Freedom of Religion

Indiana's RFRA: Religious Freedom or Freedom to Discriminate?

Indiana was effectively making discrimination based on sexual orientation lawful.

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The turmoil over the efforts by the State of Indiana to make lawful the decisions by operators of public accommodations to decline their services based on their stated religious views has died down because the legislature amended the offending parts of its legislation so that the new law prohibits denying services based on sexual orientation, yet its affirmations of religious liberty are meaningless.

The statute as amended last week basically states that in Indiana all persons have the right to the free exercise of their religion, and if that right clashes with any other claimed right, the courts must take both claims into account and analyze the free exercise of religion claim by using legal standards intended to recognize that it is fundamental.

That is already the law of the land everywhere in the United States by virtue of the Free Exercise Clause of the Constitution, which may not be expanded by any state legislature without offending the Establishment Clause. The free exercise of religion is a fundamental liberty; it is fundamental because it is a natural right and is expressly protected by the Constitution. It is intentionally juxtaposed to be at tension with the Establishment Clause. The two clauses together mean that government may not aid religion, may not harm it, may not advance it and may not interfere with it.

The Indiana firestorm was the consequence of a governmental solution for no problem. It is absurd for a state to pronounce in its positive law the truism that rights guaranteed by the U.S. Constitution shall be honored in that state. I say "absurd" because that already is the law of the land and any effort to restate it is superfluous and no doubt intended to mislead the people into believing that somehow, in Indiana, there is more religious freedom than elsewhere in the U.S. There isn't, and there cannot be.

This misrepresentation occurred when Indiana's original Religious Freedom Restoration Act stated that religious beliefs can trump legal obligations when the operator of a public accommodation is deciding whether to deliver his goods or services to a person whose status, past behavior or contemplated behavior runs counter to the operator's religious beliefs.

By permitting the rejection of services because of sexual orientation, so long as that rejection was based on a religious belief, Indiana was effectively making discrimination based on sexual orientation lawful. No other state had done that.

roboppy/Flickr

When the owner of a northern Indiana pizza restaurant said she would decline to deliver pizza to a same-sex wedding reception because her religious views prohibit same-sex weddings, it was a lawful statement, and if she had carried through on her promise, her behavior in Indiana at the time the original statute was in force would have been lawful.

Should the pizza restaurant owner have been able to make that promise and carry through with it?

Before you answer, consider where this could have gone. Suppose the couple seeking the pizza at their wedding was not only same sex, but also of two different races, and the pizza shop owner claimed a religious aversion to mixed-race marriages. Could she have followed through on her promise to deny the pizza? Or suppose she objected on religious grounds to weddings of those who had been previously married? Could she lawfully have denied pizza to them? Or suppose she claimed a religious view that prohibited her from serving pizza to anyone whose skin color was darker than hers? Is there no limit to her ability to refuse service so long as she claims a religious basis for doing so?

One can see the slippery slope that the original Indiana statute could have begun by offering state legal protection to the refusal to deal based on religion, even when it is contrary to federal law. Under the law, no one needs to prove the prior existence of a religious creed or decree in order to claim it for one's own, and the courts may not inquire of the origin, centrality, rationality or sincerity of one's religious beliefs. Hence, the Indiana law on its face could be used to claim the right to deny any person any service in any public accommodation, so long as the denial was based on the denier's stated religious views.

But the statute runs counter to standard First Amendment jurisprudence. The U.S. Supreme Court has addressed this twice in recent years and both times ruled that religious beliefs cannot trump the obligation to comply with the general law of the land. The Indiana legislature should have known this.

Before 1964, all public accommodations could refuse service to anyone for any reason. But the Civil Rights Act of 1964 and its amendments put an end to that for all immutable characteristics of birth, except sexual orientation. If the Indiana legislature wanted to bring back the bad old days with respect to sexual orientation and public accommodations, one can understand the firestorm it got. If it was just trying to boast that it was defending the same religious liberties the Constitution already requires it to defend, its efforts were clumsy, unnecessary and wasteful.

Why do politicians support legislation and not concern themselves with whether it is constitutional? Why do they trick innocent voters into thinking they are getting something unique? Why do we return them to office when they shoot themselves in the foot?

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  1. The best hypothetical I’ve seen so far: Can a gay printer refuse to print 500 signs for Westboro Baptist Church with the Church’s battle cry, “God hates fags?”

    1. No. That’s hate speech. Nothing we liberals say is hate speech, but everything disagreeing with us is hate speech and you can’t compel hate speech.

      /prog

    2. Did you mean for that “?” to fall inside the quotation marks, or outside?

    3. Interesting. I would think not, but I don’t think it has relevance to anything under debate these days. Private-enterprise discrimination against customers on the basis of religion has been Federally illegal since 1964, and presumably that would be the protection WBC would be entitled to (that fag-hating is part of their theology). Since “fag-being,” on the other hand, is not a religion, it would not have provided the printer protection under the Indiana law (and, of course, could not pre-empt Federal law even if it did).

      1. …And by the way, some sneaky verbal tricks here by Judge N. He surely knows that CRA1964 did *not* “put an end to” discrimination in “public accommodations” “for all immutable characteristics of birth.” It did not cover, e.g., age, disability, sex, or being just plain ugly. Disability, to my knowledge, is the only one that has been added in this specific matter (as opposed to, say, housing or employment) at the Federal level to this day. Napolitano conceals this fact, and characterizes a separate piece of legislation nearly three decades later as an “amendment,” in order to suggest a unity of principle where there is none. We did not thoughtfully reweigh and reconceive our nation’s political values and obligations vis a vis freedom of association and “immutable characteristics of birth.” We simply add interest groups ad hoc to our list of “protected classes” as they gain popularity and political clout.

  2. Why did you order Scarab Beetles on your Pizza? Now only you and Mr Lizard will be able to stomach it.

    1. Those are flecks of hatred. Where’s the little bride and groom statue?

      1. GROOM AND GROOM STATUE, THANK YOU!

        * walks off in swishy, gay manner – NTTAWWT *

        1. What if one of the grooms identifies as genderfuck and rejects your patriarchal gender roles? What then, shitlord?!

        2. “Man and wife”! Say “man and wife”!

        3. If it had a groom and groom, it wouldn’t be a hate pizza, would it.

          1. Yes it would. It would be discriminatory towards women and any ethnicities not represented.

            Don’t you get it yet, all speech is hate speech.

            1. Fine, one multi-colored dildo and clitoris statue of unknown ethnicity coming right up.

              1. Damn, ok, just one giant anus statue. That would be inclusive, no?

    2. Put laxative in the pizza. It will make it awkward when it comes time to “consummate” the wedding.

      1. Not if they’re fecalphilliacs.

  3. Before you answer, consider where this could have gone. Suppose the couple seeking the pizza at their wedding was not only same sex, but also of two different races, and the pizza shop owner claimed a religious aversion to mixed-race marriages. Could she have followed through on her promise to deny the pizza? Or suppose she objected on religious grounds to weddings of those who had been previously married? Could she lawfully have denied pizza to them? Or suppose she claimed a religious view that prohibited her from serving pizza to anyone whose skin color was darker than hers?

    Judge, the answer to all of those is “Yes”, the enterprise owner should be allowed to decline to provide their services to any customer based on any criteria. Most of the time all you will ever see is equitable voluntary transactions because people tend to go into business for the purpose of making money and you can’t generally afford to turn away most customers. It is not the place of us, or of anyone else to improse what criteria by which people should have to conduct their business. Period.

    1. One can see the slippery slope that the original Indiana statute could have begun by offering state legal protection to the refusal to deal…

      Slippery slope to what? Freedom of association and disassociation? I don’t think you’ve thought this one through.

      1. Before 1964, all public accommodations could refuse service to anyone for any reason. But the Civil Rights Act of 1964 and its amendments put an end to that for all immutable characteristics of birth, except sexual orientation. If the Indiana legislature wanted to bring back the bad old days with respect to sexual orientation and public accommodations, one can understand the firestorm it got. If it was just trying to boast that it was defending the same religious liberties the Constitution already requires it to defend, its efforts were clumsy, unnecessary and wasteful.

        Why do politicians support legislation and not concern themselves with whether it is constitutional?

        To paraphrase SCOTUS, the freedom to not associate is well within the purview of a private organization (RE: Boy Scouts case) Removing the forced accomodation laws would not be a return to the “bad old days” where discriminatory action was mandated, it would be an appropriate return to reason.

      2. Slippery slope to what? Freedom of association and disassociation?

        Precisely. Dogs and cats living together. ANARCHY!

        I don’t think you’ve thought this one through.

        Worse yet, I think he has.

        1. C’mon guys, ur doin’ it WRONG!

          “What if the Judge hasn’t thought this through?”

          “Would it be worse if he has thought this through?”

          1. I have to save my question marks for my books. They’re not cheap you know.

            1. *and I hate that writing style, it grates on my nerves. I wouldn’t use it even to mock it.

            2. I invested in a bending unit. Now I can convert those cheap exclamation marks into question marks.

              It has paid for itself several times over.

              1. But don’t those use alcohol for fuel? Isn’t it going to drink up all your booze?

        2. Yea the Judge is letting slip is libertarian creds.

    2. I agree,it’s property rights case .It’s seems if you have a business now you lose many rights over your property..I also consider your body your property,that’s why I’m against the war on drugs

      1. It’s also a choice between two evils. Those who are against discrimination are advocating in favor of fascism and slavery. If they were simply proposing a boycott or disassociation, they’d be fine. But they are also sending death threats and petitioning government to initiate actual aggression against the owners via fine or threat of imprisonment, therefore they are also promoting involuntary servitude.

        Wonder if RFRA would have been better received if it used the 13th Amendment as it’s keystone rather than the religious protections of the 1st Amendment.

    3. The judge seems to be in favor of freedom, except when it stops him from getting his pony.

  4. “Is there no limit to her ability to refuse service so long as she claims a religious basis for doing so?”

    No, there is not. Of course, it should not be limited to religious objections.

    Her time and effort are scarce, she cannot provide service to everyone who could potentially want it. Which reasons for refusing are not acceptable and why does the government get to decide? No one has a right to her services. Religion is only one subset of a myriad of reasons why she should be able to refuse service to anyone.

    “The free exercise of religion is a fundamental liberty; it is fundamental because it is a natural right and is expressly protected by the Constitution.”

    Unless you are a public accommodation, then you will be forced by government to participate in religious ceremonies and practices that offend your religious views. How is that not “establishment of religion”?

    1. then you will be forced by government to participate in religious ceremonies and practices that offend your religious views. How is that not “establishment of religion”?

      That cannot be establishment of religion unless/until broader ‘marriage’ is deemed establishment of religion. Personally I think that’s exactly what government involvement in marriage is. Everything from required marriage licenses to bureaucrats performing weddings to wedding vows (by the authority vested in me by the state of ..) to tax benefits and other subsidies/goodies. All of those are establishment but until someone challenges those laws on that basis then they aren’t establishment.

      Tough enough to get standing in court to challenge those laws on that basis. Even tougher to find someone – including virtually 100% of libertarians – who is actually willing to give up the codified benefits/subsidies.

      1. I would give them up in exchange for a general tax rate reduction. I bet there are plenty of men and women who would prefer to stay technically single and have a live-in partner, instead of being compelled to get legally married for tax reasons.

        1. The biggest issue is actually estate transfer. That necessarily involves government (dead people can’t transfer property because they are – well – dead). It implies that a legitimate function of government is to enforce the will of the dead upon the living – and to transfer a property monopoly claim from the dead to someone of the dead’s choice when they were living – and to keep enforcing/protecting that monopoly claim.

          Those who have the most at stake are the least willing to actually pay the costs of govt performing that function – not just the court costs but ALL the costs of govt enforcing that claim to property that can transcend death. Instead want that defined as some general function of government with a general tax base.

          And while some libertarians saw an issue here re gay people; there aren’t any/many ‘Henry George’ type libertarians today who see the issue with government-enforced monopoly (and thus the only legitimate source of govt financing).

          1. WTF.

            You are commenting on this thread because you have some bizarre problem with a person’s property transferring to their chosen heirs upon their death. I am not sure I even understand what you think should happen to the deceased property instead of what is outlined in yheir will, but I suspect it is ridiculous.

            1. Why in the freak do you think government coopted religion and took over marriage? They sure as hell didn’t do it because they are obsessed with the bedroom relationships between adults. They sure as hell didn’t do it because they wanted to spread the benefits of marriage to poor people (who traditionally almost never got formally married but who were treated as such by their community/church and thus common law).

              Govt did it to make it easy to resolve court disputes about inheritable property (which by definition means people who have property to dispute over) and to coopt the religious belief that some relationships are more holy/ordained than others (to ensure that the courts decisions would be accepted broadly and wouldn’t in turn be disputed). This in turn helps prevent things like a)dynastic succession civil wars in monarchies or b)Thomas Jefferson’s property (his child thru Sally Hemings) claiming that he is not actually property but a person AND the heir to his estate as well.

              ‘Government-licensed gay marriage’ cannot be establishment of religion unless ‘government-licensed marriage’ is also. Which I think it is. But unless you understand WHY government chose to coopt and establish a religious institution, then all you can do is argue that the existing establishment is ok cuz it fits my existing beliefs.

              1. That still makes no sense. If government wants to establish who should be the default inheritor of a person’s property, it can do that through all sorts of mechanisms, and there is no reason why it need be any different for gay or straight people. It can say that if a marriage contract exists then the party ot the marriage contract is the default inheritor. And in no way is that an establishment of religion. It’s not like nobody had monogamous sex with a woman before religion was invented.

                1. It is establishment of religion rather than establishment of something else is because all the rules of marriage that the state adopted/codified were simply the rules of marriage that religions had previously codified in their canon law for their congregants. The state substituted license/fine/jail in place of banns/excommunication. agent.

                  Common law could easily deal with this for couples who weren’t part of a religious community for whatever reason by treating them AS IF they were married in issues that came before the court. In divorce court, judges could treat any marriage AS IF it were contract but tha doesn’t mean marriage is ACTUALLY a contract. Marriage is a relationship.

                  Marriage can’t be treated as a contract in probate court because one of the parties is dead and can’t do anything – even if there is a will rather than intestacy. UNLESS the state is itself a party to the contract. And the state can only force itself into the contract by licensing/permitting the relationship in the first place. Which gets straight back to establishment.

      2. You’re saying it’s an establishment of religion just because some people have wedding ceremonies in church? If someone’s church had a celebration for someone’s getting a driving license, would driver licenses become an establishment of religion too?

        1. I am saying it is an establishment because of the forced participation.

        2. The wedding ceremony is just a ceremony. The federal mandate that states must issue marriage licenses (Uniform Marriage and Marriage License Act of 1923) is establishment of religion. That is when churches had to change their wedding vows (by the authority vested in me by the state of XX, I now pronounce you man and wife) – and when ministers thus became agents of the state.

  5. Funny how progressives are a-ok with “my body, my choice” but not “my business, my choice.”

    I can’t remember where I read it – and Google didn’t yield anything – but I saw this article not long ago about right to access versus right to quality. It basically boiled down to saying even though the law says a baker would have to make a cake for a gay wedding, the owner could make the cake so awful and shitty that it defeats the purpose of having access in the first place.

    1. I think someone already made this observation in the comments on a previous article here, but that’s where occupational licensing comes into play. So, yeah, make a shitty cake, but then daddy government will step in and revoke your cake making privileges.

    2. Funny how progressives are a-ok with “my body, my choice”

      Only on one subject.

      1. Exactly, prog’s are certainly fine w/ controlling BMI, 16 oz sodas, fluoride, vaccines, etc

    3. Is it racial discrimination to refuse to have sex with a black man?

  6. Indiana’s original Religious Freedom Restoration Act stated that religious beliefs can trump legal obligations when the operator of a public accommodation is deciding whether to deliver his goods or services to a person

    Government is the only public accommodation.

    1. Government is the only public accommodation.

      I’ve stated this as well. Any logical definition that results from combining the words “public” and “accommodation” into a single term would lend to describing that which is government (publicly) owned/operated

  7. Goddamn pancakes, bitches. Goddamn pancakes.

    1. Wafflebot says they serve pancakes in Hell.

  8. So Judge Nappy agrees with me.

    Good Morning Peanuts!

    1. Welcome to Retardation: A Celebration. Now, hopefully, I’m gonna dispel a few myths, a few rumors. First off, the retarded don’t rule the night. They don’t rule it. Nobody does. And they don’t run in packs. And while they may not be as strong as apes, don’t lock eyes with ’em, don’t do it. Puts ’em on edge. They might go into berzerker mode; come at you like a whirling dervish, all fists and elbows. You might be screaming “No, no, no” and all they hear is “Who wants cake?” Let me tell you something: They all do. They all want cake.

      1. Well, he’s right. So it looks like he and The Judge want some cake.

        Which is sad.

        1. Yeah, reading this crap out of Napolitano is depressing.

          I’ve held Judge Napolitano’s views in high regard for a while now. Watching a speech he gave on the Patriot Act was one of the key things that turned me against the law. Seeing his usually incisive reasoning descend into “but bigots are icky” is just sad.

          I guess things like natural law and individual liberty only matter when they don’t help icky people.

      2. If you ever see a retarded chimpanzee, you turn and run.

  9. But by permitting the rejection of services because of sexual orientation so long as that rejection was based on a religious belief, Indiana was effectively making discrimination based on sexual orientation lawful, argues Andrew Napolitano.

    Business owners should be able to discriminate on any basis whatsoever about who they choose to do business with, no matter how icky those reasons.

    Customers should be able to discriminate on any basis whatsoever about which business owners they choose to do business with, no matter how icky those reasons.

    It’s called freedom, sir. Try embracing it on this issue, where you’re way off base.

    1. The judge apparently believes someone has a right to force another to labor on their behalf.

      1. Because it is the Law of the Land!Just like slavery was once the Law of the Land!

        Freedom always takes a backseat to the Law of the Land

    2. Business owners should be able to discriminate on any basis whatsoever about who they choose to do business with, no matter how icky those reasons.

      They should be. But they aren’t. The CRA is the law of the land. Religious types are welcome to argue for a repeal of the entire law, but as long as it protects them, it should protect the people they hate as well.

  10. A link for the girls: http://www.bustle.com/articles…..e-only-one

    most likely nsfw

    1. Thanks, but this creates no bustle in my hedgerow

      1. Don’t be alarmed.

        1. Is it just a spring clean for the May Queen?

          1. I prefer to just wind on down the road.

    2. You are aware that there are no female libertarians, right?

      1. There are three gay ones by my count. I would click but… work.

      2. They claim to be, after they’re hogtied and blindfolded.

      3. Yet, here I am. All female and all libertarian.

  11. American Christians are so persecuted and underrepresented. It is so unfair! When will someone stand up for them? Poor bastards.

    1. Let us turn the whole country into a socialist fairyland by the joint operation of the army and people!

    2. A person who is compelled to act against his beliefs or else be hounded out of business is by definition persecuted.

      1. Boycotting is ok. Death threats and vandalism is not. If those on the side of anti-discrimination had stuck to moral means like boycotts, and refrained from issuing death threats and using the government to force people into involuntary servitude, then they’d be in the right.

        You do not have the moral high ground by responding to bigotry with fascism. You are also reprehensible.

        1. I agree. They crossed the line when they demanded that Indana change it’s RFRA to essentially compell private business owners to service marriage ceremonies they had moral objections to.

    3. Don’t come whining to us when the next Sovereign decides your freedom is subordinate to the Law of the Land.

    4. So you and your kind stop attacking them. That would help. And all the lawsuits too.

  12. Somehow I doubt the Judge would have his pizza parlor cater an abortion fundraising event. Maybe he’d hold his nose and do it, but I have my doubts.

    1. So, no foreskin/afterbirth toppings. What a disappointment.

  13. Ironic how laws that prohibit businesses from discriminating enrich bigots who might otherwise be discriminated against by discerning customers who wouldn’t knowingly buy goods and services from a known bigot.

  14. The U.S. Supreme Court has … ruled that religious beliefs cannot trump the obligation to comply with the general law of the land.

    Well, there it is then.

    1. All your belief are belong to us.

    2. Which makes the Judge’s contention that “religious liberty” is a fundamental right laughable. How does mere law trump a constitutionally protected right?

      Either one or the other is true, they cannot be both true simultaneously.

      RFRA’s came into being because there were many instances where the busybody state were ignoring free exercise because some law or regulation was interfering with religous freedom. The court’s were giving free reign to the government to trample religious freedom as long as the law’s purpose was not overtly religious.

      1. Re: Mickey Rat,

        Which makes the Judge’s contention that “religious liberty” is a fundamental right laughable.

        Laws are not computer instructions. People tend to forget that, along with what liberty entails. Religious liberty IS indeed a fundamental right since you own your mind, not someone else.

        1. Don’t tell my GF that. It took me a long time to convince her otherwise.

      2. The reality is that government long ago bought off most people – including prob you – re 1st amendment establishment. As long as the government creates a special rule for probate courts that applies to married folks but not to unmarried folks, then it has established religion. Specifically, the rule that says a dead person’s property can be transferred to their spouse tax free. And before that when government mandated that such situations require a ‘license’.

        The second you have allowed yourself to be bought off re establishment, then you have no claim and no ability to wriggle under the free exercise clause to protect yourself. The best thing about Napolitano’s article is his explicit linking of those two clauses. They are definitionally connected but everyone seems to want to pick and choose which applies to or limits them.

        1. The second you have allowed yourself to be bought off re establishment, then you have no claim and no ability to wriggle under the free exercise clause to protect yourself.

          Bull fucking shit. Someone being a disingenuous interlocutor, which by the way you haven’t proved here, doesn’t invalidate everything he says. Moreover, if this is the reasoning you want to adhere to, then the only two logically permissible situations are anarchy or totalitarianism. I mean, if the establishment “buys you off” with basic courts of law, then you have “no claim and no ability” to oppose bullshit laws, right?

          1. I’d be happy to reply to a comment that actually has content. Perhaps you should get a rabies shot first though. you’re incoherent, angry, and frothing at the mouth.

            1. Pot, meet kettle.

              1. Or vaporizer.

          2. Someone being a disingenuous interlocutor, which by the way you haven’t proved here, doesn’t invalidate everything he says.

            Well, you may think that a position that demands protection for Christian conservatives under the CRA but denies it to the groups Christian conservatives persecute is a reasonable position; I happen to disagree.

            Either allow discrimination based on religion and sexual orientation, or prohibit both.

      3. Which makes the Judge’s contention that “religious liberty” is a fundamental right laughable. How does mere law trump a constitutionally protected right?

        The Constitution says that Congress shall make no law interfering with the free exercise of religion. It doesn’t say that Congress shall make no law interfering with the free exercise of business. So, you can exercise your religion all you want, you just can’t run a business. Now, I don’t think those are good laws, but if you are going to get nit-picky, well, that’s the technical answer.

        RFRA’s came into being because there were many instances where the busybody state were ignoring free exercise because some law or regulation was interfering with religous freedom.

        Funny that these supposedly principled religious types never objected when the law protected them from discrimination by others. Perhaps you forgot, but discrimination against Jews and Catholics used to be a real problem in this country.

  15. But the Civil Rights Act of 1964 and its amendments put an end to that for all immutable characteristics of birth

    Religion and creed, for example…

    1. Quibble: some religions consider people born of two parents of that faith as immutably being of that faith. Some consider all offspring to be immutably of that faith if just the father or mother are of the faith.

      Judaism comes to mind.

      1. Judaism is unique in having an ethno-religious component, but you can still repudiate your Judaism and join another religion. You can’t change your DNA (yet).

        1. You know who considered Judaism a part of their DNA?

          1. Sammy Davis, Jr?

            1. Marty Feldman?

          2. Joseph Smith?

        2. You can also transform into a Jew. If subjected to high concentrations of gamma radiation. Or maybe you turn into Bill Bixby. I’m a little unclear on that one.

  16. KINGSTON, Jamaica ? United States President Barack Obama a short while ago made a late-night visit to the Bob Marley Museum in Kingston, after he landed at the Norman Manley International Airport on Wednesday evening.

    The Hope Road facility, which has been in operation for nearly 30 years, recently reopened it’s doors after undergoing a structural upgrade.

    The museum is reported to attract some 35,000 visitors per year, and President Obama has now been added to that list.

    http://www.jamaicaobserver.com…..ley-Museum

    Did he burn one?

    1. I thought he outgrew smoking dope in college, when he decided to be a member of the two-party system that has carried out a brutal, and arguably racist, war on drugs…which he has silently supported for decades now.

      1. Really. Obama doesn’t even smoke cigarettes anymore. I am certain if he did, we might occasionally see pictures or video of him smoking. I must have missed the news when he quit, but he must have.

        1. Obama doesn’t even smoke cigarettes anymore.

          Sarc, I hope.

      2. The only thing Obama does with weed anymore is direct his goons at the DEA to destroy people’s lives over it. He’s a hypocrite and shrike keeps tonguing his sweet brown asshole over it.

      3. It’s true. During his first term he had his DEA chief raid medical MJ dispen series across the country. Then had the IRS disallow dispensary taxable deductions based on criminal activity not being deductible.

        Bush did not do that.

  17. There are people who don’t want to end oppression.

    They just want a monopoly on it.

    1. You mean every progressive in the orogressiverse?

  18. I bet Sandi shit on a pizza, once.

    1. mmmm, shit piz…wait, what?!

  19. Should the pizza restaurant owner have been able to make that promise and carry through with it?

    Ummm….yeah. It’s their business. They should be free to do business with whoever they want. Would you demand people have an obligation to do business with them?

    Before you answer, consider where this could have gone. Suppose the couple seeking the pizza at their wedding was not only same sex, but also of two different races, and the pizza shop owner claimed a religious aversion to mixed-race marriages. Could she have followed through on her promise to deny the pizza?

    Again, yeah. It’s their business. I wouldn’t insist they have an obligation to serve anyone other than those they willingly choose to do business with. And the same goes for customers.

    Or suppose she objected on religious grounds to weddings of those who had been previously married? Could she lawfully have denied pizza to them?

    Errr…yeah. It’s their business!

    Or suppose she claimed a religious view that prohibited her from serving pizza to anyone whose skin color was darker than hers?

    What part of “it’s their business” don’t you get, your honor? Would you approve of a law insisting people can’t discriminate in which pizza places they choose to go to? If not, why should you hold the other party in a voluntary exchange to different standards?

    1. Ummm….yeah. It’s their business. They should be free to do business with whoever they want. Would you demand people have an obligation to do business with them?

      The should be, but they haven’t been for half a century, and they never complained about it before. For half a century, a gay cake shop owner has been legally required to bake cakes for Catholic weddings, while a Catholic cake shop owner can legally refuse to bake cakes for a gay wedding.

  20. Why the picture of a drunk’s spaghetti-O’s vomit? Is this about pizza?

  21. What’s the over/under on stories trashing Rand Paul for being No True Libertarian today?

    What’s the over/under on stories even mentioning another politician being a statist piece of shit in every sense of the word today?

    1. So many questions, so little time?

    2. Hard to say. The focus today seems to be on the ridiculous charge that he’s a horrible sexist because he got short with a female reporter. He would be wise to be more patient and not let those assholes get under his skin, but to jump from that to declare that he’s some sort of misogynist is a bunch of boneheaded derp.

  22. Why should libertarians care about the Constitution?

    1. What is this “Constitution” to which you refer?

    2. Boring troll is boring.

    3. You’re right. I mean, the socialist/fascists in government don’t. So why should we?

    4. When are you going to pay your mortgage scum bag. Nothing more than a thief.

    5. Judge Nap is a constitutional scholar and even he would argue that there are several flaws in it. But that doesn’t invalidate the parts in question, such as the First Amendment protection of religious freedom. I would also argue that forcing someone to provide a service to another, for whatever reason, is a violation of the 13th Amendment abolition of involuntary servitude.

      1. Flawed or not, I would challenge anyone to find a superior document with better principles of organization than the US Comstitution.

    6. Because the US Constitution is rooted in classical liberalism, which is just another name for libertarianism.

      Now, the US Constitution didn’t get everything right, and it has been distorted and undermined, but it’s still a good starting point for libertarians.

  23. By permitting the rejection of services because of sexual orientation, so long as that rejection was based on a religious belief, Indiana was effectively making discrimination based on sexual orientation lawful. No other state had done that.

    No. All other state and federal RFRAs contained language that could be read the same way, and none of them specifically exempt antidiscrimination statues the way that the Indiana one does. However, all set up a balancing test, and all courts have ruled that antidiscrimination laws are a “compelling interest” that is sufficient. I certainly agree that people voting for the law may have wished that it do such a thing, but in no sense was it “effectively” doing such a thing.

    Napolitano is very ignorant of case law in this area.

    1. Yeah, Napolitano got a few things wrong. Can you please clarify what you mean when you say that only Indiana has exempted anti-discrimination statutes?

      1. After the uproar, Indiana added a clarifying amendment to the legislative saying that the RFRA did not affect ant-discrimination statutes.

        No other state (to my knowledge) nor the federal government has done this in the legislative text. Instead, all states have argued and all courts have ruled that anti-discrimination statutes rise to the level of “compelling interest” necessary to force people to do something against their religion. No RFRA lawsuit ever has won to contravene anti-discrimination statutes.

        As a practical and effective matter, Indiana’s clarification means nothing. It’s possible that somewhere some judges might rule differently, and I certainly agree that many people and supporters *wish* that judges might rule differently, but if we’re talking “effectively” like Napolitano did, then, no, it wouldn’t haven’t done that just as other states’ and the federal RFRA has not.

        The law and others like it have *never* said “if you can claim a sincere religious belief, you automatically win.” They all say that “if you can claim a sincere religious belief, you can raise a defense and require the government to show that it has a compelling interest that cannot be achieved in a less infringing way.” That’s why, e.g., in Holt v. Hobbs the Muslim prisoner could easily win a half-inch beard in Arkansas prisons, but a truly luxurious beard in which you could easily hide something would still be out.

      2. I hasten to say I can understand *why* people wanted such an explicit amendment added (given some obvious motivations of some of the supporters), but it won’t have any practical effect. Existing anti-discrimination statutes already exempt various non-common carriers but include common carriers.

        Washington state doesn’t have an RFRA, however its court decisions adopt the Sherbert test (pre Employment Divsion) standard that the RFRA re-institutes. And, like everywhere else, it said that anti-discrimination is sufficient to meet the test and trump the florist’s interests.

  24. Before 1964, all public accommodations could refuse service to anyone for any reason. But the Civil Rights Act of 1964 and its amendments put an end to that

    By running counter to any semblance of free association, property rights and 13A (I believe service that is not voluntary constitutes involuntary servitude).

    1. The Judge seems to be showing undue deference to the Congress by favoring a statute over what he hkmself describes as fundamental constitutionally protected rights, not less states rights aspects of federalism.

      1. I see his assertions in this article as attempting to run with ‘rights’ as protected by law/governance in practice, as opposed to how governance in the US is supposed to exist philosophically.

    2. By running counter to any semblance of free association, property rights and 13A

      True. But religious conservatives have not exactly been clamoring to remove the religious protections of the CRA, so their opposition half a century later to protection for people they hate seems hypocritical.

  25. Watching the SJWs continuing to spin and froth over that fucking pizza parlor is just pathetic. Watching them try to make it the successor to the Civil Rights Movement of the ’60s is beyond pathetic.

    Yeah, I can see it now: the great SJW telling his grandkids about his valiant struggles. Will he be recounting the time he was nearly lynched by a mob of Klansmen? Nope. Will he be recounting the time he was jailed without due process? Nope. Will he be recounting beatings at the hand of redneck sheriffs? Nope.

    “I sent an angry Tweet about a pizza parlor!”

    “Wow Grandpa! You were such a badass!”

    1. What do you expect from people who were raised on stories of the heroic civil rights marchers of the 50’s and 60’s. They desperately want to be able to claim that they stood up to oppression and “fought the man,” just like those marchers of yesteryear, yet there’s so little actual no shit oppression going on in this country that they have to blow shit like this pizza parlor out of proportion. It is pathetic, and stupid.

      They honestly seem to believe that sending an angry tweet or putting up bogus reviews on Yelp makes them equivilent to people who had firehoses and police dogs turned on them. Fucking morons.

      1. They desperately want to be able to claim that they stood up to oppression and “fought the man,” just like those marchers of yesteryear, yet there’s so little actual no shit oppression going on in this countryin their minds that they have to blow shit like this pizza parlor out of proportion.

        I’m pretty sure a lack of oppression isn’t what lead to the deaths ofl Eric Garner or Tamir Rice.

        Not to insinuate a culture of racism amongst the king’s men, more to say Pizza makers and the state of IN are low hanging fruit that prevent them from seeing any forest.

      2. My father fought in WW2, and both of my parents endured the Great Depression, and they told me many stories of that time. But they also made it crystal clear that those times were no picnic and their one hope was that I would never have to endure the like; that’s what they fought for.

        They also made it clear to me that it’s one thing to honor people who been through times like that, but I can’t borrow that honor for myself. I have to build my own.

        Quaint, I know.

  26. Judge,

    I can say I am highly disappointed in you at this point. Of late, your musings have tracked further and further from the roots of natural rights and the constitution and more toward the supremacy of popular passions.

    If indeed you believe, as you have previously stated many times, in self ownership, free association, and private property, then your position here, “Before 1964, all public accommodations could refuse service to anyone for any reason. But the Civil Rights Act of 1964 and its amendments put an end to that for all immutable characteristics of birth, except sexual orientation. If the Indiana legislature wanted to bring back the bad old days with respect to sexual orientation and public accommodations” represents a fundamental shift in values.

    Perhaps you should write an article (go easy on the rhetorical question marks) that either explains your move from a libertarian mindset to a conservative statist one, or retracts this blathering mess.

  27. Before 1964, all public accommodations could refuse service to anyone for any reason. But the Civil Rights Act of 1964 and its amendments put an end to that for all immutable characteristics of birth, except sexual orientation.

    Hey judge, how about you, me, and a couple of more (old) white guys head down to Cabrini Greens to get a haircut? Maybe, because of the lax local government authority or relatively free tolerant nature of Chicagoans Cabrini Greens is a bad choice. How about Gary, IN.? How about any of the *thousands* of legitimate businesses around the country that will knowingly and willfully discriminate against you and all of your immutable birth aspects while tossing you out on your ear and keeping your hat (if they’re nice)?

    I’m sure you can just flash your CRA ’64 badge at them and they’ll give you the royal treatment, right? Maybe a nice chat about how Title VII says a business cannot abandon it’s employment criteria, under fears of litigation, if they show a significant racial bias. Add in some banter about how the polar opposite interpretations of the CRA, conflicting with prior and subsequent parts of the constitution and how some people are free to discriminate against race, religion, gender some of the time, but not in others and I’m sure we’ll all have a blast.

    But this is all hypothetical, we really need to actually walk in to a barber shop in Cabrini Greens to get the real experience.

  28. Missing The Point

    “Ye blind guides, which strain out a gnat and swallow a camel.”-Matthew 23:24

    Mr. Napoitano ignores the fundamental question; namely, should a commercial establishment engaged in solely intra-state business have the right, as it once did, to serve whomever it wishes for what ever reasons it wishes? Denying it that previous right denies it its liberty in the name of ideology. One man’s freedom can be a another man’s slavery.

    Behavior has its consequences, especially legislative behavior (www.inescapableconsequences.com ). In this case, the consequence if another nail in the coffin of liberty.

    1. Frankly, the opposite is conscription. I see little difference between forcing a baker to bake a gay cake and forcing an auto mechanic to bake a gay cake. Either way you’re forcing a private business owner to do something that they did not open the business to do. Next thing you know, we’ll be taking civil service exams that determine exactly which job we must hold for the betterment of society.

    2. Mr. Napoitano ignores the fundamental question; namely, should a commercial establishment engaged in solely intra-state business have the right, as it once did, to serve whomever it wishes for what ever reasons it wishes?

      It lost that right 50 years ago under the CRA. It seems odd for the religious right to muster opposition to this after all this time, given that for half a century they have enjoyed the benefits of those restrictions.

      Furthermore, commercial establishments wouldn’t have that right even if the federal government didn’t restrict it: CRA-like restrictions could easily be imposed by HOAs, business partners, and easements in a more libertarian society.

  29. The judge asks two questions at the end of his commentary. Maybe he should answer this question: Why are these public accommodation laws constitutional when they conflict with the freedom to associate?

    1. Or how about conflict with the 13 Amendment abolition of involuntary servitude. Isn’t being forced to serve those you do not wish you serve the very definition of involuntary servitude?

    2. Because he’s just another statist in libertarian clothing

    3. Why are these public accommodation laws constitutional when they conflict with the freedom to associate?

      The government isn’t restricting your ability to practice your religion, it is restricting your ability to provide public accommodations. Now, I don’t have much sympathy for that argument. On the other hand, given that religion is a protected class and religious folks seem to have no problem with that, it’s hard to see what justification they have for objecting to creating other protected classes.

      Incidentally, in a libertarian society, these restrictions wouldn’t necessarily go away; it’s quite likely that if you run a businesses in a libertarian society, the people you contract with for your land and your services would impose conditions on you similar to the CRA. For example “if you want to rent this retail space on this privately owned block, you must agree not to discriminate based on…; if you don’t like it, go rent somewhere else”.

  30. My Aunty Mackenzie recently got a nearly new blue Toyota Venza by working part time online… website here ????????????? http://www.jobsfish.com

  31. Okay, Judge. You’ve just been kicked off Libertarian Island. Enjoy your statism with a side of Penn Juilette.

  32. I just got paid $6784 working off my laptop this month. And if you think that?s cool, my divorced friend has twin toddlers and made over $9k her first month. It feels so good making so much money when other people have to work for so much less. This is what I do…

    http://www.jobs73.com

  33. Frankly speaking, your honor, I’d rather live in a world where anybody can say ‘no’ to anyone else, for whatever reason (batteries not included).

    As long as it is not government coerced discrimination, why do YOU care so much about my reasons for ‘no’? There’s a ‘compelling state interest’ in determining ‘yes, that’s a valid, religious reason’ versus ‘nope, not valid. Not religious enough’.

    The hypothetical slippery slope is a big bunch of bullshit.

  34. I think Andrew Napolitano is just trying to piss me off.

  35. Which still begs the question of how a mere statute can override the First Amendment protection of the right to freely exercise one religion.

    1. Or free association, but at this point, what difference does it make?

    2. It doesn’t really limit your right to freely exercise your religion, it limits how you run your business. Your ability to run a business has always been limited through various regulations and restrictions and that has not generally been considered in conflict with the Constitution.

      (I’m not defending it; I think businesses should be allowed to discriminate. I’m simply explaining it.)

  36. There are lots of signs at restaurant doors that say, “No shoes, no shirts, no service.” Are these within the law as it is currently interpreted?

    Disclaimer: I think no person, including a business owner or corporation, should be forbidden to discriminate against anyone, for any reason. I think that is the only position that’s consistent with freedom as we Libertarians see things.

    1. There are lots of signs at restaurant doors that say, “No shoes, no shirts, no service.” Are these within the law as it is currently interpreted?

      Sure: they don’t discriminate against any protected class of people under the CRA, so they are likely legal.

      It would be illegal to say “No Muslims” or “No Jews” or “No Catholics” because religion is a protected class. As long as that’s the law of the land, I don’t see the problem with making “No Homosexuals” illegal either.

  37. No established Abrahamic religion considers interracial marriage as a sin. Christians frown on interfaith marriage, and Muslims generally forbid it.

    The judge’s “slippery slope” can only come true if the government doesn’t make a distinction between established religions with centuries worth of of teachings and some cult invented by a weirdo that has 3,000 twitter followings. We’ve recognized the distinct dietary, sexual, and ceremonial practices by various religious groups for years now. You might as well wonder “What if Jews suddenly claim the Talmud teaches them to kill innocent Muslims”

    It’s logical to assume that gay marriage will lead “slippery slope” because it involves the government freely deconstructing existing definitions of marriage. But it’s wildly unforeseeable for Muslim baker to deny a wedding cake to a Buddhist interracial couple. The Quran doesn’t consider that “haram”, as far as I can tell. THEY have to live their lives within a parameter set by their religion.

    And we’re talking about businesses not associating with a certain event. If a bakery refused to cater Manuel Ramos’ little league picnic, are they “anti-cop”?

    1. The judge’s “slippery slope” can only come true if the government doesn’t make a distinction between established religions with centuries worth of of teachings and some cult invented by a weirdo that has 3,000 twitter followings.

      Because, of course, that is what we want government to do: determine which religions are legitimate and which ones aren’t. /sarc

      What if Jews suddenly claim the Talmud teaches them to kill innocent Muslims

      You mean what if the Old Testament were to say something silly like: “go to this land, kill the people who live there, and take it as your own because your God wants you to”? Nah, it would never say anything like that. /sarc

  38. Indiana was effectively making discrimination based on sexual orientation lawful.

    I have no problem with that, provided that discrimination based on religious orientation becomes lawful as well.

    As long as religion is a protected class, the people who religions traditionally have persecuted should be a protected class too.

  39. It’s fine and perhaps fun to argue the legal aspects of Pizza-maker v. Gay-betrothed, but in the end it’s really only so much deontological smokescreening. The reality is the consequentialist’s: The Secular Theocracy religion now trumps the old Christan one. It has been publicly announced. Gays get the rights, Christians must serve them. Judge N. is on board with it. Leftism is the de facto established religion of the US. Written law is obviated.

  40. Is there no limit to her ability to refuse service so long as she claims a religious basis for doing so?

    The slippery slope is commonly a fallacious appeal, but that is irrelevant when the original proposition is not valid. In theory, yes, this rather disturbing trend of conservative legislatures and courts to tacitly install evangelical Christianity as the official state religion could lead to someone claiming the right to ritually sacrifice babies in religious ceremonies. But surely that won’t happen (let’s not pretend the Christians have any intention of bestowing religious freedom on anyone but themselves). No, just the establishment in law of the status of gays as second-class citizens. Or as the majority of so-called libertarians here call it, as they call all of their other closed-minded bullshit policy preferences, “freedom.”

    1. Tony, since you have stated multiple times that no one can know what it’s like to be in someone else’s shoes, how can you so definitively say what the Christians are intending to do?

      Are you a christian? If not, then by your own words, you could not possibly know what they think and feel.

      Do you know every christian in the U.S.? Of course not.

      Are you a smug, cookie cutter, regressive, piece of shit? Yes, most definitely you are.

  41. Mr. Napolitano,
    This is uncharacteristic of your usual style and complete thoughtfulness. I thought at the paragraph that began “Before you consider…” you were going to correct the article, however you failed to take this article back to the root cause of what we are discussing; government should never compel someone, acting as an individual or business, to do something they do not wish to do. The use of force is never to be initiated except in defense.

    https://reason.com/blog/2015/04…..plwtw:5B1b

  42. Judge, I’m surprised at you.

    First off, you yourself have written about the unconstitutional expansion of “interstate commerce” to mean almost all economic activity. Without that, the federal law forbidding discrimination against gays simply wouldn’t apply to a business like that pizza place. Thus it is legally free to discriminate.

    Second, obviously, a business owner has the right to refuse to participate in activity he considers to be immoral. “Hobby Lobby” established this and was correct in doing so.

    The only thing “absurd” about the original version of Indiana’s RFRA law is that it could never have applied to this situation because Indiana has no law protecting gays from any kind of discrimination. The law that an RFRA would need to override, if any, is federal, and thus the federal RFRA would be implicated — except for my point one, which makes it unnecessary.

    It’s time to get government at all levels out of everyone’s decisions about whom to trade with.

  43. What we have here, IMHO, is just another example of what happens when you have government involved in something it has no business in. I know that government has been involved in marriage since time immemorial, but why? As long as you are dealing with consenting adults what business is it of government with whom you sleep, when, and under what circumstances? It is government that provides the mechanisms for pizza shops, photographers, bakeries etc. to be hounded and driven out of business for not displaying the politically correct attitudes.
    And don’t think that these people are not being targeted because of their beliefs. What if the pizzas had been ordered for an “event” rather than a “gay wedding”? Would the owner of the shop have cared what the event was had she not been told? What if the baker in Colorado had said, I will be glad to bake you a cake and take your money, but my religion will not allow me to write “Best Wishes Harry and Sam” on it.”? And what are the chances that other pizza shops or photographers, or bakers could not be found? It is not about procuring a good or service that is not otherwise attainable. It is about coercing attitudes, and government is at the root of it.

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