For God So Loveth Ye That His Servant In Plano, Texas Doth Giveth Ye An Affordable Oil Change

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Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering Republican. Recovering Catholic. Recovering divorcé. Editor-in-Chief Emeritus of Ordinary Times. Relapsed Lawyer, admitted to practice law (under his real name) in California and Oregon. On Twitter, to his frequent regret, at @burtlikko. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.

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  1. Avatar Tod Kelly
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    says:

    Every now and then I will hear of someone acting in a way that upholds what they think of as the “spirit of the law” while doing the opposite against “the letter.” These instances are usually something like , a kid does a paper in school about why his hero is Jesus and the school gives him an F or an incomplete it to protect itself from lawsuit.

    I know that the guy in Plano isn’t evil and might in some way mean well, but I think he deserves notoriety for taking actions that seem very consciously designed to adhere to the letter of the law (at least in his opinion) while subverting the spirit. And since the spirit is that you can’t discriminate against Jews (for example), then I am having a hard time picturing him as a well meaning, kindly old shop keeper just trying to be a good citizen.Report

    • Avatar Tom Van Dyke in reply to Tod Kelly
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      says:

      Religion was left to the states via “Congress shall make no law.” Mr. Likko acknowledges this infra, by noting this may have violated California law but not Texas’ [his own opinion is that such state laws as the former are good].

      Not to say someone might not try to make a federal case of this under “equal protection” by incorporating the First Amendment via the 14th Amendment, but the mechanism gets more complicated.

      So which is the “spirit of the law” here, to ban religion or accommodate it? Whose liberty is more at risk, the shop owner’s or the customer’s?Report

      • Avatar James Hanley in reply to Tom Van Dyke
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        says:

        Religion was left to the states via “Congress shall make no law.” Mr. Likko acknowledges this infra, by noting this may have violated California law but not Texas’

        Of course the Supreme Court has incorporated the religion clauses through the 14th Amendment to apply to states for close on to a century now, so it’s a bit late in the game to pretend that “Congress shall make no law” is adequate grounds for claiming religion is left to the states. Sure, it was, but it no longer is.

        Besides, Mr. Likko explicitly mentions the 1964 Civil Rights Act, meaning he does not acknowledge that this is simply a state issue. Rather, in our complexly federalist system, it can be both a state issue and a federal issue simultaneously.

        For my part I’d be willing to let the guy be an asshole without charging him with discrimination. I’d just take my business elsewhere.Report

      • Avatar Burt Likko in reply to Tom Van Dyke
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        says:

        To clarify: I’m not arguing about the Equal Protection Clause here. The Equal Protection Clause applies only to governmental entities, not to private businesses. Title VII of the Civil Rights Act of 1964 (as amended) does apply to private businesses. This is a law passed by Congress, not part of the Constitution.

        So TVD raises, at least indirectly, the question of whether applying Title VII in this case would interfere with Mr. Whittington’s Free Exercise rights under the First Amendment. A very good question.

        But, if we apply the laws that way, we permit the unequal commercial treatment of people in the public based on religion, and eventually we will see pervasive economic differentials in private transactions, like this:

        CHEESEBURGER….price for Christians, $3.99.
        CHEESEBURGER….not available for Jews or Hindus.
        CHEESEBURGER….price for Buddhists, $4.59.
        CHEESEBURGER….price for Agnostics, $4.99.
        CHEESEBURGER….price for Atheists, $5.99.
        ADD BACON…$.50 extra (except for Muslims)

        If that were the way things were at every business establishment, everywhere, as a practical matter there would be substantially less freedom of religion because there would be a de facto economic incentive to at least publicly adhere to (in this case) Christianity.

        That’s why I say enforcing Title VII in this manner promotes individual religious freedom; you have more ability to exercise your own religious choices freely when there is no economic consequence for doing so. I don’t think that end result is Whittington’s intent because I don’t think he’s really thought it through, but it is where things wind up if everyone did what he is doing.Report

        • Avatar Tom Van Dyke in reply to Burt Likko
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          says:

          Burt, he’s not discriminating, he’s proselytizing, which is free exercise under the First Amendment. In fact, it’s a requirement in Christianity, the Great Commission to spread the Good News.

          That would be the “spirit” of what’s going on here. If we must niggle the letter of the law, we can make him phrase it in the form of a trivia question, “What does John 3:16 say?”Report

          • Avatar Burt Likko in reply to Tom Van Dyke
            Ignored
            says:

            Gonna have to disagree with you here. Let’s make the terms of the transaction just a bit more clear:

            OIL CHANGE:
            BIBLE-QUOTIN’ CHRISTIANS PAY ONLY $19.99!
            ALL OTHERS, $39.99.

            That doesn’t look like proselytizing to me. It’s disparate treatment based on a suspect class. Violates Title VII. Since he can proselytize in other reasonable ways, does not violate Free Exercise or Free Speech Clauses.Report

            • Avatar Sam M in reply to Burt Likko
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              says:

              Uh…

              Girls, pay no cover. Guys, $5 a head. Redheads drink for free.

              Happens all the time. Who cares? Not me. Certainly not enough to justify the government exercising its monopoly on violence.

              PS: I’d recite Sharia law to get a discount on an oil change. If I lived in Cleveland, I would also say “Go Browns” for a discount. If someone had a promotion that offered a 40 percent discount of broccoli for anyone who said, “Sam M is murderous, lying scum,” I would say it and thank the people for the discount.

              Didn’t you used to get a discount for saying “two all beef patties special sauce lettuce cheese pickles onions on a sesame seed bun” when you ordered a Big Mac? Don’t want to say it? OK. Don’t.

              How about this. He charges everyone the same price. After that transaction, he offers everyone who just paid him $20 to recite the phrase.

              He’s not charging them less. It’s a separate transaction. You are allowed to hire people to preach, correct? So you buy an oil change. As part of that cotract, he gives you an option to preach for him, which you can accept or reject moving forward?

              Or, you know, he could just offer a silly discount and people could leave it alone.Report

              • Avatar DensityDuck in reply to Sam M
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                says:

                “Girls, pay no cover. Guys, $5 a head. Redheads drink for free. Happens all the time. Who cares? Not me.”

                You haven’t looked up the history of disparate-impact lawsuits challenging the concept of “ladies’ night”.Report

          • Avatar James Hanley in reply to Tom Van Dyke
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            says:

            Mr. Van Dyke,
            Burt, he’s not discriminating, he’s proselytizing,

            Sincere question here. Assume I’m an atheist, and I engage in consistent, um, reverse evangelizing, trying to persuade everyone to become an atheist. If I give discounts to people who will say “God is dead,” am I discriminating or proselytizing?

            Sincere question because I’m agnostic (so to speak) about the issue of whether the Texas guy’s actions are witnessing or discrimination, and I’m curious whether you would say witnessing if the tables were turned.Report

            • Avatar Tod Kelly in reply to James Hanley
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              says:

              Or perhaps this: If the board of a private planned community (or condo co-op for you city slickers) made a different scale of prices for homes for people who were not Christian – Hey, the Muslims are happy to buy one if they are willing to pay the extra money and if not there are lots of other places they can go live – are they proselytizing, or are they discriminating?

              Assuming the former, does the difference between discrimination and proselytizing depend on nothing but scale of purchased goods?Report

              • Avatar Tom Van Dyke in reply to Tod Kelly
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                says:

                Proselytizing in all cases, in answer to y’all, Likko, Hanley, Kelly. Free exercise, in answer to the question, is not free exercise without proselytism. [See also all the cases rightly won by the supremely annoying JW’s.]

                Once you change the mechanism from words to persons [Christians only, etc.], other complications ensue, sure. But that’s not the dynamic here.

                Likko is quite right comparing this to the Shahada, the Muslim profession of faith. Xtians should put the shoe on the other foot when doing these things.Report

              • Avatar James Hanley in reply to Tom Van Dyke
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                says:

                TvD,

                Thanks. I always value consistency on such matters, and we’re in agreement that people (not just Xtians, I presume) should “put the shoe on the other foot” in such cases.Report

        • Avatar James Hanley in reply to Burt Likko
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          says:

          If that were the way things were at every business establishment, everywhere, as a practical matter there would be substantially less freedom of religion

          Burt–I wouldn’t argue against your interpretation of Title VII (both because you assuredly know better than me, and because I’d probably agree given what little I know about it). But as a practical matter here, your interpretation of the consequences depends a lot on how monolithic a particular religion is. I don’t know much about Plano, but I’m sure the stereotype is that it’s overwhelmingly Christian, so there the outcome might be as you conclude. But in a more diverse place it might just mean that there’s burger joints and oil change joints run by different religious sects, all discriminating against each other.

          That’s not necessarily a desirable policy outcome, but it’s also not necessarily diminished freedom of religion.Report

        • Avatar wardsmith in reply to Burt Likko
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          says:

          “Pervasive”? Really? Thousands of damn fool businesses would knowingly put their heads in both an economic /and/ legalistic noose just cause? Really? I wasn’t aware masochism was so “pervasive”.

          BTW, Jews already can’t eat cheeseburgers *by their own laws*. Same with bacon BTW. Also, knowing a few dozen Hindus, pretty much ANY beef is off the diet again *by their own laws*. Ever heard of a sacred cow? Ever wondered where that came from?Report

          • Avatar Tod Kelly in reply to wardsmith
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            says:

            Is that the only flaw with such a menu? Skipping aside that most Jews I know each cheeseburgers, in the same way most Catholics I know use birth control, if you change the menu to read veggie soup… does that change the argument enough to tackle whether or not it is acceptable?

            Also, while such a menu might well be masochistic in New York even if it were legal, would it really be so in Plano? Would a ‘We Give Mormons Preferred Pricing’ be the kiss of death in Provo? I’m not so sure.Report

          • Avatar Mike Schilling in reply to wardsmith
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            says:

            I’m pretty sure that’s exactly why it’s off the menu for Jews and Hindus. Note that bacon is off the menu for Muslims too.Report

    • Avatar Tim Kowal in reply to Tod Kelly
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      says:

      He might not be an anti-Semite. He might be trying to minister the love and saving power of his savior to as many people as he can. I see no reason why we can’t assume Mr. Whittington is sincere in wanting to share what he believes to be the truth of his faith. And if he’s sincere, he’s not engaging in invidious discrimination but simply sharing his religious beliefs, albeit through unusual means.

      It is a secular tendency to regard all religion as tolerable only so long as it is kept strictly private. But religion cannot be freely exercised if it cannot be freely shared. I don’t particularly like the way this fellow is going about it, but it appears the price of the oil change sans discount is reasonable, i.e., not punitive to those who do not wish to cite the Bible verse. So where’s the offense, other than to one’s personal principle that people should shut up about their religion?

      A law prohibiting this sort of thing assumes a compartmentalization of religion—itself something of a religious belief. It would suppress the free exercise of religion in the cause of a new and different principle of chasing religious belief and practice not just out of government, but out of all public and private life other than the home or the church. I suspect most devoutly religious people believe true religion does not function in such a narrowly compartmentalized way.Report

      • Avatar Mike Schilling in reply to Tim Kowal
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        says:

        He might not be an anti-Semite.

        He might nor be an ax murder either. Seriously, who even implied he was an anti-Semite?Report

      • Avatar Burt Likko in reply to Tim Kowal
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        says:

        it appears the price of the oil change sans discount is reasonable, i.e., not punitive to those who do not wish to cite the Bible verse. So where’s the offense, other than to one’s personal principle that people should shut up about their religion?

        One can discriminate by way of bestowing preferential treatment to a favored group just as effectively as one can discriminate by way of dispensing negative treatment to a disfavored group.Report

      • Avatar Pierre Corneille in reply to Tim Kowal
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        says:

        He might not be an anti-Semite. He might be trying to minister the love and saving power of his savior to as many people as he can.

        He would be doing this by saying, in effect, “if you profess Christianity in front of me, I’ll give you money [via a discount].” The love and saving power of his savior, made manifest in cheaper oil changes, reigns supreme. Heck, if I were cynical enough, there are a lot of things I’d profess (still, some I wouldn’t) in order to get money.

        This doesn’t answer your larger point, but I thought I’d put it out there.Report

      • Avatar James Hanley in reply to Tim Kowal
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        says:

        It is a secular tendency to regard all religion as tolerable only so long as it is kept strictly private. But religion cannot be freely exercised if it cannot be freely shared.

        I think Mr. Kowal overstates this secular tendency. I know many people who sneer at religious billboards, bumperstickers and t-shirts that say “God’s Gym,” but they limit their reactions to sneering precisely because they do tolerate public expressions of religious belief. The only time they don’t tolerate it is when it is in a situation that suggests the government is endorsing the thought. On the other hand, we repeatedly see efforts by (a limited, probably very limited) set of Christians to prevent any anti-religious sentiments. Witness all the complaints about the “You can be good without god” and “Don’t believe in God; You’re not alone” bus ads and billboards.

        So where’s the offense, other than to one’s personal principle that people should shut up about their religion?
        Certainly I think people are too often too quick to take offense. Still, I think a reasonable case can be made here that this isn’t just witnessing–it’s saying, “I’ll give special treatment to people who are willing to chant my religious dogma.” Allowable, perhaps, but still a bit offensive, not because the person is sharing their religion, but trying to bribe others to share theirs.
        (On the other hand, the case could be made that he’s just willing to pay people to chant empty slogans.)

        As always, the best test for Christians in analyzing this is to ask how they would feel if the tables were turned. If you went to an oil change shop owned by a Muslim and they offered you a discount for reciting the following;

        Allah forgiveth not (the sin of) joining other gods (partners) with Him:
        but He forgiveth whom He pleaseth other sins than this:
        one who joins other gods (partners) with Allah hath strayed far far away (from the right path)

        how would you react? (Assume they had it written in English on the wall, not that they require you to memorize it in Arabic!) If you would not be at all offended, then I think you are in the clear asking that we not take offense at this guy in Texas. If that would bother you, then you are on shaky ground asking others not to be bothered by the guy in Texas.Report

      • Avatar RTod in reply to Tim Kowal
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        says:

        This secularist might argue that there is a difference between public worship (which I’m down with) and No Jews Allowed (which I’m not).

        I certainly don’t think that religious billboards, for example, are a bad thing. So I’m not sure that it’s a question of public vs. private for me. I think it’s where on the spectrum of public worship vs life in Plano being very unpleasnt for the Jew unfortunate enough to have his company transfer him there this oil change discount ends up.Report

      • Avatar Tod Kelly in reply to Tim Kowal
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        says:

        Tim – I’m not sure you read my response so much as decided what my response would be before you read it.

        Regarding this:

        He might not be an anti-Semite… I see no reason why we can’t assume Mr. Whittington is sincere in wanting to share what he believes to be the truth of his faith. And if he’s sincere, he’s not engaging in invidious discrimination but simply sharing his religious beliefs, albeit through unusual means.

        I’m not saying he’s an anti-Semite. I’m not sure where you jumped from my saying that a different price for Jews “for example” is discriminatory counts as me pulling the “he’s an anti-Semite” card. And I fail to see why “We Only Serve Christians” is discriminatory but “We Charge More for Non-Christians” is not. Is the weight of proof for discrimination based on the percentage of discount?

        Regarding this:

        “It is a secular tendency to regard all religion as tolerable only so long as it is kept strictly private.”

        Is it? It’s certainly not amongst any that I know of including myself – which is not to say that you can’t find someone on the internet that says such. I have no problems with people having their religion be very public. At the same time I think I can also disagree with different price structures for different creeds, and not worry too much about not being intellectually honest.

        “So where’s the offense, other than to one’s personal principle that people should shut up about their religion?”

        In a town that is diverse with race and creed there might well be no harm. But at least per my understanding, such anti-discrimination laws weren’t made because people in those kinds of towns were having problems. It was more due to more homogeneous populations, where Jews (again, as an example) might be stripped of most opportunities to gain employment, purchase nice housing, or do any of those things you and I now take for granted without facing discrimination. Things like, say, getting your oil changed. In places, for example, like Texas – where according to Wikipedia there are about 120,000 Jews in a State with a population of over 25 million.

        “It would suppress the free exercise of religion”

        Perhaps, but I would argue that if you are claiming that potentially discriminatory tiered pricing for lube jobs is part of your normal exercise of religion (really?), then you are making sure that you are wording your actions in a way that adheres to the letter of the law while (let’s be honest) knowingly thumbing your nose at the spirit.

        Which was my whole point.Report

        • Avatar Tom Van Dyke in reply to Tod Kelly
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          says:

          I think you’re wrong about the spirit of the law here, RTod. Which is why I brought up “religion was left to the states” awhile back, but wasn’t in the mood to unpack it with my hostile interlocutor. Because it’s just too tiring and all meaning gets lost in the tall weeds.

          See, the 14th Amendment, even “incorporating” the First Amendment, does not decree that God does not exist for legal purposes in America, nor that all public intercourse must proceed as though he doesn’t. I submit that that’s the bottom line of your argument here, and perhaps Mr. Likko’s as well.

          MDrew gets to this below, picking up on part of TKowal’s comment. There is absolutely nothing in the oil change owner’s conduct that touches on the Establishment Clause of the First Amendment, “Congress shall make no law,” even if “incorporated against state governments as well. The oil change guy has no power whatsoever to establish a religion.

          By contrast, the oft-overlooked other part of the First Amendment, the free exercise clause, is very much in play here. The “non-discrimination!” howl is moot because non-Christians can get the discount too, and even if there’s a rickety case to be made in this respect, “free exercise” is explicitly at issue here.

          If we seek merely to be wise—not a bad ambition—surely the little or no harm the customer theoretically suffers pales next to the oil change dude’s explicit right to free exercise, to inform others of the particulars of his religion. If you poke through the Founding, with Baptist ministers getting arrested for preaching without a license in Anglican/Episcopalian towns, or the legal battles won by the Jehovah’s Witnesses in the 20th century for their right to be annoying, proseletizing is key to “free exercise.”

          The Muslim question is increasingly the “control” in the thought experiment about religion in America. To get a discount, if the Muslim oil change dude requires you make a [facially insincere] profession of the Muslim faith, well, mebbe there’s a theoretical problem. But if he simply asks you what the “Shahada” is, that there is no God but Allah and Muhammad is his messenger, well, there’s no violation of anybody’s rights nohow no way.

          In fact, I’d get a warm & fuzzy multi-culti buzz from interacting with Oil Change Ahmed in such a positive way, and could even resist telling him I think it’s all bullshit but give me my discount anyway you fundamentalist fuck.

          Because that’s American pluralism, baby, both the letter and spirit of the law.Report

      • Avatar sonmi451 in reply to Tim Kowal
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        says:

        “He might not be an anti-Semite.”

        Again with the rhetorical trick. NO ONE IMPLIED OR SAID THIS.Report

      • Avatar Michael Drew in reply to Tim Kowal
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        says:

        A law prohibiting this sort of thing assumes a compartmentalization of religion—itself something of a religious belief. It would suppress the free exercise of religion in the cause of a new and different principle of chasing religious belief and practice not just out of government, but out of all public and private life other than the home or the church.

        I tend to agree that this man ought to have the right to charge people what he wants in his shop up to more or less the point – giving discounts to people for various things they may be able to walk in the door and do or not, etc. Separately, I think he should not be able to charge a penny’s difference in price to someone because he is black or Pakistani or anything else about their personal characteristics. In this, I suppose, then I that I have apotential difference from the established regime of binary distinction between protected class and non-protected. But that is afield from my point.

        I’d like to address the free exercise claim. My view is that there is no good reason that pricing differences for people willing to do particular things that the business owner approves of should be made illegal; that this is one of those things we should recognize a person has a right to do, more or less. But at the same time I don’t view this as a fundamental the Constitutional protection of which a legislature is in violation of if it makes a law interfering with. I would view this right in the category of those referred to in the 10th Amendment: powers granted to the states, or(!) to the people. Substantively I think the legislature should stay away; I think an argument can be made this is a right of a business owner to do; but the legislature has no duty to stay away; this is within its purview. This is my view.

        Tim claims that if a legislature makes a law that prevent this man from doing this, that his free exercise of religion has been infringed. Here is where I have to strenuously disagree. A businessman has a First Amendment right stemming from his right to exercise his religion to discriminatorily charge customers for his service? What is the end to that argument? We can say that the Civil Rights Act (as amended) applies to another level of discrimination but not this one, but that is merely a statute. If this man has a right to charge customers discriminatorily because his right to freely exercise his religion includes that freedom, why does his the First Amendment not also protect his right to deny service to people who cannot recite John 3:16? The CRA is not prior to 1A; it is the other way round. If equal protection of the laws does not forbid him from charging different prices.

        There has to be a substantive limit to what we allow people to claim is a protected part of their exercise of their religion. I see no reason not to view this as a discriminatory business practice unrelated to protected religious exercise. I happen to agree with Tim think that the level of discrimination is not such that the law should concern itself: that this business owner should be allowed to do this extent of discriminatory pricing simply because he is ultimately not penalizing those to whom he doesn’t offer a discount; merely offering a “standard” rate (a court would be perfectly justified in looking into whether that is factually accurate, or whether he may instead be charging a premium on top of market for those who cannot or will not recite the verse)> But I would strongly protest that that right is in any way related to the First Amendment. Rather, if he has a right to do this, it is for the exact same reason that he has the right also or alternatively to offer a similar discount to anyone who is willing and able to execute a one-minute handstand in his lot if he so chose. That right, if it exists, is an identical one.Report

    • Avatar Silver Wolf in reply to Tod Kelly
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      says:

      I think you are both giving this guy too much credit in assuming that he just means well. I seriously believe that this is an attempt to descriminate against Muslims specifically. An athiest probably wouldn’t care one way or the other since it’s all gibberish to him anyways but this is like saying you can get a cheap oil change if you pet my dog.

      P.S. Isn’t this guy being a hypocrite?

      When thou prayest, thou shalt not be as the hypocrites are: for they love to pray standing in the synagogues and in the corners of the streets, that they may be seen of men. Verily I say unto you, They have their reward. But thou, when thou prayest, enter into thy closet, and when thou hast shut thy door, pray to thy Father which is in secret; and thy Father which seeth in secret shall reward thee openly.

      So basically, this guy is demanding that believers violate their own rules.Report

  2. Avatar George T
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    says:

    A couple of flaws. Most Christians can’t recite John 3:16. It’s basically a trivia question, just like a radio station giving free prizes to the tenth caller who can answer some obscure question about Elvis (which is also a religion). Second, as a piece of trivia, everyone can look it up, both Jews, Muslims, athiests, and anyone else. The question can also be answered in any language on Earth, including Hebrew, Spanish, and Quiche Mayan.

    Finally, just because someone else is using a freely available coupon doesn’t mean you’re being unfairly charged because you’re not using one. Reciting John 3:16 isn’t like reciting the “There is no god but Allah and Muhammed is his prophet” three times. There isn’t a hook attached, and people from other religions won’t think they’re going to hell for reciting it (except perhaps for any Baptists who recite it in one of those new-fangled translations instead of the original King James version).Report

    • Avatar Mike Schilling in reply to George T
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      says:

      Biblical literalists must have some problem with it too, since it clearly contradicts Deuteronomy 6:4 ,Report

    • Avatar Burt Likko in reply to George T
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      says:

      Reciting John 3:16 isn’t like reciting the “There is no god but Allah and Muhammed is his prophet” three times. There isn’t a hook attached, and people from other religions won’t think they’re going to hell for reciting it (except perhaps for any Baptists who recite it in one of those new-fangled translations instead of the original King James version).

      I don’t understand this argument at all. A Muslim would not find even an insincere recital of John 3:16 to be “without a hook” because to the Muslim, the myth of Jesus’ resurrection is heresy just as much as an acknowledgement of Muhammed’s status as the last and greatest prophet is heresy to a Christian.Report

      • Avatar Mike Schilling in reply to Burt Likko
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        says:

        Jews too, of course.Report

      • Avatar wardsmith in reply to Burt Likko
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        says:

        This is what John 3:16 says, “For God so loved the world that he gave his one and only Son, that whoever believes in him shall not perish but have eternal life. ”

        Not sure where you see resurrection in that.

        There is a far more fundamental issue here that’s only been broached in passing.

        As an attorney you’ll have to convince me that ANYONE has no choice whatsoever about where they get their oil changed.
        Google shows me 3218 oil change facilities in Plano, I’d hazard a guess that at least 3210 of them will NOT require one to quote a bible verse to get a discount. Therefore you have no case.Report

        • Avatar Russell Saunders in reply to wardsmith
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          says:

          The doctrine of the incarnation is also heretical to Muslims, FWIW.Report

        • Avatar Burt Likko in reply to wardsmith
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          says:

          We can tolerate a few people breaking the law as. Long as most of them don’t, is that what you’re saying? So it’s OK if (for example) the jiffy lube in plano only hires white people, since there are so many other places blacks and Latinos can seek equivalent employment?Report

          • Avatar wardsmith in reply to Burt Likko
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            says:

            Nice game of “Twister” you’re playing here Burt. It has gone from getting a discount on a voluntary purchase (which you’d be hard pressed to prove illegal in a fair hearing) to employment discrimination (which IS illegal). I can see why you make the big bucks. 😉Report

            • Avatar Burt Likko in reply to wardsmith
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              says:

              The bucks aren’t as big as I’d like, wardsmith, but thanks for the compliment.

              Nor does the game require all the dexterity you attribute to me. The Civil Rights Act of 1964 spells it all out rather plainly.

              As for the discount — favorable treament of A means unfavorable treatment of B. While TVD objects to bringing race into the discussion, I find that it focuses the issue rather clearly. “White folks get $20 off” is not something most people ought to feel comfortable defending. Why should “Christians get $20 off” be any different?Report

              • Avatar Jaybird in reply to Burt Likko
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                says:

                He’s not saying “Christians get $20 off”.

                He’s saying “say the secret phrase to get $20 off”.Report

              • Avatar Burt Likko in reply to Jaybird
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                says:

                But it’s not a secret phrase. It’s John 3:16, a phrase deliberately selected for its particular Christian religious significance.Report

              • Avatar Robert Cheeks in reply to Burt Likko
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                says:

                If he offered a discount for a Shakespearean quote would that be legal?Report

              • Avatar Silver Wolf in reply to Robert Cheeks
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                says:

                Of course it would. No judge would accept the argument that it makes someone uncomfortable based on a metric the state recognizes.Report

              • Avatar wardsmith in reply to Burt Likko
                Ignored
                says:

                So “B’s” don’t get to be Christians? Whoops, that doesn’t fly. Race is something you are quite literally “born with” while religion is still a matter of choice (yes, you’ll likely pick your parent’s religion but the ‘recidivism’ rate is pretty high, viz just about everyone here). Therefore the constraints against race discrimination, which belonged in the Civil Rights Act of 1964 simply don’t apply – your convoluted logic to the contrary. But I can clearly see why you’d like to paint it so. This is your OP after all, you can do with it what you will. I’d be happy to be on the other side, not because I wholly disagree, but because I can find fault with your logical premises.

                As a Libertarian in concept if not in reality, I don’t like the idea of gov’t telling me how to run a business. Yes, there were discriminatory issues in the past with “negro” lunch counters and drinking fountains and clearly that was an issue because someone couldn’t /choose/ to be born “negro”.

                Someone can choose to be “born again” Christian and race doesn’t matter at all in that thoroughly voluntary choice. In point of fact, being born again Christian is more of a choice by far than being born, “homosexual”. You’d have a better case if the issue was discounts for (or against) gays.

                Ultimately do I think this was a cheap publicity stunt to drum up business in sleepy little Plano? Duh.Report

              • Avatar Burt Likko in reply to wardsmith
                Ignored
                says:

                But the CRA treats race and religion as equivalently suspect classifications, wardsmith. Discriminating on the basis of race is exactly as unlawful as discriminating on the basis of religion. I suppose you can argue it should not; see my exchange with TVD below.

                Also, I do not think you “choose” your religious faith by way of conscious will any more than you “choose” to fall in love with a particular mate, or than you “choose” to dislike anchovies on your pizza, or than you “choose” green to be your favorite color. Those things happen at a sub-rational level. But that’s a whole different topic than what the OP is about.Report

          • Avatar kenB in reply to Burt Likko
            Ignored
            says:

            So it’s OK if (for example) the jiffy lube in plano only hires white people, since there are so many other places blacks and Latinos can seek equivalent employment?

            Personally I’d sign up for this in the abstract — people should be allowed to choose with whom they do business, until the point that a particular group is significantly disadvantaged by the selection.Report

            • Avatar Burt Likko in reply to kenB
              Ignored
              says:

              Antidiscrimination laws exist not only to remedy situations in which such a significant disadvantage manifests, must also to prevent matters from getting to that point in the first place.Report

          • Avatar Brandon Berg in reply to Burt Likko
            Ignored
            says:

            Pretty much, yeah. I mean, I wouldn’t go so far as it to say it’s “okay,” but I wouldn’t go so far in the other direction as to say that it’s any of the government’s business.

            The talking point for justifying antidiscrimination law is that without it racial minorities would be unable to find employment. Once you acknowledge that this is not the case—that it’s more about symbolism and making sure that nobody gets away with discriminating—it becomes much harder to justify the collateral damage.Report

          • Avatar DensityDuck in reply to Burt Likko
            Ignored
            says:

            “We can tolerate a few people breaking the law as. Long [sic] as most of them don’t, is that what you’re saying?”

            Well, that’s pretty much the idea behind speed-limit enforcement and determination.Report

        • Avatar Michael Drew in reply to wardsmith
          Ignored
          says:

          Three-thousand two-hundred and eighteen oil change facilities in Plano, TX? That does not sound right to me.Report

        • Avatar sonmi451 in reply to wardsmith
          Ignored
          says:

          Muslims do not believe that Jesus is the Son of God, only that he is a prophet. That’s heresy as well for them.Report

    • Avatar Brandon Berg in reply to George T
      Ignored
      says:

      It’s not a trivia question if you have ample time to look it up.Report

  3. Avatar Rufus F.
    Ignored
    says:

    The real question is: how much of a discount would Jesus give?Report

  4. Avatar Mike Schilling
    Ignored
    says:

    The utter evil of this becomes clear once you realize it’s Affirmative Action for Christians.Report

  5. Avatar Jaybird
    Ignored
    says:

    Josh and John’s Ice Cream has two trivia questions on the wall.

    A is usually an easy trivia question. Most educated folks can probably get it. (Stuff like “who was the heaviest President?”)
    It’s worth one punch on your “free cone” card.

    B is usually a difficult trivia question. You really have to think about it (if not research it). (Stuff like “which President weighed the least?”)
    It’s worth two punches on your “free cone” card.

    Does this discriminate against certain classes of people?Report

  6. Avatar Kolohe
    Ignored
    says:

    Can you get a free hot dog at the Zen Buddhist stand by requesting ‘Make me one with everything”?Report

  7. Avatar Brandon Berg
    Ignored
    says:

    I think religion is silly.

    I will happily recite any verse from the Bible for $26.

    Bulk rates available on full chapters.Report

    • Avatar Brandon Berg in reply to Brandon Berg
      Ignored
      says:

      I get that this is more of a burden for people who actually take a non-Christian religions seriously. I just don’t think that the government should force other people to cater to their sensitivities.Report

  8. Avatar Brandon Berg
    Ignored
    says:

    By the way, what about giving away meat with an oil change? This isn’t purely hypothetical; Les Schwab Tires actually does an annual promotion where they throw in some steaks with the purchase of four tires.

    Clearly this discriminates against people who don’t eat beef, like vegetarians and Hindus. Is there a lawsuit here? Should there be? What if it were pork?Report

    • Avatar RTod in reply to Brandon Berg
      Ignored
      says:

      That seems a few removed; I don’t know that Les Shwab has a religious intention.Report

      • Avatar Brandon Berg in reply to RTod
        Ignored
        says:

        Does the intention matter? They’re giving an in-kind discount that people with certain religious and/or ideological convictions can’t take advantage of.

        That’s disparate impact, right? Same way employers can’t use IQ testing, even if their intention is to hire smart people, because blacks and Hispanic test lower on average than whites and Asians on IQ tests.Report

        • Avatar Tod Kelly in reply to Brandon Berg
          Ignored
          says:

          Of course intention matters. If you are a judge and two cases are brought before you – one a man who served hamburgers in a restaurant that offended a Hindu customer, and one who placed a sign in front of his restaurant “No Jews of Muslims!” – are you really saying you would find those equal, and not take into account the intent of either man?Report

          • Avatar wardsmith in reply to Tod Kelly
            Ignored
            says:

            Often hard to decipher intent. That’s one of the problems with our libel laws. Virtually impossible to prove intent without that mind-reading device that hasn’t been invented yet (wives don’t count).Report

  9. Avatar Scott
    Ignored
    says:

    Burt:

    Sorry I disagree. If the gov’t makes him stop it will be another instance of the gov’t inserting itself into the lives of Americans where it is not wanted or needed. The gov’t doesn’t need to pass a law to regulate everything just b/c we think “there ought to be a law.” Frankly, the Heart of Atlanta line of cases are just an attempt to let the gov’t to get it’s hand into everything by calling it interstate commerce.Report

  10. Avatar Robert Cheeks
    Ignored
    says:

    Why can’t a man/woman who owns a bidness give a discount to whomever he/she wishes, for whatever reason he/she wants? Phuque the effete pc commie-crowd, this is America. Praise the Lord!Report

    • Avatar RTod in reply to Robert Cheeks
      Ignored
      says:

      Should be/she be allowed to refuse to serve Jews, or blacks? What if all the shops in town refuse?Report

      • Avatar Brandon Berg in reply to RTod
        Ignored
        says:

        You know, I never really got the logic here. First, there’s no reason to believe that that’s going to be the case in most places. And if it is the case in a few specific towns, why would anyone want to live in a town where nobody will do business with you unless compelled by law?

        You’re going to walk into a restaurant managed by someone who wouldn’t serve you if the federal government didn’t force him, order food, wait for him to go into the back room and prepare it out of your sight, and then you’re going to eat it? On a regular basis?

        Nobody needs the federal government to step in and force every firm in town to do business with him. Anyone who think he needs that really needs to move to a town that isn’t full of bigots.Report

        • Avatar Jesse Ewiak in reply to Brandon Berg
          Ignored
          says:

          Not everybody can move from a town of bigots. Moving ain’t cheap, especially if you’re poor to begin with.Report

          • Avatar Scott in reply to Jesse Ewiak
            Ignored
            says:

            Jesse:

            And since we can’t ask people to grow a think skin and ignore bigots we must have the nanny state come in and intrude in our lives as if that will change how folks act or what they believe.Report

            • Avatar Burt Likko in reply to Scott
              Ignored
              says:

              It [Federal enforcement of Title VII] won’t change what they believe, but it will change how folks act.Report

              • Avatar Scott in reply to Burt Likko
                Ignored
                says:

                Burt:

                Only if you get caught. The nanny gov’t can’t be everywhere all the time despite what do-gooder liberals think.Report

              • Avatar Burt Likko in reply to Scott
                Ignored
                says:

                So what? You can only be prosecuted for murder if you get caught. Even then, you might get off on a technicality. That doesn’t mean it’s okay to murder someone.

                So too you can only be sued for discrimination if you get caught. Even then you might prevail for hundreds of reasons unrelated to the merits of the case at trial. But that doesn’t mean it’s okay to discriminate.Report

              • Avatar BSK in reply to Burt Likko
                Ignored
                says:

                The laws don’t guarantee that things won’t happen. But they offer people a remedy if they are harmed or wronged. People aren’t going to jail for discrimination, last I checked. They might be subject to fines but, more likely, they are liable in civil court. Let’s not pretend that anyone is advocating or threatening to throw racists or anti-semites or passionate religious folks in jail.Report

              • Avatar Scott in reply to Burt Likko
                Ignored
                says:

                Burt:

                Actually I don’t think the gov’t has any business telling a shopkeeper who they must serve. I am amazed at the voodoo jurisprudence used to get the gov’t jurisdiction in the first place, which essentially turns any kid’s lemonade stand into interstate commerce.Report

              • Avatar Burt Likko in reply to Scott
                Ignored
                says:

                Those are two different points, but they do dovetail into one another, as the Heart of Atlanta Motel case illustrates.

                If you’re good with a single private shopkeeper refusing to serve Blacks, or Catholics, or gays, or women, then that’s your position and I can only ask that you consider the sort of society that the aggregate of that behavior would produce, particularly from the perspective of the person bearing the brunt of that policy. If you say that you’re willing to personally accept being shunned by functionally every private business around, on the basis of some arbitrary reason, well, that’s your position. I frankly doubt you really would, but gratefully, chances are very slim that you’d ever have to put that ideology to the test.Report

              • Avatar wardsmith in reply to Scott
                Ignored
                says:

                Burt, how do you conflate “refusing to serve” with “doesn’t get a discount”?

                Let’s not forget what this is about, not what you want it to be about. A store offers a discount if someone can say a verse from the Bible. Any idiot could Google the answer on their smart phone and if someone is such an idiot they think their religion will give them eternal damnation for (gasp) saying the words, they could just point to the screen and get the same discount I’m sure.

                You’d have a hard time conflating this into your extreme examples of actual egregious behavior.Report

              • Avatar Kimmi in reply to Burt Likko
                Ignored
                says:

                … darwin awards, anyone? even if you do get caught, who’s gonna prosecute ya?Report

          • Avatar Brandon Berg in reply to Jesse Ewiak
            Ignored
            says:

            The less you have, the less it costs to move. Vagabonds being the extreme example.Report

        • Avatar Tod Kelly in reply to Brandon Berg
          Ignored
          says:

          But BB, that’s the way it used to be for a lot of minorities in a lot of places, before these laws came into being. Laws prohibiting having “whites only” lucy counters didn’t spring up because someone was afraid without a law they might start happening. Laws came into being because they existed everywhere in certain places. In fact, in the whole of Western Civ the time where we don’t separate Jews, Black, Muslim etc. – geographically, socially and economically – is a very, very new blip on the radar.Report

        • Avatar Creon Critic in reply to Brandon Berg
          Ignored
          says:

          Brandon Berg, how far does this perspective go? Is racial steering also none of the governments business? What about redlining?Report

      • Avatar Kolohe in reply to RTod
        Ignored
        says:

        first question: yes. second question: then the town is full of fishin donkey gaps in the earth.Report

        • Avatar Burt Likko in reply to Kolohe
          Ignored
          says:

          And you’re content to leave it that way? Really? If you were on the receiving end of that treatment, you’d shrug your shoulders and move on to some other town? What’s your plan going to be when that other town is just like the first one? And the third and fourth and fifth and sixth towns are, too?

          I don’t think anyone would accept the mantle of pariah gladly, nor should we ask people to bear such an onus based on immutable personal characteristics.Report

      • Avatar Robert Cheeks in reply to RTod
        Ignored
        says:

        Go to another town. Do you really want to live in this town?Report

    • Avatar Scott in reply to Robert Cheeks
      Ignored
      says:

      Bob:

      Sorry this used to America. Nowadays the gov’t thinks it force you to buy health insurance and who knows what else.Report

  11. Avatar BSK
    Ignored
    says:

    What if a shop owner offered the discount to people who stated that religion was stupid? Or Christianity is a criminal cult? Or that Jesus never existed?

    What if a shop owner refused to offer services to people based on these or other types of declarations? Is a refusal of service different from a discount?

    I actually think about this a lot. There are numerous ways in which shop owners discriminate, the legality of which I’m not sure of. My home inspector knocked $50 off my bill because his neighbor was a co-worker (something we realized spontaneously during the inspection). Was this discriminatory to people who didn’t have this connection? I dunno. There is a food truck in NYC (Waffles & Dinges) that offers discounts or freebies to people who engage in certain behaviors they publicize via Twitter (for instance acting very cold when ordering your food during a hot summer month). Is that discrimination?

    Basically, what are the exact criteria for charging different customers different prices?Report

    • Avatar Burt Likko in reply to BSK
      Ignored
      says:

      Discrimination against Christians is and ought to be just as objectionable as discrimination against non-Christians.

      Discrimination in favor of, say, atheists, is and ought to be just as objectionable as discrimination in favor of Christians.

      If we’re going to take antidiscrimination laws seriously, they should be interpreted and enforced evenhandedly. The law has identified particular characteristics of people and prohibited discrimination on the basis of those characteristics. Religion is one of those characteristics.

      But discrimination on other grounds is not reached by antidiscrimination law. The food truck you’re describing sounds like it’s designed to encourage people to follow the twitter feed — in other words, it’s advertising, pure and simple; an encouragement for customers to continue buying from the truck. The “inside connection” for the inspection sounds fishy and quasi-legal at best, but it’s not something that antidiscrimination law would reach.Report

  12. Avatar Burt Likko
    Ignored
    says:

    I’m seeing a lot of libertarian objections to civil rights laws here. They seem to be taking two tacks.

    One is “The civil rights laws are coercive!” So what? A certain level of coercion by the state is necessary for an economy to function. At minimum, there must be courts and police to enforce contracts, and those have to be paid for through taxes. The argument that this is more coercive than is necessary for an economy to function is not one I see being made here.

    The second argument is somewhere between “This kind of discrimination is just fine” and “All kinds of discrimination are just fine,” presumably because the market will weed this out if it’s not what people really want. That’s not how markets behave when unregulated; how they really behave is eventually members of the majority group get huge economic advantages over the minority groups. The argument also assumes that people generally have plentiful realistic options if they dislike a particular merchant’s discrimination. Maybe that’s the case with oil changes in Plano, Texas in 2011 but one of the reasons why that is the case is that the civil rights act crafted a commercial envirionment in which that was so. Turn the clock back in time 60 years, and a different form of arbitrary discrimination, race, would have been in play. A black man in 1951 might not have been able to get an oil change in Plano Texas at all — or there might have only been one mechanic in town willing to work for a black customer, who charged a premium for his services as a result of having an effective monopoly. Maybe that doesn’t happen every time there are no antidiscrimination laws, but it is a reasonably foreseeable result of their removal.

    Finally, there seems to be a concern about the Federal government filing criminal cases here. The typical method by which antidiscrimination laws are enforced is private, civil lawsuits. No one goes to prison. Potentially, courts issue injunctions. More often, lawyers litigate for a while and money changes hands before there’s ever a verdict. The power of the Federal government that is invoked is judicial, not executive. Maybe that’s still a subject of objection for the libertarian purists, but do at least be clear about what’s going on.

    It’s easy to domesticate this sort of discrimination because each individual act is not particularly weighty and as a general rule, we look at the grounds for discrimination in this case (personal religious belief) as something we like and want to protect. That’s why this is a particularly insidious case — the discrimination here is nicely-dressed.Report

    • Avatar Jaybird in reply to Burt Likko
      Ignored
      says:

      It seems to me that there is a substantial difference between “We don’t serve Irish people here” and “say the secret phrase to get X bucks off” especially if there are thousands of other competitors in the town.

      This guy is *FAR* from the only game in town. He should be free to shoot himself in the foot by saying “we give discounts to Christians”. There might be an opportunity to make money by going across the street and setting up “Genesis 17:10-14 Oil Changes” or “Surat An-Najm 19-20 Lube and Tune”.

      Is the government keeping competition in this area artificially low by limiting the number of oil change places in town?

      I agree that if he were the only game in town, we’d have a problem… he’s not and he’s not providing a government service.Report

      • Avatar Tod Kelly in reply to Jaybird
        Ignored
        says:

        Maybe the divide here ultimately comes down to how we answer two sequential questions:

        1. Yes or No: If we were to eliminate anti-discrimination laws, would minorities eventually slide back to the position in society (economically & socially) they held prior to the civil rights movement?

        2. Yes or No: Were that ever to happen, would that be OK if the widespread discrimination were not sanctioned by the government, but rather ignored?

        I think you’ll find that those the believe the answer to the questions are Yes, No will agree with Burt, and those that answer either differently won’t.Report

        • Avatar Tom Van Dyke in reply to Tod Kelly
          Ignored
          says:

          I object to every matter being compared to race. Religion isn’t race, and in fact is specially protected by the free exercise clause in the First Amendment. There is no such protection for racial discrimination.

          Rights via race is a corollary of Godwin’s Law, and all principled discussion ends at the invocation. Feh. 😛Report

          • Avatar Burt Likko in reply to Tom Van Dyke
            Ignored
            says:

            The objection seems to be aimed at having antidiscrimination laws at all, and those laws embrace race as well as religion.

            If you want to argue that the civil rights laws should enforce antidiscrimination on the grounds of race but not on the grounds of religion, that would mean that you’ve no objection to the government preventing a restaraunt from refusing service to people with dark skin, but you do have a problem with the government prohibiting the same restaraunt from refusing to serve Catholics. Do I understand you correctly?

            For purposes of this discussion, it doesn’t seem to much matter whether we’re talking about the state or the Federal government. Or does it?Report

            • Avatar Tom Van Dyke in reply to Burt Likko
              Ignored
              says:

              Burt, now you’re talking about persons, not practices, which is the original topic: a discount on an oil change is not the same as a segregated lunch counter.Report

              • Avatar Burt Likko in reply to Tom Van Dyke
                Ignored
                says:

                In all of these cases, I am discussing a practice — if you prefer, an analysis of the practice is inextricably intertwined with the group identities of the people involved. as the law is written and applied; for purposes of antidiscrimination law, that’s a distinction without a meaningful difference.

                Refusing to serve Catholics is a practice. Refusing to hire Catholics is a practice. Selling to Latinos on terms different than those offered to African-Americans is a practice. Refusing to sell to whites is a practice. Selling to Jews on terms different than terms offered to Muslims is a practice.

                Further, as the Civil Rights Act is written and applied, will-not-serve is treated the same way as will-serve-on-different-terms: the practice is either unlawful or it is not, and race is treated the same as religion. Differences in the moral gravity of differing practices are considered at the remedy stage, not when determining liability.

                My question is aimed at getting to how you would see the law changed, as you seem to think that the Constitution mandates special deference to religion in the antidiscrimination laws.Report

              • Avatar Tom Van Dyke in reply to Burt Likko
                Ignored
                says:

                Burt, you don’t have to be a Christian to get the discount. You’re on a non-starter.Report

      • Avatar Creon Critic in reply to Jaybird
        Ignored
        says:

        Jaybird, the history of minorities in America more closely resembles:

        1) Self corrective markets punishing discrimination and driving the discriminatory businesses out of the marketplace while those businesses that don’t discriminate flourish, in sum the business community rushing to accommodate the equal citizenship of minorities, for instance, women, African-Americans, Jews, the disabled…

        2) A system of formal and informal discrimination in both the public and private sectors systematically closing off opportunities to minorities that are open to the privileged majority, in sum minorities fighting decades long battles to even come close to having access to equal opportunities in the workplace, housing, public accommodations…Report

    • Avatar Brandon Berg in reply to Burt Likko
      Ignored
      says:

      My primary objection to antidiscrimination law is the collateral damage. It’s not just about the right to be a bigot. It’s about the right not to have your hiring, firing, and promotion decisions second-guessed by the federal government just because some disgruntled employee (or would-be employee) complains to the EEOC. Even if the employer wins the case, there’s a real cost to this, and the less common actual discrimination is, the worse the cost-benefit analysis comes out.

      The worst part is that the employee doesn’t even have to be willfully misrepresenting the case for this to be a problem. I think at some point or another almost all of us have felt as though we’ve been treated unfairly by an actual or prospective employer, often for no obvious reason. As a white man, I have to chalk it up to one of the following:

      1. I’m wrong.
      2. The other guy’s wrong, but really thinks he’s right.
      3. The other guy’s a jerk.

      But if you’re a member of a protected class, discrimination becomes an appealing alternative, especially as compared to 1. Nobody wants to think it’s his own fault he got fired. And if you’ve been told your whole life to expect to be discriminated against, you’re naturally going to attribute people treating you unfairly for no apparent reason as discrimination.

      So you end up with a system where even well-meaning people can cause problems, to say nothing of what a genuinely malicious person could do.

      If racial discrimination is a major problem that seriously impedes racial minorities’ ability to live normal lives, then maybe it’s worth the cost. But it’s hard to buy that in the face of, e.g., widespread hiring of illegal aliens in violation of federal law. And the fact that anti-discrimination laws are so popular that “Libertarians oppose anti-discrimination laws!” full stop, is actually an effective rhetorical move.

      I really do believe that nowadays anti-discrimination law is primarily symbolic. It’s about making sure that no one is allowed to get away with discrimination, regardless of the magnitude of the impact.Report

      • Avatar Jesse Ewiak in reply to Brandon Berg
        Ignored
        says:

        I’m shocked a white male thinks anti-discrimination laws aren’t needed.Report

        • Avatar Brandon Berg in reply to Jesse Ewiak
          Ignored
          says:

          I think probably the better thing to do here would have been to post some counterargument, but if smarmy innuendo is the the best you can do, I guess that’s cool, too.Report

          • Avatar Jesse Ewiak in reply to Brandon Berg
            Ignored
            says:

            I could, but well worn territory, even in the past week or so on this very web site. Snark is easier, especially when the work’s already been done by other people in easily accessible threads.Report

          • Avatar Brandon Berg in reply to Brandon Berg
            Ignored
            says:

            Turns out “smarmy” doesn’t mean what I thought it meant. “Snide” would be better.

            I’ll add, also, that I have an Indian friend (immigrated at seven, no accent) who looks black enough that he’s often mistaken for such, even by actual black people. And he’s an even bigger skeptic of this stuff than I am.

            Also, it would be just as convenient for me to be in favor of anti-discrimination laws. As someone who does not own a business and does not plan to, I have no personal exposure to unwarranted EEOC investigations or discrimination lawsuits. I have no personal stake in the issue either way.Report

        • Avatar Dan in reply to Jesse Ewiak
          Ignored
          says:

          You make it sound as though the only possible reform of anti-discrimination laws is a complete repeal. Here’s the solution I favor, an anti-discrimination claim will be dismissed if the person accused of discrimination passes a polygraph. That way legitimate claims can be addressed with minimum burden for those falsely accused.Report

      • Avatar sonmi451 in reply to Brandon Berg
        Ignored
        says:

        “But it’s hard to buy that in the face of, e.g., widespread hiring of illegal aliens in violation of federal law. ”

        You really think people hire illegal “aliens” (nice turn of phrase there, tells me something about you) because they are anti-racists and anti-discrimination? Not because of the cheap labor, but because these are such nice anti-racists or non-racists people. Nice world you live there. Ever heard of this phrase – it’s the economy, stupid?Report

        • Avatar James Hanley in reply to sonmi451
          Ignored
          says:

          But if you’re a member of a protected class, discrimination becomes an appealing alternative, especially as compared to 1. Nobody wants to think it’s his own fault he got fired. And if you’ve been told your whole life to expect to be discriminated against, you’re naturally going to attribute people treating you unfairly for no apparent reason as discrimination.
          There is truth to this, but…

          If racial discrimination is a major problem that seriously impedes racial minorities’ ability to live normal lives, then maybe it’s worth the cost
          Exactly, and are you in a position to really know how serious the effects of discrimination are these days?

          it’s hard to buy that in the face of, e.g., widespread hiring of illegal aliens in violation of federal law.
          Oh, sure, and the constant promotions they get, too. You do realize that for the most part undocumented immigrants get the shit jobs for shit pay, with no hope of advancement, fair treatment, recourse to the law, etc? I personally don’t begrudge them their jobs–I’d like to see open borders, in my ideal world–but it’s pretty clear to me there’s actually a bit of discrimination going in in the very act of hiring them: employers are selecting the set of employees that is easiest to cut loose costlessly and that won’t dare complain.Report

        • Avatar Brandon Berg in reply to sonmi451
          Ignored
          says:

          You really think people hire illegal “aliens” (nice turn of phrase there, tells me something about you) because they are anti-racists and anti-discrimination?

          No, not at all. They do it because there’s money in it. The point is that even if they are racist, they’re not racist enough to pass up a chance to make money hiring people in the face of strong social disapproval.

          And no, it really doesn’t tell you anything about me. As long as people are coming to work and make a real contribution to our economy, I don’t care whether they have the government’s stamp of approval.Report

      • Avatar Creon Critic in reply to Brandon Berg
        Ignored
        says:

        BB and Jaybird, browse the EEOC’s reporting on its recent cases. Are the allegations over symbolic violations?

        Suppose I proposed a system of rent control. I’m sure I’d get missives from libertarians on deadweight loss and the consequences for landlords, “Mr. Liberal, how many buildings will go unbuilt because of your rent control folly?” All well thought through comments about the dangers of government intervention.

        Now, the topic changes to private sector discrimination. Not nearly as close analysis is offered. Little theorizing on the consequences of private sector discrimination and not much thought on what opportunities can be deprived by private sector actors. Harm. Actual, historically provable harm, a long history of harm. The deprivation of housing, employment, and entrepreneurship opportunities, and more. I’m sure the sociology literature I’m aware of on ongoing discrimination is just the tip of the iceberg (Devah Pager and Bruce Western’s work comes to mind). A history of the business sector writ large failing to accommodate the equality of minorities. It just so happens the entity meting out the harm isn’t the government, so it falls out of the libertarian optic (nearly) entirely.

        I’d propose actors in both the public sector and the private sector deserve your scrutiny. And I wouldn’t hold my breath waiting for the magic of markets to step in and correct deep social ills that’ve haunted this country for centuries.Report

        • Avatar Jaybird in reply to Creon Critic
          Ignored
          says:

          Would you say that the verse asking in this case is similar to the cases that the EEOC has on its hands or would you say that the verse asking is a million times worse than anything that the EEOC is dealing with?Report

          • Avatar Creon Critic in reply to Jaybird
            Ignored
            says:

            Jaybird, you didn’t write it, but it was kind of a response to this in BB’s comment, I really do believe that nowadays anti-discrimination law is primarily symbolic.

            I’d say similar principles are implicated as Burt Likko has outlined.Report

            • Avatar Jaybird in reply to Creon Critic
              Ignored
              says:

              Given scarcity of resources, I must say that I feel pretty good about EE going after stuff like this.

              It tells me that we’ve overcome so much!

              Unless, of course, there’s a problem with how resources are allocated…Report

              • Avatar Creon Critic in reply to Jaybird
                Ignored
                says:

                Jaybird, I suppose that’s one way to look at it. Like looking over a list of superfund sites and saying, look how much land isn’t polluted by toxic waste.Report

              • Avatar Jaybird in reply to Creon Critic
                Ignored
                says:

                I’d actually make the analogy that Superfund is going after, say, people who wash their cars in their driveways (allowing the dirt and soap to get into storm systems) would be a good sign as to the nature of how the radioactive waste cleanups have gone to this point.Report

              • Avatar Jesse Ewiak in reply to Jaybird
                Ignored
                says:

                If there was a historical record of soap and dirt in the storm systems causing major problems and said actions were not only illegal but seen as something from the past, then it’d behoove the Superfund to get involved even when a little bit of old ways were coming back.Report

              • Avatar Jaybird in reply to Jesse Ewiak
                Ignored
                says:

                Is there a historical record of people asking for verses in exchange for discounts on oil changes?Report

              • Avatar Creon Critic in reply to Jaybird
                Ignored
                says:

                Jaybird, so would you describe anti-discrimination law as “primarily symbolic” as well?

                (Granted BB set out the description prior to my pointing to the specific cases at the EEOC site)Report

              • Avatar Jaybird in reply to Creon Critic
                Ignored
                says:

                Does the EEOC primarily go after people who are metaphorically washing their cars in their driveways or are they going after metaphorical radioactive or otherwise toxic waste?

                If it’s the former, I think we’d agree that it’s primarily symbolic.

                If it’s the latter, I think we’d agree that it’s doing the Lord’s work to make the country (and the world) a better place to live.

                How analogous is the Kwik Kar Lube and Whatever to the lion’s share of the cases handled by the EEOC?Report

              • Avatar Creon Critic in reply to Creon Critic
                Ignored
                says:

                Jaybird, given the history of the US, I’d say anti-discrimination law is absolutely essential in protecting vulnerable groups from a record of abuse by more privileged groups, and what’s more the US needs to do more to ensure access of underprivileged groups to opportunities (aka affirmative action in the US, and what’s more temporary special measures as suggested by several CEDAW General Recommendations). But I was asking you your broader view of anti-discrimination law, do you find it primarily symbolic? More addressed to the careless car washing or the dumping of toxic waste?

                How analogous is the Kwik Kar Lube and Whatever to the lion’s share of the cases handled by the EEOC?

                The laws and rights involved are part of an important architecture to protect us from the toxic waste. As noted elsewhere in the thread, I’d say that intent forms part of an assessment and also that the punishments need be proportionate.Report

              • Avatar DensityDuck in reply to Creon Critic
                Ignored
                says:

                So, in other words, yes, we should go after people washing their cars in their driveways, because it used to be that people dumped industrial solvent in the ditch behind the factory, and washing your car in your driveway displays the same philosophy as those ditch-dumpers.

                Meaning that the EEOC is not about protecting actual people from actual harm, but more about indoctrination into the Proper Way Of Thinking About Things.Report

              • Avatar Jaybird in reply to Creon Critic
                Ignored
                says:

                My broader view of anti-discrimination law is that it deals with cases much more analogous to toxic waste than to washing cars in driveways and if we’ve reached the point where the EEOC has the resources to devote to non-toxic waste then we ought see that as a major victory.

                For the record, I suspect that the majority of the cases the EEOC deals with are still dealing with racial discrimination and sexual harassment and shit like this is a distraction from how much progress has yet to be made… and attacking such things as Kwik Kar is done, primarily, for symbolic reasons.Report

              • Avatar Creon Critic in reply to Creon Critic
                Ignored
                says:

                DD, I don’t see the EEOC page as demonstrating exacting regulation of inconsequential behavior. The stories I skimmed were all fairly disgusting abuses: female staff at a workplace having their clothing pulled at by a manager who encouraged customers to join in the abuse (EEOC), Latino staff at another workplace facing harassment and racial epithets from colleagues and management (EEOC). All pretty despicable stuff. And that’s aside from broader social issues like the gender pay gap and the underrepresentation of some groups in the ranks of management.Report

              • Avatar DensityDuck in reply to Creon Critic
                Ignored
                says:

                The question is “How analogous is the Kwik Kar Lube and Whatever to the lion’s share of the cases handled by the EEOC?”

                And your answer is “The laws and rights involved are part of an important architecture to protect us from the toxic waste.”

                So, yes, going after seemingly-trivial cases is just as important as the awful things you list, because while it might not necessarily be actually doing harm to anyone, it’s still indicative of thoughtcrime.Report

            • Avatar Brandon Berg in reply to Creon Critic
              Ignored
              says:

              I don’t think you understood the comment. I don’t mean that there aren’t people who would discriminate if given a chance. I’m sure there are. What I mean is that it wouldn’t be nearly common enough to create the sort of nightmare scenario posited where it would be extremely difficult for black people to find jobs, rent apartments, eat out, etc.

              It seems to me that there’s some bait-and-switch going on. I say that I oppose anti-discrimination law, and you guys say, “That’s horrible! If we didn’t have anti-discrimination laws, minorities wouldn’t be able to find jobs or places to live!” I say I find that implausible—that it wouldn’t be nearly that common—and you point to evidence that there would be some discrimination, which doesn’t in any way contradict what I’m saying.

              Consider homosexuals, who are not protected by laws against private discrimination. There’s some discrimination against them, but not enough to create the nightmare scenario. In fact, their primary problems are not commercial discrimination, but rather government discrimination and social disapproval, neither of which laws against private discrimination will do anything to address.

              This is predicted by the theory of rational irrationality. People are more strongly inclined to act on bigotry when they incur no personal cost for doing so. It’s very easy to vote for bigoted policies, because it’s anonymous and takes virtually no effort. It’s much harder to act on your bigotry when it means passing up the opportunity to make money. The widespread popularity of anti-discrimination law is itself evidence against its necessity.Report

              • Avatar James Vonder Haar in reply to Brandon Berg
                Ignored
                says:

                There’s an unfortunate tendency to view economic man as a straw version of a utilitarian- someone who keeps his nose to the grindstone, is unconcerned with ideology, and in the end driven only by the almighty dollar. We’re to imagine someone who buys all the off brands when grocery shopping, because they offer a better deal, and someone who feels that the demands of ideology are so much dust in the face of tangible currency.

                Of course, this isn’t an accurate description of humanity as a whole, nor is it the description of man as studied by economists when they’re doing their jobs right. The father of the discipline, Smith, was fond of citing varying degrees of honor given to professions to explain their different wages. Rather than a fascimile of utilitarianism, Smith’s humanity was concerned with things other than filthy lucre. If economics is to accurately describe human action, it must take these things into account.

                If the bottom line were all that drove humanity, your analysis would be substantially correct. Yet monetary- I hesitate to say economic, for other areas of human action are as amenable to the discipline as practical things- considerations are not all that drive humanity, even and especially in the realm of commerce. Many are willing to spend more money on environmentally-friendly products. Many refuse to spend their money on corporations that have politics that are hateful to them.

                In other words, capitalism isn’t an ironclad answer to racism because some people will attach an economic value to expressing their racism. Any advertising executive will tell you that ideas and values are as important to commerce as practical utility. Even setting aside clearly erroneous beliefs that workers of different races will be less competent to do their jobs, racist business owners will feel an incentive to practice racist policies because their beliefs are deeply held. And those who patronize those businesses will express their displeasure in racially progressive hiring policies by shopping elsewhere.

                In short, you seem to assume that the utility derived from expressing one’s racist values is materially different from the utility derived from simple acquisition of wealth. I don’t think this distinction is analytically useful or logically tenable. This is not to say that the strictly monetary penalties for expressing racism won’t motivate people- they will, of course- but that they will only be effectual to the extent that their love of money outstrips their hatred of the other.Report

              • Avatar wardsmith in reply to James Vonder Haar
                Ignored
                says:

                James, I haven’t noticed you post much here, but if your other posts are of this caliber please point me to them. If this is your first, please post more of them. 🙂Report

              • Avatar Will Truman in reply to wardsmith
                Ignored
                says:

                Here’s a fun trick: on the URL, delete everything after /blog/Report

              • Avatar Will Truman in reply to Will Truman
                Ignored
                says:

                Aww crap, I got mixed up. Wrong James.

                It’s still a fun trick 🙂Report

              • Avatar James Hanley in reply to wardsmith
                Ignored
                says:

                Very nice comment, James. It puts me in mind of this quote from economist Harold Demsetz.

                The better you understand economics, the more you realize that money isn’t all that matters

                Report

              • Avatar Brandon Berg in reply to James Vonder Haar
                Ignored
                says:

                Speaking of strawmen, it’d be just swell if people would read my comments before responding to them.

                I didn’t say that no one will ever discriminate when there’s an economic cost to doing so. In fact, I explicitly acknowledged that some people would, but that fewer would do so under these circumstances than under circumstances where there’s no personal cost associated with acting on bigotry, and that we therefore have good reason to believe (based on the tendency of people not to support racial discrimination even when they can do so costlessly) that the prevalence of discrimination would not be enough to cause serious hardship for racial minorities.Report

              • Avatar Creon Critic in reply to Brandon Berg
                Ignored
                says:

                BB, my position is probably pretty clear from the discussion with Jaybird, so I have mostly questions for you.

                Consider homosexuals, who are not protected by laws against private discrimination.

                Gays are unevenly protected from private discrimination, with some states offering more protections than others. Human Rights Campaign says,

                Currently there are no federal employment non-discrimination laws protecting the LGBT community. It is perfectly legal in 29 states to fire someone because they’re gay and 35 states because they’re transgender.

                There’s some discrimination against [gays], but not enough to create the nightmare scenario…

                I think gay rights advocates would say they want government and private sector discrimination to be addressed, for instance they’d like the federal government to pass the Employment Non-Discrimination Act to address the uneven protection from employment discrimination. What do you think? Is your opinion that since we’re not in a “nightmare scenario” the federal government should not act? Gay rights groups are seeking this protection even though, in theory, gays can more easily hide their sexual orientation than others can hide their gender or race – which could be part of the reason discrimination against gays doesn’t match discrimination against other minorities more closely.

                The widespread popularity of anti-discrimination law is itself evidence against its necessity.

                The HRC site referenced earlier goes on to say,

                78 percent of Americans think anti-gay discrimination is a problem, and 74 percent think discrimination against transgender people is a problem.

                To you, this is proof that further legal protection is unnecessary? So, being under the protection of public opinion, the gay community has no need of the rights afforded by anti-discrimination law?Report

              • Avatar Brandon Berg in reply to Creon Critic
                Ignored
                says:

                I don’t know why I have to keep repeating myself, but for gay activists, this is a symbolic issue. They will not be happy as long as anyone, anywhere, is allowed to get away with discriminating against homosexuals. The fact that they support laws against anti-gay discrimination conveys no actual information.

                The important question is whether anti-gay discrimination poses a real threat to homosexuals’ ability to find employment or housing, and it pretty clearly does not, as evidenced by the fact that the vast majority of gay people are employed and not homeless.

                And yes, obviously the fact that 78% of Americans think that we need laws against anti-gay discrimination supports my thesis. In addition to the 78% who support anti-discrimination laws, there are doubtless many who, like me, disapprove of anti-gay discrimination but do not think laws are necessary, and probably some who don’t strongly object to others discriminating but would not do so themselves.

                So suppose 10% of employers will not hire homosexuals, and 10% of landlords will not rent to them. I suspect that you’re thinking right now that this is horrible, horrible, and that something must be done to put an end to this. Because for you it’s about symbolism, and about punishing discrimination.

                But it doesn’t actually represent a real hardship. It means that on average a gay person will have to interview for 10% more jobs and look at 10% more apartments before finding one. I don’t see that this is something so horrible that it justifies either the collateral damage (see my comment that started this subthread) or the massive compromise of property rights.

                In fact, I would love for bigots to have the right to post “Homosexuals need not apply” signs in front of their places of business so that I could avoid patronizing them myself. Which is another drawback of anti-discrimination law: It suppresses information about who the bigots are.Report

              • Avatar Kimmi in reply to Brandon Berg
                Ignored
                says:

                Brandon,
                somehow I figure that most of the gays in certain parts of Pennsyltucky are simply dead. While that indeed does obviate the need for housing and such, if they were alive, I believe they’d find it hard to do such in a free market, because one does not exist for them.

                What you propose is merely “look there’s a ghetto!” so therefore housing is wonderful hunky dory.Report

        • Avatar Brandon Berg in reply to Creon Critic
          Ignored
          says:

          All well thought through comments about the dangers of government intervention.

          But that’s exactly what I was doing. Pointing out the dangers of government intervention in the context of a discussion in which they were being totally ignored. With no exception that I can recall, every single comment in this thread in support of anti-discrimination law has been about intended consequences (stopping discrimination), with no thought whatsoever given to the unintended consequences.

          I’m considering both sides of the ledger; you guys aren’t even acknowledging that another side exists.Report

      • Avatar Brandon Berg in reply to Brandon Berg
        Ignored
        says:

        Note that no one responding to this comment actually addressed the point that accounted for 80% of the comment’s text: That there are real costs to anti-discrimination law.

        But that’s the whole point. You have to do cost-benefit analysis to justify a law, and you guys are just doing benefit analysis: If this stops just one person from being discriminated, it’s worth it. But that’s silly. The benefits have to outweigh the costs, and you’re completely ignoring the costs.

        It’s almost as though this were entirely about signalling your tolerance. Through intolerance.Report

    • Avatar Kolohe in reply to Burt Likko
      Ignored
      says:

      I ain’t know lawyer, but I know what side the Evil Railroad Tycoon Capitalist Pigs were on in Plessy v Ferguson.Report

      • Avatar Kolohe in reply to Kolohe
        Ignored
        says:

        And I swear I’m not homophoniphobicReport

      • Avatar James Hanley in reply to Kolohe
        Ignored
        says:

        I ain’t know lawyer, but I know what side the Evil Railroad Tycoon Capitalist Pigs were on in Plessy v Ferguson.

        Kolohe–I don’t know this for certain, but I’ve heard that the case was something of a setup. A state neighboring Louisiana didn’t require separate coaches for whites and non-whites, while Louisiana did. This was a pain for the railroad in that it had to stop and move people around (and keep track of who was not white–Plessy was, reportedly, 7/8 white), so they helped set up the deal (foolishly thinking the 14th Amendment’s equal protection clause actually had some meaning for a set of southern Supreme Court justices!).

        The profit motive does–sometimes, certainly not always–work to undermine racial discrimination. Jackie Robinson wasn’t signed by the Dodgers because he was only as good as everyone else on the team!Report

        • Avatar Kolohe in reply to James Hanley
          Ignored
          says:

          Yes, that’s what I was saying. It’s little noted that Jim Crow was a codified anti-freemarket economic cartelization of a noxious social norm, ensuring no one would gain comparative advantage from dealing with the wrong kind of people.Report

  13. Avatar Ed Darrell
    Ignored
    says:

    I’d be more impressed were he to ask his customers to recite the Gettysburg Address, or Washington’s Farewell, or F. D. Roosevelt’s Four Freedoms section from the 1941 State of the Union.

    Is it worth $26 not to be plagued by a shopowner’s lack of creativity and religion-on-his-sleeve wearing? Most of the time, yeah.Report

  14. Avatar Katherine
    Ignored
    says:

    I suspect – although I certainly can’t know – that Whittington’s aim is not to discriminate against non-Christians, but to give non-Christians who are unfamiliar with Christianity a (financial!) incentive to read the Word of God.

    I don’t agree with that method for plenty of reasons besides discrimination (‘den of robbers’ springs to mind), and in practice it is probably still discriminatory, but the objective appear to be getting more people to have at least opened a Bible, rather than saying “non-Christian pay more!” There’s a fair number of evangelicals who see the world as divided into two groups – Christians and those who just need some more convincing.Report

    • Avatar Burt Likko in reply to Katherine
      Ignored
      says:

      Would you call that “evangelism,” then? If so, would you afford it heightened insulation from the regulation of anti-discrimination laws by virtue of the First Amendment’s mandate that no law shall inhibit the free exercise of religion?Report

      • Avatar Katherine in reply to Burt Likko
        Ignored
        says:

        I’m not a constitutional scholar, so I’m basing my opinions more on common sense than on legal cases.

        I would say that it’s evangelism, albeit of a very weird kind. But there’s certainly no dictate in the Bible that one has to evangelise by offering fiduciary reward (rather the opposite, in my opinion), so I don’t know that preventing it under anti-discrimination law would violate freedom of religion, as he’d still be free to evangelize customers in ways that didn’t involve giving them money. Still, it’s a lesser infraction of non-discrimination than, say, Christian schools only hiring Christian teachers (or Muslim schools only hiring Muslim teachers, or so on) and I think that should be allowed.

        I’d lean towards saying the law shouldn’t bother with this one, and let religious freedom take precedence, for a few reasons:
        1) He’s not requiring anyone to make a confession of faith to get the discount, just to know what the verse says. In that sense it’s less akin to the Shahada then to giving people a discount for knowing what the Five Pillars of Islam are. You don’t even have to be religious to do this; you could give discounts for knowing details of the Affordable Care Act and it would be similar.
        2) It’s not likely to be very common or pose a substantial impediment to anyone.Report

    • Avatar Mike Schilling in reply to Katherine
      Ignored
      says:

      I’ll go along with what Katharine said. In fact it would not surprise me at all if “I’m Jewish, so John 3:16 isn’t part of my Bible, but I’d love to share my favorite Old Testament verse with you”, got you the same discount.Report

  15. Avatar Robert Lee
    Ignored
    says:

    I dont think it much matters wether it’s legally or spiritually right it’s more about the maturity level of the owner. how petty is this guy that he wants to make everyone be able to recite John 3:16? i can recite it but i would also refuse the discount. and does he really think its gonna bring anyone to christ? really? is he reeaallyy that naive? i have said the verse probably more than 1000 times in the past few years alone and i dont feel changed. and how stupid must he be to feel that this is neccessary its not like hes getting more buisnessor saving money or saving people. Maybe this guy should be the one learning the lessons of the bible not me.Report

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