed 63% of PNW do not have a religious affiliation.

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    • Burt,

      Religious liberty is hardly a function of a particular religion’s cultural dominance. Most developments and advances of religious liberty in our constitutional legal history have come as a result of people whose religious beliefs fall outside of the mainstream: Jehovah’s Witnesses probably earn pride of prominence among them, but also Muslims, atheists, Santerians, orthodox Jews, Amish, and so on.

      So do you see in American life over the course of our two centuries as a vast sea of equal religious liberty for all religions, marred only by isolated instances of denial of that liberty for minority religionists, which have been more or less all addressed by courts? Or is it possible that the majority religion in actual practice has enjoyed a generally greater degree of liberty (via privilege) because of the basic assumptions about life in the country that stem from that religion being the majority (and once the overwhelmingly dominant majority) religion, and also because law can only address discrimination in a lagging and incomplete way? Because it seems to me the former would have to be the case for it not to be at least very possible that, despite many court cases through our history that have addressed and advanced equal religious liberty, religious liberty as a practical matter has nevertheless been largely a function of a particular religion’s cultural dominance.

      At the least, I don’t really see how this

      Comparatively few landmark religious liberty cases on either the Establishment Clause or the Free Exercise Clause cases involve claims by aggrieved members of mainstream Christian sects.

      would be inconsistent with a background situation in which religious liberty is to some extent a function of a particular religion’s cultural dominance.

      The view that certain institutional actions to try to redress discrimination or a historical record of unequal liberty amount to a comprehensive establishment of equal liberty (or even a kind of special privilege of its own) is the kind of thinking that tripped up Justice Scalia and led to his embarrassing soliloquy about “perpetuation of racial entitlement” (“it’s been written about!”) in the Shelby County v Holder oral arguments earlier this year.

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  11. Lots of wrangling and counterpointing. The Colorado cake kerfuffle is brought up numerous times, but little is heard of the Eastern Washington florist foolishness. My understanding of the backstory is that the plaintiff had done a fair amount of business with that florist, and the florist was aware he was gay, yet continued to do business with him.
    It was not until he requested she be the florist for his wedding that she suddenly had a problem with taking his money.

    So, attorney types, the tort is…?

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  12. Let’s not forget exactly how effective the Civil Rights Act was. I look forward to the spectacle of the National Guard holding a baker at gunpoint while he bakes, decorates, and delivers a cake to a homosexual couple’s wedding.

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    • Sexual liberty privileges those who find sexual intimacy easy to initiate, because sexual intimacy will be assumed as a default in social relationships!

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  13. As far as I’m concerned, you can claim religious liberty only if you belong to a denomination or sect that includes cake-baking as one of its doctrines. Otherwise it’s a straight business deal and cry-baby sore losers like Rod Dreher (who is turning into an obsessive crank on certain issues) should not be allowed to get away with this religious liberty argument.

    If you’re going to claim religious liberty, then not too far down the road you’re going to have courts ruling on whether or not you’re basing your claim on something that really is part of your religion or whether you strongly believe that it is. For instance, if an uber-Catholic baker refuses to bake a wedding cake for a divorced person’s second marriage because the Catholic church frowns on divorce, then it seems to me a good lawyer should be able to point out that the Catholic church does not tell its adherents to shun the divorced and therefore that the religious liberty being claimed is really nothing more than a personal prejudice and doesn’t deserve any special protection.

    I’m sure the small claims court judges of America will just love having to make rulings on that kind of thing.

    Dreher never elaborates on how this whole religious liberty argument is supposed to work; I think he thinks that someone should just be able to say “Religious Liberty!!!!” and everyone will fall away in awe and fear at the majestic phrase. Somehow, I think he’s doomed to disappointment.

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