Religious liberty

Is it Religious Liberty or Discrimination? Yes.

State-level attempts at religious liberty laws pose difficult questions.

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Once again Virginia lawmakers have passed legislation to protect religious freedom. Once again, Gov. Terry McAuliffe (D) will veto it. And so the debate goes on.

Supporters of such measures—which, in various forms, are being debated around the country—say they simply want to ensure that government does not force the faithful to violate the dictates of their conscience. Opponents retort that religious-liberty bills grant some people a license to discriminate.

Who is right? Both of them.

Many conservative Christians (and Muslims) sincerely believe gay marriage, among other things, is morally wrong. Forcing them to participate or endorse such practices is an affront to their most deeply held beliefs. So, they argue, they should not have to.

And in fact, some of them don't. Churches, for instance, are not obliged to host gay weddings and clerics are not obliged to officiate them.

It's another story for businesses such as photographers and bakeries that make wedding cakes. Three years ago the Supreme Court declined to hear a case involving Elane Photography, which had been sanctioned by New Mexico for turning down a request to photograph a same-sex commitment ceremony. Last year Colorado's supreme court let stand a ruling against a baker who refused to make a cake for a gay wedding.

Gay-rights groups and their supporters say such refusal is nothing but rank discrimination, similar to the discrimination against blacks in the Jim Crow South. That is not entirely correct.

If a gay couple goes to a bakery run by a conservative Christian in search of a dozen chocolate chip cookies, the baker will gladly oblige. Likewise, a religious photographer will be happy to take pictures of a same-sex couple's home so they can put it up for sale. The baker and the photographer are not refusing to do business with an entire class of people. They are refusing to participate in a certain type of activity.

In some cases, though, it's impossible to separate the two. Certain states let adoption agencies refuse to place children with same-sex couples, and several more are considering it. Allowing adoption agencies to exercise their consciences does authorize discrimination against an entire class of people. Many agencies are one-service shops. It's not as if an adoption agency can say, "We won't help you adopt a child—but can we interest you in a box of cookies?"

And in Oklahoma, lawmakers recently considered a sweeping measure that would let a wide range of individuals and groups "refuse to provide goods, services or accommodations to certain groups if they were following sincerely held religious beliefs or conscience … regarding marriage, lifestyle or behavior." Refuse to provide service to certain groups? That is indeed a license to discriminate.

But even more narrowly tailored measures, like the proposal recently passed here in Virginia, codify discrimination in another sense. The bill sponsored by Republican Del. Nicholas Freitas stipulates that no person shall be "required to participate in the solemnization of any marriage" or be penalized by the state for acting on "a sincerely held religious belief or moral conviction that marriage is or should be recognized as the union of one man and one woman."

In short, the bill carves out a special exception for religious belief in one very specific instance: gay marriage.

Yet people have intensely held religious beliefs about all sorts of things, not just gay marriage. So a bill that genuinely aimed to defend religious liberty would be much broader. It would stipulate that no person should be required to participate in any activity he or she finds objectionable—period. And it would stipulate that no person should be penalized by the state for acting on a sincerely held religious belief or moral conviction—period.

You can easily imagine the sort of difficulties to arise from a policy like that. Individuals could claim they have a religious aversion to paying taxes and obeying traffic laws—and that their consciences command them to play with high explosives in heavily populated areas.

Those sorts of concerns motivated the Supreme Court a quarter-century ago, in a case about two workers who were denied unemployment benefits after they got fired for using peyote in Native American religious rituals. The majority on the court held that "the right of free exercise does not relieve an individual of the obligation to comply with a 'valid and neutral law of general applicability.' " The author of that majority opinion was Antonin Scalia, otherwise deemed a saint by the religious right.

This does not exhaust the issue by any stretch. Religious people point out, correctly, that exercising their faith means more than simply going to church on Sunday. For many of them, it is an around-the-clock affair. And the insistence by some that people of faith keep their beliefs locked up inside a house of worship looks like a form of discrimination in itself.

On the flip side is another question: Why should religious beliefs receive special deference? People can have intense moral convictions without God—and they deserve consideration, too.

There seems to be no neat and tidy solution to all of this. If you run across one, drop a note to the Supreme Court. It will be grateful for the guidance.

This column originally appeared at the Times Richmond-Dispatch.

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  1. All I know is that my faith compels me to force others to bend to my will, and any lack of government enforcement of that is an attack on my religious liberty.

    1. But what if your will is too weak to bend others? Personally I doubt you would even survive one of Donald Trump’s handshakes.

    2. All I know is some groups of people can use the government to force businesses to deal with people they don’t want to deal with. Get yourselves declared as a victim group and the government will push around anybody you decide to harass.

      We’re all public accommodations now.

      1. How’s this for “pubic accommodations”? Accommodate THIS, please!

        Government Almighty is the boss of God Almighty, and here is PROOF!

        We read in the papers, every day almost, of federal judges (servants of Government Almighty) sitting in judgment (using their magical mind-reading powers) about whether or not our religious beliefs are “sincerely held”, or not.

        Yet I have NEVER heard of credible evidence concerning God Almighy, sitting in judgment about whether or not our beliefs in Government Almighty are “sincerely held”, or not!!!

        Case closed!!!

  2. So a bill that genuinely aimed to defend religious liberty would be much broader. It would stipulate that no person should be required to participate in any activity he or she finds objectionable?period. And it would stipulate that no person should be penalized by the state for acting on a sincerely held religious belief or moral conviction?period.

    So Quakers would be exempted from whatever percentage of their taxes pay for the military?

    1. They are exempted for the ‘phone tax’ for example, because that tax directly supports the military. The Amish are also exempted from Social Security

    2. The only way to really have religious liberty is to have general liberty for everyone. Exceptions to laws for religious people are privilege, not liberty. If a law violates anyone’s religious freedom, it should not apply to anyone.

      So, to have real religious freedom, you really need to have a completely libertarian set of laws. And that’s why it will never happen.

      1. So we should rob those who already have liberty because we don’t all have it? I agree that conscience protections should be extended to everyone, but in the meantime we don’t rob others of liberty to increase liberty. The religious already have religious accommodation- why should we steal it from them?

        You’re pushing a “nah, nah, nah,” strategy. Which is childish

        1. So we should rob those who already have liberty because we don’t all have it?

          I didn’t say that at all. The sort of half-assed religious freedom that comes from RFRA type laws is better than nothing. But it isn’t religious freedom, it’s privilege for certain members of certain religions.

          You’re pushing a “nah, nah, nah,” strategy. Which is childish

          I’m not sure exactly what that is supposed to mean, but I’m pretty sure it’s not what I’m doing at all.

      2. Equal liberty means equal liberty. If something is justifiably prohibited but your religion says you must do it, too fucking bad.

        1. Obviously. You aren’t going to allow human sacrifice, for example.

          1. Unless, you know, its consensual.

    3. Why do we continue to get this kind of nonsense ?

      You would think that after 250 years of dealing with garbage attacks such as these that loons might no longer wake up in the morning thinking – ahah – I have thought of the achilles heel of classical liberalism.

      Get a clue – it is not about religion.
      It is about liberty.

      If you want to go classic John Locke – then yes you may opt out of taxes – when you do you opt out of ALL government protections of your rights and you must do so yourself.

      But if you want something more moderate, try Nozick.
      You are obligated to pay for that government that is actually necescary to secure your rights and liberty – but no more.
      You are obligate to pay for the defense of the country.
      You are obligated to pay for our criminal justice system – though that must be confined to crimes of violence or fraud, not merely undesireable behavior like gambling, drugs, or prostitution.
      You are obligated to keep your agreements, and obligated to pay for the civil system that enforces that.
      You are obligated to make whole those you harm and obligated to pay for the torts system that enforces that.

      You are not obligated to pay for anything else.
      And if you value something more – join with others to accomplish that voluntarily.
      Be a redistributive socialist or a real communist – so long as you can make it work without force

      What you are not free to do is use government to force others to conform to your ideology.

  3. Discriminate on any basis you want, and let the market and other customers decide if they support your decision or not.

    1. THAT’S HOW THE MESS IN SOMALIA STARYTED!1!!!!!1!1!!!

      1. No it is not.
        Somalia started with warlords in a failed socialist system.

    2. That doesn’t work. Never mind that we learned in employment-discrimination law that it does. It’s a teaching necessary for salvation that it doesn’t.

      1. Nice username btw.

  4. What if the law proposed strictly addresses Muslim concerns and is strictly intended to protect Muslim religious rights? Then does McAuliffe still veto it? Wouldn’t that make him an Islamaphobe and racist bigot hate monger?

    1. I would love to see them pass the exact same law for muslims and see what happens. I dare them to!

  5. Why should religious beliefs receive special deference? People can have intense moral convictions without God?and they deserve consideration, too.

    I very much agree with this.

    1. Ummm…because it’s specifically stated in the 1st Amendment. But, I do think that all ‘conscious’ should receive protections. It really is not a radical concept. Asking the government to provide a reasonable accommodation (which is already the standard in the Americans with Disabilities Act, for instance), unless there is a compelling interest to violate conscious is kind of what people who believe in individual rights should expect of their government.

      1. Conscience should probably be understood as equivalent to religion in this context (IANAL).

        1. Bzzt, wrong – it is not just about religion.
          The constitution prohibits ALL government from interfering with contracts – and through to the 1930’s we adhered to that.
          Further the bill of rights reserves ALL rights to citizens – not just those listed in the first amendment.

          The declaration of independence defines the role of government as securing our liberty – not infringing on it.

          We constantly confuse legitimate limits for government with limits on people.

          Government may not discriminate – individuals ultimately must.

          1. “The constitution prohibits ALL government from interfering with contracts – and through to the 1930’s we adhered to that.”

            Except when it didn’t, for instance with Jim Crow. Forbidding a railway from seating blacks as well as whites on the same carriage, or forbidding a restaurant from serving both blacks and whites, was as much an interference with contracts as regulating a bakery employee’s hours and wages. Such Jim Crow laws were fine with the same Supreme Court that decided Lochner.

            Everyone who makes a comparison between a bakery choosing not to bake a wedding cake for John and Fred and Jim Crow has forgotten what Jim Crow really was: not allowing a business owner to choose a policy for himself, but _laws_ _mandating_ discrimination.

      2. Well yes, obviously religious freedom is codified in the Constitution specifically. But I think the logic that under-girds that premise can be fairly extended to godless animals. Or, if we more broadly define religion as “A worldview that contains both your moral sentiments and your beliefs about the nature of life and reality” non-theists of all stripes would fit in there.

        1. It is not about beleifs or religion.
          It is about freedom.
          You are free to live as you please within the following constraints.

          You may not initiate force or fraud against others.
          You must keep your agreements.
          If you harm others you must make them whole.

          If you do not want to sell to someone because you do not like tupperware on tuesdays – your business.

      3. Actually, the First Amendment does not say this. In fact, a fairer reading would be that it says the opposite. The exactly wording is “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The first clause means, to my mind, that the law should be secular and not grant any special privileges to beliefs just because they happen to be religious. There should be no special deference to religious beliefs. This also puts the government in the unsavory position of determining what is a valid “religious belief,” which is an impossible situation.

      4. Actually, the First Amendment does not say this. In fact, a fairer reading would be that it says the opposite. The exactly wording is “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The first clause means, to my mind, that the law should be secular and not grant any special privileges to beliefs just because they happen to be religious. There should be no special deference to religious beliefs. This also puts the government in the unsavory position of determining what is a valid “religious belief,” which is an impossible situation.

        1. This also puts the government in the unsavory position of determining what is a valid “religious belief,” which is an impossible situation.

          This is a point I bring up a lot. I don’t know how anyone can say there is any religious freedom when government gets to determine if your religion is sincere and legitimate or not.
          An important part of the whole notion of rights is that everyone has the same rights. So if a law violates the rights of a member of a particular religion, then it violates everyone’s rights and should be completely invalid.

          1. Which is pretty much why anti-discrimination laws are unConstitutional.

    2. A person cannot form of and by their self, a large organized entity with the power to lobby and form a large voting block.

      There’s your answer. You’re only relative when you can organize something big enough to change elections.

      1. Did you mean relevant?

        Also, while true in general, I am Pollyanna-ish enough to think that people should support specific applications of individual freedom they disagree with to protect the philosophical core of that freedom. Therefore, the “religious freedom of conscience” bloc naturally becomes the “non-religious freedom of conscience” bloc as needed.

        1. “Did you mean relevant?”

          Yes, of course. Damnit.

    3. Ditto. Also why I thought Johnson was correct when he said religious liberty is a black hole, though he seemed to come down in defense of some onerous laws. I think. The guy doesn’t talk good.

    4. What makes you think religion requires God, a god, or any gods?

      Seems rather narrow minded of you.

      1. yea i consider it a world view. I think a religion/worldview the samething.

    5. 100% agree. Forced actions are bullshit.

  6. “You can easily imagine the sort of difficulties to arise from a policy like that. Individuals could claim they have a religious aversion to paying taxes and obeying traffic laws?and that their consciences command them to play with high explosives in heavily populated areas.

    Those sorts of concerns motivated the Supreme Court a quarter-century ago, in a case about two workers who were denied unemployment benefits after they got fired for using peyote in Native American religious rituals. The majority on the court held that “the right of free exercise does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability.’ ” The author of that majority opinion was Antonin Scalia, otherwise deemed a saint by the religious right.”

    This is a really ignorant analysis. The court ruling mentioned is why RFRA was passed (with near unanimous support in Congress and the support of the ACLU). RFRA, like the ‘Sherbert Test’ before (which was overruled by the court), has never resulted in frivolous abuse of this protection, because all it states is that the government must make a ‘reasonable accomodation’, unless the government holds a ‘compelling interest’ in violating conscious.

    Cosmos have already sold out on religious liberty. They’re now selling out on speech. These people will sell out all of our natural rights for ‘social acceptance’. What a cancerous ideology.

    1. It’s possible to try to make an argument without the frothing about the dreaded Cosmoz and sounding like an idiot, you know.

    2. This is why I always argue that religious freedom really isn’t possible unless you have a libertarian government. There are certain things that can’t be justified under religious freedom. Human sacrifice, setting off explosions in populated areas. Basically, only the things that should be criminal according to libertarian principle.

      Unless you have that, you don’t have religious freedom. You have privileges granted to certain approved religious groups. Allowing peyote use by the Native American Church is a perfect example. If the reasoning behind that decision were applied at all consistently, drug prohibition would have to end entirely.

      Exceptions for the religious is probably better than nothing. But not a very good path to real religious freedom.

      1. “Human sacrifice, setting off explosions in populated areas. Basically, only the things that should be criminal according to libertarian principle.”

        RFRA states ‘reasonable accommodations’ and the law must be narrowly tailored. The government has a compelling interest in banning human sacrifice. Your argumentation shows that you are ignorant on this topic.

        “Allowing peyote use by the Native American Church is a perfect example”

        They are allowed to use peyote under RFRA

        1. They are allowed to use peyote under RFRA

          They can use it *as part of their religious practices* which is why it’s a special privilege. “I want to use peyote and it harms no one” is all the justification one ought to need.

          1. Because I wanna as the basis of policy polls at like 3 percent. It was also something that would have disgusted the founding fathers so by what basis do you propose to impose this criterion on others.

            1. Because I wanna as the basis of policy polls at like 3 percent. It was also something that would have disgusted the founding fathers so by what basis do you propose to impose this criterion on others.

              Rectitude is not a function of popularity. But your disingenuous phrasing of the non-aggression principle as something that has to be “imposed” on others makes me inclined to not take you seriously on the issue.

            2. Because I wanna as the basis of policy polls at like 3 percent.

              Meaningless statement accompanied with made-up number.

              Science!

            3. Tulpa’s going full Tony?

              1. I recognize the name from years ago. I guess he decided to pull this one out of storage and take it for a spin.

        2. Your argumentation shows that you are ignorant on this topic.

          No, you are misunderstanding what I’m saying almost completely. Of course religious freedom can’t permit things like human sacrifice, ritualized rape, etc.

          “Allowing peyote use by the Native American Church is a perfect example”

          They are allowed to use peyote under RFRA

          No shit. That’s what I am talking about. Are you being deliberately obtuse? They are allowed to use peyote. But it’s a very narrow exception and many people have tried to get other religious exceptions to drug laws. If the RFRA was applied consistently there would be a lot more exceptions to drug laws for religious purposes. If I say my religion requires some kind of drug use, the burden should be on the state to prove it’s not. I shouldn’t have to prove the sincerity of my beliefs. Getting arrested and having to argue the case in court is already violating my religious freedom.

          I’m saying the RFRA doesn’t go nearly far enough. “Reasonable accommodations” is a load of shit. If a law violates religious freedom, it shouldn’t apply to anyone.

      2. “Human sacrifice, setting off explosions in populated areas. Basically, only the things that should be criminal according to libertarian principle.”

        ridiculous.

        Again as stated above human sacrifice is 100% fine if consented!

        explosions in populated areas is and is not acceptable depending on the case.

        You can blow whatever the fuck up you want on your private property as long as you cause no harm to anyone. So if i owned a house in the middle of chicago I can blow up and shoot anything i damn please on my property as long as it is contained to my property. If it leaves my property (bullets/debris). I am 100% liable for that or if any of my actions cause damage to the surrounding. So a shock wave damages windows or foundations. I am 100% liable. If i blow up a grenade on my property and it does not cause damage i have the right to do so.

        Likewise, your religious belief can not infringe on someone’s else’s rights. If you think you can rape anyone at a whim that obviously violates others rights.

        You do not have a right to a fucking wedding cake from X person because it causes a conflict between 2 people.

        If both consent there is no conflict and it is fine. If there is a conflict it is not acceptable.

        Basic positive and negative rights.

    3. What a cancerous ideology.

      Hey now, what did cancer ever do to you?

      1. it took my left nut! /sarc

  7. I thought Freedom of Association was a widely accepted bedrock principle for libertarians – actors in the private sphere should be allowed to freely associate, or choose not to associate (discriminate) against anyone for whatever reason they choose. State actors have to treat everyone as equal under the law, regardless.

    It only becomes an issue when the state tries to unconstitutionally restrict that right in the private sphere. It’s one of those libertarian beliefs that make us so odd to the majority, along with being against the existence of a minimum wage.

    1. Since freedom of association went down the tubes with public accommodation laws, the last way available to avoid forced association is to cite religious freedom, since it is an enumerated right and therefore a greater obstacle (theoretically) for the government to overcome.

  8. As a religion, you should be able to practice whatever beliefs you want and refuse voluntary association with whoever you want, based on those beliefs, as long as it does not harm anyone else. And no, feelz do not count.

    Simple explanation: As a private baker of cakes, you can refuse to bake a cake for anyone, for any reason. But you can’t chase the person down and chop their head off. Can we please get back to some semblance of common sense here?

    1. Therefore polygamy, animal sacrifice, et al, shall all be legal, correct?

      1. Does polygamy hurt you, Bones? Did it do things to your sister? Why don’t you now just compare online poker and murder, Mr. champion of logic?

      2. I sacrifice animals to my tastebuds daily. What’s the problem with killing one for a religion?

      3. Yes! No polygamy is a moral law and it is bullshit.

        Animal sacrifice is 100% okay assuming it does not involve torture. There is nothing wrong with killing an animal. Torturing it is very different.

        Human sacrifice is 100% okay if consented.

        Human torture if consented? I don’t see why not as long as the person continually consents to the process.

        Thoughts?

        1. Rights are inalienable.

  9. Religious people are fools, but I will defend their right to be fools and their right to freedom of association. Modern markets tend to punish discrimination anyway. Government employees are obviously exempt from the freedom of association excuse, of course, because the very nature of their jobs has its origin in forceful interactions backed by the violence of the state.

    1. “I will defend their right to be fools and their right to freedom of association. Modern markets tend to punish discrimination anyway.”

      The problem with this freedom of association is that you have two powerful groups against it. The government, because how do they keep all of their power if we just let markets and people decide stuff? Government must decide, because government is not people! And the group who wants to keep that government all powerful, because they want to be able to wield the power of that government against you.

      1. You’re preaching to the choir man.

  10. Gay-rights groups and their supporters say such refusal is nothing but rank discrimination, similar to the discrimination against blacks in the Jim Crow South.

    Is this another attempt to make words mean whatever you choose them to mean? “Jim Crow” specifically refers to the laws passed to enforce discrimination against blacks. The laws – it should go without saying – were passed by the state governments to enforce discrimination by private enterprise. You want to know why they had to have laws? Because without the laws, there were plenty of those damn evil greedy businesses that would be glad to accommodate black customers and the government wasn’t having none of that. So, other than being pretty much the exact opposite of Jim Crow laws, yeah, anti-gay discrimination is just like anti-black discrimination.

    1. “Because without the laws, there were plenty of those damn evil greedy businesses that would be glad to accommodate black customers and the government wasn’t having none of that.”

      Ding, ding, ding!

      That’s the answer to the gay wedding cake baking issue: let the free market work! So the Church Lady Bakeshop won’t take Bill and Ted’s business? Leaves more opportunities for me and other “I don’t care who are as long as the check clears,” providers.

      I also think some business owners need to wise up about what to say when they refuse business. It’s common sense. You walk into a place to order something and you’re told they don’t stock it. Do you go to the backroom to verify it? How do you know they’re not just saying that because they don’t like your hipster man-bun? On the other hand, if they tell you to your face, “get your damn man-bun out of my store,” that’s just bad business.

      Don’t want to bake a gay cake? Tell them there’s a long wait list, or you ran out of meringue and the Russian embargo prevents getting more, or say you’ve been having intermittent attacks of diarrhea, want to see the employees’ bathroom? Watch the undesirable customers hightail it out of there. It’s just business, folks. If you want to proselytize, do it in your church, not in your small business. But then if you want your business to fail — go for it.

  11. Freedom of association is scary.

  12. Group protection laws are fractal in nature and invite despotism.

    It’s not as if the Totalitarians haven’t been lurking outside the American portico for decades already. Why keep waving at these steel-coated blood-hungry zealots through the stained glass with legislation designed to abridge individual rights at the behest of whiny and perpetually-offended collectives of all stripes?

    1. Careful, you’re sounding almost coherent. 🙂

    2. “perpetually-offended collectives of all stripes”

      The perpetually-offended collectives of all stripes could end someone’s cushy political career. And that’s all that matters. Or in the case of the latest most important special snowflake what’s hot right now perpetually-offended collectives of all stripes, someone could get their head chopped off.

    3. “perpetually-offended collectives of all stripes”

      The perpetually-offended collectives of all stripes could end someone’s cushy political career. And that’s all that matters. Or in the case of the latest most important special snowflake what’s hot right now perpetually-offended collectives of all stripes, someone could get their head chopped off.

  13. “And in fact, some of them don’t. Churches, for instance, are not obliged to host gay weddings and clerics are not obliged to officiate them.”

    That’s a nice tax exempt status you’ve got there…

    1. That statement from the article is not accurate. There are states where churches can be forced to host a religious ceremony, so long as it is not the ‘chapel’, per se. So states have and continue to force churches to hold gay marriages in rectories or adjoining buildings.

      This article is as if they took someone who knows nothing about this issue and then handed him a pen

      1. :O

        “This article is as if they took someone who knows nothing about this issue and then handed him a pen”

        Good golly I think you may have hit on something there!

  14. “There seems to be no neat and tidy solution to all of this.”

    Ummmm….

  15. Sorry, Individuals do not need a license to discriminate, they have an iron clad guaranteed constitutional right to discriminate, it is called Freedom of Association.

    You want to argue that certain types of corporation surrender the individual right their owners possess as a consequence of the government protections offered by incorporating and you might have a legitimate argument but for a sole proprietor small business they have every right to discriminate against anyone at any time for any reason and the corrupt judges who worship state power and practice “Judicial Deference” can have a date with a woodchipper if they disagree.

    1. – Civil Rights Act

      1. -Civil Rights ACT

        – First AMENDMENT

        Now, last I checked amendments to the constitution overruled acts of Congress but hey I’m not a fancy judge sitting on a high chair so what do I know?

        You can come up with all the theory and edge cases you want and at the end of the day forcing ANYONE to engage in commerce with another person against their will is both evil and unconstitutional.

        1. No need to get panties in a bunch. I’m pro FOA, I’m was just pointing out that the public accommodations post of the CRA is basically a big fu to FO.

        2. Logic is not the strong suit of the looter press. If division by zero is allowed, you can prove by simple algebra that 2=1. So it is when mysticism replaces reason and the initiation of force is allowed. Suddenly nobody can know anything by induction because of an exception to the generalization: all men are mortal EXCEPT God’s Own Easter Zombie. Now, since nobody can know anything (for lack of premises), you can’t possibly know what is right nor what are rights. You can therefore not answer mystical fanatics on a Mission from God to bully your daughter or decapitate your entire family. Cute, huh? The door is now open to trolley dilemmas and lifeboat ethics instead of a code of values to guide your choices and actions. Until the word “free” in the First and Second Amendments is understood to mean “uncoerced,” that is where we are stuck in an endless loop.

      2. Civil Rights Act has a ‘religious exemption’.

        Epic fail

        1. Public accommodations section has a religious exemption? So a hotel owner doesn’t have to allow gay guests?

  16. The only reason things like this are an issue is because the business owners are dumb.

    “Can you bake us a wedding cake?”

    “Let me check our schedule and I’ll get back to you.”

    1. You really underestimate the will of the perpetually aggrieved to ruin lives, don’t you?

      “Let me check our schedule and I’ll get back to you.”

      *Runs, not walks, to lawyer*

      Perpetually aggrieved: IT WAS BECAUSE WE’RE GAY! CRUCIFY THEM!

    2. Who the hell orders a cake from someone who hates them, so they can serve it up to their closest friends and family? I know it’s a phony issue to begin with but the bigger point is, as a consumer, isn’t it better that people not be forced to hide their true feelings?

  17. “There seems to be no neat and tidy solution to all of this.”

    Sure there is. Quit using the government as a weapon against people with whom you disagree. I am not gay, and I am not religious. From the outside looking in, it appears to me that both sides are trying to use government to bludgeon their enemies. I cannot help but to think of those old Reese’s commercials: “You got government in my religion”. “You got religion in my government”

    I just cannot wait until we have special crave-outs for all sorts of things people believe. UFO’s/alien races. Bigfoot/Yeti’s. Whatever it is that Scientologists believe. Alex Jones’ conspiracy du jour.

  18. It would be interesting to me to see what sort of attempted retaliations might take place should FoA ever be universally allowed.

  19. Private individuals do not need a license to discriminate, they have this little thing called Freedom of Association, that would be a Constitutionally protected right to discriminate at any time for any reason.

    Now, if you want to argue that certain types of corporations cannot inherit those rights from their owners in that by accepting the legal protections incorporation offers you void (in so far as the corporations actions are concerned) your individual right that is one thing. However don’t sit there and pretend that compelling private individuals to not discriminate is not both unethical and unconstitutional.

    1. +1 (provided the fucking squirrels let my post go through)

  20. Just saw this headline:

    Keith Olbermann: Trump’s reckless handling of intelligence would have gotten Hillary ‘impeached before sunrise’

    I can’t even.

    1. I guess because Hillary was never reckless with intelligence. He just has to be trolling, nobody could be that unaware.

  21. “Gay-rights groups and their supporters say such refusal is nothing but rank discrimination, similar to the discrimination against blacks in the Jim Crow South.”

    Discrimination in the Jim Crow south was about Jim Crow laws. That is to say, it was the government that was enforcing discrimination.

    If there’s something like Jim Crow happening in this situation, it’s gay-rights groups using the government to coerce religious people into violating their own religious convictions.

  22. Meanwhile, on Planet Panick….

    If the estimates are confirmed, it will be the first time since 2007 that more than 40,000 have died in motor vehicle crashes in a single year. The 2016 total follows a 7 percent rise in 2015.

    The safety council’s figures typically closely track the fatality totals that the National Highway Traffic Safety Administration compiles. N.H.T.S.A. has not yet released a total for 2016.

    Part of the increase is believed to stem from the improving economy, which causes Americans to drive more miles. But safety advocates say other factors are at work ? in particular, slack enforcement of seatbelt, drunken driving and speeding laws.

    “Our complacency is killing us. Americans believe there is nothing we can do to stop crashes from happening, but that isn’t true,” Deborah Hersman, the council’s president and chief executive, said in a statement. “The U.S. lags the rest of the developed world in addressing highway fatalities. We know what needs to be done; we just haven’t done it.”

    “We can’t just sit idly by. We’ve got to get more control over those ignorant hicks. Those bastards think their lives are their own.”

    1. Of course mandating lighter smaller cars via CAFE fuel efficiency standards has nothing to do with it.

  23. I wrote a blog on this exact subject about a year ago. We have three principles that are in conflict:

    – a desire to avoid discrimination
    – a desire not to force people to do things against their religious convictions, and
    – a desire for the state to be secular.

    As the article points, it is very difficult to reconcile these three. One possibility might be to focus on the idea of “public accommodation” in the Civil Rights Act. It strikes me that there is a difference between denying an African American a seat at lunch counter, which is a public humiliation and extremely corrosive, and denying someone a cake for their marriage, which can be easily sourced from someone else and which only becomes a public event when the denied couple bring it to the attention of the world. Perhaps the only way we can reconcile these three tendencies is through defying “public accommodation” narrowly to be only those circumstances involving some form of public humiliation.

    My more elaborate thoughts on this subject are here: http://www.economicmanblog.com…..s-freedom/

    1. It’s not the slightest bit difficult the reconcile those three.

      1. Freedom necessarily means some people will make choices that other people don’t like.

        It isn’t difficult to reconcile anti-discrimination and freedom. It’s impossible.

        The most important question is whether anyone’s rights were violated.

        The next important question is who is doing the discrimination–is it an individual or the government?

        So long as no one’s rights were violated and the government isn’t discriminating, people have a right to make choices for themselves–even stupid choices.

        1. “So long as no one’s rights were violated and the government isn’t discriminating, people have a right to make choices for themselves–even stupid choices.”

          single most important point!

          People struggle to understand positive and negative rights for some reason…or just don’t know the difference. I think its the latter.

  24. “It would stipulate that no person should be required to participate in any activity he or she finds objectionable?period. And it would stipulate that no person should be penalized by the state for acting on a sincerely held religious belief or moral conviction?period.”

    I’m becoming convinced that the solution to willful misapplication of the law is not rewriting the laws.

    Isn’t the fact of the matter that the judges and politicians who have undermined our First Amendment freedom of religion protections have done so because they don’t like our First Amendment freedom of religion protection when it protects those who would discriminate against LGBT?

    It’s the same thing with the Second Amendment. The people who are undermining our Second Amendment rights aren’t doing so because the Second Amendment or the laws are unclear. They’re doing it because they don’t like the Second Amendment. They don’t want the government to protect our right to own a gun.

    Let’s get serious about the true cause of these problems. There are too many people in this country who think we shouldn’t be free to make choices for ourselves because they don’t like the choices that some people make. They have an insufficient commitment to freedom, and they should be called out for it.

    Rewriting the laws is just rearranging the deckchairs on the Titanic.

    1. Just to pull on your thread a little bit Ken, you’re not half wrong. From a judicial standpoint I’m sure that has been the driving force behind the philosophy of ‘judicial realism.’ I’m of the opinion that law is a normative thing and words have to mean something. Most jurists I think recognize this point, however they rationalize in different ways. Because words mean things, and the accepted meanings lead to ‘undesirable’ outcomes, we must therefore change the meanings to suit our ends. Doing so fundamentally erodes the stability of law and any faith society might have in it.

      Further, and as should be our concern as Libertarians, it isn’t that people have an insufficient commitment to freedom but people who are insufficiently committed to liberty. Liberty and freedom are different things; an important point missed I think in much of the contemporary rhetoric and argument about government. As an illustration, I submit:

      The slave is free to disobey his master – but he is not at liberty to do so.

  25. It is also against Catholic adoption policies to give children to single mothers or fathers. Are they being discriminated against?

  26. “There seems to be no neat and tidy solution to all of this. If you run across one, drop a note to the Supreme Court. It will be grateful for the guidance.”

    Yes there is a solution. The court should start doing it’s job and uphold the unconditional and absolute individual right to freedom of contract and freedom of association. And uphold absolute private property rights. Government’s themselves have no legitimate right to discriminate against anyone but by the same token they have no legitimate power to compel private individuals to refrain from doing so. There is no such thing as a “public accomodation” – there is only private property.

    1. There is actually a little more wiggle room in there if they want even.

      The individual right cannot be abridged but organizations are not individuals and so if you incorporate in any way shape or form that has your corporate taxes being filed separately from your individual taxes you lose some of those individual rights where it comes to the actions of your company.

      So that means that Panera bread could not discriminate but Joe’s Bakery could.

      Conflicts basically are all resolved there.

      1. “The individual right cannot be abridged but organizations are not individuals and so if you incorporate in any way shape or form that has your corporate taxes being filed separately from your individual taxes you lose some of those individual rights where it comes to the actions of your company.”

        I disagree.

        Organizations are merely a particular groups of individuals who have chose to exercise their freedom of contract and freedom of association for a common purpose. They have exactly the same rights at the collective level as they do at the individual level.

        There is also he matter of the 10th Amendment that confines the federal government to enumerated powers. I do not see any text in any article of the Constitution that authorizes the federal government to dictate to the private sector how they run their businesses – regardless of whether those businesses are incorporated or not.

        1. But that is just it. I am not saying they do not posses these rights, I am saying that the cost of gaining the government granted protections of incorporation include surrendering some of those individual rights where the corporation is concerned.

          If you want to retain those rights don’t incorporate and continue to run your business as a DBA and filing taxes on your personal returns

          1. “I am saying that the cost of gaining the government granted protections of incorporation”

            What protections would that be?

            “Protections” from legal constructs such as unlimited liability created by the very same government?

            The concept of unlimited liability is not one iota less an artificial construct than is the one of limited liability.

            I’m not buying it.

            1. Err, unlimited liability is not a legal construct, it is the natural state of affairs.

              If you legitimately owe me money I have an unlimited right to take 100% of your assets as compensation if you fail to pay me what you owe.

              If you run a small business as a DBA and that business owes me money the same is true, I can go after 100% of your assets to recover the debt.

              If you run virtually any other form of corporation and the company owes me money all of a sudden there is a legal barrier preventing me from accessing all of your assets to recover the debt

              Then we get into the more advantageous tax treatment that Incorporating provides for and a few other advantages as well

              1. “Err, unlimited liability is not a legal construct, it is the natural state of affairs.”

                Yes it is a legal construct every bit as much as the limited liability construct. All law is a construct – not a “natural state of affairs”. That’s why lions aren’t charged with murder for killing their prey.

                “If you legitimately owe me money I have an unlimited right to take 100% of your assets as compensation if you fail to pay me what you owe.”

                Unlimited liability is about a lot more than that. If a person who has committed some tort is in a partnership with someone else who had nothing to do with committing it, then the other persons wealth can be gone after as well even though he had nothing to do with it.

                “Then we get into the more advantageous tax treatment that Incorporating provides for and a few other advantages as well”

                And that is merely another example of “protection” from a construct created by the government itself.

                It is only “protection” in the same sense that the mafia shakes down people for protection.

              2. That’s why all those smart Enron folks got to keep their multiple houses and other assets. The purpose of corporations is to take the responsibility for actions away from actual human beings so they can use people, mess up the environment, break the law or screw up and not have to deal with the consequences.

  27. mandating lighter smaller cars via CAFE fuel efficiency standards has nothing to do with it.

    I have always had a preference for lighter smaller cars sporty deathtraps, so I never look at it that way.

    I have, however, been saying since the ’70s they should raise the gas tax a nickel and dedicate the money to painting the goddam lines on the roads and improving sight lines at intersections if they really are interested in marginal gains.

    1. Hell spend the 25% of the federal gas tax that’s spent on park benches, ‘art,’ and bike trails on the actual roads.

  28. Devoted anti-conceptualists are rooted in philosophies that blatantly disregard objective reality or hold it prisoner to unquestioned mysticism.

    Until humanity can rid itself of this intellect-ravaging cancer and believe in gods, prophets, and abstractions without using law as a blunt hammer against the social skull to force compliance societies the planet over will remain trapped in perpetual waxing and waning.

  29. People can have intense moral convictions without God?and they deserve consideration, too.

    People can also have the state endorse, disseminate, and enforce those nontheistic moral convictions as well; until mandatory white privilege courses are as verboten in state universities as mandatory classes on original sin, they don’t deserve the protection that religious beliefs get.

    It would be a massive imbalance in power if certain beliefs got the protections currently accorded to religious beliefs, but without any of the restrictions. The freedom of religion and the separation of church and state go hand in hand.

  30. There seems to be no neat and tidy solution to all of this. If you run across one, drop a note to the Supreme Court. It will be grateful for the guidance.

    Government should quit doing stuff.

    5 word solution. Not my best, but I’ll take it.

  31. The only principled libertarian position is that the government forcing any association is morally wrong.

    It doesn’t matter how terrible the discrimination is.

    But trying to promulgate this position to the atrophied minds of the masses is an impossible task.

  32. Liberty explicitly means right to discriminate. Discriminate is a word meaning to choose between options. You can’t have liberty without allowing discrimination.

    The only “tidy solution” is to get over your concerns about what people might do with their own property.

  33. By the way I always have to bring up my favorite “public accommodation” scenario. If prostitution is legal, would we be using the state to force prostitutes to have sex with people they would discriminate against? Or would that be like another religious exemption?

    1. Ha! A straight prostitute would be forced to have sex with a transgender “man”.

  34. Discrimination gets a bad rap. Its original definition is “recognition and understanding of the difference between one thing and another.”

    I tried being nondiscriminatory for a year. You wouldn’t believe how much human excrement I ended up eating.

  35. There are a couple of ways to reduce the problem, at least. One is to reduce the number of actions required by the Behemoth to a minimum. There’s a big difference, after all, between requiring certain actions (such as requiring doctors to perform abortions, which some Molochites are beginning to do) and banning certain actions (such as not allowing worshippers of Huitzilopochtli to cut the hearts out of living people). Another is to realize that discrimination against homosexuals involves discrimination on the basis of behavior, not innate characteristics. (Sexual preference, unlike sex or race, generally can’t be discerned just from appearance.)

  36. Why would you want to force someone who has a deep held belief that what you are (or are doing) is against god’s command to preform a service for you? Do you really think you will get that person’s best effort? It makes no sense at all. Your power is the power of the dollar. Use that power, find someone else to hire.

    1. Do you really think you will get that person’s best effort?

      Well, I hope Catholics remember that when they see a Huguenot cross, a Star of David, or a humanist symbol on a pendant. Sure, you will be served because people are legally obligated to, but don’t bet on a “best effort”, given what your religion did to these groups in the past. See, it works both ways.

  37. If the nation would simply recognize property rights (as in “life, liberty and property”) the question would become moot. Nobody has a right to someone else’s property.

  38. Opponents retort that religious-liberty bills grant some people a license to discriminate.

    You shouldn’t need a “license to discriminate”. The government has no right to interfere in freedom of association, and hence private individuals and business should be free to discriminate as much as they want.

    On the flip side is another question: Why should religious beliefs receive special deference? People can have intense moral convictions without God?and they deserve consideration, too.

    You only get into this pickle because you presume that it is legitimate for government to interfere in freedom of association for some reasons but not others.

  39. Freedom of association implicitly guarantees freedom *from* association. End of story.

  40. One the one hand, I think it’s fine to allow bakers to refuse to bake cakes for a ceremony they’re against (I wouldn’t want to be a baker and have someone force me to bake a cake that says “God Hates Agnostic Jews”). But I also kind of don’t want to be dying in the street and have an EMT refuse to save my life because his religion tells him my people deserve to burn in Hell. Complicated I guess.

  41. The paragraph regarding christian bakery selling cookies but not cakes to gays bothers me. Let me propose this situation: Let’s say I belong to a religion that says “White people are the devil’s spawn.”, now suppose I have two drugs, one will cure some minor diseases and on that will cure any disease. Now white people come to me for a cure and I will give them the one that will cure some diseases. After all white people may be able to be cured by someone else’s drug. Compare this to say, a dozen cookies. These can be bought almost anywhere. But in this scenario I stick to my religious principles an refuse to sell white people my “cancer/AIDS/any fatal disease” drug. Now back to the statement in this story: The baker and the photographer are not refusing to do business with an entire class of people. They are refusing to participate in a certain type of activity. Since I am following the same principle in this made up situation I assume you support my religious right to let white people die?

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  44. It is not about religious liberty.
    It is just about liberty.
    It is not about whether the excercise of that liberty results in broad or narrow discrimination.
    It is just about liberty.

    If you want to end discrimination – change people, not laws.

  45. One thing that doesn’t get brought up often is that not selling a “gay” couple a wedding cake is not in the same ballpark as blacks being unable to find accomodations or places to eat. You’re just as married (insofar as “gays” can ever be married) whether or no you have a cake. And I’ve never been to a place so remote that there weren’t several different places that would sell cakes; if one doesn’t want your business this time, there are always others. Or—radical notion—maybe get the “happy couple” s friends together and have them confect a cake?

    A lot of these cases strike me as having been brought by “gays” with an axe to grind—they shop around till they find someone who refuses them, then they raise an almighty stink and run off crying to the courts about how their precious baby feelings were all hurted. For that matter, the whole “We want MARRIAGE” hullaballoo struck me as far less about getting the legal shelters of marriage (which they could have had at any time if they’d been willing to compromise on the word “marriage,” which, like it or not, is a term-of-art in quite a few religions that abhor homosexuality) than it was about jamming a finger in the eyes of the “straights” and getting back by proxy at parents and families who hadn’t been happy to see their offspring turning out gay.

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