The New York Times has an interesting article about whether gay marriage will impinge on religious liberty. Mind you, it's not really talking about the religious right bugaboo that ministers will be forced to perform gay marriages; that's nonsense from the get go. But there are lots of ancillary questions that would seem inevitable. For instance, what about a caterer? Can a devoutly Christian caterer refuse to cater a gay wedding reception? My immediate answer is yes, of course he can, but given the recent controversies over pharmacists refusing to dispense morning after pills and other similar issues, I'm not sure it's all that clear. The article has some thoughtful questions from a raft of excellent legal scholars and is well worth reading.
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Ed, your question brings up something on which I have never heard the libertarian view. I agree with you that an individual should be allowed to discriminate against anyone for any reason.
But, does not incorporation change the equation a bit. A corporation is a creation of the state. When one incorporates, one receives special priviliges from the state. (Limited liability, etc.). In return, should not the corporation be required to accept more restrictions on it's behavior? As in public accomodations?
Can a devoutly Christian caterer refuse to cater an interracial wedding reception?
The Civil Rights Act of 1964 prevents that Andrew (The Lester Maddox restaurant case comes to mind) but to my knowledge the protections provided to "sex" under that act don't apply to sexual orientation, although I could be wrong, and believe it should, for the same reasons John mentions regarding incorporation.
LWF: You're correct that sexual orientation is not a protected class under the Civil Rights Act of 1964, and I agree with you that it should be so amended.
As to John's point, I find the libertarian argument ("...an individual should be allowed to discriminate against anyone for any reason") impenetrable. But the real question is, given that individuals are currently prohibited against discriminating against others who are members of a protected class, should the law craft a special exception to those laws for individuals whose bigotry is religious in nature.
I can't fathom why we would want to do that, and I was surprised to see Ed expressing sympathy for that kind of a view.
Can a Roman Catholic caterer refuse to provide services to a Southern Baptist (i.e., "heretical") couple? Can a Roman Catholic hospital refuse to provide health insurance to the second spouse of a divorced employee (i.e., an "adulterer")?
Whatever the answer to those questions, the same should be true for gay and lesbian couples.
John Cercone wrote:
I think this is a much more difficult question to answer than you might imagine, certainly harder than I once imagined. And most of us probably would come up with an inconsistent answer depending on our visceral reaction to specific circumstances. The laws are quite a mishmash on this issue, and like it or not the constitution does treat religion differently than it treats other biases. In addition, we have the Religious Freedom Restoration Act, which says that we have to grant exceptions for free exercise cases unless such exceptions would destroy the effectiveness of a generally applicable law. That act has been upheld by the courts.
My position is somewhere in the middle on this one. I think the free exercise clause does demand that we tread very lightly when it comes to religion. I could list a huge range of hypothetical situations in this regard and I'm guessing that we would all come up with a different set of answers to them, with none of us having a really coherent conception of where to draw that line. The courts haven't managed to come up with on, to no one's surprise. I suspect this is an issue we will continue to struggle with.
Someone needs to explain to me WHY this is true:
I do attend church but don't feel the ideas I hear within those walls are not worthy of debate, ridicule, or discussion.
And frankly I personally find it offensive when people hide behind their 'faith' instead of using their mind. I don't find dogma particuarlly worthy of protection.
Chance-
It's true because it's true. The founding fathers put the free exercise clause in there on purpose, whether one agrees with it or not. That doesn't have anything to do with whether those ideas are worthy of debate, ridicule or discussion; we can debate, ridicule and discuss religious ideas until the cows come home without violating any law. But the free exercise of religion is specifically and explicitly protected, while the free exercise of other ideas and beliefs are not.
AndrewT wrote: ...given that individuals are currently prohibited against discriminating against others who are members of a protected class...
Is that true? Or is it more like what John C wrote in the topmost post that corporations, other business entities, and their agents are so prohibited.
If I did not want to sell my personal auto to a "member of a protected class," who could legally make me? Same with my home, if I sold it as a "for sale by owner." Same if I want to rent a room in my home or my shack in the back yard. So long as I do not engage agents of legally sanctioned companies, I doubt there is any way that the Civil Rights act could be enforced against me, is there?
Has the right to force the tenets of one's religion on others ever been protected? Because it seems to me that this is what's under discussion here. Nobody is thinking of challenging anyone's right to practice their religion; they are challenging the right to discriminate on the basis of that religion. In other words, the right to punish others for not sharing that religion or operating according to its precepts. It's something like the difference between praying towards Mecca at regular intervals and burning someone's home because they drew a picture of Mohammed. The first is a practice of faith, the second is a lashing-out against people who don't share that faith.
The outcome I hope for is one where any company is free to refuse the patronage of anyone they don't agree with, so the more closed-minded an institution is, the less money is available to them. The rules of capitalism, which admittedly have been kind of perverted in this country, should eventually dictate that such organizations become non-competitive, shrivel, and die.
I think your caterer question would work better if it was a lunch counter, or if Pharmacists made house calls.
... recent controversies over pharmacists refusing to dispense morning after pills... This is a flap to the extent that a pharmacist is a gatekeeper to the prescribed drug, IMO. A pharmacist who is unwilling to do his or her job in some situations should publicly announce those situations so that a person in those situations can go to a pharmacist willing to do that job without having to reveal the situation to the pharmacist who won't do the job. Additionally, the licensing of pharmacies should ensure that any legitimate prescription can be filled without undue burden. And, in the specific case of Plan B, the FDA should do their fucking job and approve it for OTC sale.
Craig Pennington wrote:
Right, and as such, is refusing to do his job. In my mind, these are cases of religious beliefs preventing the pharmacist from fulfilling the duties he takes on as a pharmacist, and when religious beliefs get directly in the way of job performance, termination is not unlawful. Because this isn't just about Plan B, it's about the Pill, it's about antibiotics, and it's even about vitamins. This is my favorite story so far:
http://www.thestranger.com/seattle/Content?oid=31667
Not to mention those cases where the pharmacist goes so far as to withhold or destroy the prescription itself so it cannot even be filled by a different pharmacy. This is, as jess says,
If I did not want to sell my personal auto to a "member of a protected class," who could legally make me? Same with my home, if I sold it as a "for sale by owner." Same if I want to rent a room in my home or my shack in the back yard. So long as I do not engage agents of legally sanctioned companies, I doubt there is any way that the Civil Rights act could be enforced against me, is there?
Well, there was a case in Northern Virginia (incidentally, where all gay rights laws are now being questioned, because the state bars localities from protecting anyone not protected under state law), in which a couple was penalized for refusing to sell their home to a gay man who had a higher bid - they went with a married couple instead (both bids were over asking, but basically the gay guy was willing to go farther over asking than the straight couple). Unfortunately, IIRC, the idiot agent for the bigoted owners left at least one phone message telling the other agent the reason for the decision.
I can't remember if the gay man ended up with the house (I believe he did), but the agent was also penalized under the civil rights statute.
CPT_Doom,
You were on target until you got to "agent." The agent works for or as a legally sanctioned company. What I'm wondering is if the CRA applies in the case of person-to-person discrimination, outside of business entities.
Perhaps the language of the CRA does intend for it to apply, but the enforceablitly it almost zero (much like our new WA-State law against on-line gambling).
Actually, this carries over an idea from the helmet laws thread: At what point is does the cost of enforcing a law such as the CRA outweigh the benefit?
I don't know where CPT got this from
I doubt there is any way that the Civil Rights act could be enforced against me, is there?
The Fair Housing Act might apply, even if the Civil Rights Act doesn't.
BTW, in most cases, rentals to owner-occupied dwellings (a rooming house, or even apartments in, say, a triple-decker, are usually excluded from the Acts.
raj,
CPT_Doom got it from my post above. And on the point of rentals, I will go with your assumption.
CPT_Doom,
You were on target until you got to "agent." I think that what allows me under the law to practise person-to-person discrimination is that I am not a legal business entity or an agent of one.
Is there a case anyone knows of where a person who was selling their home on their own was penalized for discriminating against a person in a protected class?
Ed,
What happened to my previous post?
Spike said,
"So long as I do not engage agents of legally sanctioned companies, I doubt there is any way that the Civil Rights act could be enforced against me, is there?"
In this case it is a question of scale. For Fair Housing Act purposes, if you are dealing with more than three properties simultaneously, you are assumed to be in the business and hence bound by the Act.
While I have never seen a case of a single individual being prosecuted for FHA or Civil Rights Act violations, suits against communities for collusion (ie, where there was a community-wide agreement not to sell to African Americans) occurred in the past. I'll try to find a citation.
The caterer in our example is on the hook because he happens to be in the business of providing food. His only way out is to claim that he is too busy otherwise to cater the particular function. There is no free speech or freedom of religion issue because there is no assumption that catering an event constitutes endorsement of that event. In other words, as long as he is only being asked to do what he is in the business of doing, there is no conflict.
kehrsam,
I'd really like to see the arguments in the collusion case!
Now that you menion it, I vaguely recall something like that in Brighton where consevative Jews would only sell homes in their gated community to other conservative Jews.
In a sense, isn't that better? Because then the narrow-minded people are "contained."