The Price Of Citizenship (Updated)

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Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering litigator. Recovering Republican. Recovering Catholic. Recovering divorcé. Recovering Former Editor-in-Chief of Ordinary Times. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.

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214 Responses

  1. Avatar Patrick says:

    As always, Burt, your synopsis of these sorts of cases is eminently clear and fairly points out the foci of possible disagreement. Well done.Report

  2. Avatar Kazzy says:

    Fantastic piece, Burt. I have to say, it is rare I can read a 2000 word piece beginning to end (hell, a 1000 word piece is likely to be self-interrupted several times); rarer still when it is a legal breakdown. But, as always, you make it so accessible. Well done.

    As I said during another recent conversation on the matter, I would be okay with businesses discriminating if they sacrifice all benefits that come from being a business. As soon as you incorporate as an LLC or take advantage of tax breaks for businesses or anything else that privileges businesses, you sacrifice claims of religious freedom. I just don’t think you ought to be able to have your cake and eat it to. If you want to excuse yourself of all these things and act as a private citizen who takes pictures for money, etc, etc, etc, I’d be more inclined to accept a religious objection to working with certain customers, whatever it may be.

    I also grow increasingly frustrated when Christian groups (I’m sorry, but it is always Christian groups) want to make big pushes about freedom of religion when there ability to harm others is at risk, but remain eerily silent when the practices of other faiths, which have no impact on others, are barred. See: Rastafarians and their use of marijuana or the attempts of Muslim groups to build mosques/cultural centers in particular areas.Report

  3. The only part of this I question is whether a business can have a religion. In this case, we have a business that is owned by two people. It is quite likely that they are also the only employees of the business as well. In all likelihood, they are a “business” rather than two individuals solely because of some trade-off between liability concerns and taxes.

    If a business can have a religion, it seems like this should be the one.

    Of course, I don’t think this would actually change the final result though. Even if it’s a Christian business, they would still be offering a public accommodation and still be subject to the non-discrimination statute.

    Incidentally, I wonder if they would object to photographing a barmitzvah.Report

    • Avatar Kazzy in reply to Vikram Bath says:

      But the whole point, as I understand it, of an LLC is to say, “This is an entity separate from its owners and employees.” This is done, obviously, to benefit the owners and employees. But that comes with some costs. Or should, at least.Report

      • Avatar Vikram Bath in reply to Kazzy says:

        I actually do find that persuasive.Report

      • Avatar Kazzy in reply to Kazzy says:

        Really? Wow! Wahoo! Glad my understanding of LLCs is at least somewhat accurate.Report

      • Avatar NewDealer in reply to Kazzy says:

        Correct. LLC sees seek to separate the assets of the owners from the company.

        For the business to have a religion, the owners would need to pierce their own corporate vale.

        The birth-control cases are the ones where corporations are seeking religions. I find this troubling. If a corporation can have a religion, can it deny a Jewish person or Muslim person time off for religious observance while granting it to a Christian?Report

      • Avatar Dave in reply to Kazzy says:

        It’s both persuasive and accurate.Report

      • Avatar Patrick in reply to Kazzy says:

        Yes, I’m still musing over what I would think about this case differently if the business was a partnership. Probably nothing if it was incorporated.

        Of course, if it was a sole proprietorship, I think that breaks my agreement. I’m not sure how that fits in with Burt’s framework, above. Still thinking it over.Report

      • Avatar Marchmaine in reply to Kazzy says:

        What about a Sole Proprietorship?

        Not being snarky… if the rationale is that conducting a business under the protection of an LLC or Corporation grants protection from liability, then if a business eschews that liability protection, are they then free to conduct their affairs as if they were a person? Would you really make room for this?

        New Dealer seems to suggest yes, since the liability veil is pierced, but I suspect not. I think y’all are hiding behind a fig-leaf of “personal belief.” Seems that commerce and social intercourse are quite probably inextricable.Report

      • Avatar Patrick in reply to Kazzy says:

        Would you really make room for this?

        I’m thinking that you’d have to do so. This is functionally similar to saying, “the laborer can be forced to work for an employer they find objectionable”.Report

      • Avatar NewDealer in reply to Kazzy says:

        Marchmarine,

        The sole proprietorship or partnership raises interesting questions.

        The whole purpose of incorporation is to to separate corporate assets from personal assets. Hence the corporation can be sued but those in charge will not be held personally liable or have their assets subject to a law school. This requires formalities to be followed though to make sure that a corporation is really a separate entity.

        So it does seem very odd to me that someone should be able to claim the benefits of incorporation and also say “But my religious beliefs make it impossible for me to provide birth control.” That is the very definition of wanting it both ways.

        But if we are talking about a Partnership or Sole Proprietorship the issue changes because the personal assets can be on the hook then. Unless it is a Limited Liability Partnership.Report

      • Avatar Marchmaine in reply to Kazzy says:

        @newdealer That seems consistent to me; I’m just wondering, though, if Elane Photography were indeed a sole proprietorship would everyone just go… “oh, that’s ok, they have assumed financial liability for their business.” It seems ancillary, and leaves me skeptical.

        Doesn’t the constitution (or is it the Declaration) protect our assets from a Law School? Unreasonable Teach and Seizures?Report

      • Avatar Patrick in reply to Kazzy says:

        “If Elane Photography were indeed a sole proprietorship would everyone just go… “oh, that’s ok, they have assumed financial liability for their business.” It seems ancillary, and leaves me skeptical.”

        Everybody? Heck, most people?

        Most assuredly not. That doesn’t make it the incorrect interpretation, though.Report

    • Avatar LeeEsq in reply to Vikram Bath says:

      I’d argue that even if a business could have a religion, its not really relevant. A lot of racism against African-Americans was justified on religious grounds. Christian fundamentalists thought that black skin was part of the curse of Ham, a son of Noah. Christianity was invoked a lot in the arguments for segregation. The 1964 Civil Rights Act disregarded these measures and was right to. In order to have a civil society, you can’t have businesses and places of public accomdation being allowed to discriminate because of the religious views of their owner.

      We have a somewhat similar problem in NYC. Ultra-Orthodox Jews are an increasingly powerful political group. There are about 330,000 of them but they mastered the art of bloc voting so have power that exceeds their strength and they turn out for every election possible. At the same time, they have certain practices that run contrary to federal and state law. A lot of Hasidic owend businesses have signs saying that they will not serve women and men that they deemed dressed immodestly, which is practically every one during the summer months. NYC is trying to fight against this on anti-discrimination grounds and are right to. If you have the money, than the business should have to pay for you.Report

      • Avatar Kazzy in reply to LeeEsq says:

        Lee,

        As I’ve discussed, we have a similar situation with the Satmar community (Kiryas Joel) in my town. It is a bit different than the situation in Brooklyn because they have largely segregated themselves from the rest of the town, but I frequent at least one business over there because it meets a particular need. I blogged once before about a sign at the entrance to their village that emphasizes their expectations for dress, though it is phrased more as a firm but friendly request than a mandate. Still, I’d venture to guess customers could be turned away if they were in blatant violation.

        But I always wonder: Practically, how is that different than a restaurant requiring a sports coat for me? We allow certain businesses to enforce dress codes, so why should that right not extend to ultra-Orthodox Jews (or any other group)? I agree that there is something troubling about the practice, but I’m not sure I can justify viewing and treating them as different when, ultimately, the outcome is the same: owners enforcing a dress code.Report

      • Avatar Burt Likko in reply to LeeEsq says:

        Is there an equivalent of a sports coat for those favoring women’s dress? I think that there is. If women are required to wear the equivalent garment, then I’d say we have substantial equality of treatment.Report

      • Avatar Dan Miller in reply to LeeEsq says:

        Going back to the adulthood discussion earlier, I can see that not serving women at all would be a clear case of gender discrimination, but what’s the difference between them not serving immodestly dressed men and a fancy restaurant requiring a jacket and tie?Report

      • Avatar Kazzy in reply to LeeEsq says:

        Burt,

        So the requirement can be sports coat for men and no jeans for women? But it can’t be sports coat for men and no requirement for women?

        A lot of clubs/lounges enforce rules that are pretty race/class focused, such as no white t-shirts, no jerseys, no backwards hats, no boots, no baggy clothes. (It should be noted that, in my experience, many of these are black-owned establishments that cater to a black clientele but want to keep out a certain type of patron.) Would those stand up to a lawsuit? They often lack any such requirements for women.

        In my area, within the Satmar community, the more troubling one has to do with non-mingling of the genders. Zazzy and I holding hands in a shop could draw the ire of the owner, and perhaps ejection.Report

      • Avatar Burt Likko in reply to LeeEsq says:

        Dress codes aren’t necessarily discriminatory so long as they are roughly equivalent. “No jeans” is not the same thing as “sport coats required” in my mind. “Sport coats required” sounds about one step down from “business attire,” and at least one step up from “No jeans.” Those words will signal particular codes of dress to both men and women, at least in my mind.Report

      • Avatar Kazzy in reply to LeeEsq says:

        Interesting.

        Where do you stand on that guy that constantly challenges bar promotions like “Ladies Nights” and gender-specific cover charges/minimum purchase requirements? The most recent article I read about him treated him as somewhat of a joke, and his own quotes made me wonder if he is a MRA, but there does seem to be a there there.Report

      • Avatar LeeEsq in reply to LeeEsq says:

        Kazzy, its a good point but there are problems. Very few businesses require a specific dress code these days. There might be an assumption that you should dress nicer at some restaurants or bars than others but I can’t think of any that have strict requirements anymore like they did in the past.

        The other issue is that when you are going to a restaurant or place of entertainment where dressing nice is required, you probably know this beforehand. When you pass by an ordinary store during your daily life, you really don’t expect to get kicked out because the store owner doesn’t like how your dressed. Also, a lot of fancy dress these days does allow women to dress what would be considered immodest in the past.Report

      • Avatar Kazzy in reply to LeeEsq says:

        Thanks, @leeesq

        One of my favorite restaurants in Boston (G’Vanni’s, in the North End… order the sausage and peppers appetizer), we found because a bunch of college freshmen (circa 2001) out for the day decided on a whim to get dinner, but weren’t dressed appropriately enough for most places. Many did indeed have a sports coat requirement for men. Or, at least, they said they did. They might have just been trying to avoid a crew of college kids on a Friday night. Anyway, G’Vanni’s had no wait and no dress code and they let us drink and the food was good and it has been my go to North End eatery every since. So, suck on that, fancy pants other places!

        I’ve actually been turned away from a number of places because of how often I tend to (or at least used to) wear some combination of jeans, shorts, t-shirts, baseball caps, and flip-flops. One friend-of-a-friend came to know me as the “flip flop guy” because the first few times we hung out, we had to scrap an original plan to accommodate my dress. At this point, I usually call ahead to most places if I’m not familiar with them just to avoid any trouble. But dress codes do indeed remain, at least in bars that cater to young people. Somehow, making me turn my hat forwards instead of backwards makes me less of a threat. Or something.Report

      • Avatar Kim in reply to LeeEsq says:

        RE: Dress Codes.
        Most places that have a dress code also have some “spares” lying around (It is okay if this costs a few bucks).
        I am against dress codes where there is little accommodation for the forgetful, and relatively okay with them otherwise, including the Hasidic.Report

    • Avatar Dave in reply to Vikram Bath says:

      The birth-control cases are the ones where corporations are seeking religions. I find this troubling.

      As I was reading Burt’s analysis, I had Hobby Lobby in mind.Report

  4. Avatar Delirium says:

    “While sexual orientation isn’t the same thing as race, this state’s law affords it equal status, so if you’re going to say that Elane Photography ought to be allowed to not do business with Ms. Willock under the shield of its owners’ religious beliefs, then you necessarily are also saying that Elane Photography ought also to be able to refuse to do business with an African-American, precisely because she is an African-American, under the same aegis of a First Amendment right (association, expression, and/or religion).”

    This is bullshit.

    You can’t possibly discriminate against “sexual orientation”. Sexual orientation describes sexual urges and compulsions, none of which is observable or measureable to the external observer.
    In fact she probably already photographed homosexuals/bisexuals wedding each other, given that a lot of people change orientation while already married.
    http://midus.wisc.edu/findings/pdfs/1153.pdf
    The only thing she discriminated against was a sexual/ relationship BEHAVIOUR, which is not protected by any law.Report

    • Avatar Kazzy in reply to Delirium says:

      But what behavior were they objecting to? The odds are that the photographs would include no form of expression of “sexual urge or compulsion”. Perhaps a peck on the lips or cheeks, but otherwise the pictures are going to be mostly of the couple holding hands, standing together with their family, and of their guests (most of whom, I would assume, are straight).

      They weren’t being asked to participate in a gay porno spread shoot. They were being asked to photograph two gay people engaging in the same exact behaviors that straight people do.Report

      • Avatar Vikram Bath in reply to Kazzy says:

        They weren’t being asked to participate in a gay porno spread shoot.

        And if they were asked to do that? Could they then refuse?

        Perhaps it depends on whether they would be willing to photograph straight porn. “Porn producer” is not a protected class, but sexual orientation is, so if they photograph straight porn, they could be forced to photograph gay porn too.Report

      • Avatar Burt Likko in reply to Kazzy says:

        I note, though, that they would not be required to personally do the gay porno shoot. Their business would have to accept the proffered contract on the same terms that it would accept a straight porno shoot. They could hire a third party photographer to do the actual work, and then the part that would be “forced” would be a lower profit margin rather than having to engage in the kind of work they found distasteful.Report

      • Avatar morat20 in reply to Kazzy says:

        Vikram:

        Yes, IF they did straight porn then refusal to do gay porn might constitute a legal problem for them. (They might, however, be able to make a slightly better case as to the whole artistic merits thing.)

        But if they were flat out asked to do gay porn, they could simply say “No, we don’t do porn. We do wedding photography” and the fact that it was gay porn would be incidental.

        The point is they refused identical services to a gay couple they would offer to a straight couple, which is the legal issue at hand. There has to be actual discrimination there, you know? “Yes for you, no for you” to a protected class.Report

    • Avatar Burt Likko in reply to Delirium says:

      If you’re going to take that position, @delirium , then you have to contend with the US Supreme Court. The most recent case is Christian Legal Society v. Martinez (2010) 561 U.S. ___, 130 S.Ct. 2971. That exact argument — the Christian Legal Society did not exclude people with a same-sex orientation, only those whose behavior included same-sex sexual activity, lost, because the particular behavior that the group claimed to be discriminating against was uniquely and strongly associated with the protected class. The Supreme Court specifically rejected the Christian Legal Society’s argument because of that point.

      Here I think the Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah (1993) 508 U.S. 520 case is a good example — the city of Hialeah enacted a law purporting to prohibit animal cruelty but which was, on examination, specifically crafted to criminalize Santeria religious services. The only kind of animal cruelty the law actually criminalized was the sort of thing that only a Santerian would do. So the real target of the law was religious affiliation, not neutral behavior.

      The legal point is distilled very nicely in that dictum from Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263, 270 (1993): “Some activities may be such an irrational object of disfavor that, if they are targeted, and if they also happen to be engaged in exclusively or predominantly by a particular class of people, an intent to disfavor that class can readily be presumed. A tax on wearing yarmulkes is a tax on Jews.” Why is that wrong — why is a tax on wearing yarmulkes not a tax on Jews?Report

      • Avatar Jaybird in reply to Burt Likko says:

        A tax on wearing yarmulkes is a tax on Jews.” Why is that wrong — why is a tax on wearing yarmulkes not a tax on Jews?

        Just reword it.

        A tax on wearing hats indoors. Hey, it’s not the Old West. Remove your hat once you come inside, cowboy!

        Tah-dah.Report

      • Avatar Kazzy in reply to Burt Likko says:

        But a yarmulke is not a hat.Report

      • Avatar Burt Likko in reply to Burt Likko says:

        You’ve diluted the issue by changing the rule,* but I would say not enough: the cowboy, or the Yankees fan, or the pretentious Che poseur will each remove their Stetson, ballcap, and beret respectively as these are all personal affectations — but does not the (orthodox) Jew remain under a religious obligation to wear the yarmulke? So we’re still taxing Jews and not other people.

        * Thus dodging the question rather than answering it.Report

      • Avatar Kazzy in reply to Burt Likko says:

        Well, until the cowboy starts a church.Report

      • Avatar Jaybird in reply to Burt Likko says:

        but does not the (orthodox) Jew remain under a religious obligation to wear the yarmulke?

        As an atheist, I sometimes have trouble distinguishing between “religious obligation” and “thing I want to do (or not do).”

        If we agree that an establishment has the right to say “remove your hat”, then why shouldn’t this also apply to yarmulkes? It seems easier to agree that an establishment doesn’t have the right to tell you to remove your hat. (Or tax people who insist on wearing it anyway.)

        Let’s say that there’s a guy who is wearing a hat because he believes that it will get his team to (and through!) the playoffs. I have trouble putting the difference between this and “religious belief” into words.

        Should a guy wearing his playoff hat be allowed to keep his hat on?

        If we’re making exceptions for people who feel things really strongly, I don’t know why we wouldn’t. Do the strong feelings need a pedigree?Report

      • Avatar Delirium in reply to Burt Likko says:

        “That exact argument — the Christian Legal Society did not exclude people with a same-sex orientation, only those whose behavior included same-sex sexual activity, lost, because the particular behavior that the group claimed to be discriminating against was uniquely and strongly associated with the protected class. The Supreme Court specifically rejected the Christian Legal Society’s argument because of that point.”

        Which only serves to highlight the ignorant stupidity of the Supreme Court, as it would mean that every jailhouse in the world is mainly populated by the protected class.
        MUST BE DISCRIMINATION.

        “So the real target of the law was religious affiliation, not neutral behavior.”
        “Why is that wrong — why is a tax on wearing yarmulkes not a tax on Jews?”
        False analogy. These are cultural products, of very specific cultures. Same-sex sexualization is NOT.Report

      • Avatar Kazzy in reply to Burt Likko says:

        Now you sound like me, @jaybirdReport

      • Avatar Kim in reply to Burt Likko says:

        Jay makes effective argument.
        Kim changes mind on dress codes (see above).Report

      • Avatar Jaybird in reply to Burt Likko says:

        Well, it also means that I have trouble telling the difference between a public prayer given by a religious leader and a speech given by a dude in funny clothing.Report

      • Avatar Burt Likko in reply to Burt Likko says:

        For my money, @delerium, you’ve not demonstrated why the analogy to the yarmulke tax is false. If anything, the fact that wearing a yarmulke is behavior culturally specific to Jews enhances the fact that a tax on wearing yarmulkes is a tax on Jews and therefore a court may properly impute that the tax is aimed at a specific religion and therefore aimed at a legally protected class.

        Under the New Mexico law, sexual orientation is given equal status as a protected class as religion and ethnicity, so a private organization’s policy putatively aimed at same-sex sexual behavior, something strongly associated with those people who have a same-sex sexual orientation, is properly imputed to have the motive of animus against the same-sex sexual orientation. The analogy is as close to exact as any analogy can be.

        (I’d be willing to make a modest bet that it will give you a moment’s pause to see which Justices voted for the opinion that included the “yarmulke tax” language.)

        Of course, if you don’t like the yarmulke tax analogy, we needn’t use it. Christian Legal Society v. Martinez (2010) 561 U.S. ___, 130 S.Ct. 2971 dealt with a private organization — a club in a public law school — that had a policy purporting to exclude from its membership people who engaged in same-sex sexual behavior. So it’s not an analogy, it’s the exact same thing.

        This need not stop you from railing against the purported “ignorant stupidity” of the Supreme Court, or the purported inability of the Utah Supreme Court to comprehend logic, but I for one am unpersuaded by your argument and I reject out of hand the proposition that “You can’t possibly discriminate against ‘sexual orientation’.” A substantial portion of my living is made by proving that people have done exactly that to my clients, and I haven’t missed any meals.Report

      • Avatar Delirium in reply to Burt Likko says:

        Deleted in its entirety by Dave due to violations of the Commenting Policy.Report

      • Avatar Kim in reply to Burt Likko says:

        Delirium,
        “religio-ethnic culture and humping occupy different categories”

        … oh? I think the catholic church has something to say about that.
        Masturbation being a sin and all that.Report

      • Avatar Dave in reply to Burt Likko says:

        Delirious,

        I deleted your entire comment. We have a Commenting Policy and certain parts of your last comment were in violation. If you wish to address groups of people, refrain from using terms that are blatantly disrespectful. There are plenty of places where you can pass yourself off as a bigot. This is not one of them.

        You will not be warned again.Report

      • Avatar Burt Likko in reply to Burt Likko says:

        Oh, Dave. You forgot the limerick trick! Missed opportunity.Report

    • Avatar Soi-disant Liberal in reply to Delirium says:

      I don’t discriminate against Christians. I just object to hiring anyone who attends a Christian church, or kneels and prays to Jesus.
      I am willing to be tolerant of their deviant urges, but really, its their behavior that disgusts me.Report

    • Avatar NewDealer in reply to Delirium says:

      Except Lawrence v. Texas clearly protects sexual behavior.Report

      • Avatar Jaybird in reply to NewDealer says:

        No, it doesn’t. It just says that “you can’t pass a law against two dudes engaging in an act. You have to pass it against two *PEOPLE* engaging in it.”

        There are still laws against (act) all over. They show up in the news from time to time as additional charges.Report

      • Avatar morat20 in reply to NewDealer says:

        Jaybird: Nope. Lawrence outlawed ALL sodomy laws, not just those that between same sex couples.

        The key finding for Lawrence was that intimate, adult consensual contact were protected by the Constitution. The State had zero interest in regulating it past the “adult” and “consensual” parts.

        It was a due process decision, NOT an equal protection decision.Report

      • Avatar Jaybird in reply to NewDealer says:

        Dude, I’ve spent the last 10 years misunderstanding Lawrence.

        I was *SURE* that I have seen stories in the news where there were, ahem, additional charges pressed between people for, ahem, additional acts.

        This is a good thing. I’m irritated that the Supreme Court doesn’t have a similar joy in overturning even more stupid, invasive laws.Report

      • Avatar morat20 in reply to NewDealer says:

        Blame Scalia. His dissent was a hissy fit of epic proportions.

        It’s a decision well worth reading, including the concurrences and dissents.Report

      • Avatar Delirium in reply to NewDealer says:

        It protects all “adult consensual” acts. Including incest, adultery and polyamory, but logical conclusions are something they can’t comprehend.

        State v. Holm, 137 P.3d 726, 738–40 (Utah 2006)Report

      • Avatar Kim in reply to NewDealer says:

        Delirium,
        as well they ought. Adultery ought to be treated as a breach of contract.
        (I am not a lawyer, so please, enlighten me if I’m phrasing this wrong, or have my facts all twisted)Report

      • Avatar Dave in reply to NewDealer says:

        It protects all “adult consensual” acts. Including incest, adultery and polyamory, but logical conclusions are something they can’t comprehend.

        They as in the courts?

        I skimmed the case you cited. The court is doing everything it can to limit Lawrence’s scope.Report

      • Avatar NewDealer in reply to NewDealer says:

        Jaybird,

        The Supreme Court made their decision but a lot of socially conservative states kept their anti-sodomy laws on the books as an act of willful defiance.

        These laws are unenforceable.Report

      • Avatar morat20 in reply to NewDealer says:

        Adultery ought to be treated as a breach of contract.
        (I am not a lawyer, so please, enlighten me if I’m phrasing this wrong, or have my facts all twisted)

        Adultery is grounds for divorce. It’s not illegal. People retain their rights to bodily integrity and control in a marriage. As they darn well should.

        But then, “I don’t want to be married anymore” is grounds for a divorce, which is a GOOD thing. Marriage isn’t exactly a contract. The only thing you actually, legally affirm is you are “married” for the purposes of tax law and a few other tidbits.

        The specifics are rarely defined, and never in any sort of enforceable sense unless you and your partner went through a lawyer and signed a pre-nup.Report

      • Avatar Mike Schilling in reply to NewDealer says:

        I was *SURE* that I have seen stories in the news where there were, ahem, additional charges pressed between people for, ahem, additional acts.

        “Additional charges” because they were non-consensual acts, right? That’s kind of a big difference.Report

      • Avatar Jaybird in reply to NewDealer says:

        No, there was consent involved. Perhaps it was Romeo/Juliet issues.Report

      • Avatar Mike Schilling in reply to NewDealer says:

        Meaning no legal consent was possible.Report

      • Avatar Jaybird in reply to NewDealer says:

        Well, remembering back when I was 17 (granted, with another 17 year old), my (her, both of our consent) would be best described as “enthusiastic”.

        I guess we just had better timing.Report

    • Avatar Dave in reply to Delirium says:

      Delirious,

      You can’t possibly discriminate against “sexual orientation”. Sexual orientation describes sexual urges and compulsions, none of which is observable or measureable to the external observer.

      The “gay is a choice” schtick died a long time ago except in the minds of the idiots and bigots of the world. You may want to brush up on your knowledge of sexual orientation. Just saying.Report

      • Avatar Delirium in reply to Dave says:

        Last time I checked, entering relationships and indulging in sex acts are a choice, except in the minds of the brainwashed lunatics of the world, who believe glurging down trendy narratives makes them better people.Report

      • Avatar Dave in reply to Dave says:

        Last time I checked, entering relationships and indulging in sex acts are a choice

        There’s this trendy narrative I’ve been gurgling down as of late. It’s called science and it explains the biology behind sexual orientation. Google it.

        except in the minds of the brainwashed lunatics of the world, who believe glurging down trendy narratives makes them better people.

        My being a better person than you has nothing to do with me gurgling down trendy narratives and more to do with you spewing forth ideas held by people amongst the cesspools populated by bigots, morons and assholes. I doubt you want that to be associated with those kinds of people, right?Report

      • Avatar Kim in reply to Dave says:

        Dave,
        you read the bit about selective breeding? It’s rather interesting…Report

      • Avatar morat20 in reply to Dave says:

        Dave: Don’t bother. The “homosexuality has a choice” crowd cleaves to that for a reason, and since that reason isn’t based in science, fact, or evidence than science, fact, and evidence isn’t gonna convince them otherwise.

        Frankly, the existence of gay, mated for life animals should be sufficient evidence that sexual orientation is rooted deeply in biology for anyone interested, you know, facts or reason.

        In practice, that leads to people who can’t grasp the difference between dominance behavior, mating, species that mate for life, and cries of “What, you’re saying we’re all animals” and other question begging, topic changing, heated rhetoric and basically your desperate “Cover my eyes and hum real loud and pretend this isn’t happening” behavior.Report

      • Avatar Dave in reply to Dave says:

        Dave: Don’t bother. The “homosexuality has a choice” crowd cleaves to that for a reason, and since that reason isn’t based in science, fact, or evidence than science, fact, and evidence isn’t gonna convince them otherwise.

        That’s why there is such a hot market for installing windows in stomachs. There is a cranial rectitis epidemic.Report

      • Avatar Murali in reply to Dave says:

        Dave, the orientation may not be chosen, but people can always abstain right? For example, even if I like a particular girl, since I know that I’ll have to marry someone my parents approve of I cannot simply ask her out. In fact, I can do a fabulous job of just ignoring my urges.

        The reason that we shouldn’t ban consensual gay sex is that it is nevertheless a very severe burden to impose on people. Romance and sex plays an important role in lots of people’s lives. Alienating them from this aspect of their lives (which is what an effective ban on gay sex would do) is so severe a burden that little except lack of consent* can justify the imposition of such a heavy burden on persons.

        *e.g. in prison populationsReport

  5. Avatar Reformed Republican says:

    Aside from the legal aspects, I wonder why the couple would still want Elane Photography to photography their wedding. It would seem that, since the business owners are upfront about their beliefs, it enables the couple to find and support a business that does not practice discrimination. I would prefer to have my wedding photos taken by people that did not think I was contemptible, and I would rather not support business owners who discriminate.Report

    • Avatar LeeEsq in reply to Reformed Republican says:

      For the same reason that African-Americans want to desegregate businesses and public accomdations in pre-Civil Rights Act America. Being excluded from something simply because of your race, gender, sexuality, or religion isn’t really that nice of an experience. Its a constant reminder that society is rejecting you and doesn’t like you.Report

      • Avatar Jaybird in reply to LeeEsq says:

        Are we allowed to reject and/or dislike fundamentalist Christians?Report

      • Avatar LeeEsq in reply to LeeEsq says:

        Jaybird, nobody is required to life anybody. What you aren’t allowed to do is to exclude people from patronizing your business or keeping them out of a public accomdation on the basis of their race, gender, religion, or sexual orientation.Report

      • Avatar Reformed Republican in reply to LeeEsq says:

        Being forced to photograph an event that you consider immoral also seems like an unpleasant experience.

        Aside from that, for something like wedding photography, I would much prefer to know upfront that the photographer despised me. A photographer forced to record the events of a same-sex wedding, if they consider it to be abhorrent, is probably not going to do as good of a job as someone who is a supporter, or at least indifferent.Report

      • Avatar Kazzy in reply to LeeEsq says:

        Dislike? Certainly. You can dislike whomever you want. Reject? Well, it depends on how you mean.

        Something different about religion, though… I can dislike Christian fundamentalism without necessarily disliking Christian fundamentalists. It is hard to make the same case for disliking blackness but not disliking black people. I suppose you could build it upon disliking “black culture”, but that starts to get tricky.

        I have a number of problems with various organized religions (some more than others). But I still attempt to treat the practitioners decently until such time that they, individually, deem themselves unworthy of that. I have at least a few close friends who are hardcore religious and it impacts our relationship not-at-all save for a few topics on which we disagree (which is true of me with all my friends).Report

      • Avatar NewDealer in reply to LeeEsq says:

        Jaybird,

        I would be appalled if any business in San Francisco rejected serving someone because they were Republican or Christian Fundamentalist.

        Now if they asked a Christian Fundamentalist couple to leave for making very loud bigoted remarks about the gay couple at the next table, that would be another story.Report

      • Avatar Cascadian in reply to LeeEsq says:

        @jaybird I’m sure this is an example of “it’s ok for me but not for thee” sorts of things.

        Christians seem to be heading toward becoming a discriminated group on their own. Instead of realizing this and governing themselves accordingly, they seem intent on providing as much ammunition as possible.

        Disclaimer: I don’t discriminate against Christians any more than my particular strain of Pastafarianism requires.Report

    • As far as I can tell from the opinion, the couple moved along and found another photographer willing to do the work. But having been discriminated against stung. They thought that they had been treated unfairly, and wanted to do something — maybe so others would not have to go through it again in the future, maybe to make a point, maybe for a small measure of revenge. All they sought was a declaration that what they’d been through violated the law, not any affirmative relief for their own benefit. It’s hard to pin down precisely what motivates people do pursue things that aren’t of direct, tangible benefit to themselves, but I can tell you that they do it all the time.Report

      • Avatar Patrick in reply to Burt Likko says:

        It’s hard to pin down precisely what motivates people do pursue things that aren’t of direct, tangible benefit to themselves, but I can tell you that they do it all the time.

        Should I insert an economist joke here?Report

    • Avatar j r in reply to Reformed Republican says:

      I agree with this and I don’t fully buy into the exclusion argument. Jim Crow America wasn’t just about being excluded from a few businesses owned by racists. It was a whole legal and social system of enforced white superiority. In the same sense, a situation where gays are harassed and arrested where they gather (as was the case until quite recently) and barred from marrying (as is the case in many places right now) is certainly a threat to an individuals freedom to live as he or she wants to live. I cannot, however, see how this rises to that level.

      In any liberal society, there has to be some sphere of personal space in which you are free to believe as you want to believe and live as you want to live, even if those beliefs are counter to what everyone else in that society believes. We can certainly argue over how big that sphere can be and whether a small LLC is inside of it or outside of it, but the sphere itself ought to be recognized.

      To me, petitioning the coercive use of state authority to force someone else to do something that they don’t want to do, even though not doing that thing represents no real threat to my own ability to live freely and happily. I understand that not everyone will agree with this. Some people have a strong progressive sentiment to go out into the world and enforce a set of progressive norms above and beyond what is required to maintain a fairly tolerant society. To me, this is just the flip side of the conservative desire to go out and enforce a set of traditionalist norms above and beyond what is required to maintain a fairly moral and cohesive society. The danger becomes that our political process goes from being primarily concerned with enabling individual freedoms and arbitrating over those areas where individuals clash to an all out war for control of the apparatus of government so that the victor can engage in wholesale enforcement of their particular set of norms.Report

      • Avatar LWA in reply to j r says:

        Where do you get the idea that the political proces should be “primarily concerned with enabling individual freedoms and arbitrating over those areas where individuals clash”?Report

      • Avatar Kazzy in reply to j r says:

        “In any liberal society, there has to be some sphere of personal space in which you are free to believe as you want to believe and live as you want to live, even if those beliefs are counter to what everyone else in that society believes. We can certainly argue over how big that sphere can be and whether a small LLC is inside of it or outside of it, but the sphere itself ought to be recognized.”

        What is ironic is that, until VERY recently, gay people were denied entirely that sphere of personal space, even in the most intimate and private of settings. Sodomy laws were only fully abolished within the last decade, if memory serves.

        Now, I’m not saying that two wrongs make a right. You make a very sound point here (especially in the paragraph after the quoted section). But I find it a bit…er… frustrating?… that an argument that was so long denied when advanced by gay people so that they could simply live their lives is now being potentially used against them so as to inhibit a more fuller living of their lives.Report

      • Avatar j r in reply to j r says:

        LWA,
        short answer: The Enlightenment

        Kazzy,
        There’s a certain sentiment in your comment that I am explicitly rejecting. And that sentiment is that the law exists to vindicate once group of people against another. The law exists to enforce a somewhat universal conception on justice. Sometimes that justice is retributive, but often getting back at someone is in the exact opposite of the interest of justice.

        I also question the idea that being excluded from patronizing one small business has any effect on the ability to live a full life. We are all of us excluded from any number of things. I’m excluded from the pool of men that Halle Berry might consider dating. I can’t buy a green jacket from Augusta National or get a seat at the Oscar’s. Somehow, I manage to lead a very full life.

        Basically, I its important that we make distinctions between wholesale discrimination that disenfranchises whole groups of people and the sorts of one-off exercises in personal taste and discretion that we may not like.Report

      • Avatar LWA in reply to j r says:

        I thought the Enlightenment contained other ideas, like the social contract.

        I actually have sympathy for the “let everyone do their own thing” argument of individual liberty.
        But I don’t see any moral logic to elevating it to the primary purpose of society or government. I see it as being merely one of many competing goals, all of which need to be balanced.

        For example, the primary goal of the American form of government is given in the Preamble, to “form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity”- there is a lot going on there that is beyond merely individual liberty.

        More to the point, acheiving those goals requires more than simply assuring that people can do their own thing- there is coercion and social norms written all through that paragraph.Report

      • Avatar Patrick in reply to j r says:

        In any liberal society, there has to be some sphere of personal space in which you are free to believe as you want to believe and live as you want to live, even if those beliefs are counter to what everyone else in that society believes.

        Sure.

        And to the extent that you don’t want special treatment, I don’t know that I have a problem with that. If you’re an independent unincorporated contractor for hire and you don’t want to work for gay people, I think I’m okay with saying that you don’t have to do so.

        Once you incorporate, you’re asking for special status; you’re asking to be treated – in your business dealings – as an abstract entity that *is not you* (hence the limited liability), but an abstract entity that has been created by the legal system, which the rest of society can claim some ownership and restriction privileges over.

        Since you ain’t you any more, I don’t see where you come off saying that you get to be you when your freedom matters but you don’t get to be you when you get sued or have to pay taxes.Report

      • Avatar Alan Scott in reply to j r says:

        In any liberal society, there has to be some sphere of personal space in which you are free to believe as you want to believe and live as you want to live, even if those beliefs are counter to what everyone else in that society believes. We can certainly argue over how big that sphere can be and whether a small LLC is inside of it or outside of it, but the sphere itself ought to be recognized.

        Sure. But that’s exactly what New Mexico’s public accomodations law does–set out the boundaries of that sphere. The boundaries that New Mexico has chosen are such that Elane Photography doesn’t fall within them. I think it’s perfectly valid to disagree with that–If I were writing New Mexico’s laws, I’d probably be more generous. But so many of the interested parties on Elane Photography’s side of the case seem to have no problem with a law that would prevent such businesses from discriminating on account of race, age or religion.Report

    • Avatar NewDealer in reply to Reformed Republican says:

      I sort of see what you are saying but Lee is right. Being discriminated against in this matter is akin to being a second-class citizen.

      I hate golf. I think it is an incredibly boring and elitist sport. I would never want to be a member of the country club or golf club.

      Yet I can still see why women are opposed to the male-only policy of Augusta.Report

  6. Elane Photography argued that the uniquely expressive and artistic nature of its services ought to exempt it from being considered a public accommodation, but this failed.

    I have always been somewhat surprised when a business like this just flat-out refuses to take a commission. Given the artistic nature, it seems to me that the whole problem would be sidestepped by simply telling the potential client, as soon as the situation was made clear, “Our personal religious beliefs make us uncomfortable about such a ceremony, and as a consequence we do not believe we will be able to do our artistic best. Because of that, you might be better served by another photographer.” Which is, most likely, true. Unlike a service such as cake decorating, photography at an event like this is quite personal; the photographer doesn’t just take snapshots, but also poses the subjects to achieve a particular result as well. Certainly at my daughter’s wedding, the photographer wasn’t hired until everyone was satisfied that she was comfortable with the venue and the type of photographic record the couple wanted.Report

    • Avatar Reformed Republican in reply to Michael Cain says:

      Would such a disclaimer satisfy anti-discrimination requirements? If the photographer was hired anyway, and the couple was unhappy with the photos, would that open them up accusations of intentionally doing a bad job, and a subsequent lawsuit?Report

      • Anyone can sue anyone else at any time for anything. Would the customers in such a case have a reasonable chance at recovery? Seems unlikely to me, and certainly not worth the trouble. In order to get any real money, they’d have to bring a tort claim like intentional infliction of emotional distress, which would require that they prove that the photographer deliberately and intentionally mucked things up, and that seems like a tough case to me on the facts.

        That said, @michael-cain ‘s point is well-taken: if the artist in question doesn’t want to do the work, it seems best to not engage the artist even if the legal point is important to you. That’s what the couple here did: they pursued what I’d call “declaratory relief,” which is to say the only thing they wanted was the legal system to point out that what had happened was discriminatory in violation of the law.Report

    • Avatar Patrick in reply to Michael Cain says:

      “Our personal religious beliefs make us uncomfortable about such a ceremony, and as a consequence we do not believe we will be able to do our artistic best. Because of that, you might be better served by another photographer.”

      Well, see, that would require you to actually treat the customer with respect, acknowledging their differences while keeping the burden squarely on yourself, and allowing them to make the informed choice that hey, they’d almost certainly bail on (because who wants bad pictures of their wedding).

      You know… consideration of others. Accepting responsibility. That sort of thing.Report

  7. Avatar BITFU says:

    Spare me the noise about this case striking a blow against discrimination, blah, blah, blah.

    This case strikes a blow against businesses like Elena Photography informing people of the reason of declining service. Nothing more. Nothing less.

    Now, that’s not such a terrible thing, as getting in someone’s face and saying “No Soup for Homos!” is incendiary.

    But let’s not get carried away here. Next time, Elena Photography finds out it is asked to photograph a gay wedding, it agrees and politely hangs up the phone….Only to call back the next day, “UGH! I am so sorry, we had a scheduling mix-up and we’re not going to be able to work your wedding. Sorry about that. Goodbye and Good luck!”

    The End.

    And Elena still gets to adhere to its religious beliefs or discriminate–depending on your point of view.

    The problem wasn’t Elena’s discrimination, it was the voicing of the discrimination. Judging by the self-congratulatory back-slapping, though, one would think a real blow was struck against discrimination, when the blow was actually struck for tact–which, again is fine, but let’s not get carried away with the “morality” of this result.

    Advocates of Elena Photo made the mistake of conflating Free Speech and Religious Freedom. Their griping about this result is also much adieu about nothing.

    Religious persons can still discriminate/avoid homosexual behavior, but they must do tactfully…

    But what about this:

    If at the time of hiring, Elena says, “I’ll do the job to the best of my abilities, but I want you to know I disapprove of homosexuality and I won’t be comfortable in that environment.”
    [Speaking of morality–wouldn’t that actually be the “moral” thing to do–as– Why would the lesbian couple want a disapproving photographer at the event?”]

    Any legal problem here? Probably not.

    OK, and what about a diner. Lesbian couple walks in and right before ordering is informed by the waitress that “we will serve you to the best of our ability, but we want you to know that we do not approve of homosexuality and it makes us uncomfortable.”

    Kinda seems like a problem…at least with the New Mexico Court. But how far can it go?Report

    • Avatar Burt Likko in reply to BITFU says:

      If at the time of hiring, Elena says, “I’ll do the job to the best of my abilities, but I want you to know I disapprove of homosexuality and I won’t be comfortable in that environment.”

      There would be no legal problem, according to this opinion, because the company would have accepted the work and the court went out of it way to say that the company and its owners were free to offer whatever disclaimers they wanted about their personal opinions.

      The sort of explicit evidence of discriminatory intent that we have in this case is relatively rare. In higher-stakes litigation (someone loses their job, say) discriminatory intent is typically inferred from other kinds of evidence rather than proven by “smoking guns.” That such evidence is circumstantial does not mean that such evidence is not necessarily compelling — some circumstantial is very compelling indeed, such as when one finds a trout in the milk.

      So I’d quibble with the notion that the case is not about discrimination but rather about admitting discrimination — but I’d agree with the notion that had Elena Photography been more diplomatic in tone, it would have avoided being placed in the middle of a legal tornado. That said, have you considered the idea that maybe Elena Photography’s owners might have wanted to be in the middle of a legal tornado, that they thought they were making an important point and were happy enough to step up to the plate to actually do it?Report

  8. I think the state has a right to do it. In some cases, I would argue that the state has an imperative to. But I just can’t get very excited about this. Before getting the state involved, I’d like to see a degree of harm above and beyond “We had to find another photographer.” As far as I know, there isn’t systemic discrimination that would make finding another photographer of similar quality to be a problem. Nor does this fall into the “basic need” category like employment and housing (both cases I support anti-discrimination law).

    On the other hand, the law is the law and the courts should follow the law. The laws were formed because in the past there had been systemic discrimination. Perhaps the laws were overly broad, but I can’t say that I would be a fan of ignoring them or repealing them.Report

    • @will-truman says that “[i]n some cases, I would argue that the state has an imperative to [legislate against discrimination].” That word, “imperative,” is important in the Sherbert test, because if there is an imperative, that suggests that anti-discrimination laws further a “compelling” governmental interest. I don’t think there’s much dispute that anti-discrimination laws further an “important” governmental interest, but “compelling” is a rather higher standard.

      This is the place where I think the most work needs to get done, because sooner or later, we’re going to see a permutation of this fact pattern that requires us to confront that exact question.Report

  9. Avatar NewDealer says:

    Excellent piece Burt.

    I agree with you and Justice Bosson. Again this strikes me as the fundamental difference between liberals and right-leaning libertarians.

    As a bleeding-heart liberal, I am in full concurrence with Justice Bosson. The government cannot dictate the thoughts of everyone but the government has a moral responsibility to make sure that people can fully participate in civic and commercial life regardless of their race, color, religion, creed, ethnicity, sexual orientation, etc. This is going to require what Justice Bosson describes.

    The freedom to be from discrimination and bigotry is more important than the freedom to discriminate and be a bigot. Everyone would be justly affronted if a business in San Francisco refused to serve someone wearing a Romney-Ryan button. Everyone should be equally affronted by a business that refuses to serve a couple because of their sexual orientation or any other reason.

    Why some libertarians cannot seem to see the burden of commercial discrimination is beyond me? This is why I eye-roll at Rand Paul even though he is anti-NSA. Well there are a ton of other reasons but…..Report

    • Avatar Will Truman in reply to NewDealer says:

      Back a decade or so ago, there was a bed and breakfast in Vermont that refused to serve anybody that intended to vote for George W. Bush. I find that objectionable, but to me it’s a no-brainer that they should be able to do that. I feel more comfortable about that than I do about discriminating against gays, that’s for sure.Report

      • Avatar LeeEsq in reply to Will Truman says:

        Actually, I’d be opposed to this to.Report

      • Avatar Kazzy in reply to Will Truman says:

        Did they ask you upon making a reservation? Upon arrival? Did they try to engage you in polite talk over breakfast and take away your scones if you gave up your political affiliation?

        I find that objectionable. Perhaps less so than discriminating against gays, but I don’t think it is any more acceptable. Political thought may not be a protected class, but I still find it problematic.

        What I’ve wondered about for a long time is the question of mutability, which often comes up in these conversations. You can simply choose not to vote for Bush in a way that you can’t choose not to be gay or black. But, can you really choose not to be conservative? I didn’t wake up one day and decide to be left-leaning… I just am that way. I’m sure life experiences have shaped that, but I’ve also heard of (read: seen headlines) suggesting that there are some brain differences between liberals and conservatives.

        So, yea, I am not comfortable discriminating against people based on any sort of identifier. Behavior, to a degree, I’m okay with. You can kick someone out of your store for standing in Aisle 3 and yelling, “God hates fags!” But you can’t kick him out for standing there, perusing the various breads and thinking to himself, “Whole wheat or white? White… it’s less faggy.”Report

      • I think it’s a bad thing to do. I think places that do it should be frowned upon. But that’s a separate thing, to me, than whether or not I think it should be legal.Report

      • Avatar NewDealer in reply to Will Truman says:

        You see I am not comfortable with what the B and B intended to do.

        This is a passion of mine but I think we need to bring back the standard of “Reasonable people can disagree….”

        Everything seems so snide now when it comes all political ideas and policies. We seem to have forgotten that it is acceptable for people to have different conclusions from the same evidence or situation. This snideness can come up here and other places. I’m guilty of it as well.

        I keep on thinking to the kidney selling debate when people opposed to it were accused of having “blood on their hands”. Or any debate about economic and welfare policy like healthcare.

        Part of the compromise as described by Justice Bosson is the belief that someone can disagree with you and still be okay/reasonable. Instead political debate seems to treat the opposition as being immoral and/or moronic. I think this is dangerous.

        The caveat is that there are a lot of issues where compromise is impossible. You are either for gay marriage or against it. There is no middle-ground, Solomon the Wise position. The other caveat is that it is often hard to determine what issues reasonable disagreement can exist on.Report

      • Political preference is not a class protected by anti-discrimination law. Even in Vermont.Report

      • Burt, to be clear, I wasn’t arguing that what the B&B was doing was illegal. I was just arguing that should be legally allowed (that the law is right to allow it).

        I will say that my view would change if there became a systemic discrimination problem.Report

      • Avatar Kazzy in reply to Will Truman says:

        Will, Burt, et al.,

        Could this practice not be construed as vote buying (which I assume is illegal, but maybe I’m wrong)?

        “You can’t rent a room here if you vote for Bush.”
        “I’ll rent you a room if you agree to vote for Obama.”Report

      • I took it to be a form of overt political advocacy, Kazzy. That gets pretty substantial deference even if I’m not particularly fond of the message or the means of delivering it. Like Will, I think it ought to be legally permitted regardless of my subjective opinion of the practice.

        I think I’ve mentioned in discussion threads a long time ago that there are two states — California and Washington — whose law provides that termination motivated by an employee’s political expression is grounds for a wrongful termination lawsuit. The other states do not have this. So in Washington, if Edward the Employee drives to work at Belinda the Boss’s factory with a “Vote Obama” bumper sticker, and Belinda says, “Edward, I had no idea you were a Democrat. You’re fired!” Edward can sue Belinda for wrongful termination and will probably win. But across the state line in Oregon, that is a permissible grounds for firing an employee, so in Oregon, that lawsuit will almost certainly lose.

        One might argue that the Washington rule is better, but I think Belinda the Boss ought to be able to protect her business from being associated with that sort of thing: what if Edward the Employee expressed his politics in advocacy of a neo-Nazi candidate rather than someone mainstream?Report

    • Avatar j r in reply to NewDealer says:

      The freedom to be from discrimination and bigotry is more important than the freedom to discriminate and be a bigot.

      This is a fairly arbitrary statement, no? The freedom to discriminate is just the freedom to make judgments. What you are basically saying is that in this particular case the collective judgment of society ought to reign and the individual ability to dissent ought to be greatly constrained.

      Now, I will say that I am very happy that the collective judgment of society is moving towards full acceptance of gays. However, it’s important that we give dissenters some quarter. I say this, not because I have any particular affection for these particular dissenters, but because I recognize there are any number of other areas where I myself am a dissenter. And I hope to be treated with the same regard.Report

      • Avatar NewDealer in reply to j r says:

        I disagree. It has been my experience that people who talk about the need to protect discriminators often to almost always do not come from what the law determines to be a “protected class.”

        In short, they are often white, often Christian, and often men. They have never been subject to a negative or malignant stereotype. They have never been denied access to somewhere because of their background, etc. They don’t know what it is like to see a sign that says “No Jews allowed” or “Irish need not apply” or “Separate entrance for black people”, etc.

        You call this one small business and in a city like Albuquerque that is probably true. But there is an aggregate nature and gay people just don’t exist in large metropolitan areas. How about the gay person that prefers the rural life? They could live in an area where there are more Elane Photographies than businesses that are not Elane Photographies. I don’t see why that gay person should be forced to move. This was certainly true for blacks in the pre-Heart of Atlanta United States.

        One of my best friends is gay. She says she prefers Northern California/the Bay Area and Massachusetts/New England to Oregon because she has more moving space. She can travel further in those areas and be treated with dignity and respect and like a human being. She said in Oregon it felt like she would be confided to Portland and considered an outside and a freak everywhere else.

        So no I don’t have much sympathy for the argument on Elane Photography being one small business.Report

      • Avatar LeeEsq in reply to j r says:

        ND, there is no historical evidece for “No Irish Need Apply.” Irish Catholics weren’t particularly liked in 19th century America but there is no evidence that they were treated that level of disrcrimatinon. They had too much political clout for that.Report

      • Avatar Kim in reply to j r says:

        Lee,
        Plenty of historical evidence. Just not American, apparently:
        http://tigger.uic.edu/~rjensen/no-irish.htmReport

      • Avatar Delirium in reply to j r says:

        NewDealer:

        “In short, they are often white, often Christian, and often men. They have never been subject to a negative or malignant stereotype.”

        You missed the entire culture war?Report

    • Avatar J@m3z Aitch in reply to NewDealer says:

      Everyone would be justly affronted if a business in San Francisco refused to serve someone wearing a Romney-Ryan button.

      Not everyone. I’d think they were incredible dicks, and I’d be happy to tell them so or even shun them, but I wouldn’t argue their activity should be illegal.

      I understand what you say about the effects of commercial discrimination, but I think it’s important to find the line–fuzzy as it may be–between banning actions that cause harm and banning those actions that are just offensive.Report

  10. Avatar Kim says:

    So, what I’m gathering here, is ho-hum. LLC has different rules than a proprietor owned business.

    I’d say the whole thing would have a lot more salience if it was a mohel or a kosher butcher. Both of whom have much more credibility saying their business has a religion (not the least of which is religious inspections and certifications).

    But it appears that there are ways for “religious businesses” to continue to exist (not the least of which is making them “private” and not public affairs).Report

    • Avatar Burt Likko in reply to Kim says:

      Do you think the result should have been different if Elane Photography had been a sole proprietorship of Elaine Huguenin?Report

      • Avatar Kim in reply to Burt Likko says:

        No, but mostly because the act of photography is not inherently religious.

        If you’re distributing sacramental wine (with blessings and everything) there ought to be some way you can say “Only believers can buy.” Because the wine is part of your religion, and you ought to be able to just sell it to the people you want to give it to.

        … or is this a really really bad idea? I don’t know, I’m advancing it tentatively.

        Jews don’t tend to care whether a goy buys kosher meat (though it is twice the price).Report

      • Avatar Patrick in reply to Burt Likko says:

        Do you think the result should have been different if Elane Photography had been a sole proprietorship of Elaine Huguenin?

        I’m still thinking about this but I’m leaning towards “yes”. A private individual can make a religious claim that a corporation cannot.

        I’m muddling through the ramifications, though. I might change my mind.Report

    • Avatar j r in reply to Kim says:

      That raises another question: why is religion so central to what you can and cannot legally refrain from?

      Why shouldn’t people be able to opt out of things because they simply have a conscientious objection? Why does that objection have to be codified in a recognized religion? And what does this mean for atheists?Report

      • Avatar Patrick in reply to j r says:

        Responding to this comment is where the blog misses Tom.Report

      • Avatar Chris in reply to j r says:

        We’d at least get the opinion of the Founders.Report

      • Avatar Kim in reply to j r says:

        I’d ask that we develop SOME way of keeping people “on the hook” for actually creating systematized opinions that they hold for some amount of time.

        AKA “I don’t like you because you’re stinky” is not a conscientious objection unless you’ve actually held this believe for more than 5 minutes (possibly including some sort of civil advocacy against stinky people).

        My example sucks.Report

      • Avatar j r in reply to j r says:

        Kim,

        I’m tempted to agree, but here is why I balk. It is no more difficult for a religious person to use adherence to doctrine as an excuse to get out of doing the right thing (or at leas the thing that everyone else is obligated to do) than it is for a non believer to use his or her conscience. Maybe there was a time when many people’s religious beliefs and duties entailed an overt set of duties, but most people just don’t live like that anymore.

        It doesn’t take a whole lot of religious devotion to say, “sorry, I’m a Christian, so I can’t serve gays.”Report

      • Avatar Kim in reply to j r says:

        jr,
        I’m not asking for /much/ more than demonstrating that you didn’t just magick up your belief 3 minutes before going to war.

        Maybe an essay? Some coherent thought?

        We carved the exemption out for religion because people went to war over it, and it ended Badly. Perhaps under the same argument we carve an exemption out for abortion?

        Point is, that if you’re going to let atheists hold any beliefs and get the “free religion” exemption, I want them to be:
        1) not stupid (okay, religions are stupid. point withdrawn)
        2) Held for more than 5 minutes.
        3) “strongly” held. (don’t be a five year old yelling no)Report

  11. Avatar Damon says:

    Burt, excellent article.

    Sadly, the law has grown to force people of strong religious beliefs into doing work that object to. That’s not something that should be tolerated. Business should be free to discriminate for any reason, if they so choose. If some segment isn’t being served, someone will step in and serve that group.Report

    • Avatar NewDealer in reply to Damon says:

      Except this clearly isn’t true.

      This was not true in Jim Crow south and I don’t think it would be true it many other places.

      There is a huge amount of social pressure and conformity in enforcing these kind of discriminatory policies.

      I think I read about this in a Calvin Trillin piece. During the Civil Rights era, he or another reporter was covering the various sit-ins. He recalled the story of a very teary Greek diner owner who wanted said that he was very sympathetic to the protestors but it would mean the end of his business and supporting his family to disobey the unofficial rules of separate lunch counters.

      The libertarian tendency to discount this kind of social pressure is extremely laughable.
      This is the mystic magic belief in libertarianism that liberals find so easy to mock. What would it take to get you to believe in the social pressure that keeps practices like Jim Crow in place?Report

      • Avatar greginak in reply to NewDealer says:

        Very true especially since i’ve seen at least a few conservatives and libertarians in these parts speak favorable of the uses of shame as a way of solving social problems.Report

      • Avatar Brandon Berg in reply to NewDealer says:

        He recalled the story of a very teary Greek diner owner who wanted said that he was very sympathetic to the protestors but it would mean the end of his business and supporting his family to disobey the unofficial rules of separate lunch counters.

        So…to refute Damon’s claim that someone will step in to serve the unserved segment, you cite a case where…someone had stepped in to serve the unserved segment. Just at a different counter.Report

      • Avatar NewDealer in reply to NewDealer says:

        Mystic magical belief in the market rather.Report

      • Avatar NewDealer in reply to NewDealer says:

        Greg,

        There are other examples I can think of but they would make me lose automatically by the rules of the Internet.Report

    • Avatar LWA in reply to Damon says:

      “Business should be free to discriminate for any reason, if they so choose”
      What moral concept underpins this assertion, that liberty is somehow triumphant?

      I can understand the idea of being left alone, of being allowed to pursue one’s desires when there is no impact on any other.

      Which has no ovelap with the idea of conducting business. Business, by definition, is engagement with society; it depends on the legal and physical infrastructure of society, it depends on the economic externalities produced by societal cooperation such as an educated workforce, civilized and well ordered citizenry.

      The idea of being completely engaged in society while rejecting its structure seems to be to be wholly unsupported by any moral logic.Report

      • Avatar Will Truman in reply to LWA says:

        Part of it is a question of how much the structure should affect how a business is run.

        Is it inevitably in the structure of society that we do not allow businesses to discriminate? I don’t think so. We let them discriminate in some ways, but not in others.

        In what ways would you limit the ability of society to establish a structure that a business cannot reject?Report

      • Avatar ScarletNumber in reply to LWA says:

        What moral concept underpins this assertion, that liberty is somehow triumphant?

        Are you from the United States?Report

      • Avatar morat20 in reply to LWA says:

        Does your liberty to swing your fist mean you can punch me in the face, cry liberty, and not get arrested?

        Of course not. Because you’re infringing on my liberty.

        Your freedom is greatest in those realms where you are the SOLE person affected (well, theoretically) and most restricted when your actions most affect others against their will.

        Your freedom to fire a gun does not allow you to shoot me with impunity.

        So to the case in point: Business is you interacting with society. The business in QUESTION is a LLC, in which they have accepted a limited-liability model (determined and granted by society and it’s laws) to incorporate, shielding themselves from a number of potential pitfalls (and, of course, leaving the public on the hook for some of them). To what extent should their liberty be circumscribed, when interacting WITH the public through a corporation built under public laws?Report

      • Avatar LWA in reply to LWA says:

        Will-
        That is a difficult question, which is what I referred to above with ” one of many competing goals, all of which need to be balanced.”

        There is a goal of inclusiveness, the value of having a society in which no one feels marginalized or unfairly excluded; there is also a goal of liberty, of wanting to be able to have self-agency and determination.

        I think SCOTUS has visited this many times- there isn’t a bright shining line that divides things.
        In answer to your question, I would think it would be some sort of showing of harm- either to the owners, the business, or its mission.

        Like for example, forcing a Catholic hospital to perform abortions- as opposed to forcing a Catholic business to cover birth control for their secular employees.

        Which brings me back to the main point- that elevating liberty as the sole purpose or highest good is unsupported, from a moral logic standpoint. It privileges an arbitrary selection of good, while scorning others, without any justifying logic.Report

      • Avatar NewDealer in reply to LWA says:

        “What moral concept underpins this assertion, that liberty is somehow triumphant?”

        I will go further and ask, why does the liberty to be a bigot get to be superior than the liberty not to be discriminated against?Report

      • Avatar j r in reply to LWA says:

        I will go further and ask, why does the liberty to be a bigot get to be superior than the liberty not to be discriminated against?

        The simplest way to answer that question is to posit it in terms of negative and positive rights. The discriminator is simply asking to be left alone to not do something, while the aggrieved party is petitioning the government to use coercive force to compel the discriminator to do business with that person. Now, I don’t necessarily believe that answers the question in favor of the discriminator, but it should make it easier to see that some of the examples being used are not really analogous.

        Talking about people swinging fists and shooting guns isn’t really relevant, because those are positive actions that cause direct harm to the person on the receiving end. Also, talking about Jim Crow is a bit of a diversion as well. Jim Crow wasn’t just a bunch of white business owners who didn’t want black patrons. It was a whole system of racial superiority enforced by both government mandate and entrenched social norms.

        The civil rights regime we have now is the direct result of the system of white supremacy that preceded it. And that makes sense. The relevant question to ask now is whether we need a new paradigm or do we simply keep stretching out and extending the old one for situations where it may be ill fitting.Report

      • Avatar morat20 in reply to LWA says:

        It was a whole system of racial superiority enforced by both government mandate and entrenched social norms.

        Some sort of…tyranny of the majority, in other words? If only, somewhere in some fundamental part of the law we had some sort of difficult to change requirements that all citizens be treated equally, regardless of immutable physical characteristics like gender, race, sexual orientation — heck, we could even throw in fundamental beliefs like religion!

        Jim Crow was power keeping a minority down. Gays weren’t enslaved, it’s not so long since being gay could and did get you arrested and jailed.

        Systemic discrimination is systemic discrimination. Why should we treat it differently?Report

      • Avatar LWA in reply to LWA says:

        I don’t think there is any such thing as a business that “wants to be left alone”.

        Can someone show evidence of its existance?Report

      • Avatar NewDealer in reply to LWA says:

        JR,

        1. LWA brings up a highly salient point. No business just wants to be left alone. They are presumably placing themselves into the public sphere to make a profit.

        2. I’ve never bought into the libertarian notion than negative rights are superior to positive rights.Report

      • Avatar Patrick in reply to LWA says:

        Negative rights are certainly simpler.

        This is generally something I would consider to be a selling point. That doesn’t make them the end-all-beat-all by default, sure.Report

      • Avatar NewDealer in reply to LWA says:

        Patrick,

        Simpler is not necessarily better.Report

      • Avatar Damon in reply to LWA says:

        It’s not a question of being left alone. It’s an issue of choosing those who you care to interact with. Currently you are ALLOWED to deny service to some people for some reasons (no shirt, no shoes etc.) but not for other reasons. Why? Under what legal authority? Why that far and no farther? Why not say “you have to serve everyone?

        It’s not a negative right..it’s a positive right and it isn’t given to anyone, they are innate, and the gov’t has no authority to enact those rules, and certainly not under “democracy” which is a fancy word for “mob rule”.Report

      • Avatar Alessandra in reply to LWA says:

        “immutable physical characteristics like gender, race, sexual orientation ”

        There is nothing about homosexuality that is a) a physical characteristic, b) immutable. And gender is partially determined and symbiotic with a person’s biological sex, and partially deformable in its cultural and psychological aspects.Report

      • Avatar Cascadian in reply to LWA says:

        @alessandra Does this mean that religion as a protected class is similarly mistaken?Report

  12. Avatar ScarletNumber says:

    I have a lot of respect for Elane Photography. To turn down business because it conflicts with your religious beliefs shows you are truly committed.

    As for the couple, they could have easily just asked the next photographer (which they seem to have done) without making a federal* case out of it.

    If I was Elane, I would just do a lousy job if made to do a job I didn’t want. As Homer Simpson said, “If you don’t like your job, you don’t go on strike. You just go in every day and do it really half-assed – that’s the American way.”

    I never thought that the expression “America, Land of the Free” would turn out to be ironic.

    *For those with Asperger Syndrome, this is just an expression; I know this wasn’t a federal case.Report

    • Avatar Mike Schilling in reply to ScarletNumber says:

      “We couldn’t help noticing in that there were only three pictures of us together, and in every one you cut our heads off.”

      “Oh, yeah, I saw that too. Sorry.”

      “It’s because we’re gay, isn’t it?”

      “Oh, no. Not at all. I was using a new camera, and I don’t quite have the knack of it yet.”

      “New camera?”

      “Yeah, it’s a Leviticus 20:13. Israeli, I think.”

      “Uh-huh.”

      “Anyway, glad I could be there for the happy event. Tell your friends!”Report

  13. Avatar Delirium says:

    “In the smaller, more focused world of the marketplace, of commerce, of public accommodation, the Huguenins have to channel their conduct, not their beliefs, so as to leave space for other Americans who believe something different. That compromise is part of the glue that holds us together as a nation, the tolerance that lubricates the varied moving parts of us as a people. That sense of respect we owe others, whether or not we believe as they do, illuminates this country, setting it apart from the discord that afflicts much of the rest of the world. In short, I would say to the Huguenins, with the utmost respect: it is the price of citizenship. I therefore concur.”

    Hey hey hey, let’s play!

    In the smaller, more focused world of the marketplace, of commerce, of public accommodation, the Huguenins have to channel their conduct, not their beliefs, so as to leave space for following and upholding the Shariah. That compromise is part of the glue that holds us together as a nation, the intolerance that lubricates the varied moving parts of us as a people. That sense of respect we owe the Divine Law, whether or not we believe as they do, illuminates this country, setting it apart from the discord that afflicts much of the rest of the world. In short, I would say to the Huguenins, with the utmost respect: it is the price of not stoned to death. I therefore concur.

    In the smaller, more focused world of the marketplace, of commerce, of public accommodation, the Huguenins have to channel their conduct, not their beliefs, so as to leave space for the Führerprinzip. That compromise is part of the glue that holds us together as a Reich, the doctrine that lubricates the varied moving parts of us as a Volk. That sense of respect we owe our leaders, whether or not we believe as they do, illuminates this country, setting it apart from the discord that afflicts much of the rest of the world. In short, I would say to the Huguenins, with the utmost respect: it is the price of not being sent to KZ. I therefore concur.

    It works!

    In the smaller, more focused world of the marketplace, of commerce, of public accommodation, the Huguenins have to channel their conduct, not their beliefs, so as to leave space for other Americans who believe they are entitled to impose their masturbatory ideology on the world. That compromise is part of the glue that holds us together as a nation, the obedience that lubricates the varied moving parts of us as a people. That sense of respect we owe the current intellectual fashion of inbred academic circles, whether or not it has any connection with reality, illuminates this country, setting it apart from the untrendyness that afflicts much of the rest of the world. In short, I would say to the Huguenins, with the utmost respect: it is the price of not being branded as a “hateful bigoted moron”. I therefore concur.Report

    • Avatar morat20 in reply to Delirium says:

      I’ve never seen a more efficient Godwin’s law violation.

      It shows an uncanny lack of understanding for the original post, the insertion of Nazi’s is forced and incoherent, and the entire thing is simply unrelated to the point you wanted to make.

      Bravo, Sir. There’s not an iota of worth in your entire response! Except, perhaps, the calorie or two you burned typing it.Report

  14. Avatar Kolohe says:

    Is this enough basis to force eHarmony to match same-sex partners?Report

    • Avatar Patrick in reply to Kolohe says:

      Ah, that’s an interesting question.

      I don’t think that eHarmony is a New Mexican corporation, so in this case it clearly would fall outside the purview of New Mexican constitutional issues.

      Talk to me when we get sexual orientation listed as a protected class in federal law.Report

    • Avatar Brandon Berg in reply to Kolohe says:

      I’m not 100% sure that this is true, but I’ve heard that eHarmony refuses to match atheists, as well. I tried to sign up once and was rejected, possibly on that basis. I didn’t sue, though, because I don’t feel entitled to force other people to offer me goods and services.Report

      • Avatar Patrick in reply to Brandon Berg says:

        Congrats, you’re a better human than most?Report

      • Avatar Brandon Berg in reply to Brandon Berg says:

        I’d like to think that the bar’s not quite that low.Report

      • Honestly, what I found odd about the eHarmony thing is that it wasn’t enough for eHarmony to offer the same goods and services to gay singles as to straight ones, but that it had to be on the same site.Report

      • Avatar BlaiseP in reply to Brandon Berg says:

        eHarmony is run by a bigot, a big shot out of Fuller Seminary. Neil Clark Warren. I knew of this guy long before eHarmony got started. He used to run these marriage seminars, telling people there was some simple set of guidelines to Marital Bliss and Compatibility. Most of those guidelines had to do with Finding God’s Will. Christian astrology, whereon the stars in secret influence comment;.

        In those days, James Dobson wasn’t quite as disgraceful as he’s since become. Dobson’s angle was Problem Children. The answer was Tough Love and often physical discipline. The two of them were in cahoots, often sharing the same stage, Dobson and Warren.

        It was about this time I had a serious falling out with the church I was attending, for I’ve come to believe physical disciplining of children is harmful. Children grow in the image of those they love. Children thrive and blossom, turning their little faces like so many flowers to the warm sunlight of love. Children offer us love, it is the one commodity they have. They so desperately want our approval and affection. Physical discipline is so completely unnecessary, I feel it’s a crime.

        But it was on the issue of marriage where I had endured enough authoritarian guff to make a clean break. Jesus is great. Everyone ought to like Jesus. He was a friend of sinners, that’s what his enemies called him. James Dobson and Neil Clark Warren are not friends of sinners. I don’t think they’re following the example of Jesus Christ because nobody’s calling them Friends of Sinners.Report

  15. Avatar Burt Likko says:

    UPDATE: It seems that just today, as a result of a trial court’s order late yesterday afternoon, the county clerk in Dona Ana County of New Mexico began issuing same-sex marriage licenses. Although a lawsuit was filed, the clerk was apparently ready to do this on his own initiative. County Commissioner Liz Stefanics and her new wife Linda Siegle had the honor of being the first same-sex couple in New Mexico to be officially married. Congratulations to them, to all of the other happy New Mexican couples, and to New Mexico itself for joining California, Connecticut, Delaware, the District of Columbia, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island, Vermont, and Washington in the ranks of states that recognize full marriage equality for all.Report

  16. Avatar Brandon Berg says:

    Burt:
    Out of curiosity, what do you think would have happened, legally, if they had said something like, “We’re willing to do the job if you really want us to,A but we draw on divine inspiration in doing our photography, and can’t guarantee the quality of our work in photographing a ceremony that is an abomination in the eyes of God?” Is there precedent addressing anything along these lines? Or, more generally, consistently providing lousy service in a discriminatory manner?Report

    • Avatar NewDealer in reply to Brandon Berg says:

      Legally, I think this would be treated as evidence of a discriminatory intent. See the infamous “God Almighty” line in Loving v. Virginia:

      http://en.wikipedia.org/wiki/Loving_v._Virginia

      Civil Rights lawyers live for statements like that.Report

    • Avatar NewDealer in reply to Brandon Berg says:

      If this was an employment case and I heard someone say something like “I’ll hire them but I can’t guarantee a good job evaluation or a raise because I draw on divine inspiration in doing my evaluations, and homosexuals (or Jews or Hindus or Asians or Blacks or Women, etc.) are just an abomination in the eyes of God.”

      I would be jumping up and down as the plaintiff’s lawyer.Report

    • Litigation is a little bit like draw poker — you need at least a pair of jacks to play, and three of a kind to win. The three cards you’re looking for are defendant’s liability, plaintiff’s damages, and defendant’s ability to pay.

      The use of the word “abomination” would be important because it would be a principal indicator of the public accommodation’s disapproval and condemnation of the event, and thus by extension of the customers’ sexual orientation. It would be child’s play to impute “God’s condemnation, not ours” to the photographers themselves.

      Not quite as powerful in terms of showing malice, but still vitally important because it is part of the disparity in treatment, would be the disclaimer itself. “You don’t offer disclaimers like that for heterosexual couples, do you?” would be a question I’d ask the photographer as many ways, and as many times as I could until I started drawing harassment objections from the defense attorney. Even if the disclaimer were as nicely worded as the one Patrick proposes above and delivered with the soul of courtesy and a sincere regretful smile, it’s still an objective disparity in treatment.

      It would be somewhat more difficult to demonstrate that service was actually provided in a lousy manner correlative to the presence of the discriminatory animus, at least in this case. What’s the difference between a “good” and a “bad” wedding photograph? There are some things that we can objectively classify about the service — is the shot out of focus, does the ratio of subject-to-background approximate to the 3:9 ratio, are parts of the brides’ heads out of shot. But after that, we enter the realm of subjective artistic merit, and we may need to rely on expert analysis of the photographs. There might be an obstacle in getting exemplar pictures from other customers to compare the plaintiffs’ photographs to — they might have privacy rights in controlling who has access to those pictures, which would vary from state to state.

      Another way a photographer might be said to have provided bad service is in the taking of the photographs rather than the end product. I can recall weddings I’ve been to where the photographers were astonishing pests during the ceremony itself — walking about the stage, obtrusively crouching in the aisle, making contact with guests to disrupt their observation of the ceremony and participation in the reception. But again, this is subjective and will depend on the context. Expert testimony can help there, too, but couldn’t be reliably dispositive of the issue of whether or not the service provided was lower quality.

      An “accept with disclaimer” case is certainly winnable, but not necessarily a slam dunk the way this case was. As a private attorney practicing in this area, my reservations about taking the case would not be the question of liability. Liability is an ace in my hand with these cards. But I lack enough information to know if I’ll draw two more aces to go with that one. If I were a public interest attorney, though, this one ace would be enough to go on. Impact litigation is not about maximizing verdict potential.Report

      • Avatar BlaiseP in reply to Burt Likko says:

        Over the last year or two, I’ve photographed and recorded two weddings. The first wedding featured just such a pestiferous photographer. I refuse to pose people and prefer never to photograph anyone who’s aware I’m shooting. I have an excellent 20x zoom lens which lets me get “close enough” to get the shot I want.

        Can I call this a wedding? The legal filings only call this a commitment ceremony. If only Elane Photography had found some other reason not to shoot this wedding, they might have avoided all this mess. Perhaps “We’re unable to accommodate you at this time” without any reason given would have sufficed. Perversely, I sense their “principled” stand on this issue has only thrown fuel on the fire. Now comes the plaintiff pro se, before the court of public opinion, Bible in hand, to read a few piquant verses out of context to justify the unjustifiable. And lo, behold the smarny, weepy congregation of the faithful to file amicus briefs on their behalf, come shuffling up to the clerk of court.

        Churches may decide whom to marry. My church only marries those couples where the family has an enrolled member and it’s usually either parents or the couple themselves. I wonder, could a church be denied tax exempt status for denying a same-sex couple marriage? I’m given to understand LDS was attacked on the basis of denying black people membership. The response from LDS was as swift as it was predictable: the Almighty delivered a revelation to the LDS Grand Poobah, relaxing his previous proscription on the Sons of Ham.

        Vanessa Willcock and her beloved might have been well-advised to find a more sensitive wedding photographer, one more in tune with the concept of weddings as ceremonies and not just church services. Anyone would have been better than Elane Photography. I commend Vanessa Willcock for taking her case to court and the justice system for its findings. But the choice of a wedding photographer is at least as important as the choice of bridesmaids’ gowns.Report

      • Avatar Burt Likko in reply to Burt Likko says:

        Blaise asks about whether churches have to sponsor ceremonies of this nature. The other big bogeyman is a church in New Jersey forced to host a gay couple’s commitment ceremony against its wishes by a stupid law wielded by a cruel and insensitive judge who failed to tolerate the church’s adherence to the Word of God. I refer, of course, to Luisa Paster and Harriet Bernstein wishing to rent the Ocean Grove Camp Meeting Association’s Boardwalk Pavillion and specifically its Great Auditorium for their commitment ceremony in 2007.

        At the time of the administrative decision, the Ocean Grove Camp Meeting Association had not filed the paperwork to include the Boardwalk Pavillion in its church grounds, and the facility was essentially on equal footing with a for-profit banquet hall. The church had even accepted public money, with strings attached, for the maintenance and upkeep of the facility, and had represented to local governmental agencies in applications for exemptions from taxes that it would not impose religious restrictions on the use of its facility by members of the public.

        You could look it up.

        So just as a for-profit banquet hall is a public accommodation, so too was the Boardwalk Pavillion and therefore it was subject to New Jersey’s anti-discrimination law. So the ruling of the state administrative agency was that there was probable cause to find that same-sex couple should have been provided access to the facility, and a parallel suit to stop the administrative investigation on First Amendment grounds was thrown out for a similar reason.

        As I understand it, the Ocean Grove Camp Meeting Association has subsequently changed its filings and eschewed tax exempt status for this facility, so now the Pavillion is within the ambit of the church itself, and therefore exempt from the anti-discrimination law because it is no longer a public accommodation — it is now only open for use by parishioners and their families, not the general public. No more will the parishioners have to tolerate the spectre of two perfectly nice older ladies publicly announcing their love for one another or the icky spectacle of them dressed up nicely and (ewww!) kissing to the applause of their families and friends.

        Whew, that was close.Report

      • Avatar BlaiseP in reply to Burt Likko says:

        I’d like to press the matter a little farther, Brother Likko. I’m of the opinion churches don’t deserve tax exempt status, especially when they’re running profitable little businesses under their 501(c)(3) incorporations. The Lord’s House can be turned into a Den of Thieves — well, you being a lawyer and all, you may be hardened to this sort of thing and unsurprised by such a statement. I am terribly hardened on this subject. All such Dens of Thieves can restrict membership to their wicked hearts’ content. That doesn’t bother me. It does bother me to see them running little businesses, as it bothered Our Lord back in his day.Report

      • Avatar Mike Schilling in reply to Burt Likko says:

        You could look it up.

        This literally made me LOL.Report

  17. Avatar J@m3z Aitch says:

    Burt,

    I have to echo the first two comments. I am always highly impressed by your ability to present legal cases and arguments so clearly. You’re an excellent teacher.Report

  18. Avatar Alessandra says:

    I simply do not understand how these cases can be framed as discrimination from a legal standpoint. The provider is refusing to provide service because they would be serving a destructive political and social agenda. These are freedom of conscience cases, much more than freedom of speech. The compelled speech is just the type of compelled behavior (working for people who are destroying society because of their political agenda). It’s no different than being asked to take photographs of a Neo-Nazi event and refusing.

    There is no such thing as equating “sexual orientation” to race (or any in-born physical characteristics), thus legislation that equate it to racial discrimination is empty of meaning. It is a fraudulent concept at its very root.

    This is just one more case that evidences that every piece of legislation regarding discrimination based on sexual orientation is a fraud and must be scrapped.

    Lastly, and the most important point in all of this, is that once you establish a “protected class” for whom different laws apply, you’ve clearly done away with equal protection before the law.

    http://alessandrareflections.wordpress.com/2013/07/10/another-lawsuit-from-two-men-with-a-homosexual-problem-colorado-bakery-refused-wedding-cake/Report

    • Avatar Burt Likko in reply to Alessandra says:

      I’d like to point out to some other commenters that Allesandra has articulated a point of view strongly and assertively disagreeing with the judicial opinion (and my own), without being in the least bit disagreeable in tone, word choice, or other modes of expression. Thank you very much for that.

      In substantive response, I’d suggest that there are times when cultural and economic realities make the theoretical equal standing before the law inherently inequal in practice. We rely on the political process to hash out when that occurs, and to provide an appropriate counter-balance; this has occurred in the form of anti-discrimination legislation authorizing corrective lawsuits for situations and reasons determined important enough by the legislatures.

      As to whether it is possible to discriminate on the basis of sexual orientation or not, that’s an observational question of the positive law rather than a normative question of what the law ought to be. The legislature of New Mexico has deemed, perhaps arbitrarily, that sexual orientation is to be protected by anti-discrimination law the same way race is — the same way it can deem and has deemed, perhaps arbitrarily, what the maximum speed one may drive an automobile on a freeway is. You seem to concede that, as a normative issue, race is properly and appropriately the subject of this sort of protection but that sexual orientation is not. Can you identify a qualitative difference between these two personal attributes which forms the foundation for that conclusion?

      Your last point — the creation of a protected class itself challenges the notion of equal protection — is an interesting bit of formalism. But the availability of what are commonly called “reverse discrimination” causes of actions takes the air out of that point. If we’re going to say that, for instance, African-Americans are a protected class and employers or providers of public accommodations may not discriminate against African-Americans, we also say that employers or providers of public accommodations may not discriminate against Americans with fair skin and apparent European ancestry. So in fact all members of the public stand on equal footing: anyone who is discriminated against on the basis of race has access to a judicial remedy. While it may be the case that sexual orientation lawsuits are almost always brought by people who are other than heterosexual, there is nothing to prevent a heterosexual from saying that she too has been discriminated against because of her sexual orientation, given an appropriate set of facts which ought not be difficult for anyone to imagine. To my knowledge, the only protected class for which reverse discrimination suits are unavailable is in the realm of age discrimination. So if the claim is that as a formal, logical matter the availability of anti-discrimination lawsuits challenges the principle of equal protection, doesn’t the formal availability of a cause of action and resulting remedy satisfy the demands of equal protection?Report

    • Avatar Cascadian in reply to Alessandra says:

      So equality for gays is less compelling because it’s not an innate characteristic. Does this apply to Religion as well? Or, is there some special reason why religion should be protected even if it’s not a physical attribute? A little bit of “for me, not for thee”.Report

      • Avatar Alessandra in reply to Cascadian says:

        There is nothing that justifies compulsion regarding an ideology that normalizes homosexuality.

        To the extent that any religion is an ideology, why should religion be protected and other ideologies not be protected? That clearly violates equality before the law.

        Take this example of this Republican politician who walked into a restaurant owned by a liberal. Liberal owner recognized the politician and told him to leave. Because the liberal didn’t like the guy’s politics. Now if the same politician, who was also Catholic, walked into another restaurant and the restaurant owner didn’t like the Catholic religion, and told him to leave, why should the politician be able to sue in the first scenario against “discrimination,” but not in the second? Does that make sense? And if you force everyone to serve everyone for everything, one thing is sure, the society you live in has become a dictatorship. Just like Nazi Germany, you cold not refuse working with the Nazis.Report

      • Avatar Cascadian in reply to Cascadian says:

        As has been pointed out there are only a few states where Political affiliation is protected Religion is Federally protected, so we’ll have to get rid of that one before we can be consistent.

        Before I throw the gays under the bus, I must make one observation. I’ve gone from a fundamentalist Christian to a libertine pagan, from a Reagan Republican to Democrat to PaleoCon. No matter how I’ve tried, and trust me I’ve tried, I’ve failed utterly to become bi-sexual.Report

      • Avatar Cascadian in reply to Cascadian says:

        @alessandra I forgot to tag this post.Report

      • Avatar Alessandra in reply to Cascadian says:

        I don’t know how to tag replies. On my screen, I only get a “reply” link on the bottom of main comments, not replies to replies. How does that work?
        In any case, I didn’t see you write anything that addressed the points I made, so I can’t respond.Report

      • Avatar Cascadian in reply to Cascadian says:

        @alessandra ” I didn’t see you write anything that addressed the points I made, so I can’t respond.”

        You argue that homosexuality can’t be a protected class because it is, according to you, not immutable. However, we already have a class like this… religion. So why can’t we discriminate against someone based on their religion if it’s not immutable?

        Second, people that argue that homosexuality is a choice must have a much stronger same sex attraction than I. No matter how hard I’ve tried, I’m still het. Maybe things would be different for you and that’s what you’re scared of.Report

      • Avatar Cascadian in reply to Cascadian says:

        crickets….Report

      • Avatar veronica dire in reply to Cascadian says:

        It is one of my favorite thought experiments to present to those who believe “gay is a choice.” I say this: okay, if it is a choice, briefly — and without actually *doing* anything — choose to be gay. Just do it for a bit, a few days. Easy peasy. If you’re a dude, find a dude’s round butt attractive; if you’re a girl, get lost in some other girl’s soft brown eyes.

        It’s a choice, right? — just choose.

        There are two possible outcomes, both delightful.Report

  19. Avatar Alessandra says:

    “You seem to concede that, as a normative issue, race is properly and appropriately the subject of this sort of protection but that sexual orientation is not. Can you identify a qualitative difference between these two personal attributes which forms the foundation for that conclusion?”

    If I understood your question correctly, here is my answer. There is no good reason for refusing service to a person because their skin color is different than yours. However, if a black person were holding a ceremony where they had sex with a dog and a white person refused to photograph it because of the type of sex involved, you cannot claim the white photographer is discriminating against them based on the color of their skin. This example highlights the difference between opposing color of skin and opposing a perverted psychology related to sexuality and relationships. In no way are these two things the same. Skin pigment does not equal a deformed psychology. Therefore, you cannot force a person to endorse a destructive and/or dysfunctional sexual practice and the ideology that normalizes it. This is why “sexual orientation” discrimination laws are similar to laws that compelled Germans to work for the Nazi regime. You could not refuse. “Sexual orientation discrimination” legislation compels people to serve a destructive agenda. Obviously this goes counter to the most core liberty principles that the United States was founded upon. If a citizen cannot be free to oppose an ideologically destructive group of people, and must be compelled by the State to serve them against their will, this citizen can be many things, but free is not one of them. Even with a less contentious example, it would be outrageous if a Republican could use the power of the State to force a fierce Democrat to provide any and all kinds of services they requested to further the Republican political agenda.

    Americans do not want to face how dysfunctional they are in the areas of sexuality and relationships, and they do not want to face that homosexuality and bisexuality are dysfunctional. No one is born with a homosexual problem and incapable of having a healthy heterosexual relationship. It is a major problem that people develop over time. Therefore, nothing good comes out of normalizing homosexuality. It is a lie to state that homosexuality is “just like heterosexuality” and it is a grave mistake to ignore all the psycho-social problems that generate the condition. Consequently, a conscientious and well-informed citizen should be perfectly free to oppose any homosexuality agenda that purports to lie about how deeply dysfunctional and perverted homosexuality is. Any action or event that normalizes homosexuality is something that every citizen should always have the freedom to oppose.

    If some people come to a professional photographer and request that the photographer shoot a porn session, the photographer should be free to refuse. The State cannot force them to work for the people who want porn simply because some people claim that porn is normal (even if the APA stomps its feet and says so) or because they claim everybody should be in favor of porn, otherwise it’s “discrimination.” It would be the same thing for the people with a homosexual problem.

    The State is particularly wrong in normalizing homosexuality and it is being tyrannical in compelling Elaine to serve a destructive group of people who clearly will not allow citizens to act according to their conscience. How can we say that a slave has freedom of conscience? Their fundamental rights have already been taken away from them.Report

    • Avatar Dave in reply to Alessandra says:

      I’m reading this at The Onion, right?Report

    • Avatar Dave in reply to Alessandra says:

      Allesandra,

      While Burt appreciated the civility and tone in your first post here, I sensed that it concealed viewpoints that were far more objectionable than what you led on. I see you proved me right.

      This:

      However, if a black person were holding a ceremony where they had sex with a dog and a white person refused to photograph it because of the type of sex involved, you cannot claim the white photographer is discriminating against them based on the color of their skin. This example highlights the difference between opposing color of skin and opposing a perverted psychology related to sexuality and relationships. In no way are these two things the same. Skin pigment does not equal a deformed psychology. Therefore, you cannot force a person to endorse a destructive and/or dysfunctional sexual practice and the ideology that normalizes it. This is why “sexual orientation” discrimination laws are similar to laws that compelled Germans to work for the Nazi regime.

      https://ordinary-times.com/commenting-policy

      We have a commenting policy here at the League and while we value civility, when that civility comes with a diatribe of the kinds of baseless assertions that have been so thoroughly debunked that the only purpose for their existence is to denigrate an entire group of people based on an individual’s animus toward said group, that’s where the line is drawn. There is nothing in the statement above that contributes meaningfully to this discussion. You are espousing viewpoints that have not only been thoroughly discredited, but your decision to bring bestiality into the discussion and equate it to homosexuality was in particularly poor taste and accomplishes nothing more than giving you a platform to espouse your viewpoint, a viewpoint that has less to do with the case and more to do with a world that has evolved far beyond your limited worldview.

      You’re more than welcome to comment on the case, but tone down the rhetoric. If I see more of it, I will start deleting comments. Some would call this political correctness. I call this having no tolerance for viewpoints that a polite society would not tolerate.Report

      • Avatar Alessandra in reply to Dave says:

        Dave,

        Why would an example involving any kind of dysfunctional sexuality constitute a diatribe?

        Are saying that only you can determine what is dysfunctional, perverted or harmful regarding sexuality? Are you saying that any time someone expresses another viewpoint about issues in sexuality, or debates you regarding your opinions, you will label that a “diatribe?” Are you saying that you will censor any discussion or any viewpoint that you do not understand or agree with? Apparently yes.

        If that’s your comment policy, I can’t do anything about it, because it’s like trying to start a discussion about the problems with Islam in Iran or Saudi Arabia. Repression will be swift.

        If I understood you correctly, you are saying that people who do not agree with your ideas about homosexuality cannot discuss any matter regarding the issue. I’m sorry, but that’s preposterous. And it shows not only a lack of civility on your part towards them, but most of all a most clear inability to sustain your viewpoints.

        I also dispute your claim about what has been discredited and I am pretty sure that most of your beliefs have no basis and are misinformed. But only a debate would allow me to show that.

        However, I think that a debate is what you don’t want most of all.

        “I call this having no tolerance for viewpoints that a polite society would not tolerate.”

        Thank heavens for repression of dissent; where would your “polite” society be without it? It’s clear to me that my viewpoints profoundly question your status quo and all the misinformation you’ve adopted. I’m also sure telling yourself that shutting down debate is all for the good of society makes you feel much better. It’s what every ayatolah says when they punish anyone who questions them too.

        If you can’t debate, you can always delete, right?Report

      • Avatar Burt Likko in reply to Dave says:

        Allesandra, the portion of the comment policy Dave refers to is that which indicates that comments which are “repeatedly and overwhelmingly aimed towards denigrating certain groups,” the group in question being homosexuals. If I’m reading you right, you’re saying that homosexuality is, by definition, a mental health problem — an illness like schizophrenia or bipolar disorder. A few pokes around your blog reveals that those who insist otherwise are in your estimation “stupid” and “ignorant,” although I appreciate your not using such language here. Saying that they are mentally ill, however, is not much better.

        I’m not going to convince you away from your insistence that “they aren’t really born that way” and I won’t try. I will point out for the benefit of other readers that such an attitude goes against a very substantial trend of scientific research going back to the very beginnings of psychology as a field of clinical and academic study. But to set up another question, let’s assume you’re right and all those people with Ph.D.’s, including the ones who write the standardized texts setting forth recognized mental disorders, who wrote homosexuality out of the realm of disorders from the standard texts forty years ago are simply wrong. If, arguendo, homosexuality is indeed a mental disability, then aren’t you advocating disability discrimination?Report

      • Avatar Cascadian in reply to Dave says:

        @burt-likko Did you notice that Alessandra has been banned at both First Things and TAC? That takes a “special” person to pull that off.Report

      • Avatar Alessandra in reply to Dave says:

        Author: Burt Likko said: Allesandra, the portion of the comment policy Dave refers to is that which indicates that comments which are “repeatedly and overwhelmingly aimed towards denigrating certain groups,” the group in question being homosexuals. If I’m reading you right, you’re saying that homosexuality is, by definition, a mental health problem — an illness like schizophrenia or bipolar disorder.
        ……………………………………….
        Homosexuality is much more than a mental health problem, because it involves ideology, culture, and society, but we can discuss the mental health part if you’d like. If you would like to read me right, it would be important to note that I didn’t say that homosexuality was an illness like schizophrenia or bipolar disorder. In fact, you are the one who brought in the term mental illness, not me. To clarify, I don’t think homosexuality is a mental illness like schizophrenia.

        Let’s see if we agree on anything. How do you define illness in the context of mental illness? What characterizes a mental illness? Is a rapist in your view mentally ill? Is a person who engages in bestiality, or pedophilia, or a person who who wants to sexually harass another human? Is someone who cheats on their spouse mentally ill? How about someone who batters a partner? Is a person who gives sexually sleazy looks to another person of the same sex mentally ill? Is a person who enjoys beating another adult who consented to the practice mentally ill? Is someone who enjoys looking at people having sex with animals mentally ill? Is a person who wants to change sex mentally ill?Report

      • Avatar Burt Likko in reply to Dave says:

        @Cascadian that’s all the more reason you should want to take the high road here.Report

      • Avatar Dave in reply to Dave says:

        Really?

        Why would an example involving any kind of dysfunctional sexuality constitute a diatribe?

        Irrelevant although I’ve never seen bigots attempt to tie homosexuality to bestiality and lump the two of them together in the same group of sick f–ks and do so saying “but we’re having a civil debate”. Nope. Not at all.

        Are saying that only you can determine what is dysfunctional, perverted or harmful regarding sexuality?

        No. I’m saying you are full of it.

        Are you saying that any time someone expresses another viewpoint about issues in sexuality, or debates you regarding your opinions, you will label that a “diatribe?”

        No. I am saying that you are full of it.

        Are you saying that you will censor any discussion or any viewpoint that you do not understand or agree with? Apparently yes.

        If someone like Professor Robert George asked to present his arguments in defense of opposite-sex marriage here at the League, I would be in favor of it even though I have read his most recent work and strongly disagree with it. I would also police the comments section to make sure people kept it civil. It’s not an easy job since I may have to tell a few people that I like to cool down the rhetoric, but I try not to be selective of who I go after.

        We encourage disagreement, but we’re not going to ask members of the Westboro Baptist Church to share their views on same sex marriage. We have our limits.

        If that’s your comment policy, I can’t do anything about it…

        You can complain about it.

        because it’s like trying to start a discussion about the problems with Islam in Iran or Saudi Arabia. Repression will be swift.

        Always one step ahead of me.

        If I understood you correctly, you are saying that people who do not agree with your ideas about homosexuality cannot discuss any matter regarding the issue.

        You didn’t understand me correctly.

        I’m sorry, but that’s preposterous.

        It would be if it was true, but it’s not.

        I also dispute your claim about what has been discredited and I am pretty sure that most of your beliefs have no basis and are misinformed. But only a debate would allow me to show that.

        I call it like I see it. I can differentiate between people that show good faith concerns about same-sex marriage and people that take the Scott Lively view of the homosexual agenda. The latter deserves no place in civil discourse, and playing the victim card and claiming that your opponents are the intolerant ones won’t change that.

        However, I think that a debate is what you don’t want most of all.

        Is that the line you used before you were banned at TAC and First Things?

        Thank heavens for repression of dissent…

        There is a difference between actual dissent and the marketplace of ideas determining that certain viewpoints are so obnoxious that they should likely be kept to one’s self.

        It’s clear to me that my viewpoints profoundly question your status quo and all the misinformation you’ve adopted. I’m also sure telling yourself that shutting down debate is all for the good of society makes you feel much better.

        No, I’m telling myself that your lack of self awareness is a source of comic relief for me.

        It’s what every ayatolah says when they punish anyone who questions them too.

        I’m 5’5″. I prefer that my tyranny be referred to using Napoleonic references.

        If you can’t debate, you can always delete, right?

        Nice try.Report

      • Avatar Burt Likko in reply to Dave says:

        @Allesandra, if you are backing away from calling homosexuality “a perverted psychology related to sexuality and relationships” and “a deformed psychology” and “a destructive and/or dysfunctional sexual practice” and “homosexuality and bisexuality are dysfunctional” and “It [homosexuality] is a major problem that people develop over time” then I for one would applaud. I reject the notion that homosexuality is a mental health issue at all. It was your (repeated) use of words and phrases like that which led me to believe that you were calling homosexuality a mental health issue. I guess I misunderstood you and you’ll need to explain yourself again.

        Obviously, mental health issues have cultural and social dimensions to them. Mental health disorders often manifest in behavior not conforming to cultural and social norms. Not every deviation from a norm is a mental health issue, although some are (addressing your irrelevant laundry list of other kinds of behaviors).

        I also distinguish between homosexuality itself and a legal norm requiring a degree of tolerance of it, which you’ve allowed yourself to be pushed into a more extreme characterization as “the ideology that normalizes it,” and characterizing laws like Title VII and its state-level cognate as “similar to laws that compelled Germans to work for the Nazi regime.” This is actually a more interesting question to me than either 1) how homosexuality should be examined through the lenses of psychology, culture, crime, and history; and 2) whether homosexuality is an innate and immutable attribute of a person, akin to race, or a malleable facet of one’s identity substantially the product of individual socialization, akin to religion. (Both of which are given equal status by anti-discrimination law, a subject upon which @Cascadian has been trying, unsuccessfully, to engage you.)

        That’s why I tested your claim that the creation of anti-discrimination law inherently creates unequal classes and disrupts the principle of equal protection — you never answered my question about whether the potential for reverse discrimination claims redeems that. That’s why I asked you about disability discrimination — to the extent that homosexuality is a mental health issue (while you attempt to obscure your characterization of it as such behind purported cultural complexity, you also do not reject the postulate that it is a mental illness entirely) and therefore if discrimination against mentally ill people is not a form of disability discrimination, something that again you haven’t responded to.

        The time to tap dance is over. These are questions answerable by the phrases “yes,” “no,” or “I don’t know.”

        1. Does the availability of reverse discrimination suits redeem the legitimacy of anti-discrimination law?
        2. Should anti-discrimination laws protect only against discrimination based on immutable personal characteristics?
        3. Is homosexuality an immutable personal characteristic?
        4. Is religion an immutable personal characteristic?
        5. Can someone who is not mentally ill be homosexual?Report

      • Avatar Dave in reply to Dave says:

        Cascadian,

        I concur with Burt. There is no reason for this to go any further although I did laugh out loud at the straight guys with wide stances comment (lost a little coffee too).Report

      • Avatar Alessandra in reply to Dave says:

        Burt Likko said:
        if you are backing away from calling homosexuality “a perverted psychology related to sexuality and relationships” and “a deformed psychology” and “a destructive and/or dysfunctional sexual practice” and “homosexuality and bisexuality are dysfunctional” and “It [homosexuality] is a major problem that people develop over time” then I for one would applaud.
        …………………..;

        I’m certainly not “backing away” from saying anything I have said before, because there is nothing wrong with it.

        What I am is clarifying what I said that you didn’t understand. You said you were assuming that I thought homosexuality is “a mental illness like schizophrenia”. I was clarifying that a) I have never said this, b) because I don’t think this. Second, I believe homosexuality is certainly a mental health issue, depending on how one defines the term, since homosexuality is produced by profound psycho-social problems.

        The term “mental illness,” however, is completely loaded and I think it is too easily associated with psychosis as a main aspect. If we are going to define the term “mental illness” as obligatorily having a major component of psychosis, then would it be correct to include homosexuality, pedophilia, bestiality, etc.? No. Second, I also think that the term “mental illness” also usually designates conditions where a person has little control of the overall functioning of their mind or at least has major episodes of loss of control. In this sense, we could not call a series of perverted, harmful, and dysfunctional sexuality problems “mental illnesses,” even if a person who has a homosexuality, pedophilia, bestiality, etc. problem can be profoundly dysfunctional and perverted in many ways.

        “I reject the notion that homosexuality is a mental health issue at all.”

        We are back at square one. I had asked you a series of questions about what you consider a mental illness. And you did not reply, and you also did not reply with a definition of mental illness – unless you are now claiming that “mental illness” is any time someone deviates from a norm? That’s ridiculous. And you have also not defined “mental health issue.”

        You have also not defined homosexuality, nor explained its etiology.

        So basically, when you say that you don’t think homosexuality is a mental illness, and you cannot define the term “mental illness,” “mental health issue,” or “homosexuality,” it’s impossible to know what you are claiming because you give no definitions to anything.

        You wrote: “Not every deviation from a norm is a mental health issue, although some are (addressing your irrelevant laundry list of other kinds of behaviors).”

        Given that I’m discussing problems related to a person’s psychology, I have no idea what you mean about an “irrelevant laundry list of other kinds of behaviors.” Psychological problems are inside the mind, behaviors are outside. And as long as you don’t define what is a “mental health issue,” your above statement makes no sense either.Report

      • Avatar Burt Likko in reply to Dave says:

        And now we come to this. “You haven’t defined your terms! So that means I didn’t say what you just quoted me saying!” Trying to change definitions is a predictable dodge when words prove inconvenient. The insipid next step will be to complain that I haven’t done sufficient “epistemology” to coherently address the subject matter of our conversation.

        You seemed to have no trouble offering this statement without having either understood “my” definition of homosexuality or offered your own:

        Americans do not want to face how dysfunctional they are in the areas of sexuality and relationships, and they do not want to face that homosexuality and bisexuality are dysfunctional. No one is born with a homosexual problem and incapable of having a healthy heterosexual relationship. It is a major problem that people develop over time. Therefore, nothing good comes out of normalizing homosexuality. It is a lie to state that homosexuality is “just like heterosexuality” and it is a grave mistake to ignore all the psycho-social problems that generate the condition. Consequently, a conscientious and well-informed citizen should be perfectly free to oppose any homosexuality agenda that purports to lie about how deeply dysfunctional and perverted homosexuality is. Any action or event that normalizes homosexuality is something that every citizen should always have the freedom to oppose.

        If you don’t know what the word “homosexuality” means, that entire paragraph — indeed, nearly everything you’ve written in this thread — is nonsense.

        And you’ve only half-answered one of my questions (#5) — it’s a half-answer because you’ve obscured the clarity of your response behind a gossamer construct of no longer understanding the English language.Report

      • Avatar Alessandra in reply to Dave says:

        Author: Burt Likko wrote:
        And now we come to this. “You haven’t defined your terms! So that means I didn’t say what you just quoted me saying!” Trying to change definitions is a predictable dodge when words prove inconvenient.
        ………………………..;;
        I have no idea what you are referring to when you say “trying to change definitions is a predictable dodge”

        Are you changing definitions? Of which words?

        Burt wrote: You seemed to have no trouble offering this statement without having either understood “my” definition of homosexuality or offered your own:

        Americans do not want to face how dysfunctional they are in the areas of sexuality and relationships, and they do not want to face that homosexuality and bisexuality are dysfunctional. No one is born with a homosexual problem and incapable of having a healthy heterosexual relationship. It is a major problem that people develop over time. Therefore, nothing good comes out of normalizing homosexuality. It is a lie to state that homosexuality is “just like heterosexuality” and it is a grave mistake to ignore all the psycho-social problems that generate the condition. Consequently, a conscientious and well-informed citizen should be perfectly free to oppose any homosexuality agenda that purports to lie about how deeply dysfunctional and perverted homosexuality is. Any action or event that normalizes homosexuality is something that every citizen should always have the freedom to oppose.

        Burt said: “If you don’t know what the word “homosexuality” means, that entire paragraph — indeed, nearly everything you’ve written in this thread — is nonsense.”

        Somehow you are very confused. I asked you for a series of definitions, because I don’t know what you mean by these words. I know what I mean by homosexuality and I have just given you a very brief definition of mental illness.

        So far, I have no idea what you are talking about when you say “mental illness,” “mental health issue,” and “homosexuality,” because you refuse to define them.

        Can you define these words? Or are you saying that you define these words exactly as I do? If so, please tell me what is my definition of homosexuality, since, as I understand it, you claim to know what it is?Report

      • Avatar Burt Likko in reply to Dave says:

        I’m all done here. I asked you five yes-or-no questions. You haven’t answered them, claiming that I haven’t defined terms properly.

        One of us is refusing to engage the other. I shall leave it to others to decide for themselves which of us that is.Report

      • Avatar Alessandra in reply to Dave says:

        Alessandra,

        You were warned. The comment is gone.

        PS – I love you too…Dave

        Report

    • Avatar Alessandra in reply to Alessandra says:

      Cascadian
      August 26, 2013 at 1:43 pm
      Did you notice that Alessandra has been banned at both First Things and TAC? That takes a “special” person to pull that off.
      ……………
      hah! As if any of these sites wanted real debate… wherever there’s politics and money involved, the first thing that is squashed is debate. But, hey, right here is the proof that you want real debate and not to simply malign people who question you, right?
      Call the “special” and shut them now, it’s less embarrassing, for sure…Report

  20. Avatar Cascadian says:

    @alessandra For a person who wants debate, I’ve yet to see you agree that religion shouldn’t be protected or how you must view your own sexuality as mutable. You obviously have chosen to be straight, and I say good on you. I think straight guys with wide stances are interesting.Report

  21. Avatar Alessandra says:

    I asked: Why would an example involving any kind of dysfunctional sexuality constitute a diatribe?

    You, Dave, said: Irrelevant although I’ve never seen bigots attempt to tie homosexuality to bestiality and lump the two of them together in the same group of sick f–ks and do so saying “but we’re having a civil debate”. Nope. Not at all.

    In other words, you don’t accept that anyone disagrees with you on what is dysfunctional, perverted, or harmful. Any disagreement is, according to you, “incivility” and people should not have a right to debate you on these issues. You believe you have a duty to shut down people who question your notions of what is dysfunctional or perverted. It’s what you said you would do if I wrote any views that questioned yours.

    Don’t you find it interesting that your notion of “politeness” means absolute agreement with you on what is dysfunctional, perverted, or harmful in the sphere of sexuality and relationships? See, just like an ayatolah; they also think that anyone who disagrees with their beliefs is being a very bad person.

    I asked: “Are saying that only you can determine what is dysfunctional, perverted or harmful regarding sexuality?”

    You replied: “No. I’m saying you are full of it. ”

    I gather that this kind of uncivil reply is just more of your particular brand of “polite” society? How interesting that in your “polite” society, there is no debate, there is no civility, and you are incapable of discussing any issue raised.

    So far you have only proved me right – you have shown no basis for anything you claim.Report

    • Avatar Dave in reply to Alessandra says:

      I’ve allowed myself to get baited into this ridiculous discussion, and I was fine with that. This is exactly where I expected it to go since morons that hold particularly repugnant viewpoints project their shortcomings onto others in the form of accusing people of closed-mindedness.

      You bitch and moan about getting a fair shake at a debate and when Burt and Cascadian attempt to oblige, you scurry away with your pithy evasions and refusal to address their points.

      You are not interested in debate. As far as I’m concerned, you are nothing more than an attention whore. As such, I will not respond to you and comments you post will be deleted in their entirety.Report

  22. Avatar Cascadian says:

    @dave “There is no reason for this to go any further”. As long as your sure about that. Sorry about the coffee. At least it wasn’t beer.Report

  23. Avatar Mad Rocket Scientist says:

    Popehat had a post about this last week, and the comments are interesting (Clark is banging his drum quite a bit).

    Ken White’s comment near the end sums up the trouble rather succinctly.

    Imagine that Westboro Baptist Church is holding a wedding for two of its members. Must a gay photographer accept a request to photograph it? How about a photographer whose son was killed in Afghanistan?

    I believe the correct answer is yes, but I think most decent people who find the likes of Westboro repulsive will feel their stomach lurch a bit at the thought of it.

    (Err, the thought of forcing the photographer to work the wedding, not the thought of two members of that church, who are likely related, from marrying)Report

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