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The Fatal Flaw in Using Faith as Permission to Discriminate

Here are two things I hear a lot these days a lot from liberals, even more from libertarians, and pretty much from everyone on the right: That you can be anti-same-sex marriage or gay rights without that belief being either bigoted or discriminatory, and that someone’s religious beliefs somehow need to be taken into consideration when we consider the question of whether or not business owners, employees, or government workers should be allowed to restrict goods and services to LGBTs.

As anyone who has been here for very long knows, I strongly disagree with both of these positions.  Indeed, this might be the sole issue where I eagerly side with the far left and disagree with pretty much everyone else here. 

Foolishly, I’m going to try once again in vain to try to convince everyone else they are wrong.  To do so, let’s travel East…

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On Tuesday morning a new skirmish in the battle over same-sex marriage and religious freedom surfaced in North Carolina.  Two former county magistrates, Swain County’s Gilbert Breedlove and Graham County’s Thomas Holland, have filed suit against the government for infringing upon their religious freedoms.

Breedlove and Holland had each already stepped down from their posts in protest over court rulings that allow same-sex marriages in the state. Part of each plaintiff’s job description was performing marriage ceremonies; each says that performing a same-sex marriage would be a spiritual hardship. In addition to being a county magistrate, the aptly named Breedlove is a minister and has been performing traditional marriages for almost a quarter century.  If ever there were a better example of the challenges inherent in finding ways to appease both champions of LGBT rights and religious liberties, I’m not aware of it.

To understand the basic religious conflicts involved for some Christians, it is illustrative to look at an amicus brief immediately filed on the Plaintiff’s behalf by the American Christian Liberty Council, which details the nature of their member’s faith, and why the first amendment should protect them from having to perform business services to people they find offense based upon their reading of scripture:

The Bible makes some things plain. All orthodox, Bible-believing Christians agree on one thing; and that is, that whatever the Bible says is so.  In recent years, there has been a subtle effort by [the State] to undermine people’s faith in the Bible.

God almighty did not make the human race one sex… There is an effort today to disturb that natural order… God does not want [LGBTs] to marry and if [Christians] should marry them it would be … outside the will of God.

It’s pretty hard to deny that these convictions are sincere, or that they are religious in nature, or that telling either Gilbert Breedlove or Thomas Holland that forcing a choice between abandoning their their long-held jobs and abandoning the beliefs described above does not trespass against their religious liberty. And because of that, it is normally right about here where most of us begin to ask: How might we best placate both sides?  How might we get to a place where it’s not necessarily illegal for people who are gay to be married, but where those who feel that catering (no pun intended) to something they find religiously offensive and immoral can still legally refuse to do so in their careers, private businesses, and the public square? If we could find a way to do that, wouldn’t it be the best solution?

Unfortunately, the answer is no, it would not be best. It would actually be quite terrible.

And the best way to illustrate why is the amicus brief I quoted above.  Because — and here I am chagrined to make a confession of dishonesty — it’s not really from an amicus brief filed for Breedlove and Holland. It’s never even been quoted by the American Christian Liberty Council, which I know because I made that organization up.

The quote is actually from a speech and position paper by Bob Jones, founder of Bob Jones University; it was published in 1960. Also, there is this: Although the paper’s intention was to state a clear religious-freedom argument for why people should be legally allowed to refuse to cater, sell to, rent to, or in any way do business with certain types of other people when their interpretation of the Bible said it would sinful to do so, those people weren’t gays and lesbians.  They were blacks.

If you want, you can read the entire argument — entitled Is Segregation Scriptural?here.  You may disagree with Jones’s theology, but what you can’t argue with his sincerity of faith.  In fact, I really do urge you to read all 32 pages, because all of the elements we speak about when we have our current gay rights v. religious liberties kerfuffles are there: The appeal to the recognition of sincere religious belief; the insistence that Christians don’t discriminate against blacks, provided that legally making them lesser is based on a sincere religious belief; the blaming of militant factions and liberals for making this country less free for people of Faith; the plea that not being allowed to refuse to serve a minority is a most egregious affront on their own civil rights.

And therein lies the problem with allowing businesses, employees, and people in the public square to refuse to serve, do business, or offer governmental services to other people based on their religious beliefs about them.  If a pizza parlor in Indiana’s argument to refuse to serve gays and lesbians — in any capacity in which they would apply serve straight people — is right and just because of religious liberty, then so too is Bob Jone’s argument from 1960.  For that matter, so too are businesses that might put up signs saying they don’t serve Jews or Muslims.

You also can’t hide between originalist arguments about the Constitution, because neither our founders nor the men who passed the Reconstruction Amendments were particularly interested in equal rights and equal access.  The latter would never have passed the amendments if they thought it meant they couldn’t segregate blacks, and the former allowed states to treat blacks as chattel. If your argument is, “but a strict reading of the Constitution says..,” then you are — again — forced to argue that Jones was right, and that denying commercial or government services to blacks should be legal if a person is willing to say — as so many were a century ago — that their primary motivator was religious conviction.

Because here is the dirty secret no one wants to admit when we talk about gay rights and same-sex marriage: You can’t reasonably be against them without thinking that gays are somehow lesser and/or deserving of fewer rights and privileges than the rest of us. You can tell yourself you can, but you can’t.  You can have religious reasons for your beliefs, but you still can’t.  You can even be a good and decent person overall, and you still can’t — in the same way you can’t be perfectly fine with blacks while being OK with legally allowing the restriction of government and private services for them based solely on the color of their skin — even if your reasons are religiously based.  You just can’t. Anything you say that says otherwise is just story you tell yourself feel better about you or people in general.

And if you don’t believe me, try this experiment:  The next time you hear someone saying you can be anti-SSM without being discriminatory, try telling them you just read that liberal politicians in the city of Portland were passing an ordinance saying they were no longer recognizing Christian marriage licenses and see how well they take it.

 

[Picture: Expulsion of the Russian Envoy, via Wikipedia.]

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344 thoughts on “The Fatal Flaw in Using Faith as Permission to Discriminate

  1. And if you don’t believe me, try this experiment: The next time you hear someone saying you can be anti-SSM without being discriminatory, try telling them you just read that liberal politicians in the city of Portland were passing an ordinance saying they were no longer recognizing Christian marriage licenses and see how well they take it. Brilliant.

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      • Setting aside an evaluation of the cleverness of the argument, how do you respond to the argument?

        Is refusing to provide services for (or providing recognition to, in terms of benefits) same-sex marriages discriminatory?

        Is refusing to provide services for (or providing recognition to, in terms of benefits) interracial marriages discriminatory?

        Is refusing to provide services for (or providing recognition to, in terms of benefits) Christian marriages discriminatory? (Note: Unlike the case of SSM, I haven’t heard anyone actually argue that this should be done.)

        Many conservative Christians seem to argue that the first scenario lacks any aspect of discrimination at all. I suspect many of those same folks would say the third scenario is discriminatory and wrong. I’m guessing there’d be some disagreement about the second scenario among conservative Christians.

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  2. You only got one thing wrong in this essay and that’s where you said, “Indeed, this might be the sole issue where I eagerly side with the far left and disagree with pretty much everyone else here.”

    This has been my position from the beginning and I would characterize my politics as something closer to market oriented liberal contra far left. I just don’t comment as frequently as some others here.

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  3. There is a solution that will be acceptable to both sides (at least if both sides were being reasonable). It also fully dissolves the entanglement of religion and state that currently characterises current marriage law. Public officials do not conduct marriage ceremonies, they record a marriage and issue licenses. Their job becomes merely clerical. Religious leaders can do whatever they want within the confines of their church, but they cannot issue an official marriage license or cert. Something similar is done in Singapore. After the religious ceremony conducted by the priest, a registrar of marriages (who happens to be a family friend) will do the “civil ceremony”. The priest himself has no authority to legally marry me and my fiancée. Now, you may ask “what about atheists?” Anyone in their private capacity may conduct any ceremony they wish. A person who is also a judge/registrar of marriages can conduct a ceremony in their private capacity and then subsequently in their capacity as a public servant record their marriage and issue a cert/license. Now, because the job is merely clerical (i.e. ensuring that certain legal niceties are observed) religious people should have fewer objections to performing such a function (and the burden on their conscience is significantly less). Now, since their job is merely clerical they are under no legal obligation to perform a ceremony which they have any conscientious objection to. Atheists may find any sympathetic private citizen to officiate in their ceremony and then proceed to a registrar to just record the marriage. Or if they so wish they may dispense with ceremony altogether. A priest may decide to become a registrar of marriages by taking a course and obtaining certification, but then he would be obligated to record the marriages of gay people, interracial couples, atheists or anyone he disapproves of if they approach him. If even that is too much for him he need not register as such. His ecclesiastical powers are intact. His ecclesiastical role just does not give him special legal powers anymore. But that is as it should be. If an ecclesiastical role gave someone special legal powers, then that would constitute an establishment of religion. It would be unreasonable of him to protest the loss of that privilege (even if we can fully expect him to protest such a loss).

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    • And when some magistrate who is also a religious cleric of some kind says “I have a religious restriction that prevents me from recognizing this marriage”?

      We could have civil unions for all, but given the way civil unions worked out…

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      • It’s hard to say with any certainty, but I would say it didn’t happen because the tide turned before anti-SSM folks were willing to adopt it as a compromise. There’s no reason for the pro-SSM side to make that deal when it looks like they’ll just get the whole pie, and there was no point where that deal was on the table but eventual pro-SSM victory wasn’t in the offing.

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      • Don basically covered it. Vermont was the turning point, IMO. If the right and religious right had offered up and backed civil unions when Vermont was doing it then it may well have killed the SSM movement in the crib. I think it was Jonah Goldberg who wrote an article on NRO at the time observing, uneasily, that he was worried that fighting on the hill of civil unions would mean eventually being overrun all the way back to full marriage itself. That musing proved prescient.

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      • Civil Unions were never a viable compromise. In large part because of what ACIS points out. A false distinction that can really only exist for the sake of discrimination where such discrimination is unacceptable.

        It’s also the case, as DZ and MS point out, that conservatives never signed on to it. In that case, though, even if they had, it wouldn’t have held. The anti-SSM did have their chance for a more favorable compromise, but they didn’t want to start talking settlement offers until the verdict was practically already in.

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      • I was talking about civil unions for everyone, no more government “marriage”. So it wouldn’t be separate but equal. Civil unions would only confer a particular legal status that happens to come with the same rights and responsibilities marriages currently do. Of course calling some of them civil unions and some of them marriages would be galling, but what about calling all of them civil unions. Whether they considered themselves married then becomes a purely private matter.

        Thanks for the replies

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        • “Of course calling some of them civil unions and some of them marriages would be galling, but what about calling all of them civil unions. ”

          That’s what I thought you’d meant. I personally don’t have a problem with doing so, but I still think it would be a hard policy to implement in the US.

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        • But what about calling all of them civil unions

          I don’t think you understand the situation. Do that, and you’ll have hordes of evangelicals screaming about how their marriages got “downgraded” or somehow “impacted” by the change even more than the imaginary pants-wettings they get into now over non-heteronormative couples having an equal right to be wed.

          Whether they considered themselves married then becomes a purely private matter.

          Not really. It becomes a matter of “Do you just have a civil union, do you have a civil union + wimpy gay-loving church marriage, or do you have a civil union + Real God-Fearing Church Wedding Marriage” which creates an inherent separate-and-unequal issue.

          Having the ability to say you had a wedding, and are married, whether the ceremony happened in a church or by a justice of the peace is an equalizing force in the equation. Creating a separate title of “civil union” so that some people are “civil unionized but not married” because you’ve now made the churches the gatekeeper of the term marriage is still a separate-and-unequal situation.

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          • Hold on, I did not make the churches the gatekeepers of the word married. I left that up to civil society and the individual communities that comprise it. More egalitarian communities are then free to think that the more hierarchical relationships in traditional communities are not marriages (since a marriage, in that community, is fundamentally a union of equals) and Baptists are free to view everyone else as living in sin or not as they wish. Of course Baptist run hospitals have to afford visitation rights to anyone who is in a civil union with the patient (unless the patient requests otherwise) because civil union is a legal status and visitation right is a legally protected right. Note also that in principle, people could have a ceremony (like a lot of gay couples did before SSM was legal) and they would be married in the eyes of those that love and respect them (which is among whom the status of being married means the most) but not in a civil union. The beauty of this solution seems to me that no one is considered married in the eyes of the state. The ideal of marriage becomes particularised according to each community. Conservatives could have their conservative ideals, liberals could have their liberal ideals and people who want nothing to do with the state can get married without being in a civil union.

            It would take a really odd kind of conservatism to think that your marriage was downgraded. After all, not only is there no change in the sort of legal rights and responsibilities they have, they would have to believe that the state is more important than their church. After all, on their own account, they got married in a church before God and the Christian community. That is what (on their own account) makes them married, not the recognition of a state which they claim to despise.

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      • , I think the vast majority of liberals would be happy with your solution. The problem would be getting conservatives on board. Disentangling government and religion is pretty much the exact opposite of their agenda.

        There’s also a huge coordination problem in that marriage law is the province of the states so not only do you need to get all fifty state legislatures on board you really need to do so in a way that preserves inter-state recognition of of both marriages and civil unions through the transition period.

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          • Is marriage a thing recognized by the government or is it a thing recognized by the community?

            Or is a thing recognized by two or three or four people who decide to get married to each other? Or one of them to get married to two or three of them?

            Given my suspicion that we’re jumping between definitions of marriage (or focusing on one aspect of marriage and then another) without slowing down to acknowledge that we have, I think that it’s important to hammer out that much of the problem is that there are a lot of communities out there who aren’t recognizing marriages that are being recognized by the government (and recognized by the participants).

            And it’s apparently a problem that the community is not recognizing marriages recognized by the government (and vice-versa) that we say that this needs to be fixed and get everyone in accord.

            And, of course, those people need to get in accord with us.

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          • I like common law marriage and co-mingling.; but perhaps on a household basis, if you share a home and co-mingle finances beyond household expenses, you should be treated by law as a family.

            In immigration; I don’t think common-law marriage would make a couple married for green-card status(?); legal marriage does. Thought required.

            The problem with plural marriages are 1) difficulty in separating assets and 2) women get as many husbands as they can afford.

            Child custody, or do we mostly have that sorted out?

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          • To be fair, that’s not the position generally by anti-gay conservatives. It’s a misguided attempt at a compromise, mostly by people that believe if we’re going to have marriage then it should be extended to gay people.

            The Federalist actually had a hilariously bad piece on the subject, claiming that “let’s get rid of marriage” is the endgame to pro-SSM liberals (and useful idiots like me). But it’s an idea I’ve debated against many people, almost never liberals or social conservatives.

            The most ridiculous thing about The Federalist piece, to me, is that I believe if the pro-SSM side hadn’t made any progress, or if progress wasn’t on the horizon, you would probably actually start to see this as a potential solution. But one borne almost entirely out of anti-SSM intransigence.

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          • Which brings up another point entirely:

            If we’re talking about marriage as something that fully-consenting grownups do to and with fully-consenting grownups, then it’s very, very easy to take a libertarian (even libertine!) position on marriage. Do I have to do anything? Do I have to get up? No? Knock yourself out.

            As soon as children get involved, suddenly we’re in a situation where we switch gears to a marriage-as-social-contract position and we, as a society, have a responsibility to make sure that things are done a certain way (presumably, also the correct one).

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          • I am pretty staunchly against any intermediaries between unmarried and married. I don’t even like Common Law Marriage, as historically structured (I don’t mind Common Law Marriage by affidavit, as proposed in Oklahoma). To me, among other things, one of the very useful aspects of the institution of marriage is that it helps settle the question of “What and where are we, as a couple?”

            This is where, once the SSM debate is settled, my views on marriage will place me very firmly on the cultural right.

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          • This is where “different words have different meaning for different people” comes in. From the Libertarian POV, it’s not actively doing something from the top down, it’s the cessation of doing something.

            Rod’s critique is correct, though, in that it would create interstate problems, which could backfire into the federal government telling the states what they have to do. Which may be what you’re talking about. I’m honestly not sure if the federal government could, though, even if it wanted to.

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          • I think few people would favor, or vote for, a complete distinction between civil unions (part of the legal system) and marriage (religious or informal, but with no legal standing). It may strike you as an ingenious way to cut the Gordian Knot, but since it would be extremely unpopular, it isn’t going to happen without being imposed by clever people who know better than the rest.

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            • The different names thing is a hard sell but the idea that legal marriage is a completely separate thing to religious marriage to be solemnised separately is standard in a lot of continental Europe. In the Netherlands for instance it is legally irrelevant what any church does or doesn’t – you were married in a civil ceremony or you don’t count as married in the eyes of the law.

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    • I don’t actually think it would acceptable to both sides.

      In fact, I’m going to go out on limb and say say it would be especially and egregiously unacceptable to those that are anti-SSM.

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      • I find myself having very little sympathy for conservatives if they reject even this compromise. But you nevertheless miss the point. Even if conservatives are going to be assholes about this, my solution is nevertheless the least burdensome on everyone. It takes everyone’s concerns seriously and provides the best compromise. They cannot ask for more without coming across as unreasonable to just about everyone else. On the other hand, even though conservatives object just a strenuously on other arrangements, in those other arrangements, I sense that they do have a point.

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    • , I don’t think your arrangement will hold up–after all, plenty of county clerks are getting into legal battles or resigning because they believe merely issuing a licence is a violation of their religious beliefs–and they have a smaller role than the registrar of marriages you describe.

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      • Isn’t this really close to the Oklahoma plan combined with Wyoming-style “ordination” (which, if I recall, is similar to California’s)? I know you had issues with the Oklahoma plan, but it seems like this addresses them.

        The biggest issue I see with the right is that it formally de-values the role of clergy in marriage ceremonies. But that’s only in the formal sense, given how freely ordination is given and that we allow (some) civil figures to do it as well.

        Clerks may resign, but given the givens it was still seen as vaguely preferable to the Oklahoma legislature.

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  4. It’s interesting to see libertarians try to draw distinctions between the two, as aptly demonstrated by this piece from Conor Friedersdorf quoting Julian Sanchez:

    We ultimately settled on rules barring race discrimination in employment, housing, and access to “public accommodations”—which, though it clearly restricted the associational freedom of some racist business owners within a limited domain, was nevertheless justifiable under the circumstances: The interest in restoring civic equality was so compelling that it trumped the interest in associational choice within that sphere. But we didn’t deny the existence of that interest—appalling as the racist’s exercise of it might be—and continue to recognize it in other domains.

    but when to comes to anti-gay discrimination …

    Under the circumstances, the urge to either fine or compel the services of these misguided homophobes comes across as having less to do with avoiding dire practical consequences for the denied couple than it does with symbolically punishing a few retrograde yokels for their reprehensible views.

    You see, everyone knows racism is very bad, so we need laws to fix it; but homophobia is not so bad because gays are just complaining (also, these two straight guys looked around and – nope – it’s no big deal).

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    • Yeah, I can’t see a good reason to forbid one kind of discrimination and permit the other. I think you can oppose all anti-discrimination rules without being a bigot, but once you start banning certain kinds of discrimination, you have to develop a consistent set of rules as to what groups should be protected and which should not.

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    • I don’t think Conor has figured out how to Square the Circle between his beliefs, his Orange County upbringing, and the fact that he knows more Republicans than Democratic types and sees libertarianism as being more aligned with Republicanism or Conservatism.

      He cares about police brutality but is sort of at a loss that his fellow conservatives do not.

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    • Indeed. But one would question the seriousness of one’s devotion to libertarianism if they said that. Then again, political groups tend to house a wide diversity of folks along ranges of thinking, if they are not just trying to justify their position and eat their cake too.

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    • Look, this isn’t that difficult to understand.

      All you need to understand is that there is an extremely strong presumption in favour of freedom of association. This presumption can only be overridden by even stronger considerations. For Connor, the fact that in the 60s, previous government policies had created a situation such that current black people’s economic situation was a product of past discrimination and that African Americans are easily identifiable (via skin colour) and that private discrimination would have been so pervasive as to effectively exclude most of them from civil society override that presumption. For discrimination against gays, now these conditions do not hold. It is not that gays are more deserving of discrimination, it is just that the consequences are not that dire. Therefore, since the consequences are significantly less dire, the presumption in favour of freedom of association is not overridden.

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      • Why is there a strong presumption in favor of freedom of association? Can you defend that without first principles, axioms, or tautologies?

        I don’t think that the situation for LGBT people are less dire. People do look for physical ways to identify LGBT people, Jews, and other groups whose minority status is allegedly invisible and there are still consequences. One of the first pro-LGBT Supreme Court cases was a gender discrimination case because the plaintiff did not dress or act in a feminine manner according to her male superiors at Price Water House. People have long thought that gay men looked more feminine than Heterosexual men and Lesbian women looked less feminine than Heterosexual Women.

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      • Why is there a strong presumption in favor of freedom of association?

        Because the U.S. Supreme Court held that freedom of association was an inherent part of the First and Fourteenth Amendments in NAACP v. Alabama?

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      • @glyph

        Like , I don’t see how you say there is Freedom of Association to refuse to bake a cake or host a SSM without going further in the right to discriminate. Murali marks on the fact that homosexuality cannot be seen but that should not matter. Homosexuals should not be required to “pass” as straight in order to fully participate in economic and civic life. They should be allowed to walk into a restaurant with their spouse and be treated as a couple on an anniversary dinner or vacation or just a date night.

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      • I haven’t watched Going Clear yet, but it’s my understanding that it presents Scientology as an abusive scam.

        If I believe that Scientology is an evil religion/scam, and anyone who promotes it is promoting evil, and Elisabeth Moss and John Travolta walk into my restaurant carrying e-meters and wearing “Down With Xenu” T-shirts, I want to be able to deny them service. Same if the pastor of the local World Church of the Creator (or Westboro Baptist Church) walks in.

        Arguably, I’d be in the legal wrong, depending on if these are considered religions (which is a protected class, like sexual orientation is) or not.

        But IMO I’d be well within my rights as a human being with a belief, to associate only with those whom I wish, and not with those whom I don’t – and *that* right is IMO worth protecting, completely-separately from how we view the belief *itself*.

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      • — I am visibly queer. Anyone who looks at me can immediately tell. Your argument might work for certain cis gays, but does not work for LGBT people in general.

        (This is what happens when people pontificate on subjects without becoming sensitive to the contours of the issue.)

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      • As much as I dislike Scientology, I don’t think a restaurant or business owner should be allowed to deny service to a Scientologist because of their belief. The same is true for any other religious creed.

        Semi-OT: A guy I know from high school moved out to LA and has a moderately successful career as a comedian and performer. I think he has appeared in some of those I Love the 80s shows on VH1. He also does college tours. At some point he went from being a Jewish kid to Long Island to a Scientologist. He has been posting a lot of pro-Scientology stuff on facebook because of Going Clear. One thing he posted was about how Dr. Neil DeGrasse Tyson commented that Scientology was just as valid as Judaism, Christianity, and Islam. Someone needed to point out that Dr. Tyson was probably insulting everyone. The whole thing is somewhat embarrassing to watch.

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      • – the business owner can make a case that is not their *belief* that makes him desire to decline them service, but their actions (Travolta and Cruise, for ex., are in part public proselytizers for the church; and if the WBC just stayed home and thought their bullshit to themselves, who would really care much about them?)

        In some ways, the simple state of merely belonging to a (purportedly) evil organization or movement can be construed as action (and here of course I believe the analogy to gayness breaks down thoroughly, since I don’t believe it’s generally a choice – but obviously some people do, at least a choice to act on same-sex desire, or promote it as normal. I intimately know Christians who try to thread just this needle – they think God may have caused you to be born with same-sex desire, for the same reason He made that guy over there be born blind – to test you both, to see if you can live righteously via faith in Him, even with your particular specific thorn in your side/cross to bear.)

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    • Conor’s argument is not that racism is worse than homophobia, it’s that racism was so entrenched that the balancing act of public interest and freedom of association weighed toward public interest. State and private discrimination were so interwoven in the fabric of American society in the 1960s that government intervention was needed to break the back of the legacy of slavery and Jim Crow. Conor’s point is that businesses that discriminate against gay marriages are such a small proportion that the magnitude of the problem does not rise to the level of requiring government interference. There are presumably businesses that would not want to work at an interfaith wedding. However, because they are a tiny, tiny fraction of businesses, it would not be worth the precedent to violate freedom of association.

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      • Yeah, this is my reading also. It’s kind of like monopoly-busting by the govt. Once something reaches a certain tipping point in size/pervasiveness, radical govt. intervention may be theoretically justified that was not justified before.

        I have no doubt that there’s some fundamentalist Muslim or radical Nation of Islam-owned business somewhere in the US that doesn’t want to serve me. But there are few enough of them that it’s probably not worth the bother to worry about. And if they don’t want my business, I don’t want to force them to take it.

        Now, like monopoly-busting, I can certainly see differences of opinion, depending on where you sit, as to whether the problem is large or pervasive enough to override a default policy of hands-off. I’ve never been able myself to draw a clear, consistent indicator in that regard. Certainly gays have faced severe discrimination and abuse in living memory, and in some places still. OTOH, there’s nothing like a KKK for gays going on today, bombings and lynchings and such (in the US, anyway).

        Still, if you are a govt. employee, then you need to follow the law, or resign if you can’t/won’t. We wouldn’t let a police officer decline to protect a gay household from a robbery, just because his religion says they are sinners and deserve whatever they get.

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      • : I can understand Conor’s argument as a historical one for why the CRA had to passed in the 60’s, but he’s applying that argument to current law. Either he thinks that contemporary institutionalized racism is qualitatively different from contemporary institutionalized homophobia to such an extent that one set of laws is necessary and the other excessive (which doesn’t entirely jive with the fact that same-sex marriage is still illegal in many states but interracial marriage isn’t). Or he thinks that racial discrimination laws need to stay on the books to commemorate the history of racism … and sex/religious discrimination laws get to tag along for the ride.

        Neither of these positions is particularly well-argued nor flows logically from libertarian first-principles. If he were demanding that we scrap discrimination law altogether, at least I could fit that into a coherent world-view. But his argument is entirely oriented towards disenfranchising one group from protections that have been well-established for other groups without current-day justification. That sort of libertarianism makes me very weary.

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      • I have no doubt that there’s some fundamentalist Muslim or radical Nation of Islam-owned business somewhere in the US that doesn’t want to serve me.

        Maybe. I used to go to Your Black Muslim Bakery in Oakland occasionally (before it became clear that they were not a group I wanted to support in any way), and they were always as friendly as any other customer-oriented small business. Killer sweet potato pie, too.

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      • I think a lot of it is inertia and path dependence. Frankly, I think that the need for the CRA anti-discrimination bills are no longer needed and social opprobrium will do the job (whereas back then social opprobrium strengthened the discriminatory regime). However, I would also say that repealing CRA era laws is way, way, way down my priority list. It’s in the “Ok, so we solved all of the problems that have a slight amount of impact.”

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    • Under the circumstances, the urge to either fine or compel the services of these misguided homophobes comes across as having less to do with avoiding dire practical consequences for the denied couple…

      I can print out several news articles on same-sex persons being denied the right to visit their spouse in hospital if he wants a dose of reality to counter that ignorance.

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  5. I agree but as I mentioned in your OTC and as Lee as mentioned before, the Right (which is mainly a Far Right) has long learned the politics of No Surrender. They probably learned this after losing the Civil War (which ended 150 years ago on April 9, 1964). They seem to be reentering the phase of Mass Resistance that categorized resistance to the Civil Rights movement and potentially coming up with more outre arguments.

    http://www.slate.com/blogs/outward/2015/04/09/south_carolina_we_can_discriminate_against_women_so_why_not_gays.html

    My favorite bit comes from the end:

    “Update, April 9, 2015: The South Carolina solicitor general, as well as a representative from the office of the attorney general, have asked us to note that their state does not wish to implement the sexist laws outlined in its brief—though it could if it wanted to.”

    Oh really? What is important to note here as my brother has done is that the American Right-Wing has never given up on re-litigating the 1960s. They still seem to think that they can reverse the clock and everything that happened during the 1960s. There are still plenty of conservatives out there who want to reverse Griswold v. Connecticut even though the decision is nearly 50 years old. You still have Heather MacDonald* arguing that there is no right to privacy in the Constitution even though most Americans would disagree. This is the fatal flaw of our Constitution, it allows all sides to claim that the document is on their side and no one seems to want to rest until total victory. European conservatives seem to have made peace with the 1960s and what happened during the decade. Ours have not and they never will.

    *You can also have Connor F being totes adorable and getting paid big bucks on the pages of the Atlantic to wonder why conservatives don’t speak up about police violence more often because they should because it is truly a sign of believing in liberty and limited government. He even mentioned MacDonald by name. Totes adorbs on his part.

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    • This is the fatal flaw of our Constitution, it allows all sides to claim that the document is on their side and no one seems to want to rest until total victory. European conservatives seem to have made peace with the 1960s and what happened during the decade. Ours have not and they never will.

      I think that’s pretty much the fatal flaw of any document whatsoever that requires interpretation, not just of our Constitution.

      As for the claim about “European conservatives,” I think it’s worth inquiring 1) whether it’s as universally true as your comment suggests and 2) why it is true (to the extent that it is).

      As for 1, there seems to be a far right movement in some countries (e.g., Front National in France) that advocates something we might recognize as traditionalism. True, they seem (to the extent I know anything about them) more focused on ethnic and racial identity and less on social concerns proper, but it wouldn’t surprise me if, should they have their way and rise to power, they’d try to reimpose old-style restrictions on social liberties. True also: they are not (thankfully) in power.

      As for 2, I suspect that “European conservatives'” supposed acceptance of the 1960s (by which I think you mean, ca. 1950s to ca. 2010….some socially liberal advances are quite recent, viz., ssm) has more to do with the way most of those countries are organized politically and not with some virtue that Europeans have and that Unitedstatesians do not. Not that you said any different, but when people compare Americans to Europeans, I sometimes detect an implied, moralistic admonishment about how Americans should be more like Europeans.

      think it’s more a matter of the power the courts have in the US (so that a lot of socially liberal advances can be overturned if enough judges of a certain persuasion are appointed) and the way our election system and presidential/congressional system encourages two party governance. In the liberal democracies of western Europe, Parliament usually has greater primacy and any coalition that wants power needs to make compromises to stay in power that judges in our court system do not need to make. If a far right coalition does take power in a western European country and under the right (or wrong) circumstances, we might see a very quick abrogation of the “peace” that European conservatives have supposedly made with the social liberal advances.

      Or maybe not. I’ve spent a lot of time here talking about “far right” when there’s a centre-right that seems focused on supposedly “modern” values of the sort that social liberals in the US claim to believe in. They have not, to my knowledge, made any strategic alliances with the far right traditionalists. And also (again, to my knowledge) they are not likely to.

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      • I disagree on the issue of conservatives. American social conservatives actively fought and still fight against the social changes that occurred in the mid-20th century. Its why abstinence based sexual education is a think in the United States but not in Europe. American social conservatives fought against policies that would make it easier for women to work than European ones. Richard Nixon vetoed a bill that would give the United States universal pre-K because the Evangelical set did not like it. There was also the war of attrition against the Equal Rights Amendment and the never ending wars on abortion.

        Mainstream European conservatives were not happy with mid-20th century social changes either but they did not fight against with anything matching the vigor of American social conservatives except maybe in Ireland. Arguing for abstinence based sex education is a laughable proposition in Europe. While not all European are thrilled with LGBT rights and marriage equality, their wasn’t an especially active campaign against them on the American level.

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      • True also: they are not (thankfully) in power.

        And much like the libertarians in the USA, thankfully will never be burdened with even a chance of attaining power. The reason the right wing in the USA is so terrifying is that they occasionally take power, still rely on the politics of no surrender and no compromise, and continually drag the entire discussion so far off-kilter that the USA doesn’t have any truly “liberal” voices left. What have is centrists on one side and right wing nutjobs who continually accuse the centrists of being liberal on the other.

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      • Also, in edge cases, the courts largely side with the person trying to get an abortion in Europe, as opposed to here, where in edge cases, the courts tend to side with the person trying to stop the person getting an abortion.

        Plus, I’ll happily accept the GOP trying to pass European abortion laws, including government funding for them _and_ hospitals having to provide abortions. :)

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    • Andrew Sullivan got this right IMO before leaving his blog. Conservatives see their job as slowing down progress, testing everything, and letting only the valid parts go by, guiding the future with a grounding in the past, keeping society on an even keel.

      The USan right wing is in no way “conservative” in that sense. They are radical. They are trying to establish by whatever means a uniform vision of a society that never actually existed. To dial back even beyond the culture wars of the 1960s, but not to re-establish the actual society that existed, but their view of it.

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  6. I don’t even see a Freedom of Religion case here. As government employees, Breedlove and Holland were acting as agents of the State and governments do not have rights, they have powers. As a public servant you do not have rights in regard to your official actions. If one’s personal ethics and one’s professional obligations are in conflict, I am sympathetic but the only honourable course of action is to resign.

    You can’t simultaneously wield the powers of the state while claiming the rights of a citizen, at least with regards to the one issue.

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    • “You can’t simultaneously wield the powers of the state while claiming the rights of a citizen, at least with regards to the one issue.”

      Of course you can’t, but that doesn’t matter. This will be used in perpetuity by the usual suspects as a talking point. Consider the Atlanta fire chief who was fired for using his position to distribute anti-gay propaganda to his employees. That is routinely framed by the usual suspects as he was fired for being a Christian. (The technical term for what the usual suspects are doing, by the way, is “bearing false witness.”)

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  7. A couple things…

    First, I actually have next to no sympathy for the magistrates of the hypothetical because they’re public actors. That’s the same thing I said about clerks in Oklahoma.

    Second, I still see participation in a wedding as being different from offering a hotel room. I support Anti-discrimination law based on Religion, but would definitely allow a caterer to only do Christian weddings or to not do Christian weddings. The case coming down to whether or not their service is actually participatory. (Yes for a minister, probably for a photographer, maybe for a caterer, probably not for the tailor.)

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    • But every service is participatory to a degree. The caterer allows the reception to proceed and the guests to be fed. Sharing a meal to celebrate the happy couple’s marriage is part of the wedding.

      So too with the DJ and the photographer and the flower arranger and the notary who authenticates the marriage license and the taxi driver who takes a guest who had a little bit too much to drink back home after.

      Either we regulate public accomodations dispensing services equally, or we don’t.

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      • Every service is or can be. But as I say to Kazzy below, in my view the wedding is the wedding, and is not the same. My definition of “participation” and “wedding” are both relatively narrow.

        Some of this may be a desire on my part to stay true to the whole “Gay marriage shouldn’t impact you” argument, which was never entirely true, but I think should lead us to be open to compromise when it comes to weddings specifically. In part because, when I think about it, I would be when it comes to a Jewish photographer at a Muslim wedding, a Muslim photographer at a Jewish wedding, and so on… even though I generally favor laws against religious discrimination.

        By and large, the only thing I’m going to go to the mat for is ministers and businesses that can make a claim to having always been selective about their clientelle. But in my view, yeah, we’re still at the point where it seems to be counterproductive to drag people into participating in gay weddings because they happened to have been a part of the wedding industry since before this was an issue.

        It’s possible that my views are colored by the fact that one of our early arguments was “Gay marriage will have next to no impact on you!” and this is my desire to try to at least somewhat stay true to that. (Not entirely

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      • I think has a point. The government certainly can “balance the consideration” and find that certain commercial activities require participation in a wedding, while others do not. And yes, his breakdown seems about right. You cannot refuse to sell me a dress. You can refuse to show up at my wedding, full of smiles (cuz that’s part of the job), and take photographs.

        Bureaucrats can decide stuff like this. Policies can be written. A structure can form.

        It’s ugly, but we’re a nation of 300 million plus. Things get messy.

        On the other hand, I’d be pretty happy if they were required to advertise their hate. Fuckers. Let the public vote with their feet.

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      • Without particularly disagreeing with drawing the line at that point, or the seeming necessity of drawing a line at all, such a line is necessarily arbitrary.

        I’m good with that, too, if there appears to be no way to arrive at such a distinction in a principled way. Highways have arbitrary and uniform speed limits even though different drivers have different skill levels. This may be an analagous situation.

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    • What qualifies as “a wedding”?

      Can they refuse to host the rehearsal dinner? Offer accommodations to the couple after their nuptials? The reception, really, is a party. What if two gay dudes just wanted to have a party during which they went on and on about how in love they were? Could folks refuse to participate in that?

      What if you work for a catering hall and they have a gay wedding on Saturday? Can you insist on only working Friday and Sunday of that weekend? Can the hall fire you?

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      • Kazzy, for the sake of political comity and a smoother transition, I might be willing roll in some wedding-related events like the rehearsel dinner, and I could maybe be convinced, but that would not be my inclination and I would limit it to the wedding itself (not even the reception, if held at a different location). If you work for a catering hall, that’s between you and the catering hall.

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      • I guess here is my thinking…

        Assuming we are willing to concede these points (which I am not willing to yet), let’s actually define what a marriage is: a contract. So I would say that the right to ‘opt out’ should be limited to those necessary functions of the contract signing. Let them excuse themselves from officiating, bearing witness to, or otherwise be party to the contract itself. Everything else is fluff.

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        • :… let’s actually define what a marriage is: a contract.

          I don’t think that’s quite right. I think if you dig your marriage certificate out from wherever you lost it the last time you moved you won’t find the language of a contract. There won’t be anything in there where you and Zazzy agree to do or not do anything in particular, and I may be wrong here, but I don’t believe you’ll even find your signatures anywhere on it.

          I’m pretty certain what you’ll find is language stating that you appeared before the certifying authority (clergy or magistrate), that you both willingly agreed to be married, and that therefore you are, as of this date certain, in a state of mortal wedlock. Then all of that is confirmed by the two witnesses to the crime.

          While it’s true the part where you agree to love and cherish yadda-yadda can be construed as a kind of contract, at least a verbal one, what actually makes you married is the official saying, “I now pronounce you…” and the witnesses’ statements that said assent and pronouncement did in fact occur. It’s all more akin to a birth or adoption certificate or possibly even a property deed or title than a contract stipulating specific performance. It’s a declaration that a particular relationship exists between two people and if at some point you should come to your senses, the divorce decree is a similar declaration by a public official that said relationship no longer exists.

          Now this may all seem like pointless pedantry on my part but it’s important to remember the next time some libertarian type declares that we should get government out of the marriage business. Yeah, you could conceivably do that and it’s also true that civil agents weren’t always the certifying authority, but then the certifying authority was a clergy and marriage law was ecclesiastical in nature. Marriage has always been a public affair because marriage has always been about community recognition of the special relationship that exists between two people who agree to entwine their lives in that way. A purely private “marriage” consisting only of a contractual agreement between the two parties is almost perfectly pointless since it would accomplish little more than a bit of sweet pillow talk would. The public, community, recognition and all that entails IS the marriage.

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      • Kazzy, even setting aside its pertinence to this question, to me that’s not what a wedding is at all. Or more accurately, that’s only a very small part of of what a wedding is or can be or to (in my perfect world) should be. Weddings are, to me, god (where applicable – we had a civil ceremony), family, society, and state.

        When all it is is a legal distinction and category, as in the case of a county clerk or a notary, I am actually less rather than more sympathetic to the objections of the guy (or gal) whose job it is to sign the dotted line.

        I mention earlier my lack of sympathy for the hypothetical magistrates from the OP, and the county clerks in Oklahoma, as being about their being a public servant, but there’s more to it than that. In the case of (for instance) private notaries in Oklahoma, I’m less sympathetic towards them than I am for wedding photographers.

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      • To many people, a wedding ceremonies (even civil ceremonies, like ours) takes on pretty immediate religious implications. Implications I do not see as clearly as other celebrations, even an anniversary celebration, and am less likely to give much credence to. On the other hand, if you’re not a wedding caterer specifically, then I am less sympathetic that you have to do events you disagree with in addition to events you do agree with. On the other hand, if you’re a Democrat I don’t believe you should have to cater Republican events (leaving me disagreeing with Slade’s “as long as the money is good” argument). Some of it depends on how selective you are about the jobs you take generally. If you otherwise have an open door and shut it specifically for gays, minorities, etc, I’m less sympathetic.

        Of course, “sympathy” isn’t the currency. What we would allow legally is what we’re talking about. Though negotiable, I would allow for a greater degree of discrimination than a lot of people here (even though I have been in favor of adding gays and lesbians to anti-discrimination laws more generally since at least the early aughts).

        To me, there are a lot of shades of gray. If nothing else (and I do think there is something else), I see the degree of trouble of disallowing any ability to abstain in this very narrow industry for which there are typically many options… as not being worth the trouble. If only the anti-SSM folks would have gotten their heads out of their arses earlier, and I think the vast majority of SSM advocates would have been willing to give this ground in a way that I don’t believe they/we would have been willing to (indefinitely) give ground on the marriage/CU dichotomy.

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  8. and that someone’s religious beliefs somehow need to be taken into consideration when we consider the question of whether or not business owners, employees, or government workers should be allowed to restrict goods and services to LGBTs.

    I think that misstates a lot of people’s opinions at OT. Most libertarians or libertarian-leaning people here would draw a distinction between “business owners, employees” and “government workers.” Like Will Truman above, I and probably most of us here have little sympathy for government workers, like the magistrates in this case, who can’t be bothered to implement the laws fairly.

    I’m also tempted, like Will, to distinguish between public accommodations and special services like catering, or as someone as Bleeding Heart Libertarians put it, between implied contracts for service available to all and “individuated” contracts (the lawyers here can tell me whether that person is more correct or not about his interpretation of the law). The main thing that gives me pause, however, is how to make the distinction in practice. As a result, I’d probably err on the side of outlawing most discrimination in a large number of cases and making such laws apply to more people under the assumption that it’s better to cast a wide net in this case.

    Please don’t interpret any of this to suggest that I actually think it’s okay to discriminate on the basis of sexual orientation, gender identity, race, religion, or any other arbitrary instance. Just because I, in theory (but not in practice….see the last sentence of the preceding paragraph) would accept the legality of some such discrimination does not mean I think it’s a good thing.

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    • I should also say I’m uncomfortable with religious exceptions to general laws, especially if, for example, an atheist cannot avail themselves of such laws. But I also think we need to deal with the fact that some liberties conflict with others and there will always be a dispute over where to draw the line.

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      • some liberties conflict with others and there will always be a dispute over where to draw the line.

        Absolutely. The thing that comes to mind in this is the Catholic Church’s refusal to allow women to be priests. This is quite clearly sex discrimination, but as far as I know, there isn’t a push to use government force to compel the Catholic Church to change its policies on the priesthood. So I think that most people agree that there’s a line–somewhere–between religious liberty and anti-discrimination. That might be something like a carveout for religious organizations only, or it might be broader, like a conscience exemption on participation in weddings.

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  9. I’ve been periodically bashing my head against the wall on this point for a while now. There is no principled way to have an RFRA without it being available as a defense against antidiscrimination law. To get both, you must arbitrarily say it is so (as Justice Alito attempted to do in dicta of his Hobby Lobby opinion). And if you do that, then as a practical matter, why have the RFRA in the first place? So Muslim prisoners can have beards?

    We’ve never come to grips with the fact that antidiscrimination laws necessarily infringe upon First Amendment rights. We’ve pretended for fifty years that they are just economic regulations, but that was never going to withstand a rigorous test. Odd that the reckoning of this should come now rather than a generation ago, and regarding religion rather than speech, but that’s how history works sometimes.

    Seems to me we can either be arbitrary to have both, or we can say that antidiscrimination laws are authorized by the Equal Protection enabling clause, or ultimately antidiscrimination laws must bow. That second option, though, requires allowing the government the power to intrude on individual transactions such that equality rights are actual and meaningful, not mere formalities that do not truly manifest in reality.

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    • “We’ve never come to grips with the fact that antidiscrimination laws necessarily infringe upon First Amendment rights. ”

      Which is a feature they share with any government action intended to Stop People Being So Mean And Stuff.

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    • Try this on for size and tell me if you think it works…I copy-pasted this from a very extended FB discussion on this subject. I still think the economic regulation angle is sufficient, especially when approached from a property rights perspective.

      I may have said this above but my general thought on RFRA-type statutes is that they”re good so long as they’re intended in the same manner as the 1993 federal statute – to restore sanity to Free Exercise jurisprudence. The 1990 decision Employment Division v Smith arguably gutted it and ignored the far more expansive treatment of the Free Exercise Clause going back to the Warren Court.

      Whether or not someone likes anti-discrimination laws is one thing. If they’re is consistency, there is consistency and people will push for outlawing all forms of them. However, since AD laws to apply to other forms of discrimination that have targeted historically vulnerable groups, if we are going to keep those for race, religion, gender, and other immutable characteristics, a generally applicable rule against discrimination towards sexual orientation needs to be included. I don’t see that today. I see it as being something that will be used as a license to discriminate.

      It is the people that seek this privilege that are seeking out special rights, not gay rights advocates or proponents of same sex marriage. My view on the new RFRA statutes is not that they’re rooted in religious liberty but rather property rights. The idea that offends some people is that they should have the right to freely associate with whomever they want and however they want so long it is on private property. This was the argument that a lot of people made in opposition to Title II of the Civil Rights Act of 1964 – including Barry Goldwater who was far from a bigot (he was pro-choice and strongly criticized don’t ask don’t tell).

      Setting aside the fact that I think that public and private discrimination towards certain groups are almost inseparable, the property rights argument hits three major roadblocks. The first is that the modern version of property rights is more a function of positive law than natural rights so protection of property and the state in this day and age are linked.

      The second problem is that both common law, which predated the Constitution, and constitutional law have long recognized a “public/private distinction” with respect to property (think of the Takings Clause of the Fifth Amendment). Property that has been considered “affected with a public interest” has always been subject to greater restrictions than purely private property (such as a home). By the 1930’s, “affected with a public interest” had been interpreted by the courts to mean just about every business that was open and doing business with the public. Therefore, the controversial public accommodations provisions shouldn’t have been so controversial because there was a basis for it in our constitutional jurisprudence.

      The third problem is the traditional role of the police power of the states. The proper role of the state police power is to pass laws promoting the general health, safety and welfare of the public at large. Given our recent history (and not so recent history) with discrimination and the damage that it has caused to a great many people, if a state (or even the feds) believes that promoting a general welfare of our society requires an inclusive society, it is more than within its bounds to pass an anti-discrimination statute applicable to sexual orientation. I’ll also add that it’s been recognized as part of police power jurisprudence the principle of businesses having no business causing harm to the public, and acts of discrimination fall within that category.

      When you take these factors together, any attempt for a law abiding citizen to challenge a sexual orientation provision of an anti-discrimination law will not end well. Promoting an inclusive society will be viewed by judges as a compelling interest, and judges will not think an anti-discrimination law is overly intrusive unless someone can show that it unduly burdens a person’s ability to practice religion which is what the Free Exercise clause should cover. Never has Free Exercise jurisprudence been used in the defense of an exemption from a generally applicable law on the basis that the burden falls on one’s beliefs. A Christian baker may morally disapprove of same sex marriage but there is no tenet of the Christian faith that prevents said baker from baking a cake for a wedding because the act of baking a cake does not in any way prohibit a person from practicing religion as he/she sees fit. Being required by law to do something does not mean that moral approval is also being required.

      Respectfully, I’m of the belief that the opponents of same sex marriage are the ones asking for special rights. The property rights framework that would allow this form of private discrimination to become institutionalized no longer exists and hasn’t since the 1930’s, and promoting inclusion for the purpose of promoting general welfare is well within the scope of the state’s regulatory power, a power that can extend to acts between private individual only.

      Also, a mere burden on one’s religious beliefs is not enough to qualify for a religious liberty exemption. There has to be a situation where an action is believed to violate the practice of religion. My liberal friends may not like this example but there is a difference between religious owners of a closely held faith-based company believing that providing insurance with certain forms of birth control they equate to abortion directly flies in face with the way they treat life beginning at conception and a baker that doesn’t want to bake a cake because he/she believes in marriage as only a man and a woman.

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      • I think you’re dead-on correct in nothing that this specific invocation of free exercise rights is punching down, not punching up, the ladder of cultural privilege, , and dead-on in thus condemning the direction of the punch.

        When you get to your three-prong analysis I think you’re skipping over a lot of intellectual work – particularly work that a right- or libertarian-minded critic of AD laws will wish to invoke. (I’m assuming the argument is aimed at someone who actually wishes to engage rather than a sloganeer likely to respond to this by saying “TL;DR but you’re a pinkobigot.”)

        First, you posit that modern property laws are positive in both origin and effect rather than reflective of an underlying, natural right. This is especially so given that property rights are explicitly protected by the Due Process Clause and we all understand that property rights are what Jefferson and colleagues were referring to in the Declaration by use of the phrase “pursuit of happiness.” So that’s a bit weak. Bear in mind, I think all law is positive, and pretty much disclaim the notion of natural rights. But without showing your work here, you’re not going to be very persuasive.

        The “private property affected with a public interest” distinction is also shaky – most courts reject or limit it. I think it’s actually correct – but I think again, the right- or libertarian-minded critic of AD laws will need some fairly extensive education, education they won’t have patience for and few will have stomach to appreciate as broad intellectual principles with application in this arena.

        The third leg of your stool is subject to criticism from the (traditional) left: the state’s police power to legislate in favor of the general welfare is subject to certain limits imposed by the Constitution, which in turn vindicates individual rights. The perniciousness of this subject – religious practice is unquestionably one of those rights – turns that traditionally liberally-imposed limit on state power on its head.

        Which is why I’m starting to think that ultimately, we need to come clean about AD laws and say they aren’t only effective under the Commerce Clause power – they are also effective under the enabling clause of the XIV Amendment (section 5) as advancing equal protection.

        Now, as between you and I, I recall our exercise with the Hobby Lobby case as a mock Supreme Court, and while I see consistency between then and now in your opinion, I still can’t quite grasp how You can say that “A Christian baker may morally disapprove of same sex marriage but there is no tenet of the Christian faith that prevents said baker from baking a cake for a wedding because the act of baking a cake does not in any way prohibit a person from practicing religion as he/she sees fit.” (which I agree with) and still say that you see a difference between that and “religious owners of a closely held faith-based company believing that providing insurance with certain forms of birth control they equate to abortion directly flies in face with the way they treat life beginning at conception.” (which I don’t) because providing insurance is not the same thing as providing the contraception in the same way that providing the cake is not the same thing as approving of the marriage.

        And that’s basically the same point at which you and I intellectually broke away from each other in that exercise. At least we’re consistent!

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      • Thank you for the comments and feedback. I agree that I’d need to develop these ideas in more detail. First:

        Which is why I’m starting to think that ultimately, we need to come clean about AD laws and say they aren’t only effective under the Commerce Clause power – they are also effective under the enabling clause of the XIV Amendment (section 5) as advancing equal protection.

        Sold. Can we try to argue that RFRA laws are unconstitutional under the Establishment Clause too? Based on the way people want them to work, I don’t see religious freedom but rather favoritism.

        First, you posit that modern property laws are positive in both origin and effect rather than reflective of an underlying, natural right.

        I didn’t mean to completely exclude natural rights from the equation, but rather to demonstrate that the basket of property rights, the sticks in the bundle so to speak, with respect to possession, use, enjoyment, disposition, etc. is so entangled with positive law that I’m not convinced a criticism solely based on natural rights is going to cut it. Based on my understanding, property rights, in a state of nature, deals with the possession of property and violations of natural rights of property occur when such property is taken from A and given to B without appropriate compensation.

        At the very least, I would try to frame the rights argument not of natural right of possession but rather the various positive rights related to use (as it is, if a business leases a space, it’s possession rights are far less if not non-existent). Usage of property is far more subject to traditional police power regulations, and to the extent there are natural rights to possession, I fail to see how AD laws constitute the sort of taking that I think is required for a natural rights defense to work. What is being taken from whom?

        The “private property affected with a public interest” distinction is also shaky – most courts reject or limit it.

        In one way, that’s correct since it was eliminated in Nebbia v New York. However, the effect of that limitation was to place a presumption of constitutionality on all economic regulation. I know libertarians will throw up all over this case, but it still part and parcel of modern constitutional doctrines. Libertarians may appreciate Justice Field’s definition of the public/private distinction that he articulated in his Munn v Illinois dissent (limited to companies bestowed with special privileges from the government), but that limitation was never embraced by the majority.

        The perniciousness of this subject – religious practice is unquestionably one of those rights – turns that traditionally liberally-imposed limit on state power on its head.

        With respect to strict scrutiny, I agree, but I think AD laws can survive them.

        And that’s basically the same point at which you and I intellectually broke away from each other in that exercise.

        That and, if I recall, the extent of which the corporate form gets the same rights as individuals. I had a stronger view on that, but I think I signed on to Mark’s opinion anyway. I didn’t have the time to develop a counterargument.

        because providing insurance is not the same thing as providing the contraception in the same way that providing the cake is not the same thing as approving of the marriage.

        In my belief, providing the cake and approving the marriage are independent in a way that providing insurance and providing contraception are not. The insurance provides direct access to the contraception. Granted, it’s not as strong as the burden on religion in the Sherbert case, but I think the HL situation is stronger than the baker example, although I still wonder how much. Sometimes, I think it’s quite a lot. Other times, not so much.

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  10. The magistrates are clearly among the folks who believe that the separation of Church and State is not the intention of the First Amendment.

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  11. Jason Kuzniski has an awesome quote on the topic:

    We would live in a horribly impoverished world if everyone had to gin up some love before they traded. As a less than fully sympathetic individual, I only live at all by the kind of sheer, blissful indifference that we find in the market. The same, though, may be said of you, even if it’s a lot less obvious: We all depend on largely anonymous trading networks for the specializations and the gains from trade that make modern abundance possible.

    I agree with that wholeheartedly.

    More to the point, the point of ‘sincerely held religious belief’ is that you believe. What I see going on is believers who don’t quite get that; there’s no question of forcing their beliefs on, on others. (See Kansas for the latest example in the abortion culture wars.) It’s almost as if they don’t trust their beliefs, and have this great need to force them on others in case those others don’t really believe. The irony of that constantly astonishes me.

    But I think it a mistake to draw a line between some set of believers (say public servants) and some other set of believers (say business owners); and suggest that anti-gay sentiment is not acceptable in the public sphere at all. Now I know that them’s fighting words. But those gay-bigots have gay children, and those children. And those gay children are tortured, tormented, and otherwise abused in ways too horrid to speak. And while I don’t believe in god, I do believe in their rights to be themselves. Sincerely.

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    • That indifference is one of the things that the less enthusiastically capitalist elements of consevative Christianity have a problem with. And it’s easy to see why: if contributing to the sin of another is a sin, then that “indifference” promotes sinning, not only in the case of gay marriage, but a whole host of other scenarios.

      (This is not the only, and perhaps not the only beef some Christians have with capitalism, of course.)

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      • Yes. It’s bugged me a lot that this discussion has been about gay marriage exclusively, despite it’s roots in access to contraception. Women are not protected by anti-discrimination laws, at least federally. There are no Fortune500 companies withdrawing their business from Kansas.

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      • zic, excellent point. Excellent! Because you will find many people who are not conservative Christians who find themselves on one side of this issue on gay marriage, and the other, or at least less strongly on the same side, when it comes to contraception and other reproduction-related issues.

        I remember, many years ago, asking my father why he and his fellow Evangelicals didn’t choose simply not to vote on gay marriage laws, instead of feeling compelled to vote against them. His answer — basically that the laws would promote sin, and anything (including ignoring them) that therefore promoted the laws was also a sin — made it clear to me that this battle was going to be around for a while. Indifference is impossible, when you are so convinced that you are dealing with both the salvation of others and your own.

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      • Title VI prohibits discrimination on the basis of race, color, and national origin, not gender.

        Title VII prohibits employment discrimination based on race, color, religion, sex and national origin.

        Title IX is a comprehensive federal law that prohibits discrimination on the basis of sex in any federally funded education program or activity.

        So I’d ask you to compare your dry-cleaning bill for a shirt to your wife’s bill for a blouse. Just for starters.

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      • My point is that there are federal laws that prohibit discrimination against women. Maybe not as completely or as effectively as might be preferred, but it’s incorrect to claim that federal law does not address the issue.

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      • Remember, we’re having this discussion because of the HL decision. And we had the HL decision because we had another piecemeal patch to the lack of laws that allow discrimination against women, in this case, the discrimination of health insurances that didn’t cover much of women’s reproductive health care, including child birth.

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    • Dahalia Lithwick has a nice post.

      The real incubator of the complicity-based claims in Hobby Lobby was the raft of health care refusal laws passed over the past few decades to protect doctors, nurses, and pharmacists who had religious objections to providing any contraception, sterilization, and abortion services. I wrote about the almost imperceptible expansion of these exemptions a few years ago. These laws originated with the passage of the Church Amendment in 1973, shortly after Roe v. Wade, to ensure that recipients of federal funds would not force any physician or nurse to perform or assist in any abortion or sterilization procedure in violation of their conscience. The authors of the new article are careful to point out that these were laws seeking to be responsive to genuine faith claims, especially for Catholics barred by the doctrine of cooperation from participating in these acts.

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    • ” It’s almost as if they don’t trust their beliefs, and have this great need to force them on others in case those others don’t really believe.”

      If I go to Loving Hut and they won’t serve me a cheeseburger, are they forcing their beliefs on me?

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  12. Indeed, this might be the sole issue where I eagerly side with the far left and disagree with pretty much everyone else here.

    What in the fish are you talking about?

    This place is an echo chamber when it comes to this issue. Almost everybody here agrees with you. I proudly don’t, but I can’t think of anyone else off of the top of my head.

    Also, in a recent post you stated something factually incorrect about Joe the Plumber. I pointed this out, but you didn’t acknowledge my response. If you could do so, I would appreciate it.

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  13. Since the bible is the true voice of god why do people get to pick and choose which parts of the bible they follow. Why aren’t people who wear different materials or plant fields with different crops put to death? Why aren’t sassy children taken to the village elders and then stoned to death
    One other thing, your book means nothing to me. The king james bible is just a bunch of maybes paid for by a king who wrote learned essays on the existence of ghosts. I call bull. Everybody has a book and most of them are different. If you want me to follow your god, let god appear and tell me what to do. And by this I don’t mean a hurricane in New Orleans because of the gays. I want god to show up so that everybody on the planet sees at the same time and hears the same things.
    I don’t want freedom of religion. I want freedom from religion.

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      • True, but then so is the usual modern response among American Evangelicals, that they have discerned a distinction–previously undetected over millennia of scholarship–between moral laws and mere ceremonial laws. This recently detected distinction is, I have been assured, quite clear, and my interlocutor is fully capable of distinguishing whether any particular law is moral or ceremonial. Furthermore, my interlocutor is delighted to discover that the distinction matches his personal opinions and preferences. It is a wonderful thing to discover that God agrees with you: good for Him!

        I am Lutheran. This stuff is in my blood. I can bore you to tears talking about Law and Gospel and what this means for the Christian life; all without reaching a definitive conclusion, because this doesn’t have a simple answer. I am unimpressed by the typical dumbed down kiddie version we get to explain why we can wear our cotton-poly blend and still look down our noses that the wrong sort of people, just like Jesus did!

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    • In Acts of the Apostles, it was decided that Christians do not have to follow most of the rules in the Bible. The key word is most. The early Christians did hold that the laws regarding sex are still applicable for Christians. Paul talks a lot about sexuality in his epistles to. This means that the Evangelical Christians are not really being hypocrites when they eat non-kosher food but argue against homosexuality. The New Testament explicitly states the dietary laws of Judaism do not apply to Christians but a lot of the sex laws do.

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  14. Bob Jones should have known that he could seriously have gotten away with publicly championing integration and just segregating anyway.

    That’s what they do in the North and on the coasts.

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      • Well, no. The mere fact of its being hackneyed doesn’t make it unreasonable. It is like the question about roads asked of anarchists. Who is going to build and maintain them? Will we have to pay a toll to drive to the supermarket? How would this work in practice? Anarchists hate this question. Even guys who piss and moan about paying their taxes generally acknowledge that publicly maintained roads are a good thing. The anarchists don’t have any answer that isn’t a public relations disaster. Their response, in my experience, has been to resort to eye-rolling and declaring the question hackneyed, thereby avoiding actually answering it.

        Addressing Dexter’s question is much easier, but any good answer doesn’t lend itself to snappy brevity, and can also lead to follow-up questions that can be embarrassing to those of a certain theological bent.

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      • Agreed. Full-on biblical literalism doesn’t work very well, and yes, evangelicals and other “bible believers” have found various ways to satisfy themselves on the topic. But that doesn’t mean they are making good arguments, instead of engaging in anxiety-reducing cognitive dissonance. Pointing out fundamental flaws in someone’s position is a valid move in this little dance.

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      • Using Jews as a weird analogue to Christianity:

        Are Ultra-Orthodox Jews morally superior to the Reform Jews insofar as they’re trying to obey the various commandments?

        My suspicion is:
        If they ain’t then there’s something else going on here.

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      • My guess is that Reform Jews would say no but Ultra-Orthodox Jews would say yes*.

        Reform Judaism believes that people wrote the Torah and that it is more of an interpretation of the divine rather than the divine. This means that it is more allegorical and things that made sense in the past might not make sense now.

        *The real answer is that it is more complicated because even Ultra-Orthodox Jews see more allegory than literalism in the Torah. Also we have Talmud which is about interpreting Torah. I’ve mentioned this before that while the Torah does say that homosexuals deserve the dealth penalty, you need to look at the procedure in the Talmud. The Procedure in the Talmud makes it nearly impossible to give homosexuals the death penalty. You need two witnesses to warn the couple before they had sex about the evilness of their actions and the consequences. They also need to see the sex happen. You then need a unanimous jury verdict and the jury is much bigger than the 12 on a modern American jury. In short, it is not going to happen often if at all using Jewish law.

        There are also lots of stories in Jewish literature about people changing congregations when their rabbi gives them an answer that they do not like. Normally these stories involve some minutae debate about whether a chicken is kosher because of some blood found on the skin. There is always a really strict and poor rabbi who says “The chicken is not kosher. You have to discard it and buy a new one.” The housewife then goes to a more indulgent rabbi who says the chicken is kosher. These were not in Reform communities.

        The really short version of this is that Jews solve theological debates via argument. We are willing to find new rabbis if we disagree with our old ones, and the old joke is “Two Jews, Three Opinions.”

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      • No, I mean in the context of us here arguing about how Christians attempting to believe in Biblical Literalism aren’t Christian enough.

        Let’s extend that out and explore it with other religions that have a much higher class of Literalists.

        Do we prefer those Literalists?

        If we don’t, I’m going to say that something else is going on here.

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      • Chris,

        I’m curious about this comment:

        I admit I have a healthy amount of respect for people who dive all in to religion and religious texts. I mean, I don’t want anything to do with them, personally, but I do respect them.

        Could you elaborate on that a bit? (I admit, I’m thinking about this in terms of properties and I’m wondering what property you have in mind…)

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      • Given the fact that religious orthodoxy and misogyny are pretty much synonymous, there would be situations in which I would prefer not to deal with them professionally, to be sure, because I wouldn’t feel obliged to make the sorts of accommodations that that orthodoxy sometimes requires.

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      • Stillwater, loosely, people whose religious beliefs pervade every aspect of their lives. The most visible examples in today’s world are orthodox Jews, Muslims, and some Sikhs, but also some (generally non-Western) Christians, Buddhists, Hindus, and so on.

        I mostly intend this as a contrast to the typical, in fact almost completely exclusive Western Christian.

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      • Chris,

        I don’t mean to be pushy here …

        But what is it about those folks that you respect? I just found the comment interesting (for a few reasons!) so I’m curious about what specifically you find worthy of respect in a robust fundamentalism (or whatever).

        And I really don’t want to be pushy here, so … forgive my being pushy. (Last time, I promise!)

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      • I’m not Chris, but for me it’s the real “putting their money where their mouth is”… making actual sacrifices in accordance with their faith. Growing up where I did (a lesser variation of where Chris grew up, but definitely different than places I’ve been since) you see religion as a sort of badge or shield, taken off when inconvenient. When you run into a lot of that, it’s easier to actually appreciate people who are actually earnestly wrong, instead of socially opportunistically so.

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      • Still, what Will said.

        It might seem weird quoting Nietzsche in this regard, but something like this:

        I profit from a philosopher only insofar as he can be an example… But this example must be supplied by his outward life and not merely in his books—in the way, that is, in which the philosophers of Greece taught, through their bearing, what they wore and ate, and their morals, rather than by what they said, let alone by what they wrote.

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      • Chris: See? Something else is going on here.

        I mean, personally? I wish that *MORE* Christians (and Jews and Muslims and Hindus and Jains) were hypocrites.

        In very, very particular ways that aligned with my own personal ideas about morality. Not hypocrites like in many of the ways they’re hypocrites now, of course.

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      • Don’t get me wrong, when it comes to personal interactions, politics, and as I said, some professional situations, I’m always going to pick the hypocrites, but I’m going to pick the hypocrites because I can’t stand the values of the consistent ones, not because I don’t appreciate their consistency. In my perfect world, the vast majority of the population wouldn’t even pretend to have some of those values when it’s convenient or relatively effortless to do so, because even the hypocrites retain unpleasant vestiges, as the fact that we’re having a conversation about pizza companies not catering wedding receptions shows. But I’m still going to respect people who have the strength of will to live what they believe.

        I’m the madman in the marketplace, I suppose.

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  15. So is the difference between a) refusing to officiate at same-sex marriages or refusing to sell or stock contraceptives as a pharmacist and b) refusing to make donuts on Friday night (literally, refusing to roll on the Sabbath) the fact that a) is a service towards other individuals and the b) is just being a cog in the machine?

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    • Refusing to work on the Sabbath is long is protected; but it’s what you do, it’s about your personal expression of faith. The better analogy would be refusing to let anyone else work on the sabbath, no?

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      • I don’t think anyone’s upset about businesses deciding what days to be open to the public.

        But HL would also be wrong to compel an observant Jew to work Friday night and Saturday; despite their Sunday closing. And if the didn’t hire an observant Jew because they were Jewish and wouldn’t work on Friday night or Saturday, they would be violating employment laws.

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      • “Both Hobby Lobby and Chik-fil-A refuse to let anyone in their employ work on the Sabbath.” …at their businesses, perhaps. Do Chik-fil-A or Hobby Lobby fire people who work a second job on Sundays?

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      • Chi fil a fires people for all kinds of reasons

        Really, I’m still just trying to get at the base heuristic when expression of religious belief is acceptable in the workplace. Is it only insofar as it doesn’t impact customers and other employees, and is mostly irrelevant – or at the least, far more suspect – when expressed by management and/pr ownership interests?

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      • closing on the Sabbath does not require discrimination. That business owner says to all potential customers that they may not buy donuts on a given day, while the hypothetical Indiana baker tells some people “yes, I will make you a cake” while refusing to provide the same service to others.

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      • – and yet, the “No shoes, no shirt, no service” rule continues to discriminate needlessly against Florida Man and also, hippies.

        Just as I am pretty OK, as a general principle, with people refusing to buy a service or product for any reason, or no reason at all (that is, boycott), I am pretty OK in general (as a legal matter) with people refusing to sell a (nonessential) service or product for any reason, or no reason at all.

        A “sales boycott”, if you will.

        Transactions are a two-way street, and individuals should legally be able to freely choose who they want to “support” (think of the way we use that word in commerce – when I have a problem with a product, I call their “support” line; and yet, *I* am the one supporting them, with my dollars).

        Now, if someone is refusing to sell to (or buy from!) people because just they are black or gay, or etc., I think they are probably* douchenozzles (as well as poor business-decision-makers); if they are sellers, I will probably not patronize their business, and may join others in boycotting it and encouraging others to do so, pressuring them to change their ways; if they don’t change their ways, I will derive satisfaction if they suffer financial consequences as a result.

        *I say “probably douchenozzles” above, because to me declining to transact for reasons of say religion or political belief can be a different animal than for reasons of gender/race/sexual orientation, since religious or political belief/membership is (much more of) a choice and can also imply at least acquiescence to certain collective actions of that religion or political movement – so someone declining to transact over religious or political belief, may or may not be a douchenozzle IMO. Hence my examples elsewhere of wanting to decline to transact with members of political or religious orgs you find odious. If a Grand Dragon walks into my restaurant, I think I should be able to tell him to keep on walking.

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        • You know, the more I think about it, the more the “monopoly-busting” analogy works for me (not least in the sense that I also end up confused as to where best to draw the line, legally).

          Let’s make a customer no one here would ever want to bake a cake for or take photographs of or serve their diner food to – this guy is an ambitious jerk, somehow having attained the triple position of Grand Dragon, president of NAMBLA, and ISIS general.

          And he’s only twenty-five! So driven to succeed at evil!

          (And yes, I am fully-aware that gay couples aren’t evil, or like Grand Dragons or ISIS generals or NAMBLA presidents.

          My point isn’t about the specific customer; my point is about the right to say “no” to a given transaction, which is possibly the most fundamental right of all humans everywhere.

          My point is about individual consent, and when its lack can be communally-overridden).

          Now, I’d wager that almost nobody here is going to argue that you should be legally compelled to serve this guy, in your capacity as private business owner. Nearly everybody here would tell this guy to take a hike if he darkened your store door. And you’d forgo his money and sleep the sleep of the just. I know I would.

          But what if the next store does that too, and the next, and the next?

          What if every diner won’t serve him, and all the grocery stores turn him away too, and all his options have been foreclosed, and now his family is starving?

          As much as we don’t like the guy and don’t mind his life being made *somewhat* more difficult, we’re maybe not prepared to totally starve him and his family out. To exile him completely from the tribe. At that point, I’d probably want to force SOMEBODY to serve the guy. (Even though I still might not want to be the one to do it.)

          And that brings me back around to the OP’s original analogizing of gay people to black people.

          I think a compelling argument can be made that drastic, “monopoly-busting” type measures by the government were needed, to try to counteract decades of official and unofficial “exile” of black people from mainstream US civic life. White people held a monopoly on most important goods and services, and that monopoly needed to be broken up.

          One of the “busting” measures, was to abridge the default presumption of total freedom of association for bigots under certain circumstances (notably, things closely- or directly-linked to essentials like housing, employment/earning, and feeding oneself – I have a feeling that the imagery of “lunch counters/diners” carries so much symbolic weight because in some primitive part of our brains, we liken their mythical gleaming counters, to dim memories of gathering around the tribal central fire for meals and storytelling; the communal hearth, to which the exile is forbidden access).

          So when I look at the black/gay analogy, I see some things that track really nicely, and some that don’t track as well – the pop. percentage of gay people-to-straight is commonly-believed to be somewhere around 10% to 90%, give or take, which is not far off from where US black and white percentages were in 1960 or so.

          Though I’ve noted that in some ways gay people have had it a little bit easier than black people (no real KKK analogue for gays in a long time; plus gays had the option of “passing” in society much more readily; even in the generations that came before us, many people knew that their cousin or uncle or coworker or town’s lifelong bachelor was probably gay, but as long as they didn’t make too much fuss about it, most people just looked the other way most of the time), they certainly haven’t had an easy time of it either.

          And “marriage” is one area in which they’ve notably gotten screwed – not being able to visit nor make medical decisions for their beloveds on their deathbeds, for example.

          OTOH, my (possibly-wrong) sense is that stringent anti-gay sentiment is largely archaic in 2015; I’m as surprised to encounter someone who is truly a virulent homophobe, as I am to encounter, say, a Quaker. They exist, but to me they seem to be very much in the minority.

          And, things like wedding cakes and photography don’t feel like “essentials” to me, both in the sense that one can live without them just fine, and anyway there are so many providers of such services in most places, that you can just move your cursor down one line in the Google listings (or check Yelp!), and bypass the bigots easily. So it doesn’t feel pervasive/like “exile/monopoly”.

          All that to say, in most cases I think I’d prefer that for bigoted private providers of nonessential goods and services, we try to shame/economically-pressure them into better behavior, than to mandate by law that they behave better.

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    • That is an interesting case, .

      If DD posted an opening for a Friday Night Donut Roller, that lawsuit would seem to make the very existence of that job illegal.

      Going further, any restaurant that made cheeseburgers or bacon would similarly be breaking a law by having jobs that required people to make cheeseburgers or bacon.

      That seems problematic. If an individual enters into an employment agreement voluntarily which requires that they violate their religious beliefs, I’m not all that sympathetic. If you can’t work Friday, make that a condition of your hiring.

      And, yes, I know this inevitably takes us to the path where woman are forced to have sex with their bosses because they signed a contract stating as such.

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        • @will-truman

          Call me a monster, but I have very little sympathy for the teacher.

          Here’s why:
          1.) The Hajj is a requirement to be completed at some point in the Muslim’s life. The teacher could have waited until the specified time of year coincided with a built in break. Why this teacher felt her faith compelled her to leave at the end of a semester is curious and doesn’t seem consistent with most interpretations of the Muslim faith. And, yes, I know we concede that sincerity of belief but until the courts are willing to concede the sincerity of my non-religious beliefs and offer them the same deference, I’m not sympathetic.
          2.) The Hajj requires a 4-5 day visit. Why three weeks? Sure, some travel time, but 5 times as much as the faith indicates is required? Yea, yea, it’s her sincere belief…
          3.) As the article notes, certain jobs suffer greatly by swapping in a temp or divying up the work. Teaching is one of those. This isn’t a matter of subbing in one cashier for another. The students would suffer in this teacher’s absence. In accepting the job, she accepted obligations to her students.

          The article itself was also curious…

          “As the case moves forward in federal court in Chicago, it has triggered debate over whether the Justice Department was following a purely legal path or whether suing on Khan’s behalf was part of a broader Obama administration campaign to reach out to Muslims.

          The decision to take on a small-town school board has drawn criticism from conservatives and Berkeley officials, who say the government should not be standing behind a teacher who wanted to leave her students.”

          I thought conservatives are staunch defenders of religious freedom? Oh… wait… already showed the BS that is. Of course, they were consistent with their implication that the administrations pursuit is motivated by Obama’s pro-Muslim sympathy.

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  16. I love this quote. It’s such a set-up for a No True Scotsman fallacy if someone points out the numerous Christian denominations that have no problem with equal civil rights for homosexuals.

    All orthodox, Bible-believing Christians agree on one thing; and that is, that whatever the Bible says is so.

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  17. More hypocrisy from the pseudo Christians. One can be either a Christian or a follower of the psychotic homophobes who ruled that batch of ancient nomads. One can’t be both. Where did Jesus say kill the homosexuals?

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      • Okay, where did jesus say let them eat somebody else’s cake?
        , Thanks for the explanation. Hopefully without sounding to snarky, are you saying your church basically hired some intellectuals to find a reason not to do something the bible says to do?

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      • @dexter: This is really too big a topic to fit in a single comment, so take this reply more as background. First off, we need to distinguish between White Evangelical American Protestantism and older mainline Protestants. WEAP is only too pleased to characterize itself as “conservative.” They also have co-opted the unmodified word “Christian” to themselves. These propositions are some combination of hilarious and offensive, but for better or worse the general culture has accepted them. So if you have only a casual interest in the topic, everything you think of as “Christian” is really White Evangelical American Protestant (who, as a point of information, constitute about one third of American Christians). You also are likely to accept the proposition that any church diverging from WEAP doctrine is backsliding or softening its position. In fact, while WEAP has older antecedents, its peculiar characteristics are only two centuries or so old at most, and often much more recent. As an example, the president of the Southern Baptist Convention praised Roe v. Wade as a blow for religious freedom. It was only around 1980 that Evangelicals discovered that they were dead set against abortion, and had always been so.

        The upshot is that I often find myself expressing positions that have been bog standard for centuries, and being accused of simply making it up as I go along because I am unwilling to accept some obvious truth. feh. St. Augustine, for example, regarded a literal reading of the Garden of Eden as being ridiculous. That was about sixteen centuries ago. It’s not like we fell into apostasy when we succumbed to the allure of Darwin.

        So, going more directly to the question at hand, both testaments of the Bible have themes of Law and Gospel built into them. We typically think of the Old Testament has pushing Law and the New Testament Gospel, but it is more complicated than that. The book of Jonah, for example, has Gospel as its point. The vastly oversimplified version is that the Law of the Torah was the old covenant between God and his chosen people. This is often presented as the rules and regulations for salvation, but it is more accurate to look at it as the contractual rights and obligations establishing the relationship between God and the Jews. With Jesus we have a new covenant. This is not merely a renegotiation modifying the terms of the contract, but rather a radically different approach. The old narrowly specific rules have been replaced by broad general principles, typically involving loving God and loving one another. This is stated several times in the New Testament.

        The church has never really been entirely comfortable with this, so the rules and regulations keep sneaking back in. We see stuff like the Duck Dynasty guy explaining how he would be murdering and torturing people except that he knows he would go to Hell if he did. It is not hard to look at something like that and conclude that perhaps some explicit rules aren’t such a bad thing, for those unable to grok abstractions about loving your neighbor. But these rules can also be a trap, coming to exist for their own sake and losing sight of the underlying principle.

        You might take a look at Acts 10 for a scriptural discussion of the topic. Also, inter alia, John 13:33-35 and Matthew 22:36-40.

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      • We see stuff like the Duck Dynasty guy explaining how he would be murdering and torturing people except that he knows he would go to Hell if he did.

        It’s more of an argument about how religion stunts people’s growth and leaves them stuck at the child-level of maturity than anything to do with the stuff Duck Dynasty Guy hates because he believes his religion teaches him to hate.

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      • Compromised Immune System:

        The direction, or even existence, of causality is not clear. He seems to be a very unpleasant person. He is in a cultural context where this manifests itself as religion. My guess is that in a different context, it would find some other way to manifest itself. Look at the current Pope for an example of someone who is religious but not stunted.

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      • Kelly:

        I’ll think about it, but I’m not really expert in this. I am more educated in the topic than the typical layperson, but it would be very easy for me to slip into waters beyond my depth.

        Ask me about baseball history from before 1885 or so and it is a different matter. I can claim world-class expertise there.

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      • I was all ready to say I’d love for Richard to expand his comment into a post until he said tha the was an expert on the early history of baseball, and now that’s all I want to read about (I mean from any of you, not just from Richard).

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      • “Can you write a post on the Federal League? Or is that not-early-enough?”

        It is much later than my period of expertise. It was the last of a series of challenges to the established major leagues. In my opinion it is the least interesting one of the bunch. It wasn’t an attempt to overturn the established order: merely to get in on the action. Its main interest was that it led to the anti-trust exemption. Most of the FL was bought off, but Baltimore was cut out and went to court. But compare this the Players’ League of 1890, which was a partnership between players and some money men to take over from the established owners. It got the best players, but the ensuing war was expensive and the establishment was able to suborn the money men, who sold out the players. This was a much more fundamental challenge.

        That being said, I have pretty much exhausted what I can sensibly say on the subject. My area is the era when they were figuring out how to organize a league. Nowadays we all pretty much know what a sports league looks like. They didn’t in 1870, because the sports league had not yet been invented. Then there is rules development. Consider balls and strikes. They seem pretty fundamental to the game, but where actually later additions. Baseball in, say, 1850 would be instantly recognizable, but with a lot of weird aspects. I am very interested in how we got here from there.

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      • Ask me about baseball history from before 1885 or so and it is a different matter. I can claim world-class expertise there.

        I know someone who would really, really love to publish a post about that on a group blog. Never mind how the two covenants fit together — what’s the relationship between the 1882 Troy Trojans and the 1883 New York Gothams?

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      • So let’s say hypothetically that I am writing a story in an alternate timeline. Let’s say that I don’t want to use the National League and the American League, but instead want to draw on some defunct leagues. Which leagues should I use? I was actually planning on using the Players League and Federal League. What other options are out there? (I found a “Union Association”?).

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      • OK, you guys have convinced me. It was the question about 1882 Troy and 1883 New York that put me over the top. It is too involved for a comment, yet hits that sweet spot where I can write sensibly about it without having to do any additional research.

        Re defunct leagues, the most successful of the defunct major leagues was the American Association, which ran from 1882 through 1891, then was the decidedly junior partner in a merger with the National League. (Trivia to stump your friends and co-workers: name the four modern MLB teams that were in the AA.) The AA and NL instituted the first World Series. (There’s another post right there: why we call the MLB championship the “World Series.” Contrary to a common urban legend, it has nothing to do with the New York World newspaper.) A more successful American Association would not be implausible.

        So, to Whoever is in Charge Over There, drop me an email and we can discuss this.

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      • A warning Compromised Immune System — that crosses the line here.

        My personal opinion on the negative effects of religion “crosses the line” here? What rule is there on that? It is on topic as religion is part of this discussion and it was a direct response to the comments about the Duck Dynasty guy.

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      • Religion is at least causative to the existence of people like the Duck Dynasty guy. A common argument from religionists is that they would somehow be horrible people and commit all sorts of violence and rape and murder if there weren’t religion to stop them.

        I don’t agree that acknowledging that they make the claims and acknowledging that religion is a stunting influence preventing a large number of people from growing past a “out of fear of some, some intangible parent figure who, who shakes a finger at us from thousands of years ago and says, and says, “Do it… do it and I’ll fuckin’ spank you”” attitude towards morality into a logical moral framework is somehow crossing a line.

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  18. What experiences have you had to cause you to lead your list of people who think that being anti-gay-rights isn’t necessarily bigoted and that one’s religion should be a legal defense for discriminating against gays (or gays seeking to exercise their rights) in one’s business with liberals, saying that you hear these things from liberals “a lot”?

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  19. Should ob/gyns capable of performing abortions be required to perform them when requested or should they be allowed to say “That’s not my field” from the safe haven of their baby aquariums?

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    • Should urologists capable of performing vasectomies but who refuse to, on religious grounds, be compelled to perform them? Should the be able to refuse to treat patients with STDs on religious grounds?

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      • I’d say healthcare is a clear public interest, and state and local governments do look at the availability of healthcare to their populations. For example, if there is a great hospital being built in one part of the state, then that can broadly serve that community and relieve the state the burden of providing the healthcare otherwise. Which, yay.

        However, if that is a religious hospital, now the state has to consider, will they serve all of our communities? If they will not, then I say the administrators need to count that facility as not providing care for the region.

        I’m not saying the government should charge in with guns and demand procedures be performed. However, there is much entanglement between the government and healthcare. Certainly religious hospitals benefit from this, in various ways. (I assume there are a ton of zoning wavers and tax breaks and public sector involvement in contract negations, etc.) In any case, the government certainly has an interest here. I expect the state to work to diminish the power that prejudiced institutions have to provide unbalanced care.

        In other words, such facilities work at odds with the public interest. I expect officials to regard them as such.

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      • I took my bar card knowing that I might be called upon to defend the interests of clients I did not like or agree with. I’ve taken jobs where clients were assigned to me that did things I had to defend which I personally found morally questionable.

        My choices were, do the job, or quit. This is part of the job. I did my job. Found ways, sometimes not easy ways, to thread the ethical needle.

        While it’s not the same thing as performing an abortion, it’s in the same ballpark. So I’m less inclined to be super-deferential to the professional in such a situation. A pharmacist who objects to dispensing contraception, and then steps to the side for three minutes while her colleague dispenses it, engages in a bit of moral sophistry: she has a professional duty to allow the patient access to the prescribed medicine. Not doing it herself but not protesting while someone else does it — doesn’t seem like she really considers it abetting murder. That’s probably what the pharmacist ought to do–but note how her own morality gets shunted to the side of a professional obligation.

        Point being: let’s not get TOO precious with a professional’s morals-versus-ethics dilemma here.

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      • I suppose we should ask “what do we care about more, at the end of the day?”

        If we are okay with ob/gyns who just want to do the happy nice part of the job delivering babies and dressing them in little clown outfits, then we should be prepare to deal with having some percentage (even a large percentage) of those being part of our ob/gyns.

        If we’re going to say “nope, ob/gyns have to perform abortions and then put little clown outfits on the parts left over”, then we’re going to have to prepare ourselves for ob/gyns quitting and people otherwise inclined to become ob/gyns to say “you know what? I’m just going to become a licensed midwife.”

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      • Well, this doesn’t get us anywhere. I say, let’s not be too deferential, says, let’s not be insufficiently deferential, but we aren’t at a point where we have an idea of where the line should get drawn yet.

        * Performance of an invasive medical procedure?
        * Dispensing an (actual) abortifacent?
        * Dispensing a substance believed (incorrectly) to be an abortifacent?
        * Dispensing contraception?

        Again, we may be at a point here where we simply need to draw an arbitrary line that will be good enough in most situations and leave it at that.

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      • That’s how it works, I think, when you’re balancing competing interests. A lot of discussions of competing interests end up devolving into “But Competing Interest [A]!” “But Competing Interest [B]!” (I am not immune to this.)

        In reality, most people recognize both A and B. Very few people want to force the Catholic Church to perform SSM ceremonies. Most people believe that county hospitals should be able to turn away someone for being gay because the admissions nurse objects to homosexuality. Everything else is somewhere in between, sacrificing A or B.

        We want there to be a bright line, but there typically isn’t.

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      • I assume that’s a typo, : most people believe the nurse should not be able to turn away a homosexual patient on the basis of her moral objection to homosexuality, in contrast to what I also think is correct, most people do not want to force the RCC to officiate and bless same-sex marriages. (Goodness, that’d be making them practically Episcopalians!) These seem to be correct readings of general public consensus.

        Memories Pizza, though, that’s a tougher case.

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      • We don’t commonly force hardly any businesses to provide services they don’t want to provide. (Okay, there are probably ten thousand counterexamples to that, but i would submit they’re not really on point here. We probably force internet service providers not to turn their services off every Sunday – stuff like that. I would submit freedom of conscience doesn’t really come up there.)

        Anyway. (Bad start). There’s the discussion of in general how far does freedom of conscience/religious belief go in exempting people/businesses from every different kind of law and regulation. It’s a fair discussion to have.

        But it’s actually something of a non sequitur when the discussion that’s actually been broached is “How much personal discrimination among potential customers should freedom of conscience protect from the law?”

        Yes, we get that there are all kinds of things the law perhaps shouldn’t force people to do against their religious (or ethical?) consciences. But how much of that is personal discrimination among customers? That’s a particular category; a particular discussion. That’s the question that’s been asked, and “Should ob/gyns capable of performing abortions be required to perform them when requested or should they be allowed to say “That’s not my field” from the safe haven of their baby aquariums?” is not responsive to it.

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      • …But, of course, asking a devout Catholic ob-gyn to perform an abortion and getting a refusal is not personal discrimination among customers. It’s a general service limitation.

        So the issue is, what do we think about asking someone to bake a cake for your wedding? Is it like asking them to bake a cake for your friends’ different-sex wedding, but they’re discriminating against you because in this case it’s your wedding you’re a man and you’re marrying a man? Or is asking an anti-SSM baker to bake a cake for a SSW like asking a pro-life doctor to perform an abortion?

        Is it discrimination among services (baking for a different-sex wedding : baking for a SSW :: prescribing pre-natal meds :: performing an abortion), or is it discriminating among customers (baking for a different-sex wedding : not baking for a SSW :: baking for a white-white wedding : not baking for an interracial wedding)?

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      • those are good technical points.

        I have a social point.

        I full-heartedly want to admire someone’s right to view pregnancy as sacred. Marriage as sacred. There’s a force of speaking about both things respectfully. But when we talk about religious conscience and other people’s behavior, instead of your own, there’s a distinct lack of respect in discussions of a people’s right to have equal access. My family approves SSM; and we’ve been completely supportive of my brother and his partner for going on three decades. But the laws not only hindered my brother and his husband they triggered burdens on my brother’s family, giving us power of life-or-death decisions instead of his partner. Morally, his husband’s opinions and knowledge of my brother’s wishes have as much weight as my husband’s knowledge of me after 38 years together.

        So I want to speak of that respectfully, too.

        And I faced a 26-week genetic profile for my first born, through no choice of my own; if that profile had revealed something, I want to take the conscientious objecting ob/gyn into consideration; with two sisters born and died due to spina bifida, I was a high-risk mother, and no doctor would care for me without an amnio due to their malpractice insurance. They were required to have me take this test, in other words. This is fairly common. But if you’ve made me look, when I wouldn’t have otherwise, I think my right to respect to what that look reveals should also be treated with a whole lot of respect, particularly since we’re talking a full profile later in a pregnancy, at 26 weeks. I’m aghast at Kansas and at Rand Paul, who ought to know that very few abortions happen at 7 lb. baby, and the vast majority of those that do happen due to medical pressures. This deserves a lot of respect; every bit as much respect as someone’s cancer treatment or heart condition.

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      • I do actually agree with Drew, and see a pretty strong distinction between “You must provide your service to these people” and “You must provide this service”… the latter has a higher (though not insurmountable) threshold. Both contain (or can contain) the same competing values and contain (or can contain) gray areas, though, in my view.

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      • Question to you what if a restaurant had a full menu they gave to whites, and a half-menu they gave to minorities, even though they let anyone sit and order in the restaurant? What’s the difference between that and “well you can shop in our store but wedding cakes are only available to heteros” logically?

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      • Who is employing the OB/GYN? Private practice you own? Do what you want. Though I could see insurance companies having feelings about the services you provide or don’t provide/being mandated to only work with doctors providing certain services. Which would be one way around requiring them to do it. You don’t; you simply strongly incentivize them to. Say that any insurance plan available via state exchanges not only covers abortions and contraception, but will also work with doctors who freely provide both services. How is that for keeping the government out of your religion? Don’t want to perform abortions? Cool… work on cash.

        If you take a job with a practice or a hospital that says, “We perform these procedures and expect you to,” you do your job.

        Because we are dealing with public health, there are other things to consider. If a state limits how many OB/GYN licenses they provide, then I would want those given out to the people offering the widest range of services. Of course, why is the state limiting the number of OB/GYN licenses in the first place?

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      • Don’t want to perform abortions? Cool… work on cash.

        So the wealthy will have access to multiple ideologies and the poor will only have access to one?

        This is a newsletter to which I would be interested in subscribing.

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      • If the pro-choicers ever became sufficiently powerful, they would have a lot of tools at their disposal to compel obstetricians to perform abortions. Many would quit, or cease delivering babies, and some hospitals would close, but while the OB supply might go down, the availability of abortion would go up considerably.

        Which is one of the things that keeps me in league with the pharmacists that choose not to dispense birth control. We would not use one that took this stance, but I see their right to refuse as being not completely disassociated from my wife’s. And why I think it’s a good precedent to have “the government can, but it shouldn’t (unless it really has to)”

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      • So the people with cash can go get a non-abortion from practitioners who do not do abortions while the folks limited to insurance can go get a non-abortion or an abortion from practitioners who do offer abortions. The only permutation that doesn’t exist are people on insurance seeking non-abortions from practitioners who do not perform abortions. That is to say, someone on insurance seeking a non-abortion must see a practitioner who does perform abortions. I suppose they may find that objectionable but there is only so much we can do.

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        • You know when it comes to the costs of childbearing and child rearing, there’s been a long, well established tradition of putting the costs on women.

          At some point, when does that constitute rent seeking, given that producing new generations is a net social good?

          tldr: someone else is paying the price of children to support you in your old age.

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          • Oooh! We should totally set up actuarial tables. Groups that do the best job of sharing the costs around society vs. groups that do the best job of isolating the costs onto women.

            We should totally make sure that abortions are more readily available to the latter group.

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  20. “Because here is the dirty secret no one wants to admit when we talk about gay rights and same-sex marriage: You can’t reasonably be against them without thinking that gays are somehow lesser and deserving of fewer rights and privileges than the rest of us. You can tell yourself you can, but you can’t. You can have religious reasons for your beliefs, but you still can’t. You can even be a good and decent person overall, and you still can’t — in the same way you can’t be perfectly fine with blacks while being OK with legally allowing the restriction of government and private services for them based solely on the color of their skin for whatever reason, religious or otherwise.”

    That, right there, boils down all of the worst thinking on this issue into its basics. It’s got the complete lack of argument, the insistence that sounds like a four-year-old shouting “NO NO NO NO”, and the equation to race. In no aspect does it address the arguments that actual people have made against SSM. I generally don’t bother commenting on articles on this subject, because people are unlikely to be persuaded at this point, but this was such an arrogant and superficial presentation that it needed to be pointed out. I ask the reader to reread the quoted paragraph above and consider whether there’s any intellectual engagement at all, or if it’s strictly emotion. Emotion has a place, but when emotion is pretending to be reason, argumentation suffers.

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    • In no aspect does it address the arguments that actual people have made against SSM.

      Please elaborate. What arguments are you claiming that it does not address?

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      • I’m glad you asked that, . At the threshold let me point out that I don’t actually believe this to be true. I raise the issue because it was recently raised to me in a discussion on a related issue, buy one of my graduate students in the business ethics class that I teach from time to time.

        My student race to me the objection that antidiscrimination laws ought not to apply to sexual preference, because these things are not immutable. Moreover, they are internal, and what people really object to, whether with good cause or not, is behavior.

        Maybe it’s the case that I can be attracted to a member of the same sex, but not act on that attraction. Someone else will not have an objection to my internal feeling of attraction, but might raise an objection to my outward pursuit of that attraction.

        I pointed out to my student that religion is the same way. No one can know what anyone else’s actual religious beliefs are. All we can tell is what people claim about themselves, and how people behave with respect to their religion.

        His response was that religion is protected by the First Amendment, and sexual orientation is not. Therefore, we as a society have already made the determination that this internal aspect of a person, manifesting an outward behaviors, is worthy of a high level of legal protection. By adopting the 14th amendment, we as a society did a similar thing for race. No such similar signal of widespread cultural acceptance of homosexual behavior can be found in the constitution as it is currently written, so the law should be interpreted and applied accordingly.

        Further, the stakes of acting or not acting on one’s religious beliefs, at least to the religious person, are the fate of that person’s immortal soul. The stakes of acting or not acting on one’s sexual orientation are the pursuit, non-pursuit, or obligatory discretion in engagement in pursuit of a romantic and or sexual relationship. So, it’s more important to act consistent with religious belief then to act consistent with sexual orientation.

        Finally, my student pointed out that, for instance, a baker who refused to provide a cake for a same-sex wedding based on a religious objection might still, and probably would, be willing to bake other kinds of cakes for gay customers, like birthday cakes. This demonstrated to my student that the baker in question objects not to the identity of the customer in question, but rather to a particular behavior.

        I’m paraphrasing my students arguments substantially here, tailoring them to meet the issues that have been brought up so far in this thread. But it seems to me that these are the best faith arguments being advanced in the current debate about religious freedom versus LGBTQ equality, and the appropriateness of using laws like RFRA as defenses to application of anti-discrimination in public accommodation laws.

        What would you have said have you been arguing with my student?

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      • I’m not ACIS, but since it’s my thread I’ll feel free to butt in. What *I* would have said to your student is this:

        First off, much of this line of argument is tactics used to obfuscate. The “because it’s the law of the land” argument carries less weight when part of what you are trying to argue is that others should not change this particular law of the land. It becomes a circular and self-referencing argument devised specifically to avoid the issues at hand.

        Second, the “behavior” argument used in conjunction with curbing civil liberties is one that we should be very, very wary of. After all, can you not use it to defend a law that outlaws the wearing of yamakas or taking communion if we do not necessarily outlaw Judaism or Catholicism? After all, we’re not legislating what’s inside their head, merely their behaviors.

        As to the last point, would we allow someone to refuse to let an African American eat in the restaurant based on religious beliefs? After all, that person might still be willing to sell an African American take out. They might also own a roofing company and be happy to be hired to repair the roofs of African Americans. So really, it’s not that he won’t do business with black people, he just won’t do specific kinds of business with them. Should this be permissible?

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      • As to the last point, would we allow someone to refuse to let an African American eat in the restaurant based on religious beliefs? After all, that person might still be willing to sell an African American take out.

        This actually happened. The answer was no. Newman v. Piggie Park Enterprises, Inc. 390 U.S. 400

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      • I’m stepping in, , because I just recently had that experience and thought that it lent depth and substance to the discussion, specifically to the question you asked. While I understand you were looking at principally for a response, that doesn’t mean others might not have relevant things to say on the subject.

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      • Burt,

        My response would be this: since the lever in that argument is a narrow reading of certain constitutional principles, the argument is fundamentally a formal one regarding the limits and scope of federal powers to protect individual rights not specifically mentioned in the text of that document. So it’s not specifically an argument against SSM marriage (which is what ACIS was asking for), nor an argument that sincere religious expressions do not entail discrimination of others. That is, it could still be the case, consistent with the argument presented, that free exercise in fact doesentail discrimination. Instead, the argument focuses on the formal limits of federal authority as they are delineated in a narrow reading of constitutional principles, and SSM drops outa this part of the argument entirely.

        Re: the second part of the argument – that “antidiscrimination laws ought not to apply to sexual preference, because these things are not immutable. Moreover, they are internal, and what people really object to, whether with good cause or not, is behavior.” – I’d say that a) if behavior is the (or a) relevant property in justifying certain types of laws, then it’s equally true that people object to behavior which discriminates against others based on “internal” properties (so the debate is all square on that point). And that b) the concept of an internal property, insofar as it’s relevant to this debate (and it is, I think!), is a property that inheres in people irrespective of the context they exist in. (Eg, it’s not a relational, binary, property.) Being gay is, it appears, just such a property.

        To wrap it all up in a nice little bow: the property of “being gay” is internal to an individual in exactly the way that being of a certain race is. And interestingly, being gay strikes me as is less mutable than being a Christian. And if objecting to certain behaviors is relevant, it seems to me that *that* criterion applies with equal force to those who oppose anti-SSM behaviors regarding discriminatory practices against gays.

        If that’s right (and it very well may not be), then the argument reduces to an appeal to a narrow reading of constitutional provisions which limit the federal gummints authority to pass anti-discrimination laws on purely formal grounds. WHich isn’t a new argument at all, but has nothing to do directly with SSM.

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      • what would I say if I were arguing with your student? Some of the things
        already said.

        My student race to me the objection that antidiscrimination laws ought not to apply to sexual preference, because these things are not immutable.

        I would ask your student if they believed they were born straight, and if so, why they believed they could not change.

        And while we are at it whether they believed they were born religious or dogmatically indoctrinated when young, and whether or not they could successfully convert to a new religious viewpoint either by apostasy or theological conversion. Because the number of people in the world who have either adopted or converted to a religious viewpoint would seem to be “the sum total of humanity” while the number of people who claim successfully to have converted or changed their sexual preference is statistically so small as to be zero.

        His response was that religion is protected by the First Amendment, and sexual orientation is not. Therefore, we as a society have already made the determination that this internal aspect of a person, manifesting an outward behaviors, is worthy of a high level of legal protection. By adopting the 14th amendment, we as a society did a similar thing for race. No such similar signal of widespread cultural acceptance of homosexual behavior can be found in the constitution as it is currently written, so the law should be interpreted and applied accordingly.

        As said by , this is merely circular logic. Arguing that “the law is the law” and that therefore the law ought not either be changed or read within the changes in society that have already been occurred is logically fallacious.

        I would also point out that the 14th Amendment makes no mention of race but instead guarantees ” to any person within its jurisdiction the equal protection of the laws”. Such laws include the Civil Rights Act of 1964, which states “All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination on the ground of race, color, religion, or national origin. ” Claiming a religious freedom basis to discriminate against anyone who bears an “outward sign” of belonging to a religious group that does not match the proprietor’s views on same-sex marriage would fail this test.

        Further, the stakes of acting or not acting on one’s religious beliefs, at least to the religious person, are the fate of that person’s immortal soul. The stakes of acting or not acting on one’s sexual orientation are the pursuit, non-pursuit, or obligatory discretion in engagement in pursuit of a romantic and or sexual relationship.

        We had this out in Loving v. Virginia. Being denied one’s right to pursue marriage with a mutually consenting partner who is in every other way valid is a violation of one of the most basic rights of humanity.

        So, it’s more important to act consistent with religious belief then to act consistent with sexual orientation.

        Repeating, it seems that more people are able to successfully change their religion either by apostasy or conversion than change their sexual orientation. I believe this has also been covered under the Maurice Bessinger case.

        Finally, my student pointed out that, for instance, a baker who refused to provide a cake for a same-sex wedding based on a religious objection might still, and probably would, be willing to bake other kinds of cakes for gay customers, like birthday cakes. This demonstrated to my student that the baker in question objects not to the identity of the customer in question, but rather to a particular behavior.

        First does the baker know they are making a cake for a gay or lesbian individual when the order for the birthday cake is placed? Second, does the baker make cakes for heterosexual weddings?

        I say that having a “reduced menu” for members of a discriminated-against class is just as much an affront as wholesale discrimination, segregated bathrooms and water fountains, or insistence that blacks can only get take-out but not actually sit in the restaurant.

        Imagine that a restaurant had a full menu issued to whites, but distributed only a limited menu missing a good portion of the items to minorities. Even if the minorities were allowed to sit in the dining space to order and eat, would that not still be illegal discrimination?

        But it seems to me that these are the best faith arguments being advanced in the current debate about religious freedom versus LGBTQ equality, and the appropriateness of using laws like RFRA as defenses to application of anti-discrimination in public accommodation laws.

        And it seems to me that the obvious weakness of these arguments proves the point that the so-called religious freedom laws are really just about discrimination.

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      • Imagine that a restaurant had a full menu issued to whites, but distributed only a limited menu missing a good portion of the items to minorities. Even if the minorities were allowed to sit in the dining space to order and eat, would that not still be illegal discrimination?

        Chinese restaurants are known for doing that to non-Chinese customers and as far as I know none of them have been sued

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      • “Chinese restaurants are known for doing that to non-Chinese customers and as far as I know none of them have been sued”

        Is this actually a thing? I confess, I have never heard of this.

        I have been to several Chinese restaurants that serve chicken feet, and one Vietnamese restaurant that serves bull pizzle that don’t have them on the menu, but anyone can order them. It sounds like you’re talking about them having dishes they refuse too serve non-Chinese people?

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      • “I would ask your student if they believed they were born straight, and if so, why they believed they could not change.”

        So here’s the thing about the arguments about choosing and changing sexual orientation: Some people probably do think they chose or changed their sexual orientation.

        It doesn’t even take a paradigm shift in understanding sexual orientation to suspect this is true. If we take an idea as old as the Kinsey scale (0-6, 0 being exclusively heterosexual and 6 being exclusively homosexual), there are many people who aren’t a 0 or 6.

        A religiously-motivated “3” might very well argue that she did actually choose to be straight, or became straight via reparative therapy. I’m not arguing that it would be an easy process, but it would seem much more possible than it would for most people who are actually “6” on the Kinsey scale. (What I argue is not that the Kinsey “3” becomes a Kinsey “0”, but rather decides to engage only in heterosexual activity, an option much harder for someone who has no sexual interest at all in the opposite gender.)

        William Throckmorton, a conservative Christian psychologist, is quite skeptical of reparative therapy for this very reason. He points not only to the research that either discredits reparative therapy or that is too poorly designed to tell us whether it works, but also to the fact that even when reparative therapy is experienced as successful, it is probably mostly among people who would be categorized as bisexual in the first place. (Dr. Throckmorton is skeptical of reparative therapy for other reasons as well, but those are less germane to this example.)

        (BTW, I don’t really like the term “opposite sex”. I know that there’s probably a good argument from trans theory to not use the term, and I hate how it plays into the idea that the sexes are completely different from one another, but I can’t think of a good alternate. Any help?)

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      • :What would you have said have you been arguing with my student?

        A couple of things stand out to me:

        His response was that religion is protected by the First Amendment, and sexual orientation is not.

        Correct me if I’m wrong, but it I’m pretty sure the First only protects religions and religious expression against official discrimination or favoritism by government agents and entities. It’s silent wrt discrimination by private entities. That sort of protection is provided by federal legislation against discrimination in employment, housing, education, etc that also applies to other protected classes such as race, sex, national origin, etc.

        In a situation which would present a conflict between federal protection of religious expression and another protected class, which arguably the HL case did, the trump card is NOT the First Amendment, at least not directly, but rather other Federal legislation, namely RFRA, and even then only to the extent of discovering the least restrictive remedy.

        Membership in a religion does NOT constitute some super-protected class that immediately shuts down any and all competing claims.

        Further, the stakes of acting or not acting on one’s religious beliefs, at least to the religious person, are the fate of that person’s immortal soul.

        Goodness, but that’s dire indeed! So my question here would be, “If we accept this at face value, what, if anything, is the limiting principle?” If, for an extreme example, I were to assert that my religion required that I rape a virgin on my backyard altar, then kill her, drink her blood and eat her heart in order to satisfy my god,and that failing to do so would put my immortal soul in peril, am I entitled to relief from laws forbidding rape, murder, and cannibalism?

        If, as I strongly suspect (and sincerely hope!), your answer is no, then where do we start drawing lines and why? Perhaps your answer to my hypothetical is that the only course of action for the petitioner is to go ahead and perform the sacrifice in the knowledge that the temporal consequences would surely be life imprisonment or the death penalty and that’s just the way it rolls. But if that’s the case then surely your Christian baker isn’t being unduly coerced by the relatively innocuous consequence of a fine or even loss of livelihood. I mean, let’s be real. Compared to the death penalty that’s a walk in the park and you are sincerely talking about peril to your immortal soul, right?

        The problem here isn’t that the argument is weak. To the contrary, the problem is that the claim is too strong, infinitely strong in fact. What possible law, rule, or regulation, what possible government interest, compelling or vital, can conceivably stand against the very fate of your immortal soul? It’s like you’ve taken this huge boulder and laid it on one pan of the scales of justice, smashing the table and denting the ground beneath, and then insist that any counter-claim must must lift this mighty weight.

        Bake the damned cake.

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    • +1 for @pinky’s comment, although the problem is goes very deep. So maybe +√-2

      I am NOT, some of you may be relieved, going to write another 60,000 words, or that’s what it seemed, trying to examine the distinctions that I think, in the end, explain the difference between the Tod Kelly/Alan Scott position, which tends to be put forward as self-evident truth in conjunction with a rhetorical strategy of collapsing of those same distinctions and of distinctions in general, and alternative positions that logically take two main forms: 1) that one may oppose SSM in general without being a bigot, or without reference to the relative status or character of gays and lesbians or anyone else; 2) that, even if, contrary to 1, general opposition to SSM must be held to be morally, politically, and finally legally impermissible, one may still oppose particular SSM proposals or actions, or the way that SSM is being described and defined (including by Messrs Kelly and Scott), without deserving the accusation.

      The second alternative position would rest on ideas that Tod and many on his side neglect and possibly refuse to observe or take seriously, though and do seem to acknowledge them on this thread, along with and myself. Another way to put this position is that it is possible to favor equal rights in general – a fundamental requirement for participation in our liberal-democratic republic – but be against SSM as it is actually and concretely being promoted, described, defined, or implemented.

      An overlapping set of distinctions concerns the definition of “marriage,” the very meanings of the term as used by different people in different contexts, and the desirability of any particular definition being the one reflected in civil law. To adopt a position from the outset that assumes one and only one definition of marriage as the only possible or politically, morally, and legally acceptable one is to pre-empt any authentic discussion at all.

      Like the accusation of self-evident bigotry, such pre-emption of discussion, or the assumption that the case is closed in all relevant respects, is taken by many to license defamation and ridicule against anyone who expresses differences, or declines assent and cooperation, or defends those who do. I will not be surprised if people – especially those too lazy even to read this far before they start composing their responses – will take this comment as an excuse to assume all sorts of things about what I believe.

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      • Look, man, I always suspected that you were in favor of puppy mills, but now I know!

        (Kidding, of course, after reading this: will take this comment as an excuse to assume all sorts of things about what I believe.).

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      • Haven’t the anti-SSM folks adopted a ” a position from the outset that assumes one and only one definition of marriage as the only possible or politically, morally, and legally acceptable one is to pre-empt any authentic discussion at all. ”

        It seems to be a standard statement that “traditional” marriage is the way things have always been so it is right and just and correct by the standards of society. That certainly seems to assume there is one and only one definition of marriage.

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      • I think the “bigotry” question is beside the point, to be honest.

        Ten years ago, I didn’t confer a high probability of bigotry for being opposed to gay marriage. Or at least bigotted motivation. It can take time for some people to wrap their heads around the idea. Where we are now… well, if they oppose “SSM as it is actually and concretely being promoted, described, defined, or implemented.”… I’d kind of want to know under what circumstances they would support it.

        The assumptions in my mind has definitely shifted on what I think of SSM opponents. In large part because the landscape has changed. The arguments against the notion have always been very weak, but are now so weak that I do have difficulty reconciling an unwillingness to allow gays to be married with things other than some degree of antipathy or antagonism towards gays.

        We can call that something other than bigotry, but it still comes across as something different than sometimes advertised.

        I still favor some degree of protection for people actually involved in weddings. In some ways, this strikes me as a particularly bad battle-ground. Creating such exemptions can help get more general anti-discrimination laws passed, which is astoundingly more important. It can also help people get used to the concept, once the court makes it happen, which I believe in turn will actually lead towards more people voluntarily providing wedding services to gay couples in any event sooner rather than later. And in the meantime, I believe we can get more protections to gays sooner.

        I nonetheless end up narrowing my eyes to the anti-SSM folks on this, though. I believe they could have won this in a compromise some time back. They didn’t want to compromise, and now the pro-SSM side (of which I am a part, even if I’ve been breaking ranks lately) seems very disinclined to. It’s not hard for me to understand why.

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      • as it is actually and concretely being promoted, described, defined, or implemented.

        Could you define that which is actually and concretely being described, defined and implemented? WHile your at it, could actually identify relevant distinctions you think people are are failing to recognize? With respect, I’m just seeing a lot of handwaving at an argument that hasn’t been made, CK.

        (Maybe just formalize the argument into numbered premises, etc., so they’re clear?)

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      • “Another way to put this position is that it is possible to favor equal rights in general – a fundamental requirement for participation in our liberal-democratic republic – but be against SSM as it is actually and concretely being promoted, described, defined, or implemented.” (hope I got those italics markers right!)

        Does “being against SSM” mean the same thing as “desiring the right to turn away or not provide services to those who are or wish to be ‘same-sex married’?” I ask this question in part because it directly affects me and mine. *I’m* one of the ones who can be turned away by the caterer or the physician; *I’m* one of the ones to whom an employer may decide not to offer the same benefits that fellow employees receive; *I’m* one of the ones that could be denied employment at all.

        In most ways, I don’t care about people’s beliefs about same sex marriage. “Beliefs” matter to me far less than what people actually do to harm me.

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      • Btw, CK, I think both you and Pinky are wrong in the above comments regarding Tod’s views since he actually made an argument there, one which both of you disagree with, obviously, but an argument nonetheless. I’m just seeing a rejection of his conclusion here without any critique of his initial premises or the reasoning he’s employed.

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      • Ten years ago, I didn’t confer a high probability of bigotry for being opposed to gay marriage. Or at least bigotted motivation. It can take time for some people to wrap their heads around the idea.

        Ten years ago, it had only been tried in Europe and the only states that had anything were Massachusetts with marriage and Vermont with civil unions. People could at least say they were waiting to see how it turned out. Today it’s legal in over half the country and the sky hasn’t fallen. The only people still resisting are the bigots so it’s logical that today opposition confers a high probability of bigots.

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      • Does “being against SSM” mean the same thing as “desiring the right to turn away or not provide services to those who are or wish to be ‘same-sex married’?”

        Stepping in here I would say that it does. The only reason for someone to express a desire to turn away or not provide services to those who are or wish to be married, who are of the same sex, is their opposition to marriage for the mentioned people.

        And I refuse to call it “same sex marriage.” It’s just marriage. Just as marriages aren’t “interracial marriage” in the eyes of the law, they’re just marriage.

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      • Some anti-SSM folk have argued in that way, or what comes across as arguing in that way. Others have made it clear that they’re not happy about the way marriage laws are written and interpreted now, so have explicitly acknowledged that there are, indeed, different types of marriage, and have, for example, entered into so-called “covenant marriages” (Mike Huckabee, notably).

        I also don’t think that your characterization of the “always that way” argument is accurate: Some proponents of the monogamous heterosexual marriage form view it as a great advance over alternatives still popular in the world today, and prevalent at the time of composition of particular scriptures that define for them what kind of marriages a morally acceptable state ought to be encouraging. In other words, you can’t logically argue “always that way” and “important advance.” “Always that way,” to whatever extent it can be taken seriously at all, refers, I think, more specifically to the idea that until around 1990 or so, hardly anyone, anywhere, or so it is said, considered the marriage of a man and a man or of a woman and a woman a topic even worth spending any time on, or as somewhat nonsensical or comical (as in the famous ending of SOME LIKE IT HOT).

        Regardless, that some in the anti-SSM movement or the movement as a whole settled on a particular position in a particular way shouldn’t, I would think, stand as a recommendation for the winning side (or currently winning side) to follow suit. If the Right, as some on this thread have suggested, could have won the political argument with a more timely compromise on civil unions or some other “marriage-like” arrangement, then that’s something of a major admission, it seems to me. I’m not sure that it’s true, but it seems to suggest that we could have institutionalized what some are now calling a morally impermissible form of discrimination and isolated opponents to it indefinitely. If the Left or the marriage equality movement however defined politically is now insisting on “pure contractarian” marriage as the one and only acceptable concept to be reflected in the law, to the exclusion of any practically significant presumptions in favor of “gender-complementarist” or “procreative” or “traditional” or even (not my usage preference) “natural” marriage, then they may be making a version of the same political mistake, or may be doing something even worse than that, as they or we may someday learn to our regret.

        But is it permissible even to engage in such speculation? If we wish to have an open-minded discussion (not obvious that we do), as opposed to a near-term political victory on whatever contingent terms, then it seems to me that we have to acknowledge the existence of different marriage concepts and different possibilities for incorporating them in the law (or not), and potential pros and cons for every serious proposal.

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      • You still owe me a reply from the other thread on necessary normative implications of assertion of the procreative marriage concept properly understood.

        One example of the type you request was given and argued over extensively on the other thread, which entailed, among other things, various types of accusation, personal invective, and presumptuous claim being aimed at me for demurring on the argument being made by Alan Scott and being repeated by RTod here. The opposition between contractarian and what you also might call essentialist or communitarian definitions of marriage, of concern to people like Rod Dreher, Ross Douthat, Damon Linker, as well as less to less articulate or simply demagogical SSM opponents, appears in a similar form in my reply to .

        Another, obvious example, would be the one extensively discussed here, of course: That some of us might support or simply not care about marriage equality, but might draw a line about compelling participation in a wedding ceremony as photographer, baker, or florist, and also reasonably, I think, acknowledge a difference (as per ) between the harm of non-participation in those instances and the harm (or state interest) in denial of medical services or other types of “public accommodation.”

        I direct the last observation to , and I apologize that I won’t be able to respond more generously to his, or to any additional comments, today.

        .. and, as for numbered arguments within a systematic explication of the third position in relation to current disagreements… whether anticipating misunderstandings of the sort people seem determined to push, or simply forging ahead without doing so… maybe some other time.

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      • You still owe me a reply from the other thread on necessary normative implications of assertion of the procreative marriage concept properly understood.

        “Properly understood’ is precisely what I’m asking you to clarify, CK. I’ve provided my understanding of what that argument means – ie., that the procreative function of marriage carries normative weight which gay people are precluded from performing, hence gay people’s relationships fail to carry that normative property. Hence, as I said over there, they are morally lesser relationships, or perhaps even immoral ones.

        I mean, if what you wrote over there <is the argument, then it’s defeated by a) Chris’s argument that marriage plays all sorts of other roles than the procreative in society, and b) my argument that all sorts of marriages which fail to satisfy the procreative function go widely unchallenged as legitimate marriages. So the burden is on you, it seems to me, to defend a concept of procreative normativity which is wide enough to include non-procreative heterosexual relationships but exclude non-procreative homosexual relationships without begging any questions. I offered one way that argument could go (bite the bullet!). Is there another?

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        • Well, I did address this question directly on the Answering Douthat thread, including in my last longish comment at https://ordinary-times.com/blog/2015/04/03/answering-ross-douthat#comment-1012748, when and I proceeded to run aground on the foundational question of the meaning of “foundational question.” I felt his interpretation of foundationality, and understanding of the implications of it, was insufficiently foundational, and I feel the same way about how you’re deploying the notion of “procreative function of marriage.”

          The question of the foundational is, obviously, a “pro-found” topic, a version of the absolutely most profound topic, so I’ll have to beg your indulgence if I seem to ramble as I reduce this take on it to comment thread form.

          I’ll refer you again to the last long comment, and I’ll ask you again to read the part of it addressed to you. Otherwise, I’m not going to try again to explain the various ways in which assigning a position of centrality and necessity to a concept or phenomenon does not inevitably assign it a higher status. (Maybe some other time we can review the question more systematically, even with numbered arguments as you request. It happens to be a fitting occasion for the best dirty jokes of the great philosophers, while I’ll note that mistaken status presumption as a general topic was also the subject of a recent interesting twitter essay presented at OT by ). That engaged traditionalists have declared a necessity of excluding gays and lesbians from what I described on that thread as”adoption” into the traditional institution remains a separate problem. As I have tried to argue, the main thing lending them any credibility at all has been the efforts of some gay-aligned activists to exclude them and the horses they rode in on from the institution and a lot else except on terms they do not and cannot recognize.

          Under or following from a foundational procreative concept (which is almost a redundancy and a bit of a pun), your phrase “procreative function of marriage” is, if not nonsensical, misleading. (We could as or more sensibly speak of the marriage functions of procreation.) As a foundational concept, or concept of concepts, also (the pun is typical) conception of conceptions, procreation pervades all life or Being altogether: It would be akin to Hegel’s “generative principle” or Pierce’s theory or doctrine of “agapasticism” or “agapastic evolution,” which holds (and shows) that the Cosmos, despite evidence from the ills of human social life apparently to the contrary, is ruled by the Law of Love (or “agape,” the other two choices being “fortuitous variation” and “mechanical necessity”).

          I’m not going to try to re-create Hegel’s or Pierce’s logic in this comment. I’ll simply state that the procreative concept does not require the exclusion of anyone or anything. It somewhat follows the saying of Pierce’s near-contemporary Walt Whitman: “All things are in sex.”

          By definition the procreative concept could not exclude anyone or anything, and its potential relationship to status differences and whatever mistaken assumptions about it are always subject to further “agapastic” development, since procreation as concept (not the simple sex act, yet in and through it) already encompasses everything that exists or comes to exist for human beings, beginning of course with human beings themselves, even those who have suppressed any inkling of it, as well as all of our “conceptions.”

          From this perspective, which admittedly few traditionalists will be likely to articulate as such, instead preferring or by necessity resorting to received dogma, it is the “contractualized” SSM position as enunciated by certain marriage equalitarians and supported implicitly by many of their allies – by everyone who insists that consciousness of the procreative concept and exploration of a plurality of non-identical and non-equivalent marriage forms within it must equate with bigotry and other sins – that eventually excludes or hopelessly attempts to exclude the procreative concept.

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          • I have purposely avoided the bigotry question, because I don’t think it’s a productive one in this context, but I think you’re conflating procreation as a, perhaps the, foundational principle of human reality, and procreation as the foundation of marriage specifically, as an institution and cultural artifact. It would be possible to abandon it entirely in its latter role (by, say, building whole new cultural artifacts to promote and structure reproduction and child-rearig, perhaps less inherently misogynist ones, say, or ones with different patent-child relationships) without in any way impacting it in its former. They are dissociable both logically and in practice.

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        • your phrase “procreative function of marriage” is, if not nonsensical, misleading.

          Jesu Cristo, we’re just chasing our tails now. I’m using that phrase to capture what you mean in your emphasis on procreation as a normative concept as it relates to marriage. I have no idea how it could be nonsensical unless I have no idea what the heck you’re talking about. And I’ve conceded that I might not, hence my asking you to state your argument in simple sentences expressing numbered premises.

          All that to say, insofar as I understand your argument I think it’s pretty easily defeated. Insofar as I don’t understand your argument, I think you need to say it more clearly so I know what *it* actually is!

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          • In this context the complaint about “chasing our tails” isn’t really appropriate. A truly profound (foundational) concept extends to – or would already have extended to – every possibility of meaning. So we’re talking about the possible meanings of possibility and of meaning and talking.

            But, I can try again to put it simply: To say that a concept is a normative concept, or has normative implications, doesn’t tell you what those norms are or must be or require. It is presumption to leap from “procreativity is normative” instantly to “procreativity requires us to exclude gays from civil institutions of marriage.” This is akin to if not the same as the mistake the Natural Law theorists make in presuming some kind of simplistic and indefeasible homological relationship between “this is what it takes to make a baby” and “therefore the civil institution MUST exclude people who don’t make babies.” That is how the fact-value fallacy operates as fallacy. I demur only on the question (and I think Hume did, too) whether the existence of incorrect or arbitrary attributions of values to facts really does or can detach values entirely from “the natural.”

            So, I see you making or following that particular normative leap, or operating on the assumption that one either

            1) makes that particular arbitrary normative leap or

            2) must side with an entirely de-naturalized and de-normalized perspective that Dreher calls nihilistic and that possibly everyone at some point must reject – and in the meantime that many recognize as highly problematic in other realms of political activity that under the conventional, empirical standpoint we designate as separate realms, but, from a

            3) procreative or agapastic or dialectical viewpoint,

            we can see are mutually determining.

            The third position, or set of positions, does not tell us exactly how to decide a particular issue. Its tendency is synthetic, not binary.

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          • CK,

            To say that a concept is a normative concept, or has normative implications, doesn’t tell you what those norms are or must be or require.

            Sure it does. In normal discourse, and we’re talking about normal discourse here, to say that X is morally good means that doing X is (well) good, and doing not-X is only justified if there is another moral consideration which trumps it in that instance. That’s how moral norms work. I’m not sure why you would dispute that, actually.

            It is presumption to leap from “procreativity is normative” instantly to “procreativity requires us to exclude gays from civil institutions of marriage.”

            No, that reverses things. In normal discourse, to say that a moral property M applies to X but doesn’t apply to Y, where both X and Y are equal wrt every other moral property, is to say – exactly! – that X is more moral than Y. Or, alternatively, that X is moral and Y is immoral. Just as I said above. So my “presumption” is that moral properties actually serve the purpose of distinguishing moral from immoral actions. WHich is just, again, how this stuff actually works.

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          • Here’s another way to say it (forgetting for a moment the issue Chris mentioned upthread):

            The meta analysis you offer regarding how moral norms are constructed is totally irrelevant (it seems to me!) to the actual behavior and application of norms to real world considerations. That is, even if you are correct in your analysis (one which I don’t agree with, btw), the fact remains that insofar as person X values procreation (normatively or otherwise) it’s because there is a property which marriage holds justifying that value assignment. I’m challenging you to identify the property upon which that value assignment is based such that ascribing it to (or identifying it in) heterosexual marriage isn’t insulting (remember where this discussion started?) to homosexuals. The property you proposed was procreation, which I (and others) have challenged you on for various reasons.

            Now, irrespective of how that attribution has come about, and irregardless of the meta analysis regarding socially constructed values even including a collapse of the fact value distinction, it remains the case that anyone arguing that procreation is a value laden property which defines the role of marriage in social arrangement is committed to an actual property of procreation such that their normative judgment regarding heterosexual marriage is rendered true by their own lights.

            But this bring us right back to my earlier comment. That both Chris and I have challenged the coherence of that view.

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          • Not sure why you presume that “normative” means one black or white or particular thing at all.

            If I say that a matter has normative implications – or must have normative implications – I have not yet said anything about what specifically they are or how I observe them to play out.

            to say that X is morally good means that doing X is (well) good, and doing not-X is only justified if there is another moral consideration which trumps it in that instance.

            To say that X is good does not tell you what “doing X” would even be (and what specifically it wouldn’t be) or that it is even a sensible statement, or whether A serves X better than B serves X.

            If I say that the procreative concept as experienced and realized must have normative implications, then I haven’t yet said that, e.g., all childbearing is good, or that the only or best relationship to the procreative concept is that of bearing children or, differently, of raising children, or, differently, that of taking good care of children, or, very differently, that engaging in heterosexual acts without regard to any other consideration is good, or that producing the greatest amount of pregnancies is good. I certainly haven’t said that one or another marriage form is better than another one, but I might be able to begin to develop a rationale for distinguishing one from another.

            And I have specifically NOT said that a moral property related to what for purposes of discussion I’m calling procreativity applies to people making babies, but not to others not making babies. I have also given examples of how proximity to the physical act does not and has never or rarely in itself conferred higher status on the actors.

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          • Golly jeepers, CK. All you did in that comment was tell me all the things you haven’t said and all the things you’re not committed to. Now I’m even more confused than before.

            I’m seriously starting to think you don’t know what you’re talking about, dude. Or incapable of talking about it, anyway. Which is weird, since I’ve generally understood what you’re getting on about. Not this time, tho.

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          • From my point of view, , you seem committed to a fundamental logical error connected to a particular objectification of a concept, and a mode of analysis leading to and flowing from both. I’m reduced to giving examples of a range of particular potential implications of a statement because you insist on one particular implication that would be sensible only if the concept admitted (or could admit) of one and only one objectification and one and only one reception. You are right that you are confused. You may be wrong to blame it on me, rather than on your apparently unalterable presumptions. You may need to re-consider your definitions of “procreation” and possibly even of “concept,” how you go about defining such words to yourself, among other impediments to your understanding of what I’ve apparently been wasting my time trying to clarify for you.

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          • CK,

            Well, that wasn’t helpful at all. Maybe I apologized too soon. I mean, we’re talking about a first order level property of reality here (marriage), offering second order views about the moral properties and judgments surrounding that institution. I just don’t think I can be as confused as you say!

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          • I thought the apology was well-taken, and I’m sorry to see you withdraw it, Your reference to first and second level order properties appears to me to reflect that same overcommitment to a mode of analysis or discourse. It seems to interfere with your ability to comprehend alternatives, and it also seems to interfere with your manners. The exclamations and inappropriate interjections seem symptomatic to me.

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          • CK, I think that accusation could just as well have been articulated my myownself with just as much justification. So lets leave the psychoanalysis outa it, shall we?

            I was short earlier, and I apologized for that. But you still haven’t given me any argument that Tod (for example) offered an argument “which tends to be put forward as self-evident truth” when he did the exact opposite, in fact. He actually presented an argument. As I said way upthread. One which hasn’t been refudiated as yet.

            But I think we’ll have to leave this unsettles for our own good, no? We’re at an impasse.

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            • This is a very interesting series of posts – confusing but it’s also helpful to see, and one of the reasons I keep coming back here.

              If I understand it correctly, it seems that the core issue being debated is whether the fact that marriage is (in one perspective) foundationally defined by/derived from/entangled with questions of procreation – even if that foundational meaning has shifted over time and is not synonymous with how marriage applies in legal terms in modern society – means that preferring modern rules applications of marriage that harken to that foundation and coincide with opposition to SSM, or at least with a preference for SSM to be seen as further from the foundational meaning of marriage, is a position that can be supported absent bigotry on the part of the holder.

              It seems to me that one position is judging the question of whether a given position is bigoted based on ways of understanding how someone could come to hold that position in an honest way, applying it to the question of SSM as well as other questions of marriage, with a coherent statement of values that is not primarily about preferences vis-a-vis homosexuality or preferences for certain socially-defined gender roles. The other position seems to start from the public effects of not allowing SSM, or other related forms of discrimination such as around public service availability to gay couples, and the increasing visibility of those effects, to argue that because of the obviousness of those discriminatory effects, maintaining a position preferring definitions of marriage that yield discrimination – however arrived at – has become inherently bigoted.

              I’m inclined to take CK’s point as meaningful – that the meaning of marriage should not be understood without some appreciation for its complex background, and that those who defend “traditional” ideas of marriage may well be motivated by a desire to keep those definitions rather than by animus or bigotry, even though the discriminatory effect of such a stance, when translated into public rules, is pretty clearly evident. And this should invite some restraint in how those who support SSM (I include myself in that category) discuss opposition – though of course, there are quite a number of examples highlighting opposition to SSM, or rationales for that opposition, that are pretty clearly not arrived at from that view, and are more tactical or a result of a more simple bigotry.

              To me, however, the points made in the original post resonate around questions of how we set and decide laws and rules, and as such, are much more concerned with the effects of those rules on the members of the public. While opposition to SSM may be arrived at in a consistent way that related more to its foundation as relevant to procreation than bigotry, the question in the OP is around the effects of allowing religious faith to yield a permission to discriminate in public services, and as such, should be judged by the effects of the rule rather than the intents of its supporters. And if the question is to judge by effects – both the effect of reducing/transforming marriage from aspects that are part of its definition (if CK’s comment is accepted), as well as the effects in terms of discrimination – to me, it makes a pretty clear and compelling case for limiting the ability of public accommodations to discriminate in who they provide services to.

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              • Thanks – you’ve restored, almost miraculously, a bit of my faith in the possibility of discussion on this topic. Though I might differ with you on some points of emphasis and some intermediate conclusions or ways of describing them, I think you have picked up the main drift very well.

                In observing social, legal, civil life, as you put it, “foundationally defined by/derived from/entangled with questions of procreation,” I think you find a possible connection point between how and receive my discussion and what I have been trying to say to them.

                If, to my tastes and not just as a matter of taste in my opinion, your phraseology is “CK’s take according to Stil’s and Chris’s concept,” it’s still close to something I could support under certain conditions, of which the key one is comprehension of what I’ll call the “profundity thesis.”

                When we put a difficult concept into words, we have a tendency to presume that, the comprehension now achieved, we can go on approaching the question in the same way as previously, but now with this added understanding, in the manner of an additional reference, or another conceptual arrow in our rhetorical quivers. What I was trying to say to and is that, if we really mean what we say or are really trying to comprehend a phenomenon that is really foundationally defining, originary, and pervasive – in other words, as we say, sometimes too blithely, profound – then we have at least to remain aware that our very attempts to define, trace, comprehend may have to be altered. Not to do so is merely to pretend to have confronted the potential implications of an authentically profound question. It would be a refusal to meet the issue on its own level, even despite our just having agreed that doing so is necessary.

                What is somewhat galling to the educated liberal, who is not always as liberally educated as the term may lead us to expect, is that a presumed less advanced and often reviled religious sensibility has been equipped, over millennia, to cope with these questions not only fluently, but reflexively. It claims to offer access to profound matters in a way that the modern intellectual does not merely find obnoxious, but of which the rejection for him or her effectively defines intellectual activity and everything respectable, and self-respectable, in the world at all. To point out that this attitude at a certain point operates as a distorting prejudice is not to argue for the superiority of the other point of view, but such is the commitment of the intellectual to his or her own modern mode of intellection that the suggestion of any value at all in the rejected discourse is often taken as an “insult,” if first as perplexing or dumbfounding.

                That the result happens to have a similar form to that of the political conflict, in which divergence from a supposedly purely rational or contractarian “consenting adults” form of monogamy is taken as inherently intolerably demeaning to an historically oppressed group is not, in my view, coincidental at all, but further reinforcement of the profundity thesis and of the argument for caution and care, the authentically or temperamentally conservative perspective that in your rendering you, generously compared to many in these parts, express as “invit[-ing] some restraint in how those who support SSM… discuss opposition.” In other words, the political conflict is arguably the same conflict as the philosophical conflict, just in another dimension of human affairs.

                I am willing to go a step further: I think we have to consider the possibility that the opposition, however wrong or even obviously wrong it may be in many ways, is on to some things that are at least as importantly right as the things their opponents are importantly right about.

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              • ,

                Very nice comment. Just a few comments to clarify your own clarifications.

                To me, however, the points made in the original post resonate around questions of how we set and decide laws and rules, and as such, are much more concerned with the effects of those rules on the members of the public.

                Yes, I agree. In fact, the presumption that we’re talking about rules and effects of publicly promulgated views/laws was something I perhaps took for granted.

                While opposition to SSM may be arrived at in a consistent way that related more to its foundation as relevant to procreation than bigotry,

                That, if you don’t mind my saying so, is what I’ve been asking for an account of. Granted, I’ve also not spoken about bigotry nor introduced that concept into the discussion myself (going way back to previous threads), either. I’ve been curious about the assertion that “traditional marriage” can be defended in a way that isn’t insulting to gays. As yet, I have yet to see that argument, except, I suppose, as an unexpressed yet clearly identifiable sentiment found within the a tradmar advocate’s brain.

                the question in the OP is around the effects of allowing religious faith to yield a permission to discriminate in public services, and as such, should be judged by the effects of the rule rather than the intents of its supporters.

                Yes, agreed.

                And if the question is to judge by effects – both the effect of reducing/transforming marriage from aspects that are part of its definition (if CK’s comment is accepted), as well as the effects in terms of discrimination – to me, it makes a pretty clear and compelling case for limiting the ability of public accommodations to discriminate in who they provide services to.

                Absolutely! (I think…)

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                • Re: the question of arriving at opposition to gay marriage in a way that is not insulting to gays, I see some space between that idea and bigotry. Whether opposition to gay marriage is insulting to gays is in the eye of the beholder (and most beholders these days find that it is insulting); whether it is bigoted is a question of intent. The two main points I take under advisory from this discussion is that a) because there is a much richer concept behind our idea of marriage than is easily to described, there are some aspects of what people are opposed to about gay marriage (or perhaps more accurately, what they feel a sense of loss about around traditional marriage) that do not stem from a place that is primarily about gay/straight dichotomies; and that b) a pro-TM position may stem from a variety of overlapping concerns, and so contain relatively more or less degrees of animus, depending.

                  Mind you, I still think that most of the pro-TM political class and many of the leading voices against gay marriage are actually motivated much more by concerns I personally see as bigoted, but I think if I expand my lens to encompass the huge number of people who retain some concerns about gay marriage, I can certainly imagine many of them whose focus is more on certain core attributes tied up in a notion of traditions, sacredness, and other aspects and not motivated by bigotry – however much I argue against their preferred outcome as a public policy matter.

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    • CK MacLeod Down Here

      1) you should be able to express your viewpoint, and would hope that most liberals wouldn’t try to jam all of society into the liberal box of unity.

      2)the problem with this is you have bought (legal) state and law into the picture we are no longer talking points of view between individuals. Law brings to bear a force of coercion that can deny freedom and life in the most significant way. State brings with it taxes, to which the participants have expectation of service.

      So #2 has problems of live and let live, via coercion force and paid service to be rendered.

      I have similar thoughts as Murali that state and religion ceremony should be somewhat walled apart.

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  21. If a gay couple hired a photographer for their wedding and the photographer agrees to shoot the wedding but wears a “god hates fags” tee-shirt would they be able to sue him?

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    • The tort of intentional infliction of emotional distress has four elements: (1) the defendant must act intentionally or recklessly; (2) the defendant’s conduct must be extreme and outrageous; and (3) the conduct must be the cause (4) of severe emotional distress.

      As with nearly all torts, the defense of assumption of risk might apply but here probably would not because a reasonable person would not expect a hired wedding photographer to so behave, at least absent a pretty explicit disclosure that the photographer might do so.

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      • So if gay couple asks a fundie photographer to photograph their wedding and the fundie photographer says he’ll do it but he’ll wear a “god hates fags” tee-shirt would they be able to sue him then?

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      • Let me play professor in response, : my links in the comment above give you the basics of what you need to answer that question for yourself. Assume that, in the absence of such an explicit statement by the photographer, the plaintiffs would prevail in their IIED suit against the photographer.

        But, with the additional fact that the photographer warned them beforehand (assume no dispute with that, as in they signed a disclosure form), do you see the assumption of risk defense prevailing?

        If so, then are we in the world that describes as a possible outcome she could live with: a business can discriminate against gays, so long as it prominently advertises that it does so?

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      • I’d also second d in that I think that if intent to discriminate was prominently displayed by a business I’d be much more incline to respect it. A lot of the anti gay attitudes seem to draw up short of being willing to actual suffer any negative response from them.

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      • I’ve considered the right to discriminate with notification; on the one hand, I like it. It’s in line with my views of conscientious objection, which seems an appropriate way to handle it. But I’m also discomforted by it. At what point does that discrimination cross a line to harassment? What if all shops (or even most) in a small town decided they wouldn’t serve gays? When does that rise to the level of burden for a gay teenager or gay couple? Or how about unaccompanied women?

        With most goods and services, there’s elements of accessibility to consider if we go such a root. This is the problem women of women in Texas now; their efforts to eliminate abortion have resulted in difficulties for many women to access any reproductive health care.

        source: http://www.guttmacher.org/pubs/gpr/17/2/gpr170214.html

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      • As an aside, there’s maybe a practical reason we should be wary of using force of law to compel private businesses to provide their services without discrimination.

        If I am a gay couple getting married, who’s more likely to fish up my wedding?

        The bigoted baker/photographer who turn down the job, causing me to have to find ones who are simpatico?

        Or the bigoted baker/photographer who take the job because they are compelled to by law, then subtly make sure that my cake is just a little bit less moist and sweet than it should be, and that every photograph is of my bad side?

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      • A reasonable couple would have to expect a hired photog to act that way, however, if said photog told them during the hiring that that is the shirt he wears at SSMs or posted a sign to that effect in his business or website.

        So, then, could he openly have a policy of wearing that shirt for SSMs but not DSMs? Or could he be sued for systematically providing inferior service, so he’d have to wear it for all weddings? Or could he even do that?

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      • Over at another blog, a commenter gave what would probably be a pretty effective way to decline unwanted business of this variety: “I’ll do it, but I will donate the money I make to the National Organization for Marriage” (or some other antithetical organization). A truly insistent gay couple would say “That’s fine, we’ll donate twice that much to [SSM-friendly organization]” but I suspect very few would and most would probably move on to another provider who isn’t actively hostile to them.

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      • ..Sorry, the basic thrust of the thread apparently went past me.

        I guess it’s interesting if there is some openness to discrimination with notification in this context (which I’m not clear is the case.) It would mean were finding a distinction between sexual orientation and race in these matters: no one today remains okay with discrimination against blacks in businesses if there’s a “No Negroes” sign posted.

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      • Another factor in this is that some of these services would be able to effectively continue to deny services to gay weddings. They’d have potential clients fill out some form and then, later, call and say that they have a scheduling conflict. Since they’re not a restaurant that keeps certain hours and don’t serve multiple people at once, they can effectively do so. (And a lot of these service providers do presently demonstrate. We had someone turn us down when they found out we weren’t having a church wedding. A friend of my mother’s only goes photography for second and third weddings.)

        Other services, like cake-bakers and “caterers” who just drop off the food, wouldn’t be able to do this. Notably, these are the services I’m less likely to care about anyway.

        I mention this, though, in that it could be helpful for those who are going to call back later and decline anyway, to be upfront in saying “We won’t do your wedding” so that the couple can more quickly find people who will. Or, alternately, will find people who want to be there and do a better job.

        This doesn’t actually move the needle on my opinion, but they are factors worth considering.

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      • …Actually, I forgot the wrinkle that in this thread we were just talking about wearing a shirt, not denying service, with notification. So the “No _______s” comment was off anyway, since that’s about turning people away.

        I’ll just blend back into the wallpaper now.

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      • Yeah, this is why I think ultimately break from the “discriminate with disclosure” concept — having the public accommodation be available at all matters more, because markets sometimes bend to irrational human nature. If every business were Ollie’s Barbeque, and prominently advertised as such, then a certain number of people would say, “Well, that’s just the way it is,” and shrug it off as just the way it is.

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  22. I did a search for comments here looking for something of substance and found nothing. I don’t ordinarily comment on the political articles on this site, but I found the back and forth quite interesting, and I wonder what his/her arguments against the OP actually are. While there are few conservative voices amongst the usual commenters, it has always been my perception that their positions are respected, so I wonder if you’d care to expound.

    I’ll also throw in my 2¢ while I’m at it. If you’re going to open a business then the personal lives of the people who offer their custom is of no import to you. If the money’s not counterfeit, or the check rubber, then offer your product. If you fear someone’s personal conduct will offend your sensibilities, then find another line of work, whatever that may be.

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