by Doctor Science
Legal and social barriers to same-sex marriage equality in the US are crumbling with startling speed, faster than anyone predicted 20 years ago, or even 5. Catholics Andrew Sullivan and Ross Douthat, and Eastern Orthodox (former Baptist, former Catholic) Rod Dreher have been having a conversation about how the losing side should act, and how they should expect to be treated. Dreher, in particular, feels that conservatives (or “trads”) in certain professions (law, the media, entertainment) face significant social stigma for their religiously-motivated attitudes, and that in time there may be legal constraints on them for their beliefs.
What Dreher is afraid of is the Golden Rule. The Golden Rule looks like really simple, even milquetoasty, kindergarten-level morality: “Do as you would be done by”. But it is also a threat, especially to people who have been in positions of power or privilege and then lose them.
If you’ve treated people badly, if you’ve scorned, despised, and harassed them, then you’ve laid down a precedent about how you “would be done by”. If the tables turn, why should expect anything other than your own medicine?
All the participants in this conversation admit that religious groups have, in the past, treated non-straight people really badly, to a degree that it is right to call “persecution”. Dreher says:
Losing privilege is not the same as persecution, of course, but neither is gaining privilege a guarantee that you will be fair to the losers. And though it is right that those on the losing side of a culture war should try to be proportionate in their response to defeat, it is unfair and unrealistic to expect them to accept without protest whatever terms that the victors may impose on them.
What he doesn’t want to notice is that active persecution would be “fair”, in the sense of the Golden Rule.
The trouble with this sort of eye-for-an-eye fairness, of course, is that you end up with the whole world blind. The victors have to be merciful, to treat the losers better than they themselves were treated when they were on the downside — to set up a situation where the Golden Rule means we all learn to respect each other, whether we deserve it or not.
But just because we respect each other doesn’t mean we need to respect every *behavior*. As Henry Farrell points out,
Bigotry derived from religious principles is still bigotry.
Indeed, John Holbo pointed out in the comments there that the word “bigot” originally meant a religious hypocrite, so you might say that religious bigotry is the most authentic kind.
The Golden Rule isn’t about how the eye-for-an-eye thing is fair or right. It is just about how to tell how you should behave towards others. It is about empathy.
In the case of those who have (mis)used their religion to persecute others (ignoring, in the case of Christians, the message of their messiah about how to treat even those who they do not feel worthy), it is hard to be sympathetic. But I suspect that their fear of being persecuted in return is over the top.
Yes, they can anticipate the pain of no longer being able to persecute others. And for some, that will be traumatic. But being persecuted themselves? Maybe in the sense that some groups exert strong pressure towards conformity of thought. But that pressure is not related to anyone’s religious beliefs, per se.
Sometimes, of course, that group-think is based on religious beliefs (including atheism). But sometimes it is just about something as remote from religion as what to wear or where to live. Seeing it as religious presecution ignores the myriad possible bases for it.
OK – but why is it necessary to characterize atheism as a “religious belief”? I’ve heard this often, mainly from religionists who feel they’re losing the debate and so trying to bring down atheists to their own level.
But it doesn’t make sense.
Atheism is about religion, yes? And it is a matter of belief. You can be an agnostic, because you do not believe in a god or gods. But if you believe that there is no god, that is (obviously) a belief. It is, after all, not something that can be proven; it is a matter of faith.
I grant that there is a tendency for some people, who are actually agnostics, to embrace the label “atheist.” But that is, simply put, a failure of vocabulary. They fail to distinguish between “I do not believe in X” and “I believe in not X”. One is a position that declines to believe something that cannot be proven. The other is a position that believes something (albeit something negative) which also cannot be proven.
That’s a false equivalence, wj. Most of us don’t believe in most things for which there is no natural evidence. Do you really want to claim that not believing in the reality of the Grinch, or the Greys, or that every supermodel in the world would want to sleep with you if she just met you, is an act of faith also?
Yup. (What JakeB said) WJ: If you do not believe in the Flying Spaghetti Monster – let us for the sake of argument assume you do not – may we define your lack of belief in the FSM as your “religion”? Or do you persist in being “agnostic” on the question of the FSM?
And your etymology (and logic) are simply wrong. “Atheist” does not – or need not mean – “I believe that there is no god.” It is simply “without god.” I see no need for that hypothesis, any more than you see a need (again, I conjecture) for the FSM.
There is also a difference between non-belief (passive) and disbelief (active). To argue with etymology here is problematic anyway because it presupposes that the only possible type of supernatural entity fits the type of god (theos) common to ‘our’ culture in the widest sense. Non-theistic religions (e.g. some variants of Buddhism) do not tightly fit in the scheme (leading some scholars to categorically exclude Buddism from the ‘religion’ section at all, declaring it to be ‘just’ a philosophy).
My (German) dictionary of philosophy is aware of the debate and offers different possible definitions of atheism
a) (simple) lack of belief in a specific supernatural entity
b) (active) disbelief that such an entity of whatever kind could exist
Accordingly agnosticism can be (and is) defined party depending on the understanding of atheism. For those thinkers that follow a) agnosticism is about perceptibility and thus defined rather narrowly. If atheism is defined a b) then agnostisicm covers atheism tye a) too.
From a superficial survey I would conclude that German literature strongly leans towards b) while the English literature by tendency prefers a). So, if we assume tabula rasa for a newborn, a German baby would be seen as a (weak) agnostic, an ‘English’ one as an atheist.
Therefore on this side of the pond atheism has far more in common with a religion at least as far dictionaries are concerned. And the experience with ‘state atheism’ supports that. Several states in the communist block made certain rituals mandatory that could be interpreted as ‘religious atheism’. Ironically these were often carbon copies of Christian rituals. East Asia seems even more complicated there (or how would one interprete e.g. the state worship of the Kim dynasty in NK that attributes divine characteristics to at least the first one in an otherwise strictly atheistic dictatorship?).
Concerning the US (and to a degree Britain) the picture (at least from my POV) looks like that: certain parts (typically strongly rightward leaning) of the Christian community push the ‘atheism as religion’ meme for purely political reasons not because of any categorical dispute. It is simply to discredit the idea of objective observable truth because that idea is pure poison to them. In a way they reduce their own ideology to ‘pure opinion’ in order to be able to do the same to the opposition (and then bet that they have the stronger regiments to prevail). In part as a reaction the traditionally rather moderate non-believers gave rise to the ‘new atheists’ that more and more begin to resemble their opponents in becoming in essence missionaries of a new ‘faith’ and also developed an increasing intolerance to those not following their strict line. The specimens I encountered often treat self-professed agnostics the same way that radical Christians treat moderate mainstreamers.
—
I think I will stop here at the moment. I remember we had that same discussion here a few times in the past already and it tends to go similar to abortion or gun debates becoming more or less futile exchanges of disdain for the opposite POV.
Btw, does Cthulhu qualify as a god. If yes, does his star-spwan too? That’s also a hot debate in fan circles.
I think it’s worth pointing out that, despite the human tendency to lump people who share some common characteristic together, and treat them as though they were interchangeable, “the losers” here are not one undistinguished lump, any more than “the winners” are.
This wouldn’t be like me meeting my 9th grade nemesis today, and kicking some dirt in his face because he was down and I still harbored a grudge. It would be a bit more like today’s “affirmative action”, where somebody vaguely related to someone who was wronged a generation or more ago, gets privileged at the expense of somebody else who is likewise sort of vaguely related to the guy who did the dirty deed, but neither of them are actually the wronged or the guilty.
Or to be explicit, Elaine of Elaine Photography is highly unlikely to have ever torched a gay bar, so don’t try justifying any impositions on her on the basis that she did.
I would caution that the cause of SSM has indeed advanced rapidly of late. But, it has not done so by rapidly changing mass opinion, it has done so by virtue of elites not giving a damn about mass opinion. This places the victories in a very tenuous situation in what is, at least nominally, a democracy.
IOW, golden rule, no golden rule, don’t get so enthusiastic about listening to the lamentation of the women that you forget your foe is still numerous, and really piss them off.
“I would caution that the cause of SSM has indeed advanced rapidly of late. But, it has not done so by rapidly changing mass opinion, it has done so by virtue of elites not giving a damn about mass opinion.”
http://en.wikipedia.org/wiki/Public_opinion_of_same-sex_marriage_in_the_United_States
There’s a wealth of data showing that mass opinion has indeed been trending towards support for SSM, and I’ve saved you the trouble of googling for it. Now do us the courtesy of reading about it.
“This places the victories in a very tenuous situation in what is, at least nominally, a democracy.”
If this were a pure democracy then 51% of the voting population could vote to pass a law to disenfranchise the other 49%. But we don’t live in a pure democracy.
So far, the expectation of persecution for opposing same-sex marriage seems to be projection, i.e., what they’d do in that situation, which tells one more about their “morals” than they’d like. I suspect magnanimity will disappoint if not anger them.
Tough.
Also, isn’t there a Ray Bradbury story along these lines?
“So far, the expectation of persecution for opposing same-sex marriage seems to be projection”
Except for that Elaine Photography thing, of course.
If you’ve treated people badly, if you’ve scorned, despised, and harassed them, then you’ve laid down a precedent about how you “would be done by”. If the tables turn, why should expect anything other than your own medicine?
No, you haven’t, you’ve simply failed to follow the “golden rule”. Your interpretation of this particular moral injunction is frankly bizarre.
Setting aside the matter of positive (“I believe there are no gods”) and negative (“I do not believe in any gods”) atheists, there’s some room for wiggling, confusing, and arguing on the meaning of agnostic, too. I’ve always cleft strongly to the original definition coined by Thomas Huxley, since it seemed a lot more useful than the vague and unconvincing “believes in nothing” pop culture definition. Agnosticism, per Huxley, is a belief orthogonal to atheism, not one in contrast with it; it’s a belief that it isn’t possible to know whether or not gods exist with meaningful certainty, whereas atheism addresses a belief in no gods existing, or one that gods don’t exist. By that standard, agnostics can be theistic or atheistic. One is a belief about knowledge or certainty, and another is about existence.
I agree that this is a misapplication of the Golden Rule, but there is still scripture on point: as ye sow, so shall ye reap. Or, more currently, paybacks are hell. People who continue to opposed *civil* marriage for gays find their arguments diminished by their lack of force and suasion. There isn’t a principled argument against gay marriage that doesn’t eventually devolve into “my religion says you can’t get married.”
I’m an Episcopalian and I believe in God. As a consequence, I speak the lingo. The true believers tolerate a lot of sin among themselves while reserving their bullets for something that didn’t even make the Top Ten List way back when. Go figure.
Yes, Huxley.
i find the variety of reasons SSM shouldn’t exist and the rapidity with which opponents come up with them to be truly amazing. they really are throwing everything against the wall, as fast as they can, hoping something will stick.
but “how the losing side should expect to be treated” might be the least-compelling concern possible. at least they admit they’ve lost, but moaning about the possibility that people won’t respect their “deeper understanding of the moral and theological ideas in play” – an understanding which lead them to think pointless discrimination was A.OK – is pretentious and arrogant self-pity.
nobody is taking anything away from you, except your ability to discriminate. and nobody is going to spend two seconds thinking about how you should be treated. you’ll be treated the same way you always have – as a bigot. and we won’t have to argue about the effects of your bigotry anymore. you can continue to stroke your hate, if that’s what makes you happy. but once the last state comes around, nobody will have to pay attention to it.
maybe that’s what Douthat et al are going to miss most: being the center of attention.
“There isn’t a principled argument against gay marriage that doesn’t eventually devolve into “my religion says you can’t get married.””
Not quite true–I’m currently reading an ultra-conservative (politically and religiously) Thomist who argues against gay marriage on natural law grounds. It’s pretty unconvincing stuff. But he’d claim it’s not linked to any specific religion. Thomists think you can prove God’s existence and that various moral strictures can be backed up (you can get an “ought” from an “is”), but not the specifics of Christianity. But this writer also seems to have a real visceral hatred for the concept of gay marriage. I suppose if you think you can logically justify your opposition, then it gives one permission to let one’s prejudices run wild. So on the subconscious level I think you’re right as far as this writer is concerned, but he’d claim he arrived at his position via pure reason.
About twenty years ago I was opposed to gay marriage, on not very well-thought through religious grounds. It wasn’t a passion with me the way it obviously is with opponents of gay marriage today, just something I thought was part of the package of buying into Christianity. I’d like to say that I changed due to a careful analysis of my belief system, but actually, it was just knowing a few religious gay friends who themselves had thought gay marriage was wrong, but changed their minds.
I still wince, though, when people make fun of the notion of “hate the sin, love the sinner”. It seems like a perfectly fine slogan to me. I’ve just changed my mind on who the sinners are on this issue.
I prefer the original version of the Golden Rule, which was more prescriptive than aspirational: Do not do unto others that which is hateful to you.
Regarding SSM, and the anti’s fears about being “persecuted” for their sincere religiously-held bigotry, the world’s smallest violin is too large to play a proper threnody.
Maybe I’d be more sympathetic if they didn’t use their religious principles so selectively; if, for example, they insisted on upholding all the proscriptions in Leviticus, rather than the single one that matches their personal preferences.
So, what will gay people come up with next to keep themselves in the limelight? That Christian photographers don’t want to film their weddings? As the start of the back and forth, as far as I can tell from reading Douthat and Dreher, was a reaction to Jan Brewer rightly vetoing the law in Arizona.
This was a stupid over reaction law to a stupid lawsuit that tried to force a florist or a photographer or whatever to work a gay wedding.
Now that is certainly a hill to die on in the war against discrimination, for either side.
We have now reached the stage where there is a sense of empowerment to force every human being in the world to “accept” one as equal. And, as someone might have pointed out above, who will care one way or the other once fifty states legalize SSM? I am not sure it is Douthat worrying about not being the center of attention.
It really doesn’t have the same staying power as abortion.
If you do not believe in the Flying Spaghetti Monster . . . may we define your lack of belief in the FSM as your “religion”?
That belief is not “my religion.” It is, however, a religious belief and thus a part of my overall set of religious beliefs. Just as it is part of your religious belief that Thor is not real. You don’t just doubt the existance of the Norse god of war, you believe that he does not exist. Similarly, if you believe that no gods exist, that, too, is a religious belief.
Perhaps if we bring a different arena into the discussion. In Scottish law, there is a difference between a legal verdict of “not guilty” and one of “not proven.” Not Guilty means that the jury found that the defendant did not commit the crime inquestion. Not Proven merely means that the prosecution’s case was not sufficient to prove that he did. And that, I would say, is the difference between agnosticism (not proven) and atheism (not true).
Would gods cease to exist if nobody believed in them?
My answer is no, and it applies equally to Thor, Apollo, AND Jehovah/Allah.
I don’t know whether that makes me agnostic or atheist by any dictionary definition. But it does make me different from somebody who would answer yes. And it certainly makes me different from anybody who answers no in general, but yes for this or that particular deity.
–TP
“This was a stupid over reaction law to a stupid lawsuit that tried to force a florist or a photographer or whatever to work a gay wedding.”
The lawsuit wasn’t stupid, as such. I can see two possible rational, (But both offensive!) motivations for it: Either the couple thought they’d derive a certain satisfaction from knowing they were forcing the photographer to work for them, (Much as I might get a kick out of forcing Chuck Shumer to host a fund raiser for the NRA. Not that I would…)
Or perhaps they just figured it was easy money, given the state of the law.
Either way, it does seem fairly clear they went deliberately looking for somebody to sue.
“nobody is taking anything away from you, except your ability to discriminate.”
Except your liberty. As in the case of Elaine Photography.
You know, in battle, unless you want a fight to the death, you leave your foe a path for retreat. In political/social battles, the equivalent is allowing them to not be complicit in something they find offensive. People can tolerate an awful lot they don’t like, if you don’t force them to be complicit.
D’oh! Switch “yes” and “no” in my previous comment. Or replace “cease” with “continue”.
–TP
Brett, how did you miss the third (equally offensive) possible motivation? The couple may have felt that they deserved, indeed had a right to, have the services of anyone that they wanted, regardless of whether that person wished to serve them or not. In short, they may have believed that anyone in a service occupation is effectively a slave to anyone who is willing to pay for their services.
“Your liberty” and “your ability to discriminate” would seem to be equivalent in Brett’s book. And I AGREE.
You can’t be truly free unless you’re free to be a bigot. Or a nudist, or a cannibal, or a slave for that matter. And of course you can’t be truly free unless you don’t give a crap about social mores or taboos, because those can limit your freedom even more than laws do.
Liberty(TM) is hard.
–TP
I think that, as others have noted, Doc S misunderstands the golden rule.
Although it’s an aside and I’m not interested in jacking the thread, I feel obliged to note that Brett misunderstands the purpose of affirmative action.
All of that said, I’m still scratching my head to understand WTF social or cultural “trads” lose when gay people are allowed to marry.
Can anyone anywhere possibly explain this to me? I’m freaking mystified.
“All of that said, I’m still scratching my head to understand WTF social or cultural “trads” lose when gay people are allowed to marry.”
Not much that I can think of. But, again, Elaine Photography. This doesn’t stop at “allowed”, mere “tolerance” is not the end game.
I’m still scratching my head to understand WTF social or cultural “trads” lose when gay people are allowed to marry
Because part of their traditions have become socially risible, some traditionalists feel that their liberty to publicly express their bigotry is constrained (the missing subtext is “unchallenged, and without consequences), and their ability to teach their children to hate the same things they hate is impaired (and to be fair, that may well be true).
Man, this is a bizarre thread, Tony P agrees with Brett:
would seem to be equivalent in Brett’s book. And I AGREE.
I’ve previously discussed how/why I think the right to discriminate is important and should be protected, I don’t think it needs to be redone.
Tony:
And of course you can’t be truly free unless you don’t give a crap about social mores or taboos, because those can limit your freedom even more than laws do.
I think I see what you are saying, but I wouldn’t phrase it like that. I’m all for racists and bigots, etc, being discriminated against socially or by association. I think that’s the right and proper way to affect social change.
But I don’t actually view that as an infringement of their liberty. They are free to believe whatever crap they want, but nobody else in society is on the hook to tolerate their beliefs.
Bringing it back to the post:
face significant social stigma for their religiously-motivated attitudes
Tough. If someone feels that their belief is righteous: Blessed are those who are persecuted for righteousness’ sake, for theirs is the kingdom of heaven.
But really, I don’t see much social persecution as likely. How often does SSM come up in conversation with random people you meet?
Unless someone goes out of their way to explain how their beliefs are being offended and everybody should modify their behavior so they aren’t confronted with something they don’t like…I just can’t imagine it coming up that much and resulting in conflict.
But, again, Elaine Photography.
I can understand the Hugenin’s not wanting to be required to photograph a gay wedding. I think the legal aspects are problematic – it’s hard to see how there could be any decision in that case that wouldn’t be unfair to somebody – but I appreciate that the issue is difficult, for *both* sides.
All of that said, I’m not sure that amounts to an argument against same sex marriage. Or, against changing any of the 1,000,000 other ways that gays have been discriminated against, abused, harrassed, and persecuted, both de facto and de jure, for basically ever.
And it sure as hell has nothing to do with Dreher’s whining about not being able to basically call people fags in public anymore without somebody objecting.
And the “end game” here is simply that gay people should not be denied access to the basic civic and public privileges that the rest of us enjoy, simply because they’re gay.
Basically, they want to be able to be gay without having to put up with beatings, refusal of housing, refusal of or loss of employment, denial of familial rights, having their children taken from them, etc etc etc.
Dreher’s might have somebody call him a bigot if he publicly expounds on his dislike of gays? Too freaking bad. Boo hoo.
Dreher can go cry in a corner. Asshole.
Some guys are attracted to guys. Some women are attracted to women. What’s it to Dreher, or Douhat? Their religious beliefs tell them it’s wrong? Then they should refrain from marrying guys.
Seriously, do we all get to impose our religious beliefs on the everybody else? I’ve got some of my own to trot out.
the issue is difficult, for *both* sides.
How is Elaine Photography not being willing to photograph a gay wedding a difficult issue? The closest I have seen for an argument for requiring a service company to provide a service was this: “In some places there are very few choices for a particular service (due to low population density, mostly). So if one company refuses, then ther are no alternatives.” OK, that’s unfortunate.
But then again, there are places where the population density is so low that there are NO companies providing that service. And you can do the same as people do there: do it yourself or cope without. It’s not like you have a right to a service, just because you would like to have it.
So, should nudists be able to sue any photographers who refuse to photograph their nude wedding?
It’s not like you have a right to a service, just because you would like to have it.
Would the same argument apply if the couple were black?
So, should nudists be able to sue any photographers who refuse to photograph their nude wedding?
Getting beyond the fact that we are pretty much free to sue anybody for just about anything….my reply is: NO. Nudism is a choice.
I think that, as others have noted, Doc S misunderstands the golden rule. to be treated like crap in return.
After rubbing both of my brain cells together for a bit, I would say Doctor Science has got it exactly correct. If you treat people like crap, then you should expect, nay desire,
How is Elaine Photography not being willing to photograph a gay wedding a difficult issue?
It’s difficult for the couple in question because they apparently would have liked Hugenin to photograph their wedding, and were informed that that wouldn’t be possible, because Hugenin’s religion tells her that what the couple wants to do is an abomination and hideous in the sight of God.
So, that kind of sucks for them.
It’s difficult in general because it requires us to draw a line, and drawing lines is inevitably somewhat arbitrary, and somebody(s) usually end up holding the short end of the stick.
I think most if not all of us would agree that a minister should not be required by law to perform a same-sex wedding, if his or her conscience or religious beliefs told them it was wrong.
And, conversely, I think everyone would agree that a hardware store should not be able to refuse to sell a hammer to a gay person. Because it’s freaking hard to see how “religious beliefs” comes into hammer sales, and “I think you’re icky” is not a good enough reason to deny somebody a good or service you otherwise offer to one and all.
So, the line is somewhere in between.
If you think it’s a no-brainer where, exactly, the line should be drawn, by all means share your wisdom with the rest of us.
Personally, I think it’s not as obvious as it seems to you.
I try to avoid interactions with fervent believers of the golden rule who are masochists.
So, should nudists be able to sue any photographers who refuse to photograph their nude wedding?
depending on local contract law, the answer may well be Yes and imo it beats the alternative. Usually the rule is, if one offers a service to the public in general, one waives the right to refuse serving a part of said public. The only way to legally refuse a request (that in itself is not illegal) for the service is to not offer it to the public in general but to make it exclusive in the first place (by defining the customer base preemptively in a manner that again is not illegal in itself, i.e. usually a positive definition [not: anyone but…]).
A difference exists in many places between goods and contracts. E.g. a baker could not legally refuse to sell a person a bun but could turn down a contract for the production of said buns without giving a reason. In the gay wedding cake case that would mean that the couple could request a cake on display for sale (and sue if refused) but could not force the production of a not yet existing cake according to their specific wishes.
That would cover most cases quite neatly but of course could be circumvented by a conspiracy by all potential service providers not to take the contract and not to keep any goods in stock.
The ability to sue should imo be limited by the actual damage incurred, i.e. if the service cannot otherwise be obtained and this causes material damage.
You know, in battle, unless you want a fight to the death, you leave your foe a path for retreat.
The thing about this is that this is not, remotely, anything like a “fight to the death” for Hugenin. Far far less for Douthat or Dreher.
It’s absurd to frame the issue in these terms.
At the very worst, Hugenin will be required to take pictures of a ceremony that she finds objectionable on religious grounds.
At the very worst, Douthat and Dreher will have to endure other folks calling them bigots.
Compare and contrast to what gay folks have put up with, and continue to put up with.
I know more than one gay person who has been subject to random, uprovoked assault, merely and specifically for walking around gay. If you know any gay people, at all, you more than likely know someone like that also.
This isn’t really an equivalence between the two situations.
And, gays aren’t trying to “win” anything other than being treated like everybody else. They aren’t trying to make anybody else gay, they aren’t trying to keep straight people from doing anything at all, other than possibly not crapping on gays.
They have no interest in lording it over anybody else. They want to be able to live their lives, like everybody else does.
That is the freaking gay agenda. To be treated like everybody else.
If that feels like a “fight to the death” to anyone, they need to seek psychiatric counseling.
Nah, it didn’t suck for them, because what they got from Elaine Photography was exactly what they were looking for: Somebody who didn’t want to photograph them.
They were shopping for an opportunity to file a lawsuit.
bobbyp:
I’d agree if you treat people like crap, you can expect similar in return.
That, however, is not the golden rule.
That’s more an ‘eye for an eye’ or as McK says:
‘as ye sow, so shall ye reap’
I think the missing link here is that the golden rule is not a standard of reciprocity, e.g. any behavior is allowed/encouraged/expected as long as it is reciprocating a previous behavior.
The golden rule is an exhortation to not mistreat people, not a post hoc justification for mistreating someone that previously mistreated you.
I’ve always found it interesting. The phrasing (although varied) generally involves a comparison between ‘others’ and ‘self’. In that sense, I’ve always felt (and I am not a philosopher) that the Golden Rule (in most of its varied forms) was an early recognition that people often dehumanize the ‘other’ (not self, family, friend, clan, nationality, etc) and an admonition to rectify this by forcing people to equate ‘others’ with ‘self’.
Conducting (non-secular) weddings is a typical service limited a priori to the membership of a group, so a refusal to non-members should pose no legal problem. And violation of the group membership rules (e.g. being gay in church X) allows exclusion and in consequence refusal of service depending on membership.
If you treat people like crap, then you should expect, nay desire, to be treated like crap in return.
IMO this is a not-bad principle to live by, and if it informed more of what we said and did, the world might be a better place.
But it’s not the golden rule. More like karma.
“At the very worst, Hugenin will be required to take pictures of a ceremony that she finds objectionable on religious grounds.”
“They have no interest in lording it over anybody else.”
The sad thing is, I think it’s possible that you genuinely don’t understand that these two statements stand in direct opposition.
They were shopping for an opportunity to file a lawsuit.
If true, that should be brought up in court and appropriately decided. It’s not as if this situation is not specifically covered in many places (and has been since at least the 19th century e.g. over here).
At the very worst, Hugenin will be required to take pictures of a ceremony that she finds objectionable on religious grounds.
And in the balance between that and not having a specific wedding photographer, you think not having a specific wedding photographer is worse?
Would the same argument apply if the couple were black?
I would say that it should apply. Unless there is a local law which in some way restricts businesses which would be willing to do so from setting up and doing so. That would be a whole different issue. (And that was, in large part, what the situation was in the South in the middle of the last century.)
wj:
Correct me if I’m wrong, but weren’t you arguing the opposite way with me a few threads ago?
Is there a nuance I’m missing?
russell, I would draw the line roughly between selling goods and selling services. (Which is sort of what you were implying, I would say.) That is, if
you are going to set up in a business of selling goods, you should not get to discriminate as to who you are willing to sell to. But if you are selling your services, you do get to select who you will accept as a client, and can do so on whatever basis you like.
Is it a perfect hard and fast rule? No. For example, if I run a gun store, can I refuse to sell a gun to my local mob boss (assuming he was willing to buy a gun with a paer trail!)? Yeah, I would say so. But that’s the only kind of exception for selling goods that I can come up with off the top of my head.
As for exceptions for services, I would say that if you are selling a government service, either as a government employee or contractor, or as someone licensed especially to provide a public function, such as a notary public, then you don’t get to discriminte.
The sad thing is, I think it’s possible that you genuinely don’t understand that these two statements stand in direct opposition.
The sad thing is, I think it’s possible that you genuinely don’t understand how utterly incommensurate the harms done to religious people are relative to those done to gays.
And in the balance between that and not having a specific wedding photographer, you think not having a specific wedding photographer is worse?
If you’re asking me, personally, I would say no. But I’m not in the NM supreme court.
Drawing lines is hard. Not drawing them is worse.
I would say that it should apply.
Seriously, that is f****d up. I’m not sure what else to say about it.
thompson, I suppose I might have been. Do you recall what I said (or what the thread was)? then I could at least look and see if I have been inconsistent — or have merely changed my mind. Which I have been known to do on occasion.
And in the balance between that and not having a specific wedding photographer, you think not having a specific wedding photographer is worse?
Let’s turn it around.
Instead of “wedding photographer”, let’s say “brain surgeon”. Or “criminal defense attorney”. Or any other profession where the difference between the really good guy, and the kind of OK guy, might actually be the difference between suffering harm and not.
Is it OK in that case for folks to say, “sorry, I don’t work with gays”?
If not, how are we going to draw lines between who can discriminate, because what they do is really not that important in the first place, and people who can’t, because their stuff is more important?
And if it is OK, then we are in fact in a world in which some people will be harmed by discrimination against them, and discrimination not based on anything they do or say, but based on who they are.
It’s not like there isn’t a price paid if we slice things the other way.
Drawing lines is hard. Not drawing them is worse.
I’d phrase it as: Drawing lines is hard. Not drawing them is often a good solution to that problem.
But my distaste for drawing lines is hardly news, so I think that pretty much covers it.
Here’s a funny family story.
My old man grew up in rural GA. During WWII he was posted in NYC for some training. He met my mother, a fabulous Brooklyn Italian girl who must have seemed quite exotic to him, they fell in love and were married.
At some point he drove mom to GA to meet the relatives. He stopped for gas somewhere in SC, the guy wouldn’t sell him any because he had NY plates. Damned Yankee!!
After my old man tore the guy a new one, he did eventually get the gas, but I think only because he was actually born and raised about fifty miles from where they were.
If he had been born and raised NY, my guess is no gas.
That’s the world of an unrestricted right of association. I don’t like the cut of your jib, no gas for you. Oh, you don’t have enough to get where you’re going? Tough sh*t, walk.
Is that seriously the world you want to live in? That’s the world you’re asking for.
Over a hundred years ago, we fought a war to establish a very important principle: No man is entitled to another man’s labor against his will.
Now we’re gradually unestablishing that principle. Maybe for the best of motives, but it IS dying.
I suspect that if Hugenin shoots the wedding, she’ll get paid.
Also, allow me to point out that, in this entire discussion, the greatest examples anyone’s been able to cite of material harms flowing from same sex marriage are:
Cake lady got sued.
Photographer had to take pictures.
It’s a new world order!
One freaking speck of perspective might be in order.
I can’t imagine compelling service providers to provide services like photography and custom cakes for an important, one time event like a wedding. At best, you can expect the minimum level of service possible. At worse, you could end up with a disaster on your hands.
You should be careful when trying to rub other people’s noses in something. You may end up with more of it on yourself than on them.
It’s not like there isn’t a price paid if we slice things the other way.
Absolutely, there is a price paid. I wouldn’t argue otherwise.
Or “criminal defense attorney”.
Could one of the atty’s weigh in? I worked at a law firm for awhile and it seemed like you could terminate representation pretty much at will. But I wasn’t the one making those calls, merely stuffing the notifications in files, so I could be wrong.
I have a similar understanding about doctors, as well. In non-emergency situations, I believe doctors have incredibly broad latitude in denying care.
Is that seriously the world you want to live in? That’s the world you’re asking for.
Yes, because I believe the freedom of association is an important right. Even if it is misused.
cite of material harms flowing from same sex marriage are:
I would point out neither of those harms flow from SSM. They flow from restrictions on freedom of association.
Which is a hard subject in its own right.
thompson, does the term ‘denial of bread and water’ ring a bell with you? It has gone a bit out of fashion lately in civilized places but what you are asking for would make that perfectly legal again. There are enough places isolated enough (in the US) that would be perfectly willing and able to make use of it (again).
Except your liberty
so silly. so, so silly.
if you’re a public business, working for the public, you have to serve the public. in exchange, you get all the protections and benefits afforded by the government(s). those are the rules this country operates by. if you don’t like it, leave.
I can’t imagine compelling service providers to provide services like photography and custom cakes for an important, one time event like a wedding.
Neither can I. I’d be surprised if Hunegin ends up shooting that particular wedding.
I would point out neither of those harms flow from SSM. They flow from restrictions on freedom of association.
The set of harms that have been demonstrated to flow from SSM is thus empty.
The set of harms that have been demonstrated to flow from SSM is thus empty.
And this surprises you?
” I’d be surprised if Hunegin ends up shooting that particular wedding.”
She didn’t. They found a photographer to sue, and a photographer to do the work. The Hunegin’s job wasn’t to photograph the wedding, it was to be sued and pay for it.
“I suspect that if Hugenin shoots the wedding, she’ll get paid.”
Yeah, right, that’s the only problem with slavery, that the slaves don’t get a paycheck. Not that they don’t get a choice.
The set of harms that have been demonstrated to flow from SSM is thus empty.
the bigot’s liberty to have his bigotry enshrined in law has been taken away, and with it, his position as the country’s self-appointed moral arbiter. and it has come at the point of the government’s big, evil, violent, stupid gun. such harm. very kept down.
won’t anyone think of the bigots and their liberty?
wj:
Do you recall what I said (or what the thread was)?
No, I don’t recall the specifics. I was going on about unrestricted freedom of association in discussion with you and russell.
then I could at least look and see if I have been inconsistent — or have merely changed my mind. Which I have been known to do on occasion.
Neither of those is a problem for me, I wasn’t trying to pick on you. Never been a fan grinding people into either inconsistencies or mind-changes. Especially with complex, sensitive subjects.
Words are imperfect and thoughts develop and change over time.
I was just curious if there was a nuance I was forgetting. But as you don’t recall the exchange either, it’s not important.
Yeah, right, that’s the only problem with slavery
New Mexico has laws which prohibit discrimination based on sexuality. the photographer broke that law by refusing to work for gay people. it’s as simple as that.
there’s no slavery involved.
you might try not hitting the hyperbole button as absolutely hard as you possible can every time you want to make a point.
Yeah, right, that’s the only problem with slavery, that the slaves don’t get a paycheck.
This is idiotic. More than idiotic, it’s freaking obscene.
Being required to serve the public, should you decide to open and operate a business, and not being allowed to pick and choose who you will and will not serve based on who those people are, is not the same as slavery.
Apparently, words now have whatever meanings suit our purposes at the moment.
I am trying, with total lack of success, to imagine a situation where I would want to be represented by an attorney who was unwilling to represent me. It seems like compelling service in that situation would be a seriously stupid thing to do, just from a self-interest standpoint.
I’d say it would be on a whole different level from being represented by an attorney who merely thinks you the scum of the earth because of the crimes you have committed. He at least might be willing to do so because he believes in the system, and therefore you are entitled to the best representation you can provide. But compulsion? Not the way to get good service.
the bigot’s liberty to have his bigotry enshrined in law has been taken away
That’s the antithesis of liberty. That’s the government stripping people of their rights because a majority of the population decided it was correct for some reason or another.
The (thankfully eroding) bans on SSM are an example, to me, of what happens when we let majorities erode rights of people they don’t like.
won’t anyone think of the bigots and their liberty?
Even terrible people have innate rights, and those rights should be protected by law.
We protect the 4A rights of criminals, in my mind we should protect the association rights of bigots.
Re: my understanding (or not) of the Golden Rule.
I agree that as we usually understand it the Golden Rule is not threatening, it’s exhorting. The threat is implied by logic, or something: if you have been using your power to treat people badly, you’re basically telling everyone by your actions how you expect people in power to behave.
It’s related, IMHO, to the South’s obsessive fear of slave insurrections before the Civil War, and of what freedmen might do after it. Although white Southerners always *phrased* it as “Negroes are terrible people! think what they would do!”, there is nothing they were afraid of blacks doing that they had not done to blacks first and worse.
“Being required to serve the public, should you decide to open and operate a business, and not being allowed to pick and choose who you will and will not serve based on who those people are, is not the same as slavery.”
I suppose the defining characteristic of slavery is singing spirituals, or picking cotton, then, and not the little matter of not having a choice about working for someone?
I’m down with SSM. I am not down with govt extending the civil right to marry to one pair of adults but not another pair of adults. I’m also down, generally, with religious-neutral businesses being required to render services without discriminating.
Seems to me, though, that the principle that compels allowing SSM goes a bridge too far when it is used to compel private citizens to, in some form or fashion, participate/support a specific act of SSM, particularly if the objection participating is based on their religion.
Is it bigoted or an act of faith that I don’t agree with? I think that varies from person to person. Preventing two people from marrying and forcing a third person to provide service to that wedding seems like two sides of the same coin.
Religious people need to give it a rest when two gay people desire a civil union, and those gays on the periphery of the gay rights movement (I agree with Brett insofar as this looks like a fight that was picked on purpose and to make a point) need to give requiring those unwilling to buy into their program to do so anyway a rest as well.
That last was a pretty awkward sentence, but the course was unkind to me today.
I am trying, with total lack of success, to imagine a situation where I would want to be represented by an attorney who was unwilling to represent me.
Yeah, me too.
I wouldn’t want to buy gasoline, or a hammer, or a pack of gum from somebody who didn’t want to sell it to me because I was gay, or black, or any other reason, either.
the bigot’s liberty to have his bigotry enshrined in law has been taken away
That’s the antithesis of liberty. That’s the government stripping people of their rights because a majority of the population decided it was correct for some reason or another.
What about the person who is the object of that guy’s bigotry, and bigoted actions?
Does that person’s rights and interests come into it at all? Or is the right of association somehow transcendent?
Is my liberty not harmed in any way if I can’t buy cakes, hammers, gasoline, or photography services from folks who are perfectly happy to sell them to the next person?
Why does freedom of association trump every other consideration?
I suppose the defining characteristic of slavery is singing spirituals, or picking cotton, then, and not the little matter of not having a choice about working for someone?
The defining characteristic of slavery is that you are someone’s property. They can not only require you to sell them a cake if you happen to be in the cake-selling business, they own your literal ass, they own every minute of your time, they own all of the fruit of your labor.
If you go into business offering goods and services for sale to the public, you’re obliged to offer those goods and services to sale for whoever wants to buy them.
There are exceptions, and that principle doesn’t apply everywhere, and the question of where it does and doesn’t apply is an interesting one.
But there is no place other than on Planet Brett and I suspect the right wing blogosphere where the legal requirement to not discriminate in offering goods and services for sale can, remotely, be misconstrued as slavery.
And with that, I’m done on this topic, because it’s a particularly odious threadjack and I’m not interested in furthering it. Seriously, you should be ashamed of yourself.
“Seems to me, though, that the principle that compels allowing SSM goes a bridge too far when it is used to compel private citizens to, in some form or fashion, participate/support a specific act of SSM, particularly if the objection participating is based on their religion.”
I am generally of the opinion that being religious should not give you any extra rights. But this is only to say that I think EVERYBODY should have enough liberty, that the religious should not need to seek from the government exemptions.
If a law is of such a nature that it would be reasonable to exempt somebody who had a religious objection to complying with it, you probably shouldn’t have the law in the first place. Communion wine shouldn’t need to be exempted from Prohibition because there shouldn’t be Prohibition, IOW.
Now, it is frequently said of complaints about “public accommodation” laws, that nobody has to be a photographer. And, if public accommodation laws applied only to one or two obscure professions that could be dispensed with, this might actually carry some weight.
But, while nobody has to be a photographer, generally people have to be SOMETHING. And the forces driving the expansion of public accommodation laws seem to have no stopping point.
DocSci:
The threat is implied by logic, or something: if you have been using your power to treat people badly, you’re basically telling everyone by your actions how you expect people in power to behave.
I see what you’re getting at (and agree with the karmic principle) but I would describe it as orthogonal to the golden rule and better described by the other proverbs mentioned.
Indeed, the very context points that this is a failure to follow the golden rule, not an application of it.
The “trads” or whatever you want to call them are afraid of the very persecution that they’ve been dishing out. That persecution is clearly not how they “would be done by” or they wouldn’t be complaining.
They failed to treat others as they would like to be treated. Indeed, in one of the articles you linked there is a recognition that they and/or their predecessors failed to treat a minority as they wish to be be treated now.
Reaping the whirlwind/eye for and eye/karma/etc is not the logical extension of the golden rule. At least, not by any way I can construct it in my head.
But russell, if I “gasoline, or a hammer, or a pack of gum from somebody who didn’t want to sell it to me because I was gay, or black,” etc., the thing that I buy will still work just as well regardless. (I may not want to give him my business, but that’s a separate discussion.)
Whereas, if I am buying a service from someone who doesn’t want to provide it to me (for whatever reason), whether the service will be the same quality is doubtful. You can provide sloppy service if you feel you are being forced into it. But can you provided a substandard hammer, or pack of gum just because you don’t want to sell to a particular buyer? Only, as far as I can see, if you take the trouble and expense to stock extra, poor quality, merchandise for that part of your market.
Seems to me, though, that the principle that compels allowing SSM goes a bridge too far when it is used to compel private citizens to, in some form or fashion, participate/support a specific act of SSM, particularly if the objection participating is based on their religion.
Apparently, the argument Hugenin made was based on freedom of speech, rather than religion. It looks like the argument was that photography as an art is a form of protected speech, and Hugenin could not be required to “tell a story” that she did not support.
Which raises (for me) the question of whether commercial creative work done for hire deserves free speech protection, but I’m sure that ground has been covered at some point.
I disagree that this is a question of Willock and her partner picking a fight. They were looking for a photographer, approached Hugenin, and Hugenin refused the work because they were gay. They felt that they had been discriminated against, and they were correct. That’s illegal in NM, so they sued.
I do agree that it would have been easier all around if they had simply moved on and hired someone else. Life goes more smoothly if folks don’t take things personally, and sometimes there’s value in just letting stuff go. It doesn’t appear that there was any malice on Hugenin’s side.
But, I can also understand why they might have wanted to make their point.
What I totally objectionable is the idea that this constitutes some kind of religious persecution of Hugenin. She wasn’t sued for being Christian, she was sued for refusing to serve people because they are gay.
Whereas, if I am buying a service from someone who doesn’t want to provide it to me (for whatever reason), whether the service will be the same quality is doubtful.
I take your point wj, and don’t really disagree with it. I would probably draw the line in about the same place as you – offering goods for sale is one thing, services another.
I don’t know how it would be expressed in law, but it seems reasonable to me at an intuitive level both that providing services is more likely to involve matters of conscience (of whatever kind) on the part of the provider, and also that nobody would want someone providing services to them against their will anyway.
Hammers, gas, and gum, different story.
Apparently, that’s not the law in NM.
But can you provided a substandard hammer, or pack of gum just because you don’t want to sell to a particular buyer? Only, as far as I can see, if you take the trouble and expense to stock extra, poor quality, merchandise for that part of your market.
As an aside, this kind of differential product offering was quite common during Jim Crow days.
So, it’s not an academic point.
That’s the government stripping people of their rights because a majority of the population decided it was correct for some reason or another.
democracy. you’re soaking in it.
Does that person’s rights and interests come into it at all?
Which rights? Their right to have a specific photographer at their wedding? Their right to not be confronted with people who disagree with them?
How is that distinct from the “rights” of a bigot to not be confronted with whatever they are bigoted about?
I don’t view any of those things as rights. There are unpleasant people in the world, sometimes you have to deal with them. It should not be a legal matter, nor should those unpleasant people have any legal recourse if people don’t like them and boycott their establishments.
Is my liberty not harmed in any way if I can’t buy cakes, hammers, gasoline, or photography services from folks who are perfectly happy to sell them to the next person?
I’d say this is where we disagree. I don’t view buying a hammer from a specific store as an innate right. I don’t see any infringement on your liberty. You clearly do, and that’s fine. That’s a likely source of our disagreement.
And with that, I’m done on this topic
Fair enough, I’m not saying anything I haven’t said before, retreading the same ground sheds more heat than light.
I am generally of the opinion that being religious should not give you any extra rights.
This is getting scary: I agree with Brett again.
Alternatively, in the US we live in, I could accept “atheism” being called a “religion” for 1st-Amendment purposes. Extra rights for everybody!
Where Brett and I part company is that he is pure and I am … cynical? pragmatic? impure? I don’t share Brett’s exquisite philosophical sensibilities about what laws we should not have. For instance, I don’t think we should abolish taxation on the grounds that we’re willing to exempt churches from it.
My own guiding principle is not to maximize liberty, or even consistency. It is to minimize fuss and bother. In a fairly pious nation like the US, not taxing churches is less fuss and bother than arguing about it would be.
–TP
this kind of differential product offering was quite common during Jim Crow days.
While I am not an economic historian, my impression is that the only reason this behavior was viable during the Jim Crow era was that there were substantial legal barriers to starting a business which did not follow that pattern. No doubt someone with more knowledge of the legal and economic history there will correct me if I am wrong.
I think it is in general very common when there is no constant quality of a product or a usual range. The seller will be inclined to distribute the quality (he has no influence on) in a way to customers that is most advantageous to him. A regular good customer (or one of influence) can expect to get offered the specimens from the upper end of the scale while customers the seller has not to rely on (outsiders, people that have no other choice etc.) will be treated to the lower end. The seller will not usually acquire lower quality goods in order to annoy customers he does not like. At best he will do so, if the low quality stuff is cheaper but can be sold at the standard price to the non-well-esteemed customer.
Which rights? Their right to have a specific photographer at their wedding?
The right to not be denied goods and services because they’re gay. That right.
You see a refusal to do business with people because they’re gay as an expression of the right to free association. I think that stretches the idea of “free association” to an extraordinary limit.
If you open your door for business to the public, you don’t get to decide you’re not going to do business with people because they’re black, or gay, or speak a funny language, or whatever.
You opened the door, you assume certain obligations when you do so.
Their right to not be confronted with people who disagree with them?
The issue was not “I disagree with you”. The issue was “my religion tells me that your getting married is an offense to God”. And, “my taking a picture of your wedding would be telling a narrative that I consider a lie”.
You should stick with “it’s an important right even if it’s misused”.
@russell: “And, conversely, I think everyone would agree that a hardware store should not be able to refuse to sell a hammer to a gay person. Because it’s freaking hard to see how “religious beliefs” comes into hammer sales,”
That would be HORRIBLE, BLATANT religious bigotry!
“If you open your door for business to the public, you don’t get to decide you’re not going to do business with people because they’re black, or gay, or speak a funny language, or whatever.”
There is a large difference and an obvious one between the lunch counter in Birmingham and the wedding in NM. Such a big difference I am actually angry that you would use this chestnut to justify your position. And I am done because you made me angry.
Pretty much every sole proprietor small service business picks their customers however they want. I am pretty sure your band wouldn’t play a KKK rally.
Doc,
I agree that as we usually understand it the Golden Rule is not threatening, it’s exhorting.
I was thinking along similar lines with my comment, just taking the moral logic a bit further. To maintain consistency of “exhortation” moral and/or otherwise, a person who does bad stuff should logically demand they be treated as they treat others if they claim they are guided by the golden rule. Two sides of the same coin as it were…but it’s a minor karmic point.
to wj, thompson, et.al.
There is no right to be a bigot enshrined in the Constitution. In fact, we do have a Constitutional Amendment that specifically outlaws bigotry as actually observed in historical practice, as opposed to your fevered imaginations, i.e., the 14th Amendment. Congress is specifically authorized to pass legislation to enforce said provision.
Don’t like it? Amend the Constitution.
So yes, the principle that we can pass and enforce laws to curb the bigotry of “unpleasant people” is actually enshrined in the Law Of The Land in that document that many otherwise worship when not attending church, i.e., the U.S. Constitution.
As for the “right of association”, well there’s a slippery beast, a chameleon amenable to many a point of view: Is the Sherman Anti-Trust act a violation of this “principle”? The banning of secondary boycotts in Taft-Hartley? So called, “right to work” laws?
I should think a common sense adjudication of the cake lady case is to tell her to chill, because if you feel otherwise, you are basically raising the social concept of the “war of all against all” to a near absolute principle that comfortably agrees with your political opinions.
In other words, you are crossing the line of common sense.
The right to not be denied goods and services because they’re gay.
Like I said above, I don’t anybody, regardless of sexuality, has a right to a service from a specific person, nor do I think laws are required at this point to rectify the damage caused to the injured parties. You seem to disagree. Fine.
You should stick with “it’s an important right even if it’s misused”.
I plan to.
The issue was not “I disagree with you”. The issue was “my religion tells me that your getting married is an offense to God”. And, “my taking a picture of your wedding would be telling a narrative that I consider a lie”.
I’d agree the vendors are wrong on many levels, I just don’t think people have a right to not have to deal with unpleasant or otherwise hurtful people. I’m not saying they are being persecuted for their religion. They aren’t. Nor am I saying that they handled a delicate situation well. They didn’t. I’m saying they should be allowed to form business associations or not as they see fit.
I don’t think laws are the appropriate way to rectify the situation. I think social pressure is.
I don’t think you should legislate civility or morality.
Society, even in the bible belt, is moving rapidly towards broad acceptance of SSM. My personal distaste for people resisting that change aside, I do not see the need to grant specific protections, especially if those specific protections burden the free association rights of others, even if I don’t like or agree with their use of rights.
bobbyp:
There is no right to be a bigot enshrined in the Constitution.
Doesn’t the freedom of speech include bigoted speech? Doesn’t the freedom of religion include bigoted religion?
Or did I miss the clause which says only socially accepted speeches and religions are free?
Again there are numerous rights that are important to protect, even if they are misused by some actors.
In fact, we do have a Constitutional Amendment that specifically outlaws bigotry
The 14th Amendment Equal Protection Clause concerns the conduct of states and state actors. It does not, in general, apply to private actors.
Doesn’t the freedom of speech include bigoted speech? Doesn’t the freedom of religion include bigoted religion?
Sure. Has ANYBODY who disagrees with you on this board said otherwise? Red herring and really absolute BS.
Or did I miss the clause which says only socially accepted speeches and religions are free?
A totally misguided and facile rhetorical device that falls flat. Utterly.
Again there are numerous rights that are important to protect, even if they are misused by some actors.
Yell “fire” in a crowded theater. Tell the judge there is a right involved that is “important to protect”. See how far it gets you.
Are you kidding me?
The 14th Amendment Equal Protection Clause concerns the conduct of states and state actors. It does not, in general, apply to private actors.
Insofar as private actors are insisting and/or demanding that both the law and the power of the state be invoked to protect and enable their bigotry (because that is in fact what you are arguing for), you are way off base here.
Way way off.
Sure. Has ANYBODY who disagrees with you on this board said otherwise? Red herring and really absolute BS.
As it was in response to a statement that bigotry is not protected in the US Constitution, it seems pretty responsive to me.
I can refuse to represent the KKK because being a racist shithead is not a protected category. I cannot refuse to represent a gay person because, in my city, orientation is a protected category.
NM didn’t have SSM at the time, and the event that the photographer refused to photograph wasn’t a wedding. It was a party. The customers didn’t go to court seeking an injuunction compelling the photographer to attand and work. Instead, as is their right, the reported what looked like a refusal to provide services based on orientation to the administrative body that enforces the discrimination laws. That body concluded that there had been a violation, and levied a very nominal fine. The photographer took it to court, and when she lost, took it to the Supreme Court. And apparently to the US Supreme Court. Such oppression!
Insofar as private actors are insisting and/or demanding that both the law and the power of the state be invoked to protect and enable their bigotry (because that is in fact what you are arguing for)
I don’t even know what that means. I’m arguing the 1st amendment applies. Insofar as that “protects” bigotry, I suppose I am arguing to protect bigotry.
If you’re suggesting I’m arguing bigots should be protected from social backlash for their stances, you are incorrect.
Pretty much every sole proprietor small service business picks their customers however they want.
Absolute. Crap. Pretty much every sole proprietor/small business is under-capitalized and begging for customers. Typically they have a 90% change of not being around in 5 years.
Bigotry is a pretty stupid business plan.
As it was in response to a statement that bigotry is not protected in the US Constitution, it seems pretty responsive to me.
Disagree. You clearly and unambiguously ascribed an argument to those who disagree with you that none of them have made.
You can do better. Draw more lines.
“So, should nudists be able to sue any photographers who refuse to photograph their nude wedding?”
They are able, but the bigger question is should the nudists be forced to where clothing in court.
And further, what happens if they show up nude and the court sketch artist adds clothing to the drawings. Can the nudists then sue for misrepresentation?
________________________
“Over a hundred years ago, we fought a war to establish a very important principle: No man is entitled to another man’s labor against his will.”
and …
“At some point he drove mom to GA to meet the relatives. He stopped for gas somewhere in SC, the guy wouldn’t sell him any because he had NY plates. Damned Yankee!!”
I sense a pattern here. Maybe we need to fight that war again. I’ll bet the gas station owner hummed a spiritual as he refused service to Russell’s Dad.
________________
“You should be careful when trying to rub other people’s noses in something. You may end up with more of it on yourself than on them.”
So we can expect the NRA and suchlike to cease and desist from pushing their wares and political advertising in and around Sandy Hook?
________________________
“My own guiding principle is not to maximize liberty, or even consistency. It is to minimize fuss and bother”
Is there anything more fussy than a wedding cake and more bothersome than a wedding photographer?
_______________________
As far as compelling labor by force, I suppose I could point out that cutting off long-term unemployment benefits could be construed as compelling labor by force, if we believe, as some do, that all government actions, even negative ones, are presumed to be at the point of a gun.
Leaving that aside, I think it is a travesty that I’ve been fired from labor for singing spirituals in a loud, deep baritone during work hours.
Even slaves had that right.
I’m curious. Could a nudist sue a clothing merchant for refusing the former service, even though the service would presumably resolve the reason for the merchant’s taking of offense?
Further, are there changing rooms in clothing stores at nudist camps?
I’m curious, well, not curious in that way, but more on the level of serious constitutional matters, if an unemployed man of undetermined sexual identity has his unemployment benefits, food stamps, and his slauson (at the Slauson Cutoff) cut off and the only job he is compelled to find so that he and his family don’t starve (at starvation point, one could say) is jumping out of a cake naked at a gay bachelor party, who may he sue for enslavement — the cake maker, the gay newlyweds, or Paul Ryan?
Freedom is never having to say your sorry.
bobbyp:
Clearly I’m missing what you’re saying in some way. You made a statement that I thought was incorrect. I quoted it, and than explained why I thought it was wrong.
You claim that I’m ascribing an to you that you didn’t make, which I understand can be frustrating. I’m certainly not trying to antagonize you.
Did I misquote you, or did I miss context that altered the meaning of the quoted text?
I don’t even know what that means.
Jayzus effing christ!!!!!!!!!!!!! It’s straightforward English. You are saying that a business firm that is licensed by the state, that has rights protected by the state, that has certain tax status and investment risk protections granted by the state, that has unique standing backed up by the power of the state HAS THE RIGHT TO BE A BIGOTED ASSHOLE AND DENY RIGHTS TO SOME PEOPLE BASED ON ATTRIBUTES THEY HAVE NO CONTROL OVER?
Again, you are way off base here.
Alright, and I’m out. To many exclamation points and bold text.
“Freedom is never having to say your sorry.”
And neither should it be.
“you’re”
CharleyCarp!
Clearly I’m missing what you’re saying in some way.
Really? This is what you wrote: “Doesn’t the freedom of speech include bigoted speech? Doesn’t the freedom of religion include bigoted religion?”
The answer is yes, but nobody is claiming otherwise. So what’s your point?
There is a large difference and an obvious one between the lunch counter in Birmingham and the wedding in NM.
Yes, I recognize that, although the difference I recognize may or may not be the one you’re referring to.
IMVHO professional services should probably not be held to the same standard as places that are, per the US Code, public accommodations.
Again, IMVHO, Hugenin ought to have been able to simply decline to shoot the wedding, for whatever reason she liked. Religious scruple about gay marriage, she found the couple to be obnoxious and she didn’t feel like dealing with them, she had something else going on that day. Whatever. Professional services, entered into on a client by client basis, under a per-deal contract, seem, at least to me, to be an area where some kind of alignment of purpose between vendor and client is desirable and reasonable, and the lack of that is sufficient reason for either party to opt out.
Stuff like bakeries, restaurants, hotels, etc., different story. If you, literally, open your doors as a public accommodation, you have explicitly made yourself available for custom to whoever. And it’s reasonable for folks to expect that, if your door is open and the lights are on, they can walk through it and avail themselves of whatever is nominally on offer. If you are open to the public, you don’t get pick which public you’re open to.
The definition of a public accommodation is here, I find it to be sufficiently specific that there shouldn’t be all that much debate about what does and doesn’t fall into that category.
So I don’t see a difference between the lunch counter and the wedding, I see a difference between doing business in the form of some facility that is, literally, open to the public, and doing business in the form of providing, personally, your professional services, for hire, under contract.
My issue with thompson is that he draws no such distinction, in his world I could walk into a restaurant and be told sorry, we don’t serve tall overweight balding white guys, for no reason other than tall overweight balding white guys bug the owner.
And he sees that kind of thing protected under freedom of association.
Again, IMVHO, I find that reading of “freedom of association” kind of eccentric, and not supported by anything I can find in the Constitution or case law or even plain old common sense.
To many exclamation points and bold text.
How many is too many? As you keep alluding to, it’s all about drawing lines. Draw, pardner.
For anyone whose interested, here is the opinion.
The opinion includes a record of the communications between Willock and Huguenin, which are actually interesting.
Huguenin’s position also is based on her belief that:
So, not a freedom of religion issue, but freedom of speech.
For the record, the oppression Huguenin suffered for her actions was being required to pay the Willock’s attorneys’ fees. It was something over $6K.
Not nothing, but not f***ing slavery, either.
So yeah, Willock could have just moved on, but she felt she was being discriminated against because she was gay, and she was right.
And if we’re talking the “can’t we all just get along” thing, Huguenin could have simply said sorry, we’re not available.
If you poke people in the eye, it pisses them off.
I’d also like to answer Brett’s claim that WIllock hired another photographer and Willock “paid for it” by pointing out that Willock sought, and received, attorney’s fees and attorney’s fees only, and when offered the opportunity to pursue monetary damages, declined to do so.
So Brett, you are, once again, freaking wrong. Wrong, wrong, and wrong.
My issue with thompson is that he draws no such distinction, in his world I could walk into a restaurant and be told sorry, we don’t serve tall overweight balding white guys, for no reason other than tall overweight balding white guys bug the owner.
Yeah, ok, I see the distinction you’re making, which is one I missed earlier. Looking back at my 7:14, I picked up hammers in the list when I should have focused on the vendors. I misspoke there, and was using hammers as the proxy for the law in general.
Like I said the last time around (I think it was in a thread about the proposed Kansas law), I don’t have a problem with the anti-discrimination laws as they apply to public accommodations like restaurants, stores, or hotels.
Public accommodations, depending on the state, can be expansive to a point they include various professional services, at which point I do disagree with them, as in this case.
While I do view that as an infringement of freedom of association (which I admit is an expansive view), I also accept that the state has a compelling interest to do so.
For me, the bridge to far is contract based services. Again, I think there’s an infringement of freedom of association, but I fail to see the compelling need to induce those contracts.
You are, of course, still free to view that as eccentric. But I spoke a little hastily earlier and convolved things that shouldn’t have been convolved.
Yes, it definitely was the:
http://obsidianwings.blogs.com/obsidian_wings/2014/02/mama-dont-let-your-babies-grow-up-to-kansas-state-legislators.html
I expressed myself a lot better there.
Could a bakery counter person at say, a Kroger’s, refuse to supply a cake to a gay wedding or any other gay function without fear of being sued?
And could they as well demand that the gay individual put the rest of the items they’ve collected in their grocery cart back on the shelves, because what is good for the cake is good for the pork shops and the canned corn.
May the lesbian owner of an upscale dining establishment which serves a sumptuous selection of cakes baked from scratch, custom-made you could say, wheel the dessert tray up to a table at which are seated a married gay couple and their friends, a married straight Christian couple, and refuse to serve cake to the married straight couple without fear of legal action.
Or reverse the order of things — a straight Christian (or not) restaurant owner commandeering the dessert tray and refusing to serve cake to the gay married couple?
Assume everyone is wearing concealed weapons. How does that change the dynamic?
How might this arrangement ameliorate the wedding cake at the gay wedding problem? What if the gay couple hired one cake maker without objections to the arrangement to create a cake to be served only to the gay wedding party and gay guests and another cake maker with religious-based objections but who might agree to create a cake to be served only to the straight family members and guests.
What if Wayne LaPierre, carrying a concealed weapon, ordered a cake for his wedding from say, Rick Santorum, in his new career as custom cake maker and say, Santorum is suspicious, because of La Pierre’s name alone (it’s French-sounding first off, and La Pierre flourishes a slightly effeminate hand gesture every time he pronounces the “La”), that the latter might be marrying a standard poodle, because Santorum knew it would come to this.
Should Santorum feel threatened and keep his prejudices to himself and reluctantly supply the cake, against his Constitutional right to freedom of association, and because he knows La Pierre is carrying deadly force and is prone to violent rhetoric, or should he stand his ground and refuse La Pierre service and meanwhile duck into the back of the shop and summon the local S.W.A.T team as backup, but only after being assured by the police dispatcher that none of the S.W.A.T team members are gay themselves, or belong to a government labor union with a defined-benefit pension?
Would Santorum’s objections be overcome if La Pierre requested that the cake be baked in the shape of a Gatling Gun mounted on the top of a Ford Fiasco?
Bisexual agnostics at the gay wedding with the gay cake and the hetero cake would have to RSVP their choice of cake beforehand and not change their minds during the festivities.
You can’t have your cake and eat it too.
As always xkcd has the last word on atheism: https://xkcd.com/774/
dr ngo,
Hilarious! And the cursor pop-up is even better.
–TP
Suppose the photographer just said ‘sorry, I don’t photograph black people’ to a black family looking for someone to take pictures at the kid’s 8th birthday party. OK, those of you having trouble applying our general (and quite hard won) societal consensus on public accommodations are free to raise freedom of association, or freedom of expression, or, as Dreher does, freedom of religion.
You can have any opinion you want. Just don’t be surprised when everyone else thinks your position functionally no different from the KKK. Indeed, this would seem especially apt for arguments that would equally exonerate straight up racial bigotry (which, at least, Dreher’s wouldn’t).
Just don’t be surprised when everyone else thinks your position functionally no different from the KKK.
The KKK wished to strip people of liberty, and life, by extra-judicial means. All blatantly illegal and unconstitutional. That is an entirely different thing from the assertion of first amendment rights.
Rights do not apply only to behaviors that a majority deems good.
For example, the NSPA was a completely despicable organization. Its one that I’m glad was swept into the dustbin of history. It’s one that caused mental anguish to people targeted by its hate speech.
But it’s right to march in Skokie, a community of Holocaust survivors, was defended, in my mind rightly so, by the ACLU. Regardless of how despicable the speech, how much I loathe those that practice it, it is worth defending.
I think boobyp for one post dropped the distinction between ‘being a bigot’ and ‘having your bigotry enshrined in law’. The former is protected by the US Constitution the latter is (for the most part) banned.
From my POV this was the original trigger for the nasty clash between bobbyp and thompson.
The question remains unresolved to what degree the state can compel private actors to not act on their bogotry to the detriment of others.
—
Another point: depending on the situation open bigotry can be an essential part of a successful business model or can ruin it. If a majority would not do business with you unless you discriminate against certain people that lack the same means, it would be economically unwise not to join in. On the other hand, if you pander to the bigots where they are a tiny minority and this leads to a boycott by the majority, this too would be unwise.
To use a less US-tainted example: If the RCC excommunicates someone this includes a ban for all Catholics to do business with them or those that do. A shopkeeper in a rural Catholic village that would not refuse to sell food to an excommunicated person would instantly lose the business of everyone else out of fear to get the same church treatment. At least up to Vaticanum II this was a widely used practice even in ‘civilized’ countries. ‘Denial of bread and water’, legality be damned.
The question is, what constitutes “having your bigotry enshrined in law”?
Rosa Parks was ordered to the back of the bus. Doing this was legally mandated. I would call that bigotry enshrined in law.
Elaine Photography didn’t want to photograph a gay event. Call that bigotry if you want, I won’t argue, but they’re not asking for anything to be “enshrined in law”, they’re not asking that other photographers be barred from photographing the event. They’re asking the law to leave them be. Asking for the normal, default assumption of a free market to prevail: Transactions only happen if both sides to the transaction want them to happen.
When it first came about, “public accommodation” laws addressed a real problem: If the only ferry won’t take you across a river, you can’t cross. If the only hotel won’t take you in, you sleep under a bridge. If the only restaurant or grocer won’t sell you food, you go hungry. The prospect of a family traveling, the car breaks down, and they end up huddled under a bridge in the storm, their bellies empty, tugs at the heart-strings.
The prospect that somebody can’t have their event photographed by a person who doesn’t think it should be happening, and has to go with a photographer who’s willing? Doesn’t tug at MY heart-strings, that’s for sure. It’s not freezing under a bridge with an empty belly material.
And I notice that the prospect of somebody being forced to work for a person doing something they hate doesn’t tug much at your heartstrings.
For me, the bridge to far is contract based services.
Thanks for the clarification, I appreciate it!
I’m basically on the same page, however CharlieCarp’s question, quoted just below, makes me think twice.
Suppose the photographer just said ‘sorry, I don’t photograph black people’ to a black family looking for someone to take pictures at the kid’s 8th birthday party.
If we don’t consider photographic services as a public accommodation, this would seem to be legal. Which seems, at a minimum, pretty crappy.
When it first came about, “public accommodation” laws addressed a real problem
When public accommodation laws first came about, it was quite common for their to be more than one hotel, restaurant, etc., in a given town.
Tugging at heart strings isn’t the point. Basic freaking fairness is the point.
What’s the difference between somebody having to take pictures, for hire, that don’t express their most deeply held beliefs and convictions, and somebody having to serve a black person whom they revile a sandwich?
In both cases somebody’s forced by law to do work that they would prefer not to do. In your mind, the first is slavery, and the second is legitimate.
Can you explain the distinction?
What’s the difference between somebody having to take pictures, for hire, that don’t express their most deeply held beliefs and convictions, and somebody having to serve a black person whom they revile a sandwich?
Of course, how the issue is framed can drive the answer. However, there are differences. Being compelled to participate–in person, and under the direction of the participants–in a ceremony that runs afoul of personal religious conviction is a long way from selling sandwiches.
The line I would draw is that sellers of public services that are faith neutral–as the vast majority are–cannot discriminate or claim a faith based reason for refusing service on the grounds that the act of, e.g. selling a sandwich, is too attenuated to give rise to a plausible claim of one’s faith being compromised.
On the other side of the line, florist, photographers, bakers, caterers called upon to provide services to and therefore participate in a gay, Mormon, what-have-you wedding, can bow out.
This is a peripheral issue and the kind that makes bad law for someone. Compromise is in order. It is inconsistent to pitch gay marriage as a privacy, personal matter and then compel others to render service. Privacy and personal matters of faith run in both directions.
If I were hiring a photographer, I wouldn’t want to hire a person who hated me based on my race or sexual orientation (or my personality, for that matter). My guess is that there are more than enough photographers to serve the gay wedding market since there are many talented gay photographers. Ditto with African-American, Chinese, white, etc.
Small-time bigots will just lose business. It becomes an issue when people aren’t able to obtain services.
I, for one, wouldn’t patronize a known bigot. Bigots would lose my business even if I didn’t fall into a hated category. It becomes a social problem only when bigots control the market.
“The line I would draw is that sellers of public services that are faith neutral”
I defy you to explain how a fast food cashier’s refusal to serve married gay patrons (because his faith holds that gay marriage is an abomination) is faith neutral but a wedding photographer’s refusal to photograph gay patrons (because his faith holds that gay marriage is an abomination) is not.
Sure, the photographer is more involved with the wedding than the fast food cashier, but religious faith is motivating both of them. And your proposed distinction doesn’t depend on the objector’s depth of involvement, but rather whether their faith is involved.
If I were a wedding photographer, I might want to refuse to provide services at a white supremacist’s wedding. At a certain point, it’s okay when people refuse to do business with people they don’t like.
The problem comes when people aren’t able to use public services, or services provided to the public at large by private entities. Honestly, how much of a problem is the scarcity of wedding photographers for gay weddings, or the scarcity of wedding photographers for Nazi weddings? My guess is that pictures will be taken.
It is inconsistent to pitch gay marriage as a privacy, personal matter and then compel others to render service.
Really? We did this with historic civil rights legislation. Are you not aware of it? Are you not aware of the historical record of discrimination against gays? How is this different?
Again, you, Marty, Brett, thompson, wj all run and hide when this is brought up. You are making a tenuous case for the legal sanctioning of blatant discrimination and bigotry.
A florist selling flowers to a wedding (or a funeral) is “participating” in it? Who are you trying to kid?
You want to draw lines? Make it simple. If you want to speak, assemble, and petition the government to make blacks and gays second class citizens, knock you heart out. If you insist that the private power to deny rights to others based on an asserted moral position is both right and legal, you’ve crossed the line.
Clothing it in language about ‘free speech’ or ‘freedom of association’ is simply asking me, as a citizen, to participate in the denial of simple human dignity to folks who have suffered greatly due to discrimination. You’re asking me to sanction the bigotry of others. It is an abomination.
PS: Apologies for all for the previous blowup.
I keep three sets of books.
One for the reasonable reality, one for the blooming offal of the unreasonable among us (according to my subjective view of reasonable, objective reality), and one for the ridiculous (everyone, including me, makes that book by default).
For the record, and unless I’ve missed something, McTx and wj have explicitly stated here that they are foursquare in favor of the institution of gay marriage, and Marty and Brett have implicitly raised no objections to the institution of gay marriage, so on this issue all four make the first book of reasonable realities despite some reluctance on the surrounding attendant issues.
This is progress.
For example, if during the height of the civil rights era, I had fallen in love with and married a black woman, one of my grandfathers (and other relatives) would have expressed his very gut-level racist displeasure by refusing to recognize my decision and shunning me thereafter, but the other, I have reason to believe, while harboring the usual racist sentiments of the culture, would have made his accommodations with reasonable reality and attended the ceremony, I would hope, and made room in the family for my new wife and me.
Now, if my new wife had blurted out her
admiration for Franklin D. Roosevelt during a family dinner, the wife — my grandmother — of my reasonable grandfather would have thrown down her cloth napkin and stormed from the room, ending all previous accommodation, so there is that.
Of course, these relatives, by default, are listed in a fourth book, the family accounting, which is by its nature a different beast.
I keep another book devoted only to Erick Erickson of Redstate and any attempt of his to marry anyone should be boycotted and disrupted by vigilantes. In fact, his current marriage should be annulled by the State and the gifts confiscated and returned to the merchants who dared sell them for the occasion on account of the congenital nature of his sins.
I never open my books for inspection, because there are too many funky cross-entries that I wouldn’t be able to explain or justify to the auditors, but there is a glimpse for the record.
I defy you to explain how a fast food cashier’s refusal to serve married gay patrons (because his faith holds that gay marriage is an abomination) is faith neutral but a wedding photographer’s refusal to photograph gay patrons (because his faith holds that gay marriage is an abomination) is not.
Ok–eating at a restaurant is not an event with any religious overtones whatsoever; a marriage is.
We did this with historic civil rights legislation. Are you not aware of it? Are you not aware of the historical record of discrimination against gays? How is this different?
I am vaguely aware of something passed back in the day–the 60’s maybe?–and as I seem to recall it dealt with race.
There was and is no colorable religious component to objecting to serving minorities in commercial establishments. Marriage is different–a part of the SSM pitch is that it is a civil ceremony and will not impact people with contrary religious convictions. Apparently, like the fibs told to sell ACA, that pitch is untrue as well.
The exception I propose is very narrow. One of the least attractive attributes of some on the left is that they have zero problem with compelling individuals to act against their conscience, particularly when their conscience is Christian-based.
Yet, I would imagine that if, for example, the American Prospect refused ad space to the Tea Party, that refusal of a commercial enterprise would be cloaked with a secular, right of association/free speech privilege.
Could the NYT refuse an ad to the KKK?
I think it could.
For me, the bridge to far is contract based services.
“Hello. Is this the office of Carp, Carp, and Asshole, attorney-at-law?”
“Why, yes it is. How may I help you?”
“I’m it a bit of a legal jam, and need an attorney.”
“Are you gay?”
“Well, uh….what?”
“We do not provide our services to gay people. They are an abomination to God.”
I am being asked by some participants on this board to enshrine this as a legally authorized response to a request for publicly for-sale services.
Sorry. No. F*cking. Way.
One of the least attractive attributes of some on the left is that they have zero problem with compelling individuals to act against their conscience, particularly when their conscience is Christian-based.
No one has to be a photographer. And Christians have essentially ruled this country from the start – the poor, oppressed things.
There was and is no colorable religious component to objecting to serving minorities in commercial establishments.
I’ll bet the KKK and others who share their thinking would disagree. I’m sure I don’t have to tell you what sort of organization the KKK is.
For me, the bridge to far is contract based services.
Did I say this? You are being obtuse. I call for a narrow exception, you paint with a broad brush.
And, for the record, the atty/client relationship is consensual. I am not required to take a case or a client against my will except when assigned a case by a judge and even then, I can object. But, for the record, I have and have had plenty of gay clients.
No one has to be a photographer.
True. So list for me all of the occupations that, by assuming one, I waive/forfeit my religious freedom.
Say a couple, gay or straight, desires not only photographs of the wedding, but the intimate activities of the honeymoon–can our photographer decline? Sex inside a marriage is legal, the photographer is in commerce, why not compel the photographer to shoot photos of intimate sexual activity?
I’d like the principle of law that separates weddings from honeymoons. Thanks.
For the record, this is what I said:
Seems to me, though, that the principle that compels allowing SSM goes a bridge too far *when it is used to compel private citizens to, in some form or fashion, participate/support a specific act of SSM*, particularly if the objection participating is based on their religion.
Asterisks added.
We did this with historic civil rights legislation. Are you not aware of it? Are you not aware of the historical record of discrimination against gays? How is this different?
Again, you, Marty, Brett, thompson, wj all run and hide when this is brought up.
bobby, I can’t speak for the others, but I don’t think I am running and hiding. In the civil rights era, I believe that it was entirely correct to insist that blacks should be allowed to sit anywhere in a bus, or to attend public schools. And laws that restricted those uses of public services were unconstitutional.
On the other hand, if someone running a private business providing services wants to choose not to offer services to blacks (and even to advertise this restriction), it seems to me that it is their legal right to do so. Provided there is no legal restriction, even indirectly, on someone else setting up a business which will do so.
And that necessary services are available. In the case of a law firm, I don’t see a problem with the policy of Carp, Carp, and Asshole above. IF it is possible for a black person to obtain legal representation as necessary. If the next nearest law firm is 8 hours away, then the situation is different. But the accomodation would be to either provide local legal services another way, or to waive the requirement somehow (depending on what the need was.)
As russell said, this is a crappy situation. But do we have to deal legally with every possible crappy situation? I would say no. Some things we do need a legal solution for. But a lot of others can be addressed in other ways.
For example, we can organize a boycott of a firm whose behavior we think ill of. It doesn’t take legally forcing them out of business to get the point across. (Although if enough people embrace our view, they may end up out of business. And just as we cannot use the law to force them out of business, neither do they have a legal remedy against out boycott forcing them out.)
P.S. I would also like to endorse McKinney’s observation that, as the old saw has it, “hard cases make bad law.”
I’m basically on the same page, however CharlieCarp’s question, quoted just below, makes me think twice.
I’d be lying if I didn’t make me think twice as well. It’s something I’ve thought about, and had pointed out to me, multiple times. Every time it makes me question my stance. Some times it changes it.
In CharlieCarp’s example, it would be a loathsome act by the photographer. And I would want to live in a world where people are fair and respectful towards each other. And I’m tempted to say we could deal with it through law.
But when we are using the law (through majority rule) to define fuzzy concepts like morality and fairness, it gets really murky really fast, and can be used by majorities to unfairly restrict the rights of minorities.
What’s fair and moral, as defined by the majority, is a dangerous concept in law. It’s a concept that was, and still is, used to restrict SSM. Wrongly and unconstitutionally in my mind, but the democratic process repeatably failed to uphold the rights of all based on popular morality.
In addition, protected classes include some pretty odious groups. Westboro baptists, white supremacist churches, etc, and I’m completely fine with people refusing to do business with them on moral grounds.
Under several anti-discrimination statues, that’s illegal.
Enforcing morality and fairness with law is a dangerous, inexact tool, and don’t want it used unless its necessary.
And, in the case of SSM weddings…I don’t see it as necessary. And, as I mentioned last time around, maybe my view is colored by my class or my locale (SSM is broadly accepted where I am), but I see the polls: Even in the bible belt support for SSM gotten to 50%. Those photographers will either catch up with the times or they will be left behind.
Either way I don’t see it as something that requires the application of law at this juncture. Especially one that induces behavior in people in contradiction of their conscience (even if I strongly disagree with their conscience).
There is a big difference in my mind between the government providing equal protection under law, and enforcing fairness and morality.
Now, I’d understand if you fall on the other side of that. I’ve said, and I’ll say again, I arguing against a law that restricts pretty despicable behavior.
But I would also argue against 4th/5th/6th amendment violations for criminals. Because I think the rights that allow unfair, criminal, immoral, and disgusting behaviors are important to protect.
wj:
But do we have to deal legally with every possible crappy situation? I would say no. Some things we do need a legal solution for. But a lot of others can be addressed in other ways.
Agree. Also with some similar thoughts upthread by sapient, I think. If it was someone else, or I imagined it, I’m sorry.
Hartmut:
I keep missing your comments, sorry about that. Not intentional, I assure. I can’t give you the full answer you deserve (I have to run off to work), on the “denial of bread and water”, but here’s a short one. I gave a longer, more coherent argument in the Kansas thread.
All principles break down in extreme cases. If the conversation wasn’t about vendors for a wedding, but was basically people being denied food, housing, sundries you need for life, it becomes a different thing. If the refusal of service is pernicious and pervasive, the victims are practically being denied life and liberty. Jim Crow is an example of this (it is, sadly, not the only example of this). It’s a terrible thing, and the social solution either doesn’t work or takes too long to work. The situation is different, and the solution is different.
There is a point where you need the coordinated action of government to address a problem like that. I don’t think we are there now with SSM, and we are trending in the right direction.
The government is not the solution to every societal ill. But it is to some of them.
For a longer, more coherent answer, I refer you to the Kansas thread.
Again, sorry I missed your posts earlier.
At a certain point, it’s okay when people refuse to do business with people they don’t like.
With the possible exception of bobbyp, I don’t think anyone here disagrees with this.
wj,
In the civil rights era, I believe that it was entirely correct to insist that blacks should be allowed to sit anywhere in a bus, or to attend public schools. And laws that restricted those uses of public services were unconstitutional.
On the other hand, if someone running a private business providing services wants to choose not to offer services to blacks (and even to advertise this restriction), it seems to me that it is their legal right to do so. Provided there is no legal restriction, even indirectly, on someone else setting up a business which will do so.
So are you saying you oppose the public accommodations portions of the 1964 CRA?
Because if so, then I will tell you that you have a very unrealistic picture of what the Jim Crow south looked like. Among other things, while there may have been no legal restrictions agaiinst blacks setting up certain types of businesses ther were enough social and economic obstacles to prevent it, or make it vastly difficult. Also, market forces – those wonderful things libertarians claim solve all problems – actually worked to reinforce segregation, not remove it.
Those provisions were absolutely necessary and fully justified.
If market forces worked to reinforce segregation, what was the whole point of Jim Crow law then? I though the purpose of the Jim Crow laws was prevent market forces from working against segregation.
I’d like to point out that Brett’s description the the Elane Photography case is a cavalcade of lies and slander.
Willock and her partner were not seeking someone to sue, they were seeking a photographer and called Elane Photography. Willock sought no monetary damage award, so the claim that she sued in order to make a profit (or to pay for her commitment ceremony) is a flat-out lie.
Additionally, while Brett and a few others cast this as Elaine Huguenin being forced to take photographs, that is not accurate. Elane Photography LLC was enjoined from refusing to photograph same-sex commitment ceremonies, but no one was required to take photos. Elane Photography has subcontracted the taking of photos previously, and is free to do so in the future.
If market forces worked to reinforce segregation, what was the whole point of Jim Crow law then? I though the purpose of the Jim Crow laws was prevent market forces from working against segregation.
I don’t wear a seatbelt because it’s the only thing that will keep me inside my car when I’m driving it. I wear the seatbelt to make sure I stay in the car even when the means I normally use fail.
I though the purpose of the Jim Crow laws was prevent market forces from working against segregation.
Jim Crow was not about market forces, full stop.
Additionally, while Brett and a few others cast this as Elaine Huguenin being forced to take photographs, that is not accurate.
Correct, and thank you.
thompson, the main problem I see is that there will never be a universal consent where to draw the line (even among the reasonable kind of people). Personally, the distinction between general and contractual (and thus individual) business services is a good starting point (with legal compulsion applied on the former but not the latter). Beyond that it becomes quickly extremly complicated with no easy solutions. A tentative solution covering the worst abuses would be to carve out exemptions from ‘freedom of contracting’ for de facto monopolies (i.e. the service in question could not be obtained without unreasonable burden when the de facto monopolist refuses).
Of course that could become troublesome in case of duopolies (two service providers; which one would be the one that could be coerced to serve?).
while there may have been no legal restrictions agaiinst blacks setting up certain types of businesses ther were enough social and economic obstacles to prevent it, or make it vastly difficult.
Which is why I included the part about “even indirectly.” If there is no bar to you setting up a store, but you cannot get a lease or buy a location, that’s a bar, too. If you need a lawyer in order to do something, but the only way to become a lawyer entails lots of expensive education and testing, and then networking with existing lawyers, you may be effectively barred from finding a lawyer who will serve you — even though no law prevents one from doing so.
In the Jim Crow South, there was a synergy between the laws which kept blacks down and the economic restrictions (and other restrictions beyond the laws) which kept them down as well. Breaking that synergy required changing the laws. After which, the other restrictions started breaking as well. Some survive to this day, but they are dying with the passing of those who were most invested in them.
[…]
Many people might intuitively assume that Southern racism had led to entrenched public segregation long before Southern legislatures made it mandatory. Not so. Separate facilities for blacks and whites were not routine in the South until the early 20th century. Racism there surely was, but as C. Vann Woodward observed in “The Strange Career of Jim Crow,” the idea of separating the races in places of public accommodation initially struck many white Southerners as daft…
[…]
Eventually, of course, the government got its way, as companies surrendered to pressure from lawmakers. In a victory of government regulation over the free market, Jim Crow took hold across the South, where it would cruelly hold sway for the next 60 years.
[…]
The enemies of Jim Crow
And of course the courts would have to have some wiggle room to deal with actual frivolous lawsuites, i.e. the cases where the (a priori expected) refusal of service is just a pretense for legal harassing (of the refuser).
Hartmut:
Beyond that it becomes quickly extremly complicated with no easy solutions.
I’d agree with this, if I indicated otherwise to you, I didn’t mean to. It’s complicated and delicate and I’m certainly not trying to slam people that come to a different conclusion than I do.
As I mentioned upthread, things like this are concepts I struggle with and go back and forth on. Because they are complicated.
In the Jim Crow South, there was a synergy between the laws which kept blacks down and the economic restrictions (and other restrictions beyond the laws) which kept them down as well.
In the Jim Crow South, were the laws which kept blacks down passed against the will of the white citizenry?
Eventually, of course, the government got its way, as companies surrendered to pressure from lawmakers. In a victory of government regulation over the free market, Jim Crow took hold across the South …
Was “the government” that got its way the oppressive one in Washington DC, or the closer-to-the-people state government, composed of “lawmakers” elected by the white citizenry to pressure companies into surrender?
Blaming Government, in a democracy, sometimes seems like an attempt to exonerate The People. White racists dominated the ex-Confederacy from the end of Reconstruction until the Johnson years. Not white racist “lawmakers”, but white racist citizens.
–TP
“No one has to be a photographer”
Nobody has to be a butcher, a baker, a candlestick maker… Pretty much everybody who’s not born independently wealthy has to be something. If public accommodation laws had some sort of limiting principle, some way where you could say, “If I go into photography, I can be forced to work for people I hate, but at least that’s not true if I become an “X”.”, that might be a coherent thing to say.
But there IS not limiting principle here. There’s no line of work where you know you won’t be conscripted to work for somebody you don’t want to work for. A pro-life bricklayer could end up forced to lay bricks for an abortion clinic, a Holocaust survivor be forced to work for the Aryan nation, in principle anybody could be forced to work for anybody under the lash of “public accommodation”. So, it’s not a coherent point to make, even if it were relevant.
That at the moment it’s only people you don’t like being forced to work for people you do like is less than relevant. All that means is that you like winning.
All that means is that you like winning.
It’s true, at night I dream of forcing social trad photographers to take pictures of gay weddings.
Everybody has a dream. That’s mine.
Today New Mexico, tomorrow the world!!
In a victory of government regulation over the free market, Jim Crow took hold across the South
And here, I thought Jim Crow was about white supremacy.
I didn’t realize it represented the triumph of socialism.
If market forces worked to reinforce segregation, what was the whole point of Jim Crow law then?
To reflect the racist ideology of the vast majority of voters. Go and look at political campaigns in the south in that era. What you will find is that they were mostly based on arguments as to who was the greater racist, the stronger segregationist.
The purpose of the laws was to demonstrate to a racist public that the legislature and the governor shared their views.
I though the purpose of the Jim Crow laws was prevent market forces from working against segregation.
This is incorrect, on many grounds.
Market forces did not work against segregation. For example, there were hardly any Jim Crow laws dealing with employment. An employer was, from a legal point of view, usually perfectly free to hire blacks, to promote them, etc. But it didn’t happen. Why? Because white customers didn’t like dealing with black salespeople. Because white co-workers didn’t like cooperating on projects with black co-workers. Because if, heaven forfend, a white worker were asked to report to a black supervisor the employer would have had a mutiny on his hands.
The lesson here is that economic interactions are about prefernces, not money. If racist preferences are strong enough, as they were, they will be satisfied, even at the cost of money.
So, in a racist society, market forces strengthen, rather than weaken, discriminatory practices. The “free market” reinforces discrimination.
Suppose you own a restaurant in the 1950’s south. Lacking any racist bone, you are happy to serve anyone. But you know that if you serve blacks you wil lose your white customers. What do you do, from a rational economic point of view? Obviously, you don’t serve blacks, any more than you carry on your menu items that no one orders.
One more thing about the whole “free market against segregation” nonsense.
A historical point worth noting is that, when black students staged their famous sit-in at Woolworth’s lunch counter in Greensboro, there was no law prohibiting Woolworth’s from serving them.
Write that on the libertarian blackboard one hundred times.
The refusal to serve them was purely a comapny policy. In your free market anti-discrimination paradise why wouldn’t Woolworth’s want to sell those guys hamburgers?
de jure jim crow ended 50 or so years ago. in another 20 or 30 years, maybe less, the folks who have a living memory of the actual jim crow era will basically be gone.
what i expect to see is an emerging meme where jim crow laws were actually a liberal project. mostly democrats behind it, you know.
wait and see.
war is peace.
freedom is slavery.
ignorance is strength.
Russell,”If you poke people in the eye, it pisses them off.”
hmmm
With that statement we are brought right back full circle to Dr. Science’s incorrect interpretation of the golden rule.
The golden rule is NOT “Do onto others…..” with an implied addendum reading “or else” or “that’ll learn ya”.
The photographer exercised 1st amendment rights based on concepts of liberty that created this country. The gay couple exercised revenge (Dr. Science’s and Russell’s social revolutionary guillotine).
I do not know how we could construct a society in which all personal beliefs are suspended such that no one is offended (or worse, perceives oppression) by anyone, anytime.
I do not know if we would even want to construct such a society if we could. Who would be in charge deciding what the right thinking should be? Enlightened members of this blog? Would he/she/they/it have any personal beliefs beyond the belief that no one should have to endure perceived insult? What of recalcitrants? Civil suits? Re-education camps? Execution?
Surely many eggs would be broken making this omelet.
Russell,
what i expect to see is an emerging meme where jim crow laws were actually a liberal project.
What we are already seeing is the idea that somehow Jim Crow was the fault of Big Government, as if the southern states were ruled by aliens who came in and destroyed the natural good relations between black and white.
It’s truly amazing, as if the state governments – those fonts of wisdom and justice in the federalist view – had somehow been subverted into passing race laws that all decent southerners found repulsive, but were forced to obey.
It’s absolutely stunning what people will believe.
I do not know how we could construct a society in which all personal beliefs are suspended such that no one is offended (or worse, perceives oppression) by anyone, anytime.
we don’t. it’s not possible.
Surely many eggs would be broken making this omelet.
eggs are broken either way, buddy.
I appreciate the discomfort and, frankly, financial pain that the NM law imposes on Huguenin. And by “appreciate” I don’t mean “applaud” or “cheer on”. I mean, I understand that the law put Huguenin in a difficult place, and the enforcement of the law cost her and her husband almost $7,000, which ain’t nothing.
She claimed the 1st Amendment right to not have to create photographs that conflicted with her beliefs, under the right to freedom of speech. The court found that taking pictures of a same-sex commitment ceremony for hire wasn’t really an exercise of free speech.
IMVHO that’s a reasonable finding.
Here’s the thing that the “free associationist” and / or “libertarians” of the world seem to miss.
Gay people deserve to be able to buy stuff, live places, work for a living, raise their kids, and otherwise function in the world like everyone else. Regardless of what somebody’s personal religious or other beliefs tells them about gay people.
Why? Because they’re human beings, and they live here. That’s why.
Whether you want to enshrine that in a Sacred Unalienable Right, or just in plain old black letter law, or just in good freaking manners and the general concept of not being a dick, I don’t care.
In the state of New Mexico, specifically, they have decided to enshrine that in black letter law. If you open a business and make your goods and services available to the public at large, you’re not allowed to refuse to sell those goods and services to gays, specifically because they are gay.
If you don’t like that law, don’t live in New Mexico. Or, work to change the law. But as it stands, that’s the law.
Having been refused service specifically because she and her partner were gay, Willock reported that to the state, as is her right and privilege as a citizen of NM, the state found Huguenin in breach of the law, and Huguenin was required to pay Willock’s attorney’s fees.
And not a dime more. And Willock got nothing whatsoever out of it, other than making the point that in the state of NM you can’t refuse to serve gay people.
I’m fine with the idea that business transactions that require you to enter into a contract with the client should be exempt from these kinds of laws, but that’s not the state of the law in NM.
And that’s pretty much that.
What I’d also like to say is that I find analogies to slavery, and guillotines, and social revolution, offensive. And not just offensive, but monumentally stupid.
Slavery is not when you are prevented from refusing to sell goods and services to people who bug you. Slavery is when you are, personally and physically, owned by somebody else, and are that person’s property, to dispose of as they wish.
Guillotines are used to chop people’s heads off. Being assessed attorney’s fees when you are in violation of the law is not having your head chopped off.
Gay people have been subject to physical abuse and assault including murder, have been denied housing and employment, have had their children taken from them, have been jailed and involuntarily committed to mental institutions, and have generally been subject to any and every form of harrassment and abuse, de facto and de jure, basically for ever.
WIllock and her partner wanted to hire Huguenin to take pictures of their commitment ceremony. Huguenin felt it was insufficient to simply say “sorry, can’t do it, best of luck”. She felt it necessary to say “sorry, we don’t shoot gay weddings, because god”.
That put her outside the law, and she was obliged to pay a little less than $7K.
Trust me when I say that people have paid much higher prices for observing the dictates of their conscience.
If observing your religious scruples requires that you either inconvenience or otherwise create a burden for yourself, or other people, IMVHO it behooves you to place the burden on yourself. Because they are *your religious scruples*, not everybody else’s.
And this is not an expression of hostility to religious faith, because I’m not hostile to religious faith.
Enough of this “slavery” and “guillotine” bullshit.
For crying out loud in a bathtub, Willock and her partner just wanted some pictures taken. They didn’t need to hear about Huguenin’s freaking religious scruples, or about how her for-hire photographic work had to express Huguenin’s own deepest beliefs .
“Sorry, I’m not available” would have done the trick.
If you poke people in the eye, it pisses them off. Dig?
Thank you.
With that statement we are brought right back full circle to Dr. Science’s incorrect interpretation of the golden rule.
Are Willock and her partner under some legal or social obligation to observe the golden rule?
No, in fact they are not. As with all religious principles, adherence is voluntary.
As far as “exacting revenge”, they reported a violation of law. They got nothing whatsoever out of it, other than reinforcing the fact that other people couldn’t refuse them services they would gladly make available to other people, simply because they were gay.
My guess is that Willock and her partner would have preferred that the issue never came up. They didn’t raise it, Huguenin did.
Jim Crow was the fault of Big Government
jim crow was the expression, in law, of the belief, held by the majority of the people where jim crow was actually the law, that black people were inferior to white people, by virtue of having black skin.
that’s what jim crow was.
it was racism enshrined in black letter law. it was the law because the people who lived where it was the law, wanted it to be the law.
if that simple reality bugs you for any reason, that’s your problem. leave the history alone.
what i expect to see is an emerging meme where jim crow laws were actually a liberal project. mostly democrats behind it
Well, we’re off to a good start. There is already a pretty substantial section of the population which has convinced themselves that blacks ought to support the current Republican Party, because Democrats were the party in power in the South half a century ago. Utterly ignoring the fact that their spiritual descendants are now all in the Republican Party.
So the step to declaring the Jim Crow laws were a liberal plot wouldn’t be a large one. If it weren’t for the fact that the people who would have to make that step are at least beholden to voters who are not all that philosophically opposed to Jim Crow laws. So maybe it is a big step after all.
That would be somewhat ahistorical, to put it mildly. From where I stand, the so-called Jim Crow laws were perpetuations of the Black Codes, and only made possible because the Republican Party decided to sell Southern blacks down the road in exchange for one more presidency.
True and not true all at once. I don’t think there was much that we would describe as “liberal” about southern democrats of that time.
Other than the vagrancy laws? But I can see you were making a different point.
Hello from Incheon airport. Having been away for almost a week, I don’t have anything in particular to add, but thompson mentioned that he often misses responding to Hartmut. Part of what is at work there is the different time zones involved. Right now, the non-american bench is not so deep, but I do think that the fact that we have had a good number of folks like that contributes to the general atmosphere here, in that sometimes you have to wait almost a day to get a response. Slowing down the conversation helps keep things calmer. Which is a Good Thing.
[…]
Labor Laws
Outside of laws that specifically addressed the issue of race, other laws that impacted the tenant farmer were often differentially enforced, to the detriment of African Americans. Enticement laws, and emigrant agent laws were geared toward immobilizing labor by preventing other employers from trying to lure employees away with promises of better wages; in the case of enticement the laws limited competition between landowners to the beginning of each contract season, and the emigrant agent laws created limitations on employers trying to lure out of the region altogether.
[…]
Jim Crow Economy – Labor Laws
@slarti: the so-called Jim Crow laws were perpetuations of the Black Codes, and only made possible because the Republican Party decided to sell Southern blacks down the road in exchange for one more presidency.
Just out of idle curiosity, which particular Republican Presidency do you figure was the result of the Republican Party doing that? And what do you think that they did, specifically?
http://en.wikipedia.org/wiki/United_States_presidential_election,_1876
The Republicans agreed to withdraw federal troops from the south in exchange for the Democrats agreeing to cede the 1876 presidential election.
To fan the flames, some rejoinders….
wj: bobby, I can’t speak for the others, but I don’t think I am running and hiding.
Well, OK, but you then you proceeded to post the following:
“On the other hand, if someone running a private business providing services wants to choose not to offer services to blacks (and even to advertise this restriction), it seems to me that it is their legal right to do so. Provided there is no legal restriction, even indirectly, on someone else setting up a business which will do so.”
With the qualifier, you are still running and hiding. You ignore history. You are ignoring reality. I respect you as a reasonable “Republican”, however you are basically assert something to be a right that is a direct contravention of the 14th Amendment which, I take pains to remind you and others here, is the law of the land. Was the 14th Amendment adopted to “legislate morality”? You’re goddamn right it was…at the time a not insignificant number of people asserted the “moral” belief that a certain class of people could be treated as property, like the shit you try to get rid of at your garage sale. The weaseling about “setting up an equal but available business” is simply risible. Who decides if said service is available? How is it determined that alleged services are indeed equal? You are basically arguing that Brown v. Board of Ed was decided incorrectly. It is a call to enshrine and sanctify segregation…..much as I believe that you believe otherwise. Really. I believe that. But I believe it is irredeemably a great wrong.
Now you might well assert that we are now “past that” and reinstating segregation or anything like it is therefore unthinkable. This is false. We still have de facto segregation. We still have massive disparities. We still have discrimination against certain classes of people based on attributes they had no control over. You are asserting that I should assent to letting somebody have, for example, limited liability….an attribute granted by We The People, yet let them withhold business services to an oppressed class of people based upon their bigotry? I say no.
The law calls for equal protection. Congress has the authority to implement legislation to make it so. Disparate impact is the current legal standard as per the explicitly granted authority that Congress has under the Constitution.
You are asserting a right that does not exist in law.
thompson: But when we are using the law (through majority rule) to define fuzzy concepts like morality and fairness….
Not so. There is nothing “fuzzy” about ending discrimination against gays. The historical record on this is as shameful as it is relatively unknown. It is heinous. To assert a right to government sanctioned bigotry in this regard is illegal…cf united states v windsor. The LGBT community is a protected class.
And you know what really irks me? Despite the extent to which the liberal community has gone to tie itself up in knots to protect the freedoms of reprehensible f*cks like the Skokie nazis and Westboro Baptists we still get smeared with “trying to legislate morality” by the likes of you. Why it’s as if anti-abortion, anti-drug, anti-sodomy, anti-miscegenation, anti-birth control, anti-teaching of evolution in public schools…had, miraculously…never happened!
Now you will, and you have, declaimed that you find such laws reprehensible. All well and good. But it took decades of effort and a lot of blood sweat and tears to get those abominations off the books (Note: Some of them are still there). After all, they were considered right, proper, and most importantly..legal.
And where were libertarians during this struggle? MIA, that’s where. That’s no dig on you personally, that’s a dig on the political movement to which you have oft expressed you are aligned with.
russell: With the possible exception of bobbyp, I don’t think anyone here disagrees with this.
I have no problem with McKinney refusing to represent nazis. They are not a protected class. If you had some other impression, please accept this clarification.
I view the arguments supporting the bigot photographer as part and parcel of a frontal assault on the 14th Amendment. Hence the heat.
Pretty damned simple.
charles S: I’d like to point out that Brett’s description the the Elane Photography case is a cavalcade of lies and slander.
Thank you.
Racism there surely was, but as C. Vann Woodward observed ….
This is an egregious misrepresentation of Van Woodward’s work, bordering on slander. But what else should one expect from a dickwad like Jeff Jacoby? I suppose next he will argue that lynchings, too, were mandated by “teh government”? For some inexplicable reason the laws on the books in, say, Mississippi ca 1925 are silent on this matter. How could that possibly be?
brett bellmore: “No one has to be a photographer”
That’s true. Like Tony P. I’m agreeing with you. As you and other free marketeers assert incessantly in another context, “If you think you are being treated unfairly by your employer, why, just get up and get some other job.” Why is this so easy for a janitor, but not a bigoted asshole photographer?
Can she write letters to the editor expressing homophobic views? Yes.
Can she assemble in public with other like minded bigoted assholes and petition the government? Yes.
Can she stand on the street corner and shout her bigoted assholery to the world? Yes.
Can she donate funds to political causes with other like minded assholes? Yes.
Can she vote for assholes? Yes.
If she gets enough other assholes to agree with her, can she command political power to change the law and sanction assholery? Yes.
Let’s be clear, if this asshole was denied a service due to her sex she most likely would scream bloody murder. And rightly so. And I’d support her.
Informed observer: The photographer exercised 1st amendment rights based on concepts of liberty that created this country
you mean like the concept that enshrined chattel slavery?
You mean like the concept that denied women the vote?
You mean like the concept that routinely limited the right to vote to property holders?
Those concepts? You’re kidding, right?
Liberty for me. Thee…well, not so much.
Russell: Gay people have been subject to physical abuse and assault including murder, have been denied housing and employment, have had their children taken from them, have been jailed and involuntarily committed to mental institutions, and have generally been subject to any and every form of harrassment and abuse, de facto and de jure, basically for ever.
Absolutely. However, for some here the right to exercise private power to deny equality to persons due to an attribute those persons have no control over and that they themselves routinely assume they are due in both their public and private lives and be an asshole overrides those inconsequential considerations.
I thank you for your time.
“Utterly ignoring the fact that their spiritual descendants are now all in the Republican Party.”
This would be an easier case to make, were it not for the fact that the Republican party is currently opposing government mandated racial discrimination, and the Democratic party is still defending it. Switching your client race doesn’t make you not a racist. It makes you an opportunistic racist.
The Democratic party is still, to this day, the party of racial spoils. You just decided that the civil rights revolution made it easier to buy black votes with racial spoils, rather than white votes.
That people of all races were entitled, legally entitled, to be treated without regard to the color of their skin? Democrats rejected that proposition then, and reject it now.
No, I’d say the parties haven’t changed all that much, and they certainly haven’t switched places.
No, I’d say the parties haven’t changed all that much, and they certainly haven’t switched places.
Brett, are you willfully blind? Or just drinking the kool-aid?
I wouldn’t disagree that there is a significant segment of the Democratic Party which looks to buy black votes with government money. Just as there are large segments of both parties which try to do the same with farmers, oil companies, home-owners, or any other identifiable group that you care to name.
But where are all the politicians who try to gain votes by demonizing races (blacks) or ethnic groups (e.g Latinos)? Pretty much all members of my party. (And no significant politician is demonizing whites. Individual nut cases, yes. But no state-wide politician that I have seen.)
the Republican party is currently opposing government mandated racial discrimination
… a “discrimination” that can only be seen as discrimination when viewed through the cynical self-serving lens of a “conservative”.
on the other hand, the GOP is apparently deeply in love with discrimination based on sexuality.
A “discrimination” that which is seen as discrimination by anybody who cares what the word means. ANY policy which takes to similarly situated people, and treats them differently, discriminates between them, on the basis of race, is racially discriminatory.
That’s what the blasted word MEANS.
Q:
A:
See also: The Compromise of 1877. I don’t know that Republicans have never taken responsibility for that bit of evil; if not, they’d be well served to do so. It was a deeply, deeply fncked thing to do.
Possibly you could make a case for this. But you couldn’t possibly make a case for the implicit claim that the Democrats are still all about oppressing black people. That is, in effect, what you are arguing: that Democrats are just as connivingly evil now as they were then.
It’s bullshit, to put it kindly. If this isn’t in fact your argument, you should probably state that unambiguously.
Assertion:
Reality:
It’s best not to use meaning 2 where 1 applies, and vice versa.
Overall, I tend to think that the answer to past injustices isn’t turnabout. But I am just fine with efforts that actually serve to bootstrap a formerly (and, to a much smaller extent, still) oppressed population to the point of equity, if not equality.
This country has basically attempted to oppress minorities at every opportunity, with particular attention and verve applied to people of African descent. Think about it: the thirteenth through fifteenth amendments were necessary why? Erring a bit on the side of overenthusiasm, if that were happening, might actually be a necessity.
Just read the history of our country, with particular attention to how we as a country decided to fuck over (or even refuse to grant equal standing under the law to) various populations who were not men of European descent. Take off your party-politics-colored-glasses and just consider how this country has at nearly every opportunity drifted in the direction of fucking people over, as opposed to vice versa.
Forget about whether the other guys did it. It’s done. It can’t be undone. Acknowledge it. Repudiate the thinking behind it, assuming there was thinking to be had.
My own thinking on same-sex marriage, and whether one can for instance refuse to be a party to it, is less than clear. So I am not sharing.
Being a wedding photographer isn’t just about having people come to your studio to snap a portrait. You’re to some extent part of the event. If you have a problem with same-sex marriages, do you also have a problem with heterosexual marriages that aren’t sanctioned by some Christian denomination or other? If not, why not?
I suspect that most people in this line of business simply haven’t given it that much thought. But I would guess that if Satanic weddings existed, the photographer in question would refuse to participate in that as well. And no: I am not equating same-sex relationships with Satanism.
Again: I have no personal point of view that I care to defend at this point. Just spitballing.
ANY policy which takes to similarly situated people, and treats them differently
and there’s the key.
Slartibartfast @ 9:00 AM. My hat’s off to you, sir. Well put. Well put indeed.
Russell and Slarti,
Jim Crow was the fault of Big Government
I’m afraid you may have misinterpreted my comment.
I was mocking that idea, which seems to be firmly held by some libertarians, not endorsing it.
I think it’s incredibly stupid, for reasons I cite in my earlier comment, which more or less agrees with both of yours.
Actually, it’s more than stupid. It’s an example of how ideology can distort one’s view of reality, so facts cease to matter in the face of arbitrary beliefs.
Consider it a team effort, as was intended.
I know: since when?
Thanks! But (putting my Randian had on) I didn’t do it for anyone but me.
Just kidding about the Randian hat. I don’t think I own one. But the thanks was genuine.
Slart:
Thank you.
Brett’s 6:19 am above should be issued as part of a series called “The CliffsNotes Survey of Historical Horsesh*t”.
Attempting to parse the lineage of today’s Democratic and Republican Parties, especially with regard to the Civil War (and the years leading up to it; read the history) and all subsequent Civil Rights history is to stumble into a thicket with infinite unmarked pathways crisscrossing each other and each ending up on the other side not where one might assume.
To apply Brett’s version to a single event, say, Lincoln’s assassination, is to imagine John Wilkes Boothe, a Democrat and the Founder of the modern Republican Party in my own fractured fairy tale series on American history, slipping into the President’s box at the Ford Theater and Lincoln sensing him there and turning in his seat and saying: “You’ve come, as I knew you would, Mr Booth, and I see that you not glad to see me. What do you say to this bargain? I’ll abolish slavery and will oppose what my crystal ball terms “Jim Crow”, BUT, if you let me live out my second term, I’ll propose a series of affirmative action legislative actions for the black race to soothe you and your fellow Southern Democrats’ wounded pride. What say you?
Booth: (dropping his weapon) You had me at “what do you say”, Mr. President, you progressive man.
Question: Was Andrew Jackson a Democrat or Republican, in modern day terms?
How about Thomas Jefferson?
John C. Calhoun?
Was Strom Thurmond a Lincoln devotee?
Cripes!
“But (putting my Randian had on) I didn’t do it for anyone but me.”
I always assumed your Randian hat was an origami construct made from your old copy of “Atlas Shrugged”.
I’m afraid you may have misinterpreted my comment.
No, I got it. I was just piling on.
Thanks slarti, perfectly well said.
If public accommodation laws had some sort of limiting principle, some way where you could say, “If I go into photography, I can be forced to work for people I hate, but at least that’s not true if I become an “X”.”, that might be a coherent thing to say.
Let’s assume for the moment that someone started a business specializing in “Christian photography,” and that this person invested in items of particularly Christian interest to be used in photographs for Christian clients. Now, let’s say someone wanted to hire this person to photograph a Bar Mitzvah.
In such a case, and let’s put aside the necessity for hatred being involved, the photographer could refuse based simply on the fact that photographing a Bar Mitzvah would not leverage the photographer’s investment in items of Christian interest, such that the photographer’s specialty, being inapplicable, would involve an opportunity cost the photographer would prefer to avoid. No harm, no foul.
Now, if we imagine the lovely world you do, Brett, and the photographer refuses because of a hatred for Jews, then we have a case on our hands.
And if there’s going to be an orgy after the Bar Mitzvah, no one has to photograph that, either. I don’t think naked people are a protected class. “I don’t produce pronography” isn’t at statement of bigotry. If you’re dumb enough to make it about the type of people intending to do the nasty with each other, that’s on you.
I’m also pretty sure a Jew, or anyone else the Aryan Nation has on their list, holocaust survivor or not, can refuse to work for the Aryan Nation simply out of fear for his or her safety.
And brick layers can refuse to work on any type of building they like, so long as it isn’t based on someones’s creed, color, national origin, race, ethnicity, religion, sexual orientation, gender, health status, genetic make-up, etc.
someones’s – italicized, no less
Here’s another thought:
Let’s say you have an irrational but very real fear of bald people and you refuse to do business (yours being a face-to-face type of endeavor) with them because it is particularly upsetting to you. I think you’d be fine. Why? Because there has not been a history of societal marginalization of bald people, and there is no reasonable reason to think that such a one-off refusal would cause harm to the bald population, and certainly not harm equal to the psychological harm our hypothetical baldness-fearing business person would suffer in doing business with bald people.
You could posit that someone could have a similar irrational but very real fear of Black people, in which case, given the history of our country, that person might have to be more discreet about the reasons refusing to do business with Black people. Or they could move to Wyoming.
A bald libertarian, a gay rabbi, and a duck want to get married, all to each. They walk into a wedding photography studio ………..
The right to refuse to sell your goods and services to anyone you damn please for any damn reason that suits you isn’t baked into the cake of the moral universe. It is, and has been, “violated” every day for centuries, and rightly so.
People go into business to make money. By and large, most of the time, they do not let money walk out the door for purely arbitrary reasons. As a practical matter, most of the time, if A can’t get what he wants from B, he can get it conveniently enough from C, and there is simply no practical reason to get the public force involved. Keeping the public force out of the matter is, generally, a good idea because there are all sorts of reasons society is prepared to accept as legitimate for turning down particular customers, like solvency, behavior, hygiene, or the desire to give a break to a friend or potential benefactor, too many to specify in advance.
Sometimes, however, letting people withhold their goods or services for arbitrary reasons is damned inconvenient. Therefore, we decided centuries ago that certain businesses were “public accommodations,” which had to serve whoever showed up in the absence of what society would consider a valid business reason. The innkeeper who had a room had to rent it to you, or the coach driver with a seat had to sell it to you, unless you had no money, were drunk and disorderly, or stank to high heaven. As society became more complex and interdependent, more types of businesses have the character of public accommodations. And some kinds of personal services are such that the range of socially acceptable reasons to refuse business are extremely wide: try working with an interior decorator who has an aesthetic outlook incompatible with the client’s.
Then, sometimes, something weird happens: large numbers of merchants refuse to have anything to do with a defined class of persons. Allowing them to do that seriously inconvenienced blameless persons like Jews and Negroes, and we put a stop to that s**t, and rightly so — though a few folks here might disagree. Now, we don’t do it for everyone, because most businesses are in business to make money and don’t arbitrarily refuse prospective customers’ money. Maybe a quirky milliner won’t sell fedoras to Republicans, but the problem just isn’t big enough to gin up the public force; but if hatless Republicans became a big enough problem, then we would put a stop to it, and, again, rightly so.
Reasonable people can squabble over whether a baker can refuse to sell a custom wedding cake, or the cannolis in the display case, or both, or neither, for use at a same-sex wedding. There are always marginal cases. But anyone who has gone into some business serving the public in, say, the last several centuries, has had limits on his or her ability to refuse custom arbitrarily. Those limits have changed over time, and will change again. The general “right to refuse service,” while perhaps a useful enough rule of thumb in most cases, is not a feature of the universe; it’s an approximation of a practical reality that works only on the background assumption that most people do business on a business basis.
bobbyp:
To assert a right to government sanctioned bigotry in this regard is illegal
That’s very much not what I am doing.
The government has, and still does, sanction bigotry. You listed some examples of that. Topical to the conversation, SSM is still barred in some states. I am 100% in agreement that the government absolutely should not do that.
In a nod to Tony P., the government does so because they are/were asked to do so by a majority of the people, and no, I’m not interested in letting the people off the hook. They asked for laws that infringe on others rights in pretty terrible ways.
However, the actions of the majority, through the government, are distinct from the actions of individuals.
Frex, the government should not engage in or support hate speech, but I also don’t think it has a place in restricting individuals from expressing it.
Similarly, I don’t think the government (or a majority acting through the government) have a right telling a photographer what she must photograph.
Even if I think her reasons are heinous.
I’d also draw a distinction between allowing and protecting. The photographer, and Dreher et al from the original thread, deserve no legal protection from social retribution for their stance. If people refuse to do business with them, boycott, say mean things about them on the internet: too bad. In my mind that’s the appropriate tool to affect the social change.
You say the morality isn’t fuzzy for enforcing photography of a SSM ceremony. But it is for me. Perhaps you could help clarify it for me.
What about other protected classes, like religion? There are religions that in my mind are pretty odious. Can someone refuse to photograph a wedding of a religion that doesn’t recognize SSM? Or a religion that doesn’t treat men and women equally? Or a religion that pickets funerals? Or a racist religion?
Can a photographer have a moral objection to photographing weddings if they don’t agree with religion of the individual?
Under current statute, the answer is no. Religion is protected, and you can’t refuse service based on a protected class. I think they should have that capacity, even if I think it will be misused.
Touching on what Slart said, which I broadly agree with and was nicely phrased, it can make sense to give historically disadvantaged classes a leg up. I have no objections to this.
As I’ve said multiple times, I also have no objections to the government actively barring discrimination in some cases. The Jim Crow era has been discussed, it was a framework of state laws and private action that really had no solution, in my mind, other than federal action.
And touching on what HSH said:
fear of bald people and you refuse to do business
…
I think you’d be fine.
That is, in fact, illegal in the state of CA, and likely other states as well. You’re basically not allowed to refuse service except in very limiting cases (ejecting unruly patrons, etc).
It’s not a statute I agree with for reasons noted above (I think people, even businesses, should be able to exercise conscience and not work with some people/groups, even if it will be misused. And the majoritarian track record of what is and is not allowed is not inspiring in confidence).
So, depending on jurisdiction, discrimination for any reason may be illegal, while in others it is limited to specific protected classes, as is my understanding.
That is, in fact, illegal in the state of CA, and likely other states as well. You’re basically not allowed to refuse service except in very limiting cases (ejecting unruly patrons, etc).
Illegal for whom, in what type of business(es)?
Can barber shops discriminate against bald people?
Yes, but it’s very easy for bald people to boycott them in return.
HSH:
http://en.wikipedia.org/wiki/Unruh_Civil_Rights_Act
The text may not seem that broad, but the CA SC has repeatedly expanded the scope as described here:
http://digitalcommons.lmu.edu/cgi/viewcontent.cgi?article=1687&context=llr
A key quote from that document:
“It found, therefore, that the legislature intended to prohibit all arbitrary discrimination by business establishments.”
As to what type of businesses:
“The Unruh Act is binding upon all business
establishments of every kind whatsoever”
(internal quotes removed)
It might just be CA, I’m not sure, but I was under the impression (perhaps false) that other states had similar statutes. I could be wrong on that count, so I overstated when I said it was “likely” other states were similar.
So do you think that my scenario, involving an irrational but very real fear of bald people, would be prohibited based on arbitrary discrimination, even though bald people are not and never have been a protected class anywhere in the United States?
The subtext of a lot of California law is “Move Your Ass to Texas.”
HSH:
I think that’s the CA SC opinion of what the Unruh act is, yes.
You can read the linked document, or the other citations from the Wikipedia article. In my reading, there is no requirement for the arbitrary distinction to involve a historically disadvantaged class, or otherwise specifically protected class.
thompson: Frex, the government should not engage in or support hate speech, but I also don’t think it has a place in restricting individuals from expressing it.
As a general rule-yes. As an absolute rule-no. You can’t yell fire in a crowded theater. You can be charged for speech that incites riot and/or rebellion, etc. Yes? You agree so far?
So then the case becomes this: Does this instance fall under the general rule? You say yes. I say no.
Similarly, I don’t think the government (or a majority acting through the government) have a right telling a photographer what she must photograph.
Two things enter here. Is this poor asshole bigot unduly burdened? I have yet to hear or see any substantive argument making that case. That leaves you trying to elevate this instance to that of an instance of inclusion in the Venn diagram of the general principle. I find that effort less than convincing….just my opinion.
Then we get to protected class. This is the law as embodied in statute and court precedent flowing from the 14th Amendment and the treatment of the gay community in our history. This cannot be ignored.
Now it could be the fact that this gal is very nice lady. (note, all lefties are not in-your-face assholes like me).
Nonetheless, she is a bigot. She is reducing the realm of liberty of a member of a protected class. She embodies a hateful ignorance and bigotry that is all too common. Common enough that we’ve had quite a political struggle to, yes, squelch this behavior.
If she doesn’t like it, she can go flip houses, hamburgers, or write books for a living. But when she insists upon a business license and limited liability, she is asking my government to grant her special exemption.
If people refuse to do business with them, boycott, say mean things about them on the internet: too bad. In my mind that’s the appropriate tool to affect the social change.
If only Lester Maddox had been a CPA instead of owning a restaurant. Think of all the pain and agony we could have avoided.
In my reading, there is no requirement for the arbitrary distinction to involve a historically disadvantaged class, or otherwise specifically protected class.
I was wondering whether I should have put that part in my question. Leaving the protected-class issue aside, is the discrimination arbitrary?
That fact that baldies aren’t a protected class was somewhat of an aside. But my reading was that specific classes are listed in the legislation, even though the courts in specific cases have ruled in favor of other classes not listed in the legislation. But, even then, those classes were among those considered for special legal protections in other times and places – some even added by subsequent amendment to the list of classes covered by the Unruh CRA.
Another way to look at a lot of California law is: “This is what happens if one party moves so far from the center that it becomes irrelevant.” The most interesting part of this is that it provides a window into what our collective future might hold. Just another example of California getting all fads and trends first.
HSH:
is the discrimination arbitrary?
…
even though the courts in specific cases have ruled in favor of other classes not listed
My understanding is the case law developed to a point where any arbitrary discrimination is illegal, where my understanding of “arbitrary” is there is no business reason.
For example, In Re Cox, where discrimination based on long hair and “motorcycle clothes” was barred. I think that’s a pretty close example to your bald hypothesis.
If you want to argue there is an Unruh exception based on the vendor in your hypo being afraid of bald people…I would need convincing. I see nothing in the case law (or summaries thereof) to support that.
A lot of the argument on the libertarian side here seems to boil down to one side having a right, the other side having no right.
So, the photographer has a right to not be required to take pictures of a same-sex wedding, but the couple has no specific right to be served by the photographer.
Some folks (Douthat, Dreher) locate the photographer’s right in 1st A freedom of religion.
The photographer herself locates it in freedom of speech.
The libertarians here (at least thompson, I think) and elsewhere, locate it in freedom of association.
I want to leave aside the case of the photographer, specifically, or really any case of professional services based on contract are involved, because there seems to be less of a consensus that discrimination should be disallowed there.
In the simple case of restaurant, or bakery, or hardware store – the “public accommodation” universe :
How is freedom of religion expressed by selling meatloaf?
How is freedom of expression manifested by selling donuts?
How is freedom of association expressed by selling hammers?
In other words, how do that things that fall under “public accomodation”, at least per the relatively limited definition found in the US code, fall under any of the rights that have been invoked here and elsewhere?
Where is the “right” that is violated?
Where is the “right” that is violated?
russell, you’re looking at specific rights. What’s really at play here is the supposed right to do business however you damn please, with whoever you damn please, on whatever terms you can impose. That the right is, historically, pure fiction, doesn’t matter to its advocates; it’s just so, goddammit!
If you try to analyze the issue with reference to more specific rights, you might come to different conclusions regarding the custom cake maker and the cannoli baker. I could live with a rule that lets the custom cake baker slide while requiring the cannoli baker (who might be the same person) to sell the cannolis. And if social peace required it, I could live with that rule and could even come up with a plausible reason it makes sense.
But the advocates of the supposed right to refuse service for any reason won’t make any such distinction; no cannolis for you.
If you want to argue there is an Unruh exception based on the vendor in your hypo being afraid of bald people…I would need convincing. I see nothing in the case law (or summaries thereof) to support that.
Are you asking me to prove a negative? I’m really not familiar enough with the case law regarding Unruh to do that. Can you show a case where someone had a truly compelling reason to refuse the business of a certain class of people, but ran afoul of Unruh because of it regardless?
It’s really not my intent to defend Unruh, anyway. Maybe it’s crappy law. My main point is a more general one: people can refuse other people’s business for a variety of reasons, just not simply based on some fundamental characteristic those people share – like color, religion, gender, sexual orientation, etc. (as I see it).
Brett’s example of the Aryan Nation turns out to be instructive, since people can readily choose not to be members of the Aryan Nation. (And, while people can choose their religion, one’s religion has traditionally been treated as a fundamental aspect of who someone is – not to mention that it’s historically a basis upon which people have killed, tortured and subjugated others as readily as, say, race.)
Or I could just say that no one has brought an Unruh case based on baldness, so I can only assume it’s exempted. ;^)
russell:
In the simple case of restaurant, or bakery, or hardware store – the “public accommodation” universe :
I would refer you back to my previous statements. I’m ok with “public accommodation” laws as they concern hotels, restaurants, stores, etc., based on compelling interest.
I did convolve the limited case of contract based vendors with more general “public accommodations” previously. That was sloppy on my part and not reflective on my beliefs on the matter.
I did, however, clarify that point and correct myself when I realized what I said.
So, the photographer has a right to not be required to take pictures of a same-sex wedding, but the couple has no specific right to be served by the photographer.
I think you’ve hit on the crux of the issue.
Regarding “rights” in general, I’d agree that the definition I use for freedom of association is expansive, although in keeping with libertarian thought. I understand you don’t take it that far. That’s fine. It’s been discussed, I don’t see the need to delve into that again.
Regarding the right to purchase specific things at specific stores, I get tripped up there. I don’t view that as an individual right. I view it as sound policy, and part of a compelling interest in ensuring commerce, but I don’t view it as a right.
Could you elaborate on why you view it as a right to engage in business with a specific person? I’m not unwilling to be convinced on the issue, but my current thinking on it, if I could draw an analogy from the freedom of speech:
I recognize a right to speech, but I do not recognize a right to be heard by a specific person or on a specific forum.
Similarly, I recognize a right to associate and form contracts at will, but don’t recognize a right to induce association with someone who is unwilling.
Sound policy in some cases, compelling interest in some cases, but not an innate individual right.
You disagree, and I’d be curious to hear your thinking on it.
Where prostitution is legal, can potential customers be refused for any reason or no reason at all?
Only bald libertarians who secretly long to be dominated and whipped by a prostitute who dresses up like an IRA auditor with the “Ballad of the Alamo” played full volume during the festivities,
https://www.youtube.com/watch?v=PbX1JKknS04
IRS auditor.
IRA auditors would only be today on St. Patty’s Day.
St. Patricia’s Day?
Only bald libertarians who secretly long to be dominated and whipped by a prostitute who dresses up like an IRA auditor with the “Ballad of the Alamo” played full volume during the festivities,
…and my hair is getting thinner every day. Unsettling vision of the future, to be sure.
Could you elaborate on why you view it as a right to engage in business with a specific person?
I don’t. At least in the sense of a constitutionally protected right.
However, I also don’t see any particular right that a “public accommodation” business owner has to NOT engage in business with a specific person.
That being so, I’m fine with laws that say they must.
As a practical matter, I think we land at about the same place on the issue.
I hope Charleycarp will stick around.
As a practical matter, I think we land at about the same place on the issue.
We seem to, yes. And it also seems I’ve beaten this particular subject to death. As always, it’s enlightening and challenging to discuss these things.
For me, anyway. YMMV.
As long as hay can be made from it, the topic will get revived. And it’s always useful to have several such themes available. Outrage rotation, you know 😉
Where prostitution is legal, can potential customers be refused for any reason or no reason at all?
Now there’s a fascinating question, and I wish I had the time to look into it. Federal law would not apply to solo hookers, since it defines an “employer” as, leaving some techniclities aside, an outfit with 15 or more employees. If Silky the Pimp runs 20 hos, there may be a question whether they are employees or independent contractors. I don’t know how they run things at any of the legal brothels in Nevada, and I don’t know anything about Nevada state anti-discrimination law. But one of these days, if I can spare the time, I’ll definitely look into it.
Over here the question came up too when organized prostitution was still illegal. There was a cafe in Berlin that was known to to be the place where the ladies and the clients met to contract (literally and/or methaphorically) while the sex act happened in a house behind the one with the cafe. The (female) owner of the cafe was iirc also the owner of the flats in the house behind that she rented out to the ladies. The question was, whether she was thus running an (illegal) brothel and what would be the legal factors determining the answer. Iirc the whole thing became kosher with just a few tweaks of the model.
Legally the contract between a prostitute and client was nil and void by definition (sittenwidrig = legally immoral), so formally the sex act was not a business transaction but a (consensual) private one and the payment formally just a gift that a client could simply refuse to hand over (thus the strict cash first policy).
Our colloquialism in the US for this kind of arrangement is, conveniently, “tit for tat”.
I suspect that prostitution is still illegal in most places over here because people are afraid of the temptation for moral hazard. It’d be nice for the whole self-control notion to catch on a bit more.
We don’t, after all, make alcohol illegal (anymore) because of the moral hazard.
Regarding substance abuse: I like the Louis Wu model of coping with/accommodating addiction. But I do realize that’s fiction.
That’s very kind, Laura.
Hi Charley!
Hey, Ugh!
I don’t know of any state that has a statute read anywhere nearly as broadly as the Unruh Act. DC includes personal appearance as a protected category, so I guess you can’t fire someone for have dreads. Most places, though, it’s pretty much like the federal scheme.