The Socially Acceptable Range of Discrimination, Revisited

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306 Responses

  1. ShelbyC says:

    Has anyone argued that these types of laws should be enforced differently relating to racial discrimination than to sexual-orientation discrimination? Would this have been a different case if she had refused to photograph, say, an interracial wedding?

  2. Ken White says:

    Well, that's kind of the point of the part I quoted, isn't it?

    I don't know if anyone has explicitly argued it. But my larger point is that they are implicitly arguing it by attacking application of anti-discrimination laws to sexuality.

  3. Mitch says:

    Really well-written. My answer: Yes – anti-discrimination values are so important to society that they trump an individual's deeply held belief that he must discriminate in the marketplace.

    BTW, the failure of the photographers to appeal the lower court's ruling that they were a "public accommodation" appears to have made this ruling inevitable. If a baker/florist/photographer organized her business by saying, "I take customers by invitation only" the result may be different (or at least the First Amendment freedom of association issues from the St. Patrick's Day case would have to be addressed).

  4. Mad Rocket Scientist says:

    That is an compelling opinion by the court.

    I still hold, however, that engaging the services of a craftsman who is unable to segregate their beliefs from their craft such that they pitch such a fit is a great way to end up with a substandard product.

    A wedding photographer, or cake maker, or etc. who opposes your union will, if forced by law, do an adequate job of photographing your day, or making your cake (because doing an obviously poor job is an actionable tort, so I've been made to understand). But a craftsman who will, in some small way, celebrate your union will more likely put more effort into making it all that much more memorable.

  5. John Thacker says:

    Also note that anti discrimination laws also protect against discrimination on the basis of religion, which guards against the inevitable argument that being gay or lesbian is a choice (even if influenced by genetics or upbring or experiences) and thus not like national origin or race or ethnic group or sex.

    However, in practice I think that many of the people objecting might well wish to discriminate against people of different religious (or irreligious) beliefs, (even while not wishing to be discriminated against for their own beliefs.)

    In any case, it's still not obvious why you would want to hire photographers that would hate your event enough to say that they didn't want to do it (rather than be polite), particularly given all the subjectivity and artistry in photos. Similarly, while the anti gay couple in question could not be turned away from a gay bar, it's hard to imagine why they would want to patronize one.

  6. Xenocles says:

    @MRS-

    I too would be very wary at having someone working at an important event who was there largely against his will. A craftsman also knows how to ruin his craft subtly – and I know if I were in that position I would be looking for ways to get pictures in the worst acceptable lighting, or only from bad angles, etc. We all have bad days, and if you aren't happy with the work I'm happy to refund your money.

  7. JonB says:

    With these kind of laws I always wonder why people insist on forcing their view instead of half honest wiggle-out? For example that photographer upon being informed that it's gay wedding instead of saying "I won't photograph gays" could say "sorry, I've got some other obligations to attend and I'll be unavailable. I am sorry for causing You problems and I would love to recommend You other photographers that might be available"?

  8. Bob says:

    Perhaps the two women marrying each other should have considered "channel[ing] their conduct, not their beliefs, so as to leave space for other Americans who believe something different" and simply found another photographer that was willing to work at their wedding rather than suing. After all, "[t]hat compromise is part of the glue that holds us together as a nation, the tolerance that lubricates the varied moving parts of us as a people. That sense of respect we owe others, whether or not we believe as they do, illuminates this country, setting it apart from the discord that afflicts much of the rest of the world."

    No, I think I agree with the Court and Ken. Conformity to the opinions of the politically powerful is "the price of citizenship" in their America. "I therefore concur."

  9. Ken White says:

    Gosh, Bob, I'm glad you've looked into my head and decided what I think, when I carefully left the issue open.

  10. Shane says:

    No, No, No, No. You can not enforce free will at the end of a gun.

    My point: you are one of the partners of the gay couple in question, do you really want someone who has refused to take pictures of your wedding because they don't like your being gay, to photograph this important moment in your life. Really? Or are you really just trying to use the state to enforce your idea of rainbows and unicorns. The supreme court and all of the other ninny's can say whatever they want about this but the facts are that a person can find ten ways around a law, and still comply with it.

    This is what we have come to. Pass a bunch of laws and hope that the dupes will comply. Silly. You can not regulate human thought.

    Anti-discrimination laws are beyond silly, and have clearly crossed into assinine territory.

  11. ketchup says:

    A rational argument can be made that anti-discrimination laws regarding race should be treated differently than those regarding sexuality. Race is an absolutely immutable characteristic of a person, over which that person has absolutely no control (well, unless you are Micheal Jackson).

    Sexuality is not immutable. It is based at least in part on choice or environment. The degree to which it is genetic vs. environmental is not well-settled science, but the most recent estimates I have seen say that it is roughly 50% genetic. No one argues that it is 100% genetic – there are identical twins with different sexuality. Sexuality is also not immutable. Sure, most people develop a sexual identity as an adolescent, and then maintain it for the rest of their lives. But some people change from straight to gay, and some from gay to straight. Still others change from either gay or straight to bisexual.

    So, based on this argument, one should treat characteristics that are inherent, such as race, differently than characteristics that are not, such as sexuality. Of course, one difficulty with this argument is that religion would be in the latter category. If you are going to throw out anti-discrimination laws based on sexuality, you would have to throw out the ones based on religion too.

  12. Clark says:

    Elane Photography also suggests that enforcing the NMHRA against it would mean that an African-American photographer could not legally refuse to photograph a Ku Klux Klan rally. This hypothetical suffers from the reality that political views and political group membership, including membership in the Klan, are not protected categories under the NMHRA.

    Which is the sheerest admission that the government delineates all beliefs into Thoughtcrime and Doubleplusgoodthink and engages in content based discrimination between the two.

    Thoughtcrime: believing that racial separatism is a good thing

    Goodthink: believing that racial integration is a good think

    Thoughtcrime: refusing to photograph a gay marriage

    Goodthink: refusing to photograph a Klan rally marriage

    Its darkly amusing to me (a phrase I've been overusing recently, but – hell! – so much is darkly amusing these days) that the Founders established a prohibition on an establishment of religion, but now that God is Dead the religions of our day are social ideologies, and our neo-Puritan overlords are racing as fast as they can to establish one social ideology as acceptable and one as supressable.

    I give you two quotes:

    "No provision in our Constitution ought to be dearer to man than
    that which protects the rights of conscience against the
    enterprises of the civil authority." –Thomas Jefferson to New
    London Methodist, 1809.

    "We are bound, you, I, and every one to make common cause, even
    with error itself, to maintain the common right of freedom of
    conscience." –Thomas Jefferson to Edward Dowse, 1803.

    When I compare these with everything said by the people who hold that it is acceptable to use government force to compel someone to take photographs against their will, I have no doubt which side I am on.

    Jefferson and I make common cause, even with error itself for people to be free.

    Alan M Malott stands on the other side: that it is fitting and proper to use force to compel ideological conformity and to punish thoughtcrime.

  13. ketchup says:

    Just for the record, I started composing the comment above before John Thacker said this

    "Also note that anti discrimination laws also protect against discrimination on the basis of religion, which guards against the inevitable argument that being gay or lesbian is a choice "

    I agree with his conclusion that sexuality and religion should be treated the same in regard to discrimination laws. I do not see how that implies that sexuality and religion should be treated the same as race in anti-discrimination laws.

  14. Mitch says:

    @JonB – the opinion makes it clear that one of the plaintiffs (after her soon-to-be wife was refused service) contacted the photographer for an event on that day without indicating it was a same-sex union and was quoted prices.

    @Bob – The decision to marry is a public statement and the anti-discrimination case is a part of that statement. And a 'LAW' is something that requires conformity. If you think the law is too restrictive, protest or lobby or engage in non-violent non-conformity and challenge its morality and constitutionality. But, at the end of the day, it seems to me that you are likely to lose that debate. Because, as Ken wrote, it is impossible to meaningfully distinguish between anti-gay discrimination and other previously accepted (and religiously-endorsed) discriminations like anti-mixed race weddings or anti-mixed faith weddings. I am certain that my childhood Rabbi felt just as strongly that I should not marry my non-Jewish wife as he would feel that I should not marry a Jewish man (maybe more).

  15. Alia D. says:

    What I wonder about is the wisdom of this of compelling this for the happy couple. My husband used to be a wedding photographer so I've heard about all the unseen effort having the in-laws who are feuding standing next to each other.

    Imagine a scenario where a photographer told the happy couple "I think your ceremony is sacrilegious but I'm compelled by law to offer you my services." And they want there rights so they go ahead and use that photographer. But when they get the photographs back the photographer has captured mostly those fleeting moments when someone has a disgusted look on there faces because there shoes are pinching or someone's cloths look ill-fitting because of the way their moving and the angle. What would be the photographer's first amendments rights of artistic self-expression in that situation.

  16. RedTonic says:

    Let me fix that for ya.

    A rational argument can be made that anti-discrimination laws regarding race should be treated differently than those regarding gender. Race is an absolutely immutable characteristic of a person, over which that person has absolutely no control (well, unless you are taking potshots).

    Gender is not immutable. It is based at least in part on choice or environment. The degree to which it is genetic vs. environmental is not well-settled science, but the most recent estimates I have seen say that it is roughly 50% genetic. No one argues that it is 100% genetic – there are individuals born intersexed. Gender is also not immutable. Sure, most people develop a gender identity as a child, and then maintain it for the rest of their lives. But some people change from male to female, and some from female to male. Still others change from either female or male to genderqueer.

    So, based on this argument, one should treat characteristics that are inherent, such as race, differently than characteristics that are not, such as gender. Of course, one difficulty with this argument is that religion would be in the latter category. If you are going to throw out anti-discrimination laws based on gender, you would have to throw out the ones based on religion too.

  17. Shane says:

    @ketchup

    Race is an absolutely immutable characteristic of a person, over which that person has absolutely no control …

    Why stop there. Lets just keep going and protect all of the "immutable" characteristics that any person in the U.S. might have. Then let's tell everyone that you can't discriminate on these characteristics and when someone doesn't want to deal with a pompous self righteous douche canoe, then the offended douche canoe can simply claim discrimination. Then everyone will have to justify their every action, based on non discrimination of "immutable" characteristics as defined by law. And as a society we will go around apologizing for every action that we make just in case those actions might be construed as discriminatory. Ohh wait …

    Sexuality is not immutable. It is based at least in part on choice or environment.

    If you are a heterosexual male, try just try to have sex with another man … I fucking dare you.

  18. ketchup says:

    Upon seeing Clark's post, it does strike me that the freedom most violated here seems to be that of the photographer.
    The photographer wants: "The freedom to choose what to photograph"
    The customer wants: "The freedom to compel someone to photograph me"
    The customer seemed to want to reframe this as "The freedom to have my wedding photographed" but that is not it at all. The photographer was not trying to prevent others from taking the job, and some other photographer certainly would have. The customer still had the freedom to have pictures taken at the wedding. What the customer sought was the freedom to compel a specific photographer to do so.

  19. Clark says:

    Justice Bosson:

    On a larger scale, this case provokes reflection on what this nation is all about, its promise of fairness, liberty, equality of opportunity, and justice.

    I presume he means "government" and not "nation" here. That's a typical totalitarian lefist mistake, dating back to at least Lincoln: assuming that there is no distinction between the people and the state that rules over them.

    Even then, he is begging the question (and I mean that phrase in its technical and correct sense): he is asserting at the outset that the proper role of government is to enforce "fairness", whatever that means, and then he argues that of course the government can enforce "fairness" (determining that an ideologically correct party wins a zero sum game and an ideologically evil party loses) because it is in the very nature and purpose of government to interpret the Constitution and the laws so as to deliver "fairness".

    At its heart, this case teaches that at some point in our lives all of us must compromise

    No. The case teaches us that the ideologically incorrect must compromise totally, and the ideologically correct need not compromise at all.

    if only a little, to accommodate the contrasting values of others. A multicultural, pluralistic society, one of our nation’s strengths, demands no less.

    Again he is begging the question by asserting his own values, and then arguing that a proper legal finding is one that matches his own values.

    The Huguenins are free to think, to say, to believe, as they wish; they may pray to the God of their choice and follow those commandments in their personal lives wherever they lead. The Constitution protects the Huguenins in that respect and much more. But there is a price, one that we all have to pay somewhere in our civic life.

    In the smaller, more focused world of the marketplace, of commerce, of public accommodation, the Huguenins have to channel their conduct, not their beliefs, so as to leave space for other Americans who believe something different.

    Most of us spend 40 hours per week working, and much of the rest is merely the support structure for this time. We sleep, shower, dress, eat breakfast, and eat dinner on weekdays merely as the logistics of work. Work, in the end, ends up consuming 60 to 80 hours per week.

    …and this is the "smaller, more focused world of commerce". The judge, who gets a government salary in return for zero ideological compromise (he, after all, has a role in which he enforces his own ideology and gets to make the state, in some little way, adopt it), presumes to tell mere citizens that conforming to the ideology of their betters for a mere 5/7 of their lives is a small price to pay for the end goal of building the kind of new society that the judge demands.

    That compromise is part of the glue that holds us together as a nation

    What holds us together as a nation? Unidirectional "compromise".

    …that, and a government willingness to kill 20% of all males between 20 and 40 years of age.

    the tolerance that lubricates the varied moving parts of us as a people.

    I'm sure the judge is getting wet at the idea of enforcing backwards snake handlers to obey his will.

    That sense of respect we owe others, whether or not we believe as they do

    Again, this "sense of respect" seems very one sided: religious conservatives must respect lesbians, but lesbians need not respect religious conservatives. It is not acceptable to have a true pluralistic society, where
    people are free to associate or not, as both parties see fit. No, in the progressive vision only one outcome is acceptable: the thoughtcriminals capitulate and do exactly as the goodthinkers demand.

    I would say to the Huguenins, with the utmost respect: it is the price of citizenship.

    A thoroughly Puritan statement: I hang you only because I care about your soul.

    The judiciary is corrupt to its core and has no sense of why the United States was instituted or what the Constitution means.

    Cover it with gas, set it on fire, and plow salt into the smouldering ground.

  20. ketchup says:

    @Redtonic
    You completely ignored the argument. The argument was that sexual orientation could rationally be considered different from race because one is immutable and the other is not. You did not dispute either of these two points.

    @Shane
    The question is not whether or not a heterosexual man desires to have sex with another man. The question is whether or not a heterosexual man might ever become a homosexual man. I know people who claim to have done this, and have no reason doubt them.

  21. jimmythefly says:

    ketchup, not quite, IMO.

    The photographer wants "The freedom to sell their services to the public, except those members of the public they don't like".

    It's really close to what you said, but there is a big difference between this being a public business.

    The couple wants "the freedom to have services sold to them by a vendor, under the same rates and terms as other members of the public."

    In the state of New Mexico, the public, through their elected officials, have decided that the type of freedom the couple desires should be enforced by law, and that the type of freedom the photographer wants to excercise is illegal.

  22. ShelbyC says:

    The Court completely misses it here:

    "This hypothetical suffers from the reality that political views and political group membership, including membership in the Klan, are not protected categories under the NMHRA"

    They are just fighting the hypo: The NM legislature could, tomorrow, include political group membership in the NMHRA, and thanks to this court's reasoning, a black photographer could be forced to photograph a Klan rally, portraying it in a positive light, or a black ad executive could be force to produce and ad about the glories of cross-burnings and lynching.

  23. Kevin says:

    @ketchup

    Sure, they could simply have found another photographer. But the point of these laws is at some point, that isn't an option. An African American looking for a hotel room in the south during segregation often times could not find a hotel room.

    In this case they probably could have found another photographer. I would doubt that is true in all cases. Some venues require using the services of of a specific photographer. If that photographer is discriminatory, then that entire venue is off the table.

    I am not sure how you allow permit some photographers to be discriminatory, while making sure that equal photography services are available to all.

  24. Fred says:

    hehe… he said lubricate.

    Good post. I think I might have to toss this one to the wolves when school starts in a week.

  25. Mitch says:

    What Jimmythefly said!

    If you do not want to be subject to anti-discrimination laws, do not hold yourself out as a "public accommodation."

    If you do not like the anti-discrimination laws, try to convince your fellow citizens that you should be free to discriminate in the marketplace. I think you will lose that argument, but your mileage may vary.

  26. notsont says:

    The customer seemed to want to reframe this as "The freedom to have my wedding photographed" but that is not it at all. The photographer was not trying to prevent others from taking the job, and some other photographer certainly would have. The customer still had the freedom to have pictures taken at the wedding. What the customer sought was the freedom to compel a specific photographer to do so.

    Look it is really simple, in this country we have laws, some are good laws some are bad laws you are free to lobby against bad laws(or good ones), while they are the law you still have to obey them.

    If you want to be in business serving the public you do not get to discriminate against certain protected classes for being those classes. This is the compromise we have made, it is a necessary compromise and we have history and current world events to show us why.

    You can however avoid all these problems of dealing with the public by simply not owning a business. That is your right.

    The disingenuous arguing in this comment thread is frightening, whats worse are the people who might actually believe the stupid crap they are spewing.

  27. "Oh, I'm sorry. We're booked up already that month".

    OR IF THE KNOWLEDGE COMES LATER

    "Oh, I'm sorry. We failed to notice we were already scheduled that day".

    Problem solved.

  28. Richard says:

    @Clark:

    All, too, will bear in mind this sacred principle, that though the will of the majority is in all cases to prevail, that will to be rightful must be reasonable; that the minority possess their equal rights, which equal law must protect, and to violate would be oppression.

    Truth advances, and error recedes step by step only; and to do to our fellow men the most good in our power, we must lead where we can, follow where we cannot, and still go with them, watching always the favorable moment for helping them to another step.

    The equal rights of man, and the happiness of every individual, are now acknowledged to be the only legitimate objects of government.

    Other people can quote Thomas Jefferson, too, you know.

  29. Mitch says:

    So @Clark, should a devoutly old school Southern Baptist be allowed to refuse accommodation in his hotel to an African-American couple? Should a devoutly old school Dutch Reformed (South African) be allowed to refuse to serve a mixed race couple in her restaurant? Should a devoutly orthodox Jew be allowed to refuse to serve me and my Shiksa wife at a bar? If you answers to any of those questions is no, how is that different than the photographers?

    Or, you can write hyperbolic (I hope) calls to armed insurrection. But do not confuse yourself. Nothing you have written either (1) addresses the point that Ken was raising or (2) convinces anyone who did not already agree with you.

  30. Clark says:

    @Mitch:

    If you do not want to be subject to anti-discrimination laws, do not hold yourself out as a "public accommodation."

    So you're saying…what? Don't ply a trade?

    You're allowed to engage in thought crime as long as your have a large inheritance?

  31. Clark says:

    @Mitch

    So @Clark, should a devoutly old school Southern Baptist be allowed to refuse accommodation in his hotel to an African-American couple?

    Should he?

    No. It's treating one of God's children poorly.

    Should he be allowed to?

    Yes. Without question.

  32. Mitch says:

    No @Clark (but thanks for ignoring all of the questions that would put you back on the point of this thread). Anyone call "ply a trade" and think whatever they want. But if they hold their services as open to the public, they become a "public accommodation" and must ACT in a non-discriminatory fashion (even if they loathe the members of the public that they serve).

    As Andy Dufrense asked, "How can you be so obtuse?"

  33. ketchup says:

    @jimmythefly
    "The photographer wants "The freedom to sell their services to the public, except those members of the public they don't like"."

    I agree with this characterization of what the photographer wants. It does not change the fact that the photographer's behavior was altered by the state more than the couple's was.

    @Kevin,
    Ken's entire post is about the issue of whether or not race and sexuality should be treated differently with respect to discrimination laws. IF you assume that race and sexuality are equivalent with respect to discrimination, then the plight of African Americans in the segregation south can be used as an argument that the photographer should be compelled. But that is begging the question.

  34. Clark says:

    @Mitch

    Or, you can write hyperbolic (I hope) calls to armed insurrection.

    If we ever get to a place in this country where the legislature is convened in a place unusual, uncomfortable, and distant from the people, where the government forbids the population to settle in unpopulated lands, where the government erects a multitude of new offices and sends for swarms of officials to harass the people, or keeps an standing army in time of peace, I may very well issue a call for armed insurrection.

    …but not until then.

    Nothing you have written either addresses the point that Ken was raising

    Does it not? I think it does. Perhaps Ken will tell me if he agrees.

    convinces anyone who did not already agree with you.

    I thank you for polling all of the popehat readers and relaying your exhaustive research on the matter.

  35. Shane says:

    @ketchup

    The question is whether or not a heterosexual man might ever become a homosexual man.

    And if you are a heterosexual man then you have the "choice" to become a homosexual man. Wherein I double dog dared you to have sex with another man, because after sexuality is not immutable and you have a choice.

    I know people who claim to have done this, and have no reason doubt them.

    Yup and we call them bi-sexuals.

    You are trying to assert an on/off scenario. You either are "black" or you are not, you are either "gay" or you are not. Your claims of race fall under this same fallacy. You see "black" as a on situation because it fits your narrative. Reality is far from what you think. Sadly because you can not really define what it means to be "black" culturally you have to fall back to the old skin color grouping and this is the most vile form of racism.

    Remember the smallest minority is the individual.

  36. Mitch says:

    OK – so now that @Clark has lined up for the "moral" proposition that all people should be allowed to discriminate in public accommodations for any prejudice, who buys into that camp? "Without question" – you are in the miniscule minority (thank goodness).

    If you liked 1947 Georgia, you will love @Clark's ideal of "freedom".

  37. Albert says:

    As a relatively-ignorant observer of this, I'm pretty surprised that someone can force a photographer to "do business" with anyone. Also, why couldn't they say "oh we're taking a vacation and it just happens to be at the same time as your wedding"? All-in-all, anti-discrimination is a very odd concept to me.

  38. Shane says:

    @notsont

    .. it is a necessary compromise and we have history and current world events to show us why.

    Why is it necessary? What world events show us this?

  39. Mitch says:

    So, @Clark, this is not a call for armed insurrection? "The judiciary is corrupt to its core and has no sense of why the United States was instituted or what the Constitution means.

    Cover it with gas, set it on fire, and plow salt into the smouldering ground."

    You do a mighty fine job of imitating someone calling for a revolution.

  40. Clark says:

    @Mitch

    No @Clark (but thanks for ignoring all of the questions that would put you back on the point of this thread).

    Mitch, I'm trying to engage with you respectfully. Please alter your tone to remove the snark and sarcasm and extend the same courtesy to me that I extend to you.

    Second, the "point" of this thread is not what you say it is. I'd suggest that the "point" of the thread is emergent, based on where commentors take the thread. You're sounding like a conversation scold who is upset that people aren't talking about your new haircut and have segued onto another topic that interests them. This is not deeply surprising, because it is deeply congruent with the legal point of view that you are defending: there is one correct view, and it is the job of the authorities (the judge, in one case, and you, in the other) to make people Do The Right Thing ™.

    Anyone call "ply a trade" and think whatever they want. But if they hold their services as open to the public, they become a "public accommodation" and must ACT in a non-discriminatory fashion (even if they loathe the members of the public that they serve).

    Your use of the word "must" merely repeats the judgement above. Yes, I acknowledge that this is the law of the land. I merely assert that it is immoral and totalitarian.

    As Andy Dufrense asked, "How can you be so obtuse?"

    I tried to have a polite conversation with you but you were unwilling to reciprocate. Good bye.

  41. Shane says:

    @Mitch

    If you liked 1947 Georgia, you will love @Clark's ideal of "freedom".

    So @Mitch what is freedom then? Freedom to not be discriminated against?

    And the problem that you are alluding too, was created by government intrusion, not commercial interests.

  42. Mitch says:

    Being condemned by someone for "snark" at Popehat is high praise indeed. I do not begin to imagine that (at my best) I can bring even 1% of the snark that Ken hands out every day.

    If you are looking for a "snark-free" conversation, you should probably avoid Popehat.

  43. Chris says:

    I think a lot of people here are hung up on the photography business.

    What if this was in pursuit of another service? Let's say medical. Instead of wedding photographs, they were looking to acquire the services of a General Practitioner for checkups and the like. They go to a doctor that seems fair, well priced, knowledgeable, but then they find out the Doctor doesn't want any gay customers.

    So what? They find a new doctor you say! What if this was a small community, and the nearest other doctor was an hour away, or more? Tough on them? Right? What if the next Doctor was discriminatory, or the next, or the next? Is it really as simple as you folks are trying to make it?

    What would you do if a majority of doctors were discriminatory? Or all of them? Tell the couple tough luck, better luck next life?

  44. Shane says:

    @notsont

    The disingenuous arguing in this comment thread is frightening, whats worse are the people who might actually believe the stupid crap they are spewing.

    And that leads me to believe that you don't believe the stupid crap you are spewing?

  45. ketchup says:

    "This is the compromise we have made, it is a necessary compromise and we have history and current world events to show us why."

    Which current events show us why a photographer should be required to photograph a wedding? I'm missing something.

    "The disingenuous arguing in this comment thread is frightening, whats worse are the people who might actually believe the stupid crap they are spewing."

    I see many posts in this thread, some of which I agree with, and some of which I don't. I do not believe that the opposing viewpoints are "stupid crap". I believe they are the thoughts of rational people who disagree. Popehat is one of the few places on the internet where a debate on such a polarizing issue can take place without turning into a total flame war.

  46. Shane says:

    @Mitch

    So @Clark, should a devoutly old school Southern Baptist be allowed to refuse accommodation in his hotel to an African-American couple? Should a devoutly old school Dutch Reformed (South African) be allowed to refuse to serve a mixed race couple in her restaurant?

    Yes, because the truth is that they will do it anyway.

    @Mitch do you really think that a law will stop people from discrimination? If you think that the law will show the moral high ground then let me ask you how well the drug laws have been in keeping the moral high ground in that area.

  47. Craig says:

    I have to agree with Clark on this one.

  48. Clark says:

    @notsont:

    Look it is really simple, in this country we have laws, some are good laws some are bad laws you are free to lobby against bad laws(or good ones), while they are the law you still have to obey them.

    Some of us acknowledge the legal regime that exists and argue against it on moral grounds.

    You are failing to appreciate that argument and engage in it, and are reasserting "but a legal regime exists!".

    Yes. We know that.

    If you want to be in business serving the public you do not get to discriminate against certain protected classes for being those classes.

    Yes. We know that that is the law. I, for one, read the opinions that Ken linked to.

    This is the compromise we have made

    You're viewing the action of the government in a much more idealized way than I do. I do not agree that this is a "compromise" that "we" have made; I merely acknowledge that it is the outcome of the power dynamics over the last 90 years.

    it is a necessary compromise

    Asserted without evidence.

    …and I mean that both for the words "necessary" and "compromise".

    and we have history and current world events to show us why.

    I see no history nor current world events that justify the law. If you want to argue, please argue.

    You can however avoid all these problems of dealing with the public by simply not owning a business. That is your right.

    "You can avoid problems with the antisodomy laws by not being gay".

    "You can avoid problems with mandated Sunday services by not being an atheist."

    etc.

    Saying that people can coexist with the state (which theoretically exists to serve them) by merely not doing something that comes intrinsically to them, or is important to them, is a cop out.

    Ken had a wonderful point at the end of his post, where he said that you can support these laws, if you want, but you must acknowledge the human cost.

    You're not doing that.

    The disingenuous arguing in this comment thread is frightening

    Who is being disingenuous?

    whats worse are the people who might actually believe the stupid crap they are spewing.

    So far you haven't argued any point at all; you've merely asserted that the law on the ground is what the law on the ground is (tautological, and we all agree anyway), and you've said that contrary opinions are stupid.

    I'd be interested in hearing a substantive argument if you have one.

  49. Ken White says:

    Mitch, you might want to reconsider your tone, unless you'd like to direct it equally to me.

    I framed the post the way I did very deliberately. I think discriminating against people based on their race or religion or sexual preference is evil, and would avoid patronizing a business that did so. But I also think that the tension between anti-discrimination principles, on the one hand, and freedom of association and speech and religion, on the other, is very troubling. Clark advocates openly for the proposition that the government shouldn't have the power to legislate such things. I respect his honesty and directness, even if I am not sure I agree with his conclusion. I think that the government's exercise of that power is problematical.

    So: if you find Clark's position worthy of derision, prepare to direct that derision at me as well.

    Also: you may also find risible Clark's invocation of the language of revolution. You seem to think it is self-evidently ridiculous. Feel free to think so. I advise caution in writing about it, though, particularly in emails. After all, we live in a country where the government exercises broad surveillance power, and lies about it, and a country that reserves the right to detain, torture, and execute-by-drone any person on the face of the Earth, based upon secret and unreviewable criteria.

  50. Ken White says:

    @notsont:

    The disingenuous arguing in this comment thread is frightening, whats worse are the people who might actually believe the stupid crap they are spewing.

    I predict long-term dissatisfaction for you with the services we provide here.

  51. BLM4L says:

    This decision utterly fails to distinguish between "accommodations" that do and do not involve the creation of protected expression and "accommodations."

    There is a big difference between renting out your hotel to a wedding reception and ministering/photographing/MCing at the wedding reception. One involves compelled speech and the other doesn't. Recognizing that does not mean we have to abandon our civil rights laws.

    The decision simply buys into the ideology that you give up your First Amendment rights when you engage in commerce, a premise flatly rejected in cases like NYT v. Sullivan and First National Bank v. Bellotti.

    Maybe that's why the legal analysis sucked: the court is at odds with First Amendment precedent ignoring the commercial/non-commercial distinction. For instance, the court did not distinguish Tornillo or PG&E effectively at all.

    After all, the newspaper in Tornillo could have just SHUT DOWN rather than offer a "right of reply" (which is Elaine Photography's choice here), but the Supreme Court didn't say "oh well, you sell newspapers, so therefore you give up your right to control content."

    The court also says speech was "chilled" in Tornillo because editors will evade the right of reply by not critiquing public figures. But here, Christian photographers will not be permitted to photograph ANY WEDDING (i.e., create speech) without triggering demands to photograph commitment ceremonies.

    PG&E is even more applicable. There, PG&E was only required to give up some space in billing envelopes to environmentalist pamphlets, NOT ACTUALLY WRITE THE PAMPHLETS for the environmentalists.

    But the Hurley analysis is the most ridiculous. Apparently, to distinguish Hurley, the court had to say that engaging in expression by photographing is different than the "operation of a photography business" (WHICH IS….>TAKING PHOTOGRAPHS? CAN YOU OPERATE A PHOTOGRAPHY BUSINESS WITHOUT TAKING PHOTOS?)

    Rumsfeld is a different case too. There, the law schools' speech (announcing room availability, etc.) was not expressive and was incidental to the conduct regulated: permitting military recruiter access to students on campus. Here, forcing the creation of content and speech (wedding photographs) is the OBJECT of the this application of the law.

    Rumsfeld did focus on speaker identification, but a photography service IS often identified with wedding "ideology" (as anyone who has used services like wedding wire can attest). And in any event, could Elaine Photography just take horrible, unfocused, ill-lit, garish photos of the wedding and say "F U I treated your wedding with the contempt it deserved"??? No, the court wants to say: you have to take photographs "WELL" for the same-sex ceremony too. Meaning: you have to use editorial judgment and artistic ability to invest the photographs with a quality that reflects the importance, sancitity, preciousness, etc. etc. of the moment.

  52. ketchup says:

    @Chris
    "I think a lot of people here are hung up on the photography business.

    What if this was in pursuit of another service? Let's say medical."

    That is a good point. In a medical situation, one could certainly argue that the freedom of the person seeking treatment would be infringed more by denying treatment than would the doctor's if he were compelled.

    But why does the government have to treat "access to medical care" the same as "access to wedding photographers"?

  53. Shane says:

    @Ken

    I predict long-term dissatisfaction for you with the services we provide here.

    I sense a refund in the works.

  54. Manatee says:

    Similarly, while the anti gay couple in question could not be turned away from a gay bar, it's hard to imagine why they would want to patronize one.

    I understand that putting up a sign that says "We don't serve homophobic activists here" would violate the law, but what if the bartender goes up to every anti-gay activist who walks into the bar and deadpans, "Hey, I just wanted to let you know how much I admire you for coming in here without worrying about catching the gay. I accidentally walked into a Liberace concert once, and five minutes later I was leaving to buy skinny jeans and a European man-purse."

  55. Maria says:

    @Clark, your point sounds like one that is larger than this ruling, one against the rule of law more generally. Is that what you had in mind?

    In other words, is a law that compels "a devoutly old school Southern Baptist [to not] refuse accommodation in his hotel to an African-American couple" morally equivalent to one that compels the same guy to maintain a certain standard of cleanliness in the hotel's bathroom in order to keep running his hotel?

  56. Shane says:

    @BLM4L

    There is a big difference between renting out your hotel to a wedding reception and ministering/photographing/MCing at the wedding reception. One involves compelled speech and the other doesn't.

    I don't see the difference, compelled is compelled regardless of what is being compelled. Remember compelled means with the threat of force.

    Recognizing that does not mean we have to abandon our civil rights laws.

    But to not abandon them forces us to compel people to do things that they find repellent, and it leads to perverse consequences that where never envisioned when these laws were first enacted.

  57. Dion starfire says:

    So why doesn't this New Mexico law prevent businesses from refusing to: serve over-the-top drag queens, rearrange their floorspace to accommodate a customer in a wheel chair, or let a mentally handicapped person disturb their customers?
    What's the loophole that keeps this sane? (note: this is a sincere question, not a rhetorical one for arguments sake)

    I'd counter John's argument about religion being a choice with the observation that religion describes internal beliefs and values; gender identity, sexuality, and physical/mental handicaps affect or define how you interact with other people in the world. In other words, a religion still has meaning when nobody else is around. The rest only have meaning when other people are involved (handicaps are still there, but without people designing the world for a different set or level of ability, it becomes meaningless; handicapped becomes the norm)

  58. AlphaCentauri says:

    But the Hurley analysis is the most ridiculous. Apparently, to distinguish Hurley, the court had to say that engaging in expression by photographing is different than the "operation of a photography business" (WHICH IS….>TAKING PHOTOGRAPHS? CAN YOU OPERATE A PHOTOGRAPHY BUSINESS WITHOUT TAKING PHOTOS?)

    This actually might be getting at the most acceptable compromise. A photography business doesn't discriminate, but it accommodates gay couples by subcontracting with a freelance photographer who appreciates that business, or perhaps even hires one. It's like lawyers who are called by people who need a type of representation they don't specialize in providing a referral to a colleague who does. It would respect the ethical beliefs of the photographer while providing the highest quality service to all customers.

  59. BLM4L says:

    @Shane

    My point is just that there is a principled distinction between compelling non-speech conduct and compelling speech. You could also take the position that compulsion is never legitimate. I am trying to persuade people who believe that non-discrimination laws are generally ok.

  60. Shane says:

    @Dion starfire

    What's the loophole that keeps this sane?

    You sir! You keep it sane, because you are sane. Others like you acting sanely do as you do. Amazingly human beings are pretty good at working things out by themselves. Sometimes it isn't pretty but generally speaking we/they get it done.

  61. Clark says:

    @Maria

    @Clark, your point sounds like one that is larger than this ruling, one against the rule of law more generally. Is that what you had in mind?

    A good question!

    I was speaking specifically to anti-discrimination laws.

    In other words, is a law that compels "a devoutly old school Southern Baptist [to not] refuse accommodation in his hotel to an African-American couple" morally equivalent to one that compels the same guy to maintain a certain standard of cleanliness in the hotel's bathroom in order to keep running his hotel?

    I am a classic libertarian and would argue against regulations like this too, because

    a) the people did not delegate this power to the government
    b) "regulatory capture", which means that in practice the hotel industry would quickly be running the regulatory bureaucracy – note how the taxi commission in DC is acting not in the public interest but in the interest of taxi companies by keeping Uber out
    c) while the free market regulating itself is not perfect, it's better than the alternative

    …but I see that as a fairly separate argument.

    In this thread, I am arguing for the freedom of conscience.

    I support the right of a vegetarian who feels that meat is murder to not be forced to cook beef.
    I support the right of a snake handling fundamentalist who thinks that gays are agents of Satan to not sell them wedding dresses.
    I support the right of a Jew to close his store on Friday night when the sun goes down.
    I support the right of a Catholic pharmacist to not sell condoms.
    I support the right of a communist guitar player to refuse to play the Goldman Sachs Christmas party.
    I support the right of a secular humanist to donate his old car to some atheist group instead of to Catholic charities.

    …and on and on and on.

  62. Shane says:

    @BLM4L

    I am trying to persuade people who believe that non-discrimination laws are generally ok.

    Then you and I are on the same side. I leave you to your work.

  63. Clark says:

    @Dion starfire:

    So why doesn't this New Mexico law prevent businesses from refusing to: serve over-the-top drag queens, rearrange their floorspace to accommodate a customer in a wheel chair, or let a mentally handicapped person disturb their customers?

    Because government doesn't operate according to "principle"; it operates according to real politik.

    Gays have enough votes to matter.

    Drag queens do not.

  64. Chris says:

    @ketchup

    I think I agree with Ken in the fact that this area can get problematic very quickly. Also, I think that we're looking at this from a perspective that assumes another wedding photographer would be available.

    What if this was the ONLY wedding photographer available via geographic or other reasons? Does that change things? I don't know.

    I agree that discrimination is bad. I believe that the government has a duty to compel citizens not discriminate… in a set of situations. Was this one of them? I don't know. Maybe not? Like Ken said. Problematic.

    I'm not anything close to a lawyer, maybe the problem here is that the Photographer's lawyer chose the wrong portion of the law to try to refute, and instead focus on what is a 'public accommodation'.

  65. Shane says:

    @AlphaCentauri

    ::gasp::

    No, no, no we must enforce by edict this travesty, so that the children never have to learn how to solve problems themselves.

  66. BLM4L says:

    For supporters of the decision:

    Could New Mexico compel an Islamic actor to star in "Innocence of Muslims" by adding "acting services" to the definition of "public accommodation" even if the Islamic actor want to refuse the work because of disagreement about the religious message of the movie?

    After all:

    1. The actor decided to go into the business of acting, and make money from it. He therefore gave up certain rights, didn't he?

    2. Forcing the actor to work in the movie does not stop the actor from working on other projects to express the actor's religious views. The next day he could take a role that praises the Prophet, the Koran, the hadith, and the companions of the Prophet.

    3. The public understands that actors sometimes take roles for the money, and that the director, producer, and screenwriters are the real creative influences (copyright law recognizes this to).

    4. It's not the government's message expressed by "Innocence of Muslims"

    5. The actor could just quit the acting business.

    6. The actor does not have to screen the movie for anyone himself or place the movie on his reel. He could even put out a press release that says he hates the movie.

    7. If the law were amended, the creator of "Innocence of Muslims" would have a statutory right to services, which should be balanced against the speech costs imposed.

  67. J says:

    AFAIK, no church in the country is required by law to provide a venue for any wedding. Many churches will only do so for active members of their congregation.

    I am an ordained minister. I sometimes officiate at weddings, and receive a donation/gratuity for doing so. I have no issue with the idea of same-sex marriage. That said, when a couple (gay, straight, whatever) requests I officiate at their wedding, they are (in a sense) offering me a job. I am not required to accept every job offer, nor am I obligated to explain my decision if I decline it.

    Muddies the waters a bit.

  68. Shane says:

    @Chris

    I believe that the government has a duty to compel citizens not discriminate… in a set of situations.

    And what if I believe that the government has a duty to compel citizens not discriminate… in a different set of situations.

    Who wins? Only the government.

  69. Erwin says:

    Overall, there is reasonable reason to believe that non-discrimination laws based on race and religion reduce antisocial unrest and violence significantly by establishing certain minimum standards of behavior. Those choices, from my perspective, aren't necessarily about justice, but are also mandated by commonsense. There are a lot of countries with significant interracial violence, and I'd rather not live in them.

    I'd argue that nondiscrimination laws based on gender, gender roles, handicap status, and age cannot be justified based on the commonsense tribal violence avoidance mandate. I still favor them. I just don't see discrimination against, eg, women as likely to destabilize society.

    –Argyle

  70. BLM4L says:

    @AlphaCentauri

    Interesting thought. An odd implication of the compromise would be that a sole proprietor would have more rights than a solo practitioner working through an organized business association such as an LLC or professional corporation.

  71. Shane says:

    @Erwin

    Overall, there is reasonable reason to believe that non-discrimination laws based on race and religion reduce antisocial unrest and violence significantly by establishing certain minimum standards of behavior.

    How is this working for France in it's attempt to normalize muslims?

  72. Shane says:

    @J

    AFAIK, no church in the country is required by law to provide a venue for any wedding.

    But they are required by law to provide contraception to their employees.

    … nor am I obligated to explain my decision if I decline it.

    This law says otherwise. Whether you tell the truth or not is up to you.

    Muddies the waters a bit.

    Not really, you are a human and you have freedom of conscience. Whether your government accepts this is another story.

  73. BLM4L says:

    @Argyle

    Under the N.M. court's reasoning, a church could be compelled to host the ceremony (though maybe not perform it). It is just political considerations that would block that compulsion now.

    After all, a church is just another venue. And interference with sacramental use of a church is fine under Smith so long as the law does not target churches specifically (and it does not).

  74. CJColucci says:

    b) "regulatory capture", which means that in practice the hotel industry would quickly be running the regulatory bureaucracy

    So how, exactly, has the hotel industry managed to get itself in charge of the regulatory bureaucracy since 1964? It has been almost 50 years since they have been barred from discriminating. Seems like there'd be something to point to by now.

  75. Ken White says:

    @BLM4L:

    Under the N.M. court's reasoning, a church could be compelled to host the ceremony (though maybe not perform it). It is just political considerations that would block that compulsion now.

    After all, a church is just another venue. And interference with sacramental use of a church is fine under Smith so long as the law does not target churches specifically (and it does not).

    Only to the extent the church already rented out its venue to all and sundry as a public accommodation.

  76. BLM4L says:

    @ Ken

    Well, what if the church just charged a fee for use of the venue for wedding ceremonies? Isn't that enough under the reasoning of this case?

  77. Zack says:

    I have to agree with Clark here. More speech is a better solution than criminalization. The precise reason why the racial anti-discrimination countermand holds weight is because even the perception of racism- the merest tinge- is one of if not the most shameful thing someone can be stained with nowadays. People, by right of free association, have made racism an unconscionable stance to take. That's how "gay marriage" became "same-sex marriage" became "marriage equality"- people used the power of free speech to persuade others that discrimination is wrong.

    If we repealed the federal Civil Rights Act today, you would not see a "No Blacks Need Apply" sign on the doors of any franchise; you would not see any "Whites Only" or "Coloreds Only" signs on any of the doors of any national restaurants or grocery stores. It might happen in small, isolated communities, yes- but by decriminalizing the discrimination, you both make it less extreme (they have less of a grounds for a martyr complex) and you promote discussion about it (someone who held racist opinions would be more willing to ask for help, or guidance, when they knew an admission of racism wouldn't and couldn't be used in a lawsuit against them) and it could even provoke discussions about privilege that we've been reluctant to have before- a lot of communities that would have those stores would be frankly shocked at their existence… people would re-examine themselves.

    In short, one of the best ways to promote an open and honest discussion about race in America- one of the best ways to make further progress against racism- would be (in my opinion) to repeal discrimination laws. It both ensures freedom of conscience and opens the path for more frank discussions.

  78. Ken White says:

    Well, what if the church just charged a fee for use of the venue for wedding ceremonies? Isn't that enough under the reasoning of this case?

    No. Not unless they open it to all. Many churches charge a fee for use of their facilities but only make them available to members.

  79. Duvane says:

    @ShelbyC hits on the flaw I see in the link between Ken's rationale and the opinion. Ken seems to imply that this outcome is necessary if we can logically have any protected groups, and yet the court explicitly states that a Klan rally would not be protected because they are not a protected group. Meaning that, while Ken is right that all those groups listed in the law must logically be equally protected, the list of protected groups is arbitrary in the sense that it is not a result of any process extrinisic to simple majority will. As such, without giving consideration to whether the results of individual applications of the law are good or bad, it amounts to an enforcement of the will of the majority over the rest. Not only do I find that generally repugnant, but it's an example of arbitrary power that can always be bent to the will of whomever happens to be in charge at the time. The only thing that keeps Klan rallies from becoming protected is that fact that a current majority doesn't support it. We must be lucky that no one thought up these kind of anti-discrimination laws at other points in our history. Hopefully we don't find them misused in the future.

    I also have a hard time ignoring the nuance of the difference between discriminating against people and discriminating against events, in this context. The Klan rally analogy is useful again: a photographer could elect not to photograph such an event explicitly because they didn't approve of the event, but even under current law they could not refuse to photograph it on the basis that the participants were all white. Legally, then, the judge seems to be saying that not only are homosexuals a protected class, but their marriages are also protected events–to put it another way, if a Klan rally would not be protected on the basis that its participants are all white and the photographer is black, then I don't see how the marriage here is protected just because the participants are gay and the photographers are not. There must be another element. It's not as though a gay couple were refused service by a pet photographer or a real estate agent, in which case there would be no material difference between the services being requested and the services the business typically performs.

    And I think that's what this really boils down to. Rightly or wrongly, the photographers feel (I strongly suspect) that the event in question is different in character from those they typically serve. The may or may not otherwise be willing to discriminate against gay people. Actually no, I will guarantee that they feel this event is different from other marriages: either they are the sort who would discriminate against gays, in which case they are unlikely to be accepting of gay marriage, or they are not the discriminatory type, but are nonetheless opposed to gay marriage–otherwise they would have no reason to refuse. People on the other side of the argument are likely to argue that there is no real difference between gay marriages and other marriages (at least for the purposes of photography), and in so doing ignore the distinction between person and event (by therefore assuming that the photographers must be discriminating solely because the customers are gay). This leads me to two other ways of viewing this case: one is as a straightforward referendum on the equality of gay and conventional marriage, and two as an argument over the rights of business owners to determine exactly what their business is.

    Regardless of the particulars of this case, and without trying to see inside the photographers minds, consider a hypothetical person who, though tolerant, or even accepting, of gay people, is opposed to gay marriage. Frankly, I know more than one gay person who is, if anything, slightly opposed to gay marriage. That may be an unusual stance, but it is possible. From a moral standpoint, is it right to force that person to perform whatever services they typically perform as part of a gay marriage ceremony? From a legal standpoint, is their refusal to do so prohibited discrimination under the statute in question, if their refusal is based solely on the character of the event, and not on the customers (say, for instance, the subject is a florist who has done business with the couple in the past, knows they are gay, and has a good relationship with them, but refuses to provide flowers for their wedding)?

    That is how I see this case differing from other anti-discrimination cases. And I realize that the same arguments could be made for someone who refuses to serve a mixed-race wedding. There are no doubt many people of all colors who would meet my hypothetical of not being particularly racist, but opposing a mixed-race wedding. I think that is a price that is probably worth paying to avoid a potentially capricious invasion of people's rights of conscience. (Flawed though their consciences may be.) And as a practical matter, anyone else who feels the same way as these photographers now knows to simply "not have any available dates" if they are faced with this situation. How is that any better?

  80. AlphaCentauri says:

    @BLM4L — it would depend on the conditions under which the space was available to the general public. For instance, many churches require couples to be members of the congregation and to go through premarital counseling and approval to be married in their worship space, but rent out a parish hall for birthday parties and karate classes, etc. A gay couple might expect to be able to use the parish hall if they meet all the usual requirements as far as number of people, presence of alcohol, etc., but they would not be able to be married in the church itself if they didn't meet the usual requirements for having access to that space.

  81. J says:

    @Shane

    This law says otherwise. Whether you tell the truth or not is up to you.

    In my particular case probably not, since I don't operate a business, don't make my living doing it, and don't advertise services to the public. If I operated a wedding-chapel, then perhaps so. Just like the computer-savvy guy next door who helped your neighbor with a computer problem (or mowed his lawn, or whatever) is under no obligation to do the same for you, even if you offer him payment.

  82. Al says:

    It's always nice to get the occasional reminder of why Libertarians will never, ever be a serious third party in this country.

  83. BLM4L says:

    @ Ken

    Well, many churches also permit use of facilities by coreligionists who are not members of that particular church itself.

  84. Josh C says:

    @Ken: I'm not clever legally: is "to all and sundry" actually a fair description, or is it just "at all"?

    Someone once pointed out to me that there is a qualitative difference between gay marriage and (e.g.) being Jewish: one is something you do, and one is something you are. You can't stop being Jewish, but "People stop having gay sex all the time. Sometimes you get tired, or have to go to work."

    I think that really is the fundamental difference.

    (I personally believe that:
    A – Clark is right, and regulating either is an unconscionable encroachment on fundamental freedoms, and
    B – That photographer, and bigots in general are both idiotic and deserve my scorn,
    but my personal beliefs aren't relevant to the larger point).

  85. Ken White says:

    Al:

    It's always nice to get the occasional reminder of why Libertarians will never, ever be a serious third party in this country.

    And it's always nice to be reminded that we're surrounded by people who think some subjects can't even be discussed.

  86. Ken in NH says:

    @Chris & @ketchup

    What does providing medical care have to do with performing a service at a wedding (or commitment) ceremony? As I understand it, the problem that the photographer has is not with the potential client but with the ceremony.

    I find that a fine place to resolve the dilemma that Ken keeps bringing up. In other words, I would not have found it to be discrimination because they would gladly have accommodated the client in some other venue, meaning that they were not concerned about the client's sexual orientation, but about being asked to participate in actions that offend their religious sensibilities.

    This leaves us in murky waters though. Many will argue that you can't separate the ceremony from the class of person, particularly in a state where same sex marriage has been legalized (which is not the case in NM). I disagree with this viewpoint though Ken has made compelling points about this before.

    Regardless, I would prefer to avoid the dilemma altogether by not having anti-discrimination laws with politically favored classes of people. Nobody has a right to compel my labor and I should not be forced by law out of my trade merely because I choose one client or reject another for whatever reason. On the other hand, the market may have that effect on me and I may become a penniless, but pious man or change my opinions and values to respond to the market.

    But, but the South pre-1964!

    Yes, evil, but in the way that only a government can enforce. The problem was not individual businesses per se, but Jim Crow laws that not only encouraged such evil behavior but also required it. There might have been many restaurateurs who had no problem accommodating all who entered their establishment, but were forced by law to either exclude black clientele or provide separate facilities for different races.

  87. Ken White says:

    Well, many churches also permit use of facilities by coreligionists who are not members of that particular church itself.

    Which would still not make it a public accommodation, any more than the Elks Hall is if they let the Rotary Club use it.

  88. BLM4L says:

    @ Ken

    According to the court, the statute defines public accommodation to mean "any establishment that provides or offers its services, facilities, accommodations or goods to the public, but does not include a bona fide private club or other place or establishment that is by its nature and use distinctly private."

    Are you saying that the N.M. legislature could not delete everything starting with "but does not include…" and still remain constitutional under the court's reasoning?

  89. George William Herbert says:

    Too hung up on legal details.

    The reason for antidiscrimination laws is that without them, one class will actively suppress another. Cf back of the bus, separate drinking fountains, segregated schools, etc. Tolerating that enables groups like the KKK to build support and do real violence.

    Lest you argue "…but we're talking about Gays, not African Americans…", violent and sometimes fatal gay bashing and open anti-gay gangs are serious problems across the US today.

    This is not properly framed as presented here. These measures are (sadly) measures to suppress a subculture which encourages violence and crimes against public order, focused on an identified and now protected minority.

    The rights of those in the suppressed subculture are intentionally infringed in focused ways; deny them any freedom of speech or action and it encourages a violdnt underground movement. Prohibit public and commercial discrimination but allow anyone to speak, vent, or be an ass about it freely.

    This is not entirely in accord with everyone else's freedom of commercial practice or speech. That's the legislative and judicial balancing act.

  90. Ken White says:

    According to the court, the statute defines public accommodation to mean "any establishment that provides or offers its services, facilities, accommodations or goods to the public, but does not include a bona fide private club or other place or establishment that is by its nature and use distinctly private."

    Are you saying that the N.M. legislature could not delete everything starting with "but does not include…" and still remain constitutional under the court's reasoning?

    Then you still have to deal with the definition of "to the public."

    If what you are trying to ask is "could New Mexico have a different statute that imposed public accommodation laws on private churches and clubs," then the answer, under cases like Boy Scouts of America v. Dale, is no.

    It's clear, though, that anti-discrimination laws and other laws (like the Americans with Disabilities Act) can apply to churches to the extent they run a business open to the public. A hall that gets rented only to members isn't open to the public. A hall that gets rented to members of churches of the same denomination isn't open to the public. At some point the church opens the hall enough that it crosses into public accommodation. The exact location of that line might not be clear.

  91. Ken White says:

    Too hung up on legal details.

    Some would call that the rule of law, by which we order our society.

  92. Shane says:

    @J

    … since I don't operate a business, don't make my living doing it, and don't advertise services to the public.

    INAL but as I understand this particular law these are all irrelevant. That you are willing is all that is necessary (talking out of my ass and lazy … don't hate).

    My point though is that just because it doesn't effect you doesn't mean that it won't effect you in the future.

  93. BLM4L says:

    @ Ken

    Ok, though I think an implication is that a wedding photographer that only does "Abrahamic" weddings is not open to the public because the photographer only allows use of her "establishment" by coreligionists. An end-run around the court's decision, perhaps?

  94. Shane says:

    @Al

    It's always nice to get the occasional reminder of why Libertarians will never, ever be a serious third party in this country.

    It is always nice reminder @Al to know why our country continues to slide toward totalitarianism.

  95. Ken White says:

    Ok, though I think an implication is that a wedding photographer that only does "Abrahamic" weddings is not open to the public because the photographer only allows use of her "establishment" by coreligionists. An end-run around the court's decision, perhaps?

    No, because a photographer is not a church or private club.

    As the decision points out, you could be a photographer who worked by invitation only. But if you advertise and have a storefront and such, you're a public accommodation.

  96. Xenocles says:

    "The reason for antidiscrimination laws is that without them, one class will actively suppress another."

    It's interesting that the same majority that you claim would engage in this suppression consented to bind itself by law. Never mind the idea that perhaps there are more persuasive forces available than the sword of the state.

  97. Manatee says:
    Elane Photography also suggests that enforcing the NMHRA against it would mean that an African-American photographer could not legally refuse to photograph a Ku Klux Klan rally. This hypothetical suffers from the reality that political views and political group membership, including membership in the Klan, are not protected categories under the NMHRA.

    Which is the sheerest admission that the government delineates all beliefs into Thoughtcrime and Doubleplusgoodthink and engages in content based discrimination between the two.

    Thoughtcrime: believing that racial separatism is a good thing

    Goodthink: believing that racial integration is a good think

    Thoughtcrime: refusing to photograph a gay marriage

    Goodthink: refusing to photograph a Klan rally marriage

    I'm not sure what part of the blockquote you cited supports what you're saying. I interpret your "Goodthink" to mean positions the government actively supports/protects, and "Thoughtcrime" to indicate positions that you believe the government will persecute or at the very least permit passive discrimination against. Forgive me if that interpretation is wrong.

    If so, your first pair of examples is wrongly labeled: both pro and anti racial segregation positions are treated as "Thoughtcrime" as you call it in that the government will permit discrimination against both positions. You believe racial segregation is good and lobby accordingly. I can refuse to serve you on that basis. If instead you were to believe racial segregation is bad, and lobbied accordingly, I could still refuse to serve you on that basis. There is no tin-foil-hat government thought police agency waiting to punish me for either choice. Now, chances are the latter choice would be very, very unpopular, and the free market might punish me for that one. That has nothing to do with the government (except indirectly, in the sense that past government actions might have helped to create a social climate where being pro-segregation or trying to punish people who are anti-discrimination has become very unpopular, those damn overreaching liberal carpet-baggers.)

    Your second example pair categorizes correctly if you treat sexual orientation as a protected category like religion, but you dismissed the distinction as one of "Goodthink" and "Thoughcrime." I think that assessment is unfair. Protected categories are protected from discrimination only as a matter of identity: You can't discriminate against someone for being gay, or black, or Catholic. As one brief weekend lecture in law school taught me, laws of general applicability shouldn't make exceptions just because they impact actions that arguably have a basis in a protected category. (I can't refuse you service just because you come from a cannibal culture from some island somewhere, but you also can't kill and eat me just because it has some basis in your culture.) Setting aside my aside whether NMHRA should exist for now, it IS a law of general applicability on the books, and it's application should not make distinctions between discriminatory service that is rooted in a protected class and discrimination that just comes from the heart, as it were. That means that you don't get special permission to discriminate against gays because you claim homophobia is rooted in black culture, or a certain faith. You also can't refuse to serve women just because you're gay and find women icky, even though as you predict, being gay is "Goodthought" and therefore everything they do will be supported by the government juggernaut.

    Of course, this is why I have great reservations about how the law deals with mutable protected categories, especially religion. As, I dunno, Southern Baptists for Obama found out when they applied for the religious tax exemption, it can be a pretty blurry line. To use Clark's example again, I imagine the KKK has some members who give it more blind, fervent devotion than any religion, while on the other side you have religious leaders (protected class) injecting themselves into the political debate (unprotected activity in anti-discrimination terms) because of their religious convictions (still unprotected legally, but kind of gray philosophically to me.) Is there a way to prevent discrimination against people who belong to the most racist, homophobic religions out there while allowing others to refuse to interact with them if they cross the line into some sort of activism? Can we even draw that line?

    This is all assuming you agree with the ruling that sexual orientation is a matter of identity that should be protected like religion is. If you believe that homosexuality is just some moral deviance like child-rape, then both of your examples fit under "ThoughtCrime" in NMHRA terms, because neither gay weddings or KKK weddings are a protected class.

    By the way, what did you mean by "where the government forbids the population to settle in unpopulated lands"? Is there a specific policy we need to know about, or are you just talking about the general government practice of establishing federal preserves, national parks, or just owning unoccupied federal lands and not letting people homestead there?

  98. Xenocles says:

    "Some would call that the rule of law, by which we order our society."

    I feel the need to quibble with this but I'm having trouble articulating it well. The gist of the thought is that the idea of rule of law says more about how we regard our government than how we order society. Though I certainly agree that the law is an area that requires extremely detailed analysis because legal ambiguity is an invitation for injustice.

  99. Greg Sloop says:

    It's always nice to get the occasional reminder of why Libertarians will never, ever be a serious third party in this country.

    And it's always nice to be reminded that we're surrounded by people who think some subjects can't even be discussed.

    To perhaps defend @Al's point.

    The rhetoric here, especially by @Clark is a LOT of heat, and not much light, IMO. And yes, "rhetoric" appears to be exactly the right term.

    I get some of the nuance that this dicussion has, but IMO, many on the "get the government off of my 'effn back" folks are doing surgery with a chainsaw and a hatchet, instead of more reasonable approaches.

    It's that "Cover it with gas, set it on fire, and plow salt into the smouldering ground." kind of attitude that makes bystanders like me just turn him off – and much of the rest from that offensive, over-the-top persuasion.

    So, I can't speak for Al, but I'm glad to discuss the issues. I think they're interesting and we may not agree, but if I start discussing such things with someone who says: "Cover it with gas, set it on fire, and plow salt into the smouldering ground." I kind gather it's pointless discussing much at all.

    -Greg

  100. Shane says:

    @George William Herbert

    The reason for antidiscrimination laws is that without them, one class will actively suppress another.

    And this doesn't happen with these laws?

    Tolerating that enables groups like the KKK to build support and do real violence.

    And the black panthers are a peaceful social club?

    These measures are (sadly) measures to suppress a subculture which encourages violence and crimes against public order, …

    So why don't we apply this across the board to all subcultures that encourage violence.

    Prohibit public and commercial discrimination

    Why? What ends does this serve? To make the discriminated party safer? To silence the offending party? Then there is the sticky wicket of who will determine the two parties. This is why we have the senselessness that we currently enjoy.

    That's the legislative and judicial balancing act.

    Only if you are balancing freedom against tyranny. Sorry to sound cliche but ultimately that is the trade off we are making.

  101. Manatee says:

    @Xenocles:

    Well, they really didn't.

    Check out the vote totals here:
    http://en.wikipedia.org/wiki/Civil_Rights_Act_of_1964

    Notice how party lines mattered much less than the line between "Former Confederacy" versus "The Other 39 States." Assuming arguendo that Congressional vote in some way reflects popular sentiment (I know, I know…) the law passed as a matter of the majority of the United States imposing their legislative will on local majority (in terms of economic and political power, if not actual numbers) that actual comprised a national minority. Essentially, the non-Southern majority didn't like what the dominant power was doing in the South, and they passed a law to prevent it. I can't say what was going through their heads when they passed it regarding how it would impact their own states. Maybe they honestly felt that discrimination wasn't a huge problem in their own states, and that the law wouldn't make a difference there because it barred behavior that never happened anyway (whether or not that belief had any basis in reality is another question.)

    Whatever they were thinking, I think you're incorrect in saying that the majority was making the choice to restrain themselves.

  102. Shane says:

    @Greg Sloop

    … instead of more reasonable approaches

    And what approaches might those be?

    … but I'm glad to discuss the issues.

    Welcome, I await your discussion of the issues. I particularly look forward to the advancement of your ideas on this particular supreme court decision.

  103. Xenocles says:

    "Whatever they were thinking, I think you're incorrect in saying that the majority was making the choice to restrain themselves."

    You may be right; "Me today, you tomorrow" is a law all too often forgotten. Nevertheless, passage of laws such as these does show that a majority in those jurisdictions went along with it. Let's look at the case in question: are we to believe that a state that passed a law prohibiting discrimination against certain groups is full of people who want to discriminate against those groups?

  104. wgering says:

    Another case of the government doing the market's job.

    I agree with the sentiment behind anti-discrimination laws, but am perturbed by the fact that they are laws.

    People who point to the post-Civil War oppression of black Americans as justification for the necessity of anti-discrimination laws may be missing something. Have anti-discrimination laws helped prevent, say, systematic disenfranchisement? Probably. But I think the real problem is the government is structured in such a way as to allow systematic disenfranchisement at all.

    We've merely gone from severely infringing upon the rights of a relatively small group to mildly infringing on the rights of a much larger one.

    But it is still an infringement. I don't want my government to tell me how I can or cannot run my business.

    Unless my business is human trafficking. It's totally cool for them to tell me I can't do that.

  105. Manatee says:

    @Shane

    "And the black panthers are a peaceful social club?"

    Err, what are you trying to argue here? That the KKK isn't that bad because black people can be violent too? You are arguing against GWH's proposition that anti-discrimination laws are necessary. He cited the KKK as an example to support his argument. Assuming that defending the KKK wasn't your primary goal, I would guess that you're citing the Black Panthers as an example of "bad things that happen when anti-discrimination laws exist."

    If so, I disagree with that assumption. The Black Panther Party was technically formed after the passage of the civil rights act, but it's a huge stretch to claim that the passage of anti-discrimination legislation somehow caused or enabled it's existence. They didn't arise because suddenly there were quotas to help black kids with low SAT scores get into college. The catalyzing issue was police brutality against blacks–the black panthers were formed by people who wanted to stop it, whether through political means or violent resistance. From there they grew even more militant, advocating open carry of guns in public and engaging in preemptive violence against police.

    The issues that mobilized the militant black activist community–police brutality, lack of economic opportunity, unequal treatment before law law–these weren't problems created by legislation, they were problems that existed since the days of Jim Crow and were lingering despite the best efforts of the law to eradicate them. Now, I can see some arguments for your side–perhaps the new laws emboldened militant black nationalists, or perhaps efforts to prevent police complicity or jury nullification for lynch mobs meant that it was harder to get rid of "problem" blacks before they were able to gain a following. However, I feel that the overall, the main driving force behind the black panthers were not the two or three years their members had lived in a post Civil Rights Act country, but rather the two or three decades they had lived before 1968.

  106. Gabriel says:

    For what it's worth, I'm with Clark on this one. Giving certain classes of people positive rights to compel services from unwilling providers is morally different from slavery only in degree, not in nature. For any question of the form "Should X business be permitted to deny service to Y prospective customer", the answer is always yes.

    What about the Y in the town with only one X? He is no worse off than the Y in the town with no X at all. If X service was important to him he should have verified that there was someone willing to provide that service *to him* before moving there.

    Telling a tradesman, craftsman, or entrepreneur of strongly held principles that he must choose between not working, or working for those abhorrent to him, is simply tyranny. The question of whether I or anyone else agrees with his strong beliefs is irrelevant. Those who disagree with him are free to patronize others, or to do without; nobody, however virtuous or needy, has a right to simply demand another's unwilling effort.

  107. ZK says:

    So, wait, because political views and political memberships aren't protected classes, what if the photographer had refused service not because the couple was gay, but because the couple (presumably)supported gay marriage and gay rights?

    This seems somewhat of an absurd distinction.

    Could you discriminate against people who supported anti-discrimination laws?

  108. Teej says:

    This is tough. I am a photographer, and have done a couple gay ceremonies here in Arizona, and absolutely support Gay people to have the legal right to marry.

    However, this kind of decision gives me pause. What if a couple contacted me to be part of a wedding that follows some sort of satanic rituals, replete with animal sacrifices? Must I be forced to accept their job offer even if I may disagree with the concept of animal harm?

    How about polygamist weddings? How about nudist weddings? It is not as if I would outright reject those, but the idea of being forced to accept the job seems to be nothing more than an excessive intrusion into my business by the government.

  109. Manatee says:

    @Xenocles,

    I'm not sure what you mean when you talk about jurisdictions. I agree that a majority of Americans in 1968 were in the abstract against racial discrimination. In terms of the post-war South, from how many of my neighbors tell it, going along with federal law was less a matter of agreeing with it, and more a matter of not wanting another Sherman to come through burning everything to the ground.

    So, if by jurisdictions you mean something like the state of Georgia, I really don't think their compliance with federal law was in any way a sign that they agreed with it, or that they were against discrimination against blacks. In fact, the democratically elected government of these states resisted desegregation until the end. I don't think their eventual acquiescence was an indication of anything other than a desire not to be shot by the National Guard troops sent to escort the black kids to school.

    Now, it's another matter if the state affirmatively passes its own laws. I think California is full of a lot of well-meaning people. I hate the tangled thicket of laws that were passed by these well-meaning people, but to answer your question, I think in this particular jurisdiction the majority of people must abhor discrimination on the basis of race, religion, sexual orientation, citizenship status, and all sorts of other identity groups, and I imagine that even without any laws governing them, this sort of discrimination wouldn't become a huge problem.

    But like I said, compliance at the end of a gun doesn't count, especially when the majority of your state's national representatives voted against the law in question.

  110. Ken White says:

    @ZK:

    So, wait, because political views and political memberships aren't protected classes, what if the photographer had refused service not because the couple was gay, but because the couple (presumably)supported gay marriage and gay rights?

    This seems somewhat of an absurd distinction.

    Could you discriminate against people who supported anti-discrimination laws?

    IIRC that's addressed in the opinion.

  111. ZK says:

    Perhaps I should read the opinion before commenting then. My bad.

  112. Manatee says:

    @ZK,

    Well that's pretty much the problem. It's a more obvious problem with religion, but from a certain standpoint, just about any act can be considered a political standpoint. Speaking Spanish with your family might just be a simple act of existing as a bilingual American, but it could also be seen as a political statement about bilingual education, racial profiling, etc.

  113. EAB says:

    If we repealed the federal Civil Rights Act today, you would not see a "No Blacks Need Apply" sign on the doors of any franchise; you would not see any "Whites Only" or "Coloreds Only" signs on any of the doors of any national restaurants or grocery stores.

    Discrimination can function perfectly well without signs to announce its presence, and often did, back in the day. Many of the signs were as much about announcing the business owner's views as about informing people of the rules, which were pretty well-understood by all parties.

    Speaking as a Southerner, I absolutely believe that you would see overt discrimination return to businesses, schools, law enforcement, and housing in my medium-size city. We've made progress in the last 40 years, but we still have a ways to go, and the law gets skirted often enough as it is. If it again became legal to discriminate, you'd see a backslide among the substantial percentage of the population which still harbors racist views but is currently constrained from open expression.

  114. Aaron says:

    @JoshC

    Someone once pointed out to me that there is a qualitative difference between gay marriage and (e.g.) being Jewish: one is something you do, and one is something you are. You can't stop being Jewish, but "People stop having gay sex all the time. Sometimes you get tired, or have to go to work."

    I will give you the benefit of the doubt here and believe that, when you said, "gay marriage," you meant to say "gay sex." Because, the way it is, you say that the difference between gay marriage and being Jewish is that you can stop having gay sex at any time.

    A more interesting parallel would be the difference between Jewish marriage and gay marriage. "Jewish" and "gay" are descriptions of something you are (and, to the extent that "Jewish" is an ethnicity, cannot change). There seems to be nobody arguing against letting two Jewish people marry, although I can imagine someone antisemitic not wanting to photograph their wedding.

    But that's just my "you're comparing apples to oranges here" argument.

  115. Mitch says:

    First, a clever lawyer could have come up with a facially neutral way not to participate, such as "we only photograph state sanctioned marriages" not commitment ceremonies of any type – which (as of now) would exclude Same Sex marriages.

    Second, the intellectual question (as I see it) that Ken posed was "Does the state have the right to impose anti-discrimination laws that compel people to act in opposition to deeply held beliefs?" My answer to that question is "Yes." In large part, that answer is informed by the American experience of 300 years of slavery and quasi-slavery. Libertarian opposition to these laws seems (to me) largely to serve to create room for invidious discrimination against "discrete and insular minorities."

    Third, @Ken – I am amazed that you are taking me to task about TONE. There are at least three things that you have said in this thread alone that are much more snarky than anything I directed at @Clark. ("Some would call that the rule of law, by which we order our society."). So, to twist your words, "Snort my pony!"

  116. John Kindley says:

    What a horrible, immoral decision. I hate racism enough that in the past I thought laws prohibiting discrimination on the basis of race in public accomodations were justifiable, but now, although I still think principled distinctions (e.g., between conduct, such as getting remarried after getting divorced, and unchangeable identity, such as being born black or Jewish) are possible, I think the slippery slopes involved make all anti-disrimination laws not worth it. Can't photographers, like lawyers, specialize? So a photographer holds herself out as a "wedding" photographer. Why does the State get to decide what the photographer means by a "wedding"? Why couldn't a photographer hold herself out as a Catholic wedding photographer, or a Jewish wedding photographer, or a photographer of weddings between a man and a woman? Suppose two people want to have some kind of ceremony where they agree to mingle their assets but where either party can terminate the agreement at either time and can have sex with whomever they want throughout the arrangement. Suppose there's no vows, no cake, and no kissing of the bride. Is that a "wedding"? How about the signing of an ordinary business contract creating an ordinary business partnership? Oh, but the wedding photographer who doesn't photograph business contracts or ball games isn't discriminating against gays! But neither is the wedding photographer who sees, rightly or wrongly, a gay wedding as not a wedding but more like a business contact and therefore doesn't photograph gay weddings. I note that the statute at issue here also forbids discrimination on the basis of religion. Is a wedding photographer obliged to photograph an atheist, or a Satanic, wedding?

  117. Xenocles says:

    On another note, I'm not convinced religion is a choice either. I'm not sure I could choose to believe gods exist or that my wife could choose to believe as I do. I know I didn't choose to stop being a Christian; I just wasn't one day. I no longer believed it was true.

    It changed, but not because of my choice.

  118. David W says:

    @Mitch "a clever lawyer could have come up with a facially neutral way not to participate"

    So, you're saying the only difference between an action that should be illegal and one that shouldn't be is what the actor *says* about his reasons? It's ok to discriminate, as long as you also lie? Your actions don't much matter, but your words get you punished?

    That's the heart of why I'm generally with Clark on this one. Anti-discrimination laws become anti-free speech laws. Try to fix that problem by ignoring what people say, and they become instead totally arbitrary as a judge/jury has to outguess every single business decision. Whether it might have been motivated by discrimination despite what the business owner said. You'll get an awful lot of error that way.

    And that's the best case, assuming the laws are applied as intended by a perfectly non-corrupt official. Especially if you go with the second approach of having the judge outguess your reasoning (standard in employment law these days), it's incredibly open for discretion and interpretation: "you didn't want to sell me lunch for a penny? It's because I'm white, isn't it? See you in court"

    I tend to think discrimination itself is wrong, and also stupid, but making it illegal isn't possible, not without throwing out an awful lot of baby with that bathwater.

  119. Dan Weber says:

    In the state of New Mexico, the public, through their elected officials, have decided that the type of freedom the couple desires should be enforced by law, and that the type of freedom the photographer wants to excercise is illegal.

    But gay marriage is illegal in New Mexico. Can't even get civil unioned.

    I'm kind of surprised Clark hasn't leapt on that: the state refuses to let gays get married, but is willing to prosecute its own citizens for having the same decision.

  120. Clark says:

    @Ken

    Some would call that the rule of law, by which we order our society.

    Some would call that the rule of law, by which we order-ed our society.

    …but, yes, I thought that was a really odd comment to leave at a legal blog.

    "This isn't fried fish – it's a flat bread product with tomato sauce, cheese, and pepperoni on it. And you call this a pizzeria!?!?"

  121. Aliester says:

    New here but a long time lurker.

    Anyway I am really on the fence on this one. I think a store that is selling already made or standard items (no customization) shouldn't be able to discriminate but a business selling a persons services such as a photographer or cake maker should be exempt.

    The line I draw here is that this decision compels a person to perform work where as in the example of the grocery store no additional work is needed to sell the product.

    The scenario that came to mind, which I would love to see tried in NM, is what if the West Borough Baptist church under this law forced a war widow photographer to photograph one of their events protesting a soldiers funeral. Also they could compel a gay cake maker to make custom cakes for the event with their standard slogan "God hates fags" written in frosting on them. Since this is an expression of their religious beliefs then they should be protected in NM and be able to compel cooperation from any public business.

  122. Aliester says:

    Forgot to mention IANAL.

  123. Wick Deer says:

    Any law is inherently an infringement on individual liberty. Laws tell people that they must do something they don't want to do or tell them that they may not do something they don't want to do. That's what laws do.

    With any law, the issue is whether the societal costs and consequences of having the law are worth the burden the law poses on individual liberty. This sort of cost benefit analysis should be part of the consideration of any law. Of course, it far too seldom is.

  124. Wick Deer says:

    An edit function, an edit function. My kingdom for an edit function.

    Hopefully the meaning of my first paragraph will find it's way out of the mangled prose.

  125. Mark - Lord of the Albino Squirrels says:

    I'm not going to get into old cliches about the liberty to accelerate clenched fists versus the spatiotemporal coordinates of noses here, but this post does leaves me with a personal conundrum.

    There have been many posts about how anti-discrimination laws may or may not infringe on the personal liberty of photographers, bakers, artists, the clergy, and any other profession I might have missed in thread comments.

    But what about policemen, mayors, senators, or presidents?

    Of course, government might not be a "business" – debatable in my opinion – but it is made up of humans. (yes, cited without evidence…badump bump) with presumably the same right to personal liberty as any other human. That leads me to a question:

    If it is okay (moral, pragmatic, choose-your-own-nice-connotation adjective) for a photographer to discriminate based on personal belief to preserve their liberty is it also okay for a policeman, lawmaker, judge, or other human with authority backed by the state to discriminate for the same reason? If not why not?

    On one side, discrimination by those whose business entails public accommodation (government employees) is never okay to me. At the same time, discrimination by those who create a piece of art for their own fulfillment which might sell at some point (business!) might be distasteful, but their right to discriminate in that creation should not be infringed.

    So for the artist expressing themselves I find anti-discrimination laws loathsome as they oppress that artist's rights. That said, for The Man, servant-o-the-beast, Johnny Law etc.. I find them just and crucial. Because who can trust those guys?

    My conundrum is that I cannot come up with a rationale or system that explains why those two stances are not contradictory. Pragmatism? Gut feeling? Just becuz?

    Gonna go bonk myself in the nose with my own fist to see if I vanish in an explosion of my own conflicting liberties. Or maybe have ice cream.

  126. Hughhh says:

    * different than FROM.

    You're welcome.

  127. Mark - Lord of the Albino Squirrels says:

    *Ouch*…so I guess ice cream then.

  128. James Pollock says:

    I happen to think that society should enforce, roughly, the policy that "you're either open to the public, or you're not." but there are still situations where a business owner should be allowed to expel a customer (or potential customer) based on the behavior of the customer, and, of course, any specific individual's ability to pay.
    In other words, I've no quarrel with a business:
    *86ing a drunk
    *Refusing to serve a person inappropriately dressed
    *Ejecting people for having annoying personal electronics devices. <== movie theaters, I'm looking at you here!
    *Refusing entry to premises of known shoplifters/bad check passers
    *Forcing smokers to huddle outside in the rain while they fix up.

    I think the gray area is PDA. Some people are put off by any PDA, some are only put off by gay PDA, some people don't care about it at all. Telling the first two groups apart is probably not easily accomplished; Banning PDA in any environment other than a school is probably impossible.

  129. Clark says:

    @Wick Deer

    Any law is inherently an infringement on individual liberty.

    Indeed.

    That is why some of us are voluntaryists / anarchists / anarcho-capitalists.

    With any law, the issue is whether the societal costs and consequences of having the law are worth the burden the law poses on individual liberty.

    No.

    You're starting from the assumption that there is a State, above and beyond the mere citizenry, that has the moral legitimacy and agency to even contemplate how much Peter should be raped to make Paul's life better off.

    To start your inquiry there skips over the challenging part: the nature of rights, and whether – and under what circumstances – rights may be infringed.

    I, for one, think that rights are inalienable, that utilitarianism is evil, and that no matter how many billions of people might be made perfectly happy, it is never acceptable to infringe on the God-given rights of even one small person.

  130. Clark says:

    @James Pollock:

    I happen to think that society should enforce, roughly, the policy that "you're either open to the public, or you're not."

    Just to be clear, you don't mean "society", as in "a bunch of people who gossip and create and destroy reputations"; you mean "government", as in "a bunch of people with guns who lock you in a cage if you do something they don't approve of", right?

  131. Clark says:

    @Mark – Lord of the Albino Squirrels

    I'm not going to get into old cliches about the liberty to accelerate clenched fists versus the spatiotemporal coordinates of noses here,

    Glad to hear it. I'm a big Heinlein fan, but that quote is stupid to the point of sounding like something Scalzi came up with on bad-Heinlein-pastiche day (for those keeping score, that's the same day he wrote Old Man's War).

  132. James Pollock says:

    "So for the artist expressing themselves I find anti-discrimination laws loathsome as they oppress that artist's rights."
    Hrm. Wedding photography and wedding-cake baking are not about the artist expressing themselves except in the most unusual of circumstances; the usual case is work-for-hire. The person who's artistic tastes are to be satisfied are the subjects', not the photographers'.

  133. James Pollock says:

    I think the correct solution is for people who serve in wedding-related industries and object to same-sex marriage to maintain a referral list of people who don't object.
    Of course, this smacks of "separate but equal", so it probably won't work for hotels or for wedding halls owned by organizations that aren't churches. But for photographers, planners, florists, bakers and the like, I don't see any problems (at least, not on first glance.)

  134. Mark - Lord of the Albino Squirrels says:

    @James Pollock

    "Hrm. Wedding photography and wedding-cake baking are not about the artist expressing themselves except in the most unusual of circumstances;"

    I was referring more to the lonely-artist-painting-in-a-garrett cliche, and I agree about the wedding cake bakers and wedding photographers. The idea being take someone with the most minimally public of professions – the lonely artist – and comparing them to someone with the most public of professions – government. The cake bakers and wedding photographers would fall somewhere in the middle.

  135. wfgodbold says:

    Mark, LotAS:

    The government (theoretically) must treat all equally. It follows that governmental employees must treat all equally; by seeking employment with the government and taking the government's shilling, they must dance to the government's tune. No one forced them at the point of a gun to get government jobs.

    I don't see the contradiction in thinking that the government should be prevented from discriminating while private persons and businesses may exercise their freedom to discriminate as they choose.

  136. Kevin Kirkpatrick says:

    Clark,

    You continued to refer to our rights as "God-given." In your mind, does the inalienable nature of our rights depend on the existence of a power greater than us; and only so long as that greater being chooses to confir them upon us?

    If your God chose to withhold these rights from just one person in, say, a city called Omelas…. would you walk away (if so – why? who's rights are being violated? if not – I'd suggest you think on that a bit)

  137. Kevin Kirkpatrick says:

    Gah – I really need to preview before posting… Apologies for the double-post, I just can't stand to see so MANY cringe-worthy grammar issues:

    You continued to refer to our rights as "God-given." In your mind, does the inalienable nature of our rights depend on the existence of a power greater than us; and can we have such rights only so long as that greater being chooses to confer them upon us?

    If your God chose to withhold these rights from just one person in, say, a city called Omelas…. would you walk away? (if so – why? whose rights are being violated? if not – I'd suggest you think on that a bit)

  138. Zack says:

    @Kevin Kirkpatrick: (From my beliefs, and what I understand) Our rights come from our sentience. We are sentient, sapient beings and all our rights originate from that. Saying "God-given" is merely another way of saying 'inalienable'. It is attempting to make the point that a human's natural rights are a force majeure- they supersede the 'rights' of society, the 'rights' of government, the 'rights' of the sovereign, the 'rights' of the church, the 'rights' of the clan, the 'rights' of the tribe, and the 'rights' of other creatures.

  139. Rob says:

    If we ever get to a place in this country where the legislature is convened in a place unusual, uncomfortable, and distant from the people, where the government forbids the population to settle in unpopulated lands, where the government erects a multitude of new offices and sends for swarms of officials to harass the people, or keeps an standing army in time of peace, I may very well issue a call for armed insurrection.

    …but not until then.

    I see what you did there… ;)

  140. Wick Deer says:

    @Clark

    No. There are no such thing as God-given rights. There are no "rights" without a legal structure creating and enforcing them.

    You may have the ability to do anything you want to do, but there would be no right to do what you wanteds, because there would be no one to come to your aid if your "rights" were abridged.

  141. Kevin Kirkpatrick says:

    Zack, if that's the intended meaning (which I'd paraphrase as "'God-given rights' just means our rights exist naturally and aren't given to us [by something like, say, a god]. Hence, they're 'God-given'"), then I'd recommend using a different phrase.

    That said, Clark tends to choose his words carefully, which is why his use of that phrase really kind of throws me…

  142. James Pollock says:

    "I don't see the contradiction in thinking that the government should be prevented from discriminating while private persons and businesses may exercise their freedom to discriminate as they choose."

    Governments discriminate against persons all the time. For example, minor persons are not permitted to vote. Both government AND private individuals and groups have some areas where they are allowed to discriminate freely, areas where they are allowed to discriminate but only within proscribed areas, and areas where they are not allowed to discriminate at all. The distinctions between the areas is often arbitrary (persons who are 17 years, 364 days old may not choose whom they will have sexual intercourse with, but persons 18 years, 0 days old can, as long as they choose from the "approved" list; people who are 20 years, 364 days may not purchase, possess, or consume alcoholic beverages, people 21 and over may, so long as they don't try to operate a motor vehicle).
    Yes, I chose examples of age-discrimination, because these are the easist to illustrate. But government discriminates all the time on a wide variety of factors. It is prohibited from discriminating on race, religion, national origin, or gender. A good many incidents of discrimination occur around status as a felon, not all of which are related to the underlying felony conviction.

  143. Mark - Lord of the Albino Squirrels says:

    @wfgodbold

    "by seeking employment with the government and taking the government's shilling, they must dance to the government's tune. No one forced them at the point of a gun to get government jobs."

    By the same token then, seeking employment with McDonalds or taking Walmart's shilling means a person must dance to McDonalds' or Walmart's tune.
    So the infringement of any employee personal liberties by those three employers are permissible so long as the infringement of said rights is according to the company policy or "tune". No one forced them to be a fry cook, cashier, or park ranger at gun point after all.

    Am I understanding your position correctly?

  144. John Kindley says:

    I suspect our rights are best safeguarded by saying nobody has any rights. Least of all anybody in government.

  145. Zack says:

    @Wick Deer: That's a backwards definition of rights. Rights are not what you ARE guaranteed, rights are what you SHOULD BE guaranteed- the entire theory behind democracy is that a human being inherently has rights, before any sort of legal system gets involved. Take that away and you kind of go over a moral event horizon- there's precious few arguments at that point that allow you to argue against history's greatest atrocities. At that point, if your morality trumps your law, then you either justify the atrocities, conducted from a different moral scheme, or must find someway to judge among moralities- which is existentially problematic if you're denying the existence of 'rights' as an inherent thing. If law trumps morality, then you again justify the atrocities- because most if not all of them were conducted legally.

    IMHO, rights are:
    *Granted by sentience and sapience; if you have the capacity for abstract thoughts, and to judge, you have rights.
    *Inalienable- that is to say, they cannot be removed by circumstance, fiat, or majority vote. You have them from your first breath until your last- and anyone who deprives you of them is committing a wrong against the entire species of humankind.
    *The converse of 'inalienable' is 'universal'- that is to say, a 'right' cannot depend on technology levels or human knowledge, because these things can be removed or destroyed and 'rights' cannot. Therefore health insurance, internet, money, etc. cannot be 'rights'- they can be good, charitable causes, causes worth living and fighting and dying for if you believe in them, but they are not 'rights'.

  146. James Pollock says:

    "No. There are no such thing as God-given rights. There are no "rights" without a legal structure creating and enforcing them."

    No, there are no rights that exist separately from other people's willingness to extend them to you, and even then they still aren't absolute. (Try explaining your right to life to the moving freight train you've stepped in front of…)
    Your right to property is meaningless unless there are no thieves nearby; your right to life is meaningless unless there are no murderers nearby; your right to speak freely is meaningless unless the other people nearby are willing to permit you to continue speaking. All of these rights are subject to sudden and unjustified removal at any time if a sufficient number of your nearby fellow humans choose to do so.

    For a substantial portion of American history, people who felt constrained by societal rules had an option, a place they could go where those rules would not apply. The reason that there are so many Mormans in Utah is that their neighbors in Ney York were not prepared to offer them full freedom of religion.

    People who assume that the source of their rights lies anywhere other than in the tolerance of their neighbors or absence thereof is in danger of finding the truth in a spectacularly non-ideal way.

  147. Zack says:

    @James Pollock: There's a difference between what the 'source' of our rights are, and what enforces those rights. The source of my right to life is me. I have a right to life whether I am in 20,000 BC, 50,000 AD, Africa, America, Mars, or, God forbid, Europe :). I can take sole responsibility for enforcing that right, or I can work collectively with others to ensure our mutual enforcement of that right. Does it prevent a truck driver from slamming into me? No. But in that case, either he has committed a wrong, or I chose to throw my life away. The wrong can either go unpunished- if I chose to take sole responsibility for enforcement- or others can enforce it on my behalf, if they believe that enforcement is worth upholding even without me contributing to their collective- or, others that I have made a prior pact with to enforce our rights, can enforce it on my behalf.

    A right's source, and its enforcement, and its surrender, are three independent things.

  148. Mark - Lord of the Albino Squirrels says:

    @Clark

    "Glad to hear it. I'm a big Heinlein fan, but that quote is stupid to the point of sounding like something Scalzi came up with on bad-Heinlein-pastiche day (for those keeping score, that's the same day he wrote Old Man's War)."

    LOL, excellent.

    This is irrelevant to the thread – and a little bit of the "dance monkey, dance!" thing that many bloggers hate – but would love to see a post looking at anarchism and/or libertarianism in science fiction. Just puttin' that out there.

  149. Shane says:

    @Manatee

    The reason for antidiscrimination laws is that without them, one class will actively suppress another. Cf back of the bus, separate drinking fountains, segregated schools, etc. Tolerating that enables groups like the KKK to build support and do real violence.

    And the black panthers are a peaceful social club?

    Err, what are you trying to argue here? That the KKK isn't that bad because black people can be violent too?

    If the black panthers had the power that the KKK had, they would do exactly the same thing. They are two groups that are cut from the same cloth.

    –the black panthers were formed by people who wanted to stop it,

    And now they are a militant violent group that believes in racial segregation. I don't care how they started this is where they are now. They have become the very thing that they wanted to end.

    … unequal treatment before law law–these weren't problems created by legislation, they were problems that existed since the days of Jim Crow and were lingering despite the best efforts of the law to eradicate them.

    These were problems that were created by the people that hold the guns and make the laws, so yes they were created by legislation.

    There is a huge difference between a government agent that is discriminating and a private individual or commercial interest that is discriminating. If the anti-discrimination laws where aimed at ending said governments discrimination then I believe that is good, but that is not the anti-discrimination laws that we got.

  150. Shane says:

    @Mark – Lord of the Albino Squirrels

    Of course, government might not be a "business" – debatable in my opinion – but it is made up of humans.

    The conundrum that you are dealing with is that you do not understand the nature of government and it's true reason. Government is force, coercion and any number of things that basically mean it will do something to you against your will. This is good and bad. I think Washington's quote best applies this understanding. Government is not reason; it is not eloquent; it is force. Like fire, it is a dangerous servant and a fearful master. Fire can easily break it's bonds and spill out into areas that it doesn't belong destroying everything in it's path. Government is necessary for some things, that require coercion but, too many people want to obfuscate governments true nature for their own ends, this is dangerous. And the people that believe government to be something other than what it is very quickly find out it's true nature when the are on the wrong side of it.

    If it is okay (moral, pragmatic, choose-your-own-nice-connotation adjective) for a photographer to discriminate based on personal belief to preserve their liberty is it also okay for a policeman, lawmaker, judge, or other human with authority backed by the state to discriminate for the same reason? If not why not?

    Because the baker etc … can not compel you (force you, ultimately at the end of a gun) to do something. They can use fraud, they can use deceit (and they can be punished for these), but the use of force is reserved to the government.

  151. HandOfGod137 says:

    To my (full disclosure: liberal atheist) British eye, this all seems quite straight forward. Society clearly imposes limitations on freedom, and these must be carefully balanced and policed, but the idea you can "smash the state" and live in some anarcho paradise seems naive in the extreme. Unless the goal is for us all to live in heavily fortified compounds, polishing our guns, knitting our own yoghurt and reminiscing about the days when we had a sufficiently developed infrastructure to have an internet, I suspect the majority would be horrified at how we would end up existing.

    I am equally confused at the idea of "God-given rights": if this is shorthand for "natural rights", I would argue no such thing exists. And if it actually means "rights given to mankind by some deity", then the question becomes which deity (if such a thing exists, which seems highly unlikely). We are just animals: rights are constructs made manifest in legal and social structures we create. Surely we've reached the point where we can use more sophisticated ideas than bronze-age creation myths?

    I know I'm probably misunderstanding a lot of the legal stuff (and cultural stuff specific to the USA), but in the absence of any practical alternative to the state, I'd say we need to accept that the benefits we gain from the it are paid for in part by accepting limitations on our behaviour. And I have absolutely no problem in including anti-discrimination laws as part of the acceptable price. We've had pharmacists refusing to sell "day after" birth control products on the grounds of religious conviction here in England, and I just don't think attempting to impose morality in that way is acceptable in a civilized society. If roles were reversed, I wouldn't demand the customer abandon their faith before I would take their business.

  152. John Kindley says:

    "The source of my right to life is me."

    Maybe, but from my perspective the source of your right to life is not you, or God, or the State, or society, but me.

  153. Shane says:

    @Kevin Kirkpatrick

    You continued to refer to our rights as "God-given." In your mind, does the inalienable nature of our rights depend on the existence of a power greater than us; and can we have such rights only so long as that greater being chooses to confer them upon us?

    Ayn Rand, an avowed atheist, puts it this way: a creature's nature determines it's morality. Who we are determines our rights, not God. Taking the extreme view of rights from the religious conservatives and using it to smear the concept of rights is disingenuous. Yes some religious conservatives bandy about rights being God given without any understanding of what they are talking about. This doesn't make the idea of "God" given rights wrong, it just means that the reasons given are wrong.

  154. Zack says:

    @HandofGod137: Here's the problem with that.

    If we are animals, then why was the Holocaust wrong?
    Practically speaking, if humans have no natural rights, then why was detaining Korematsu wrong?
    If humans have no natural rights, then why were the Jim Crow laws wrong?
    If humans have no natural rights, then why was slavery wrong?
    If humans have no natural rights, then 'crime'- from the crimes of states on down to the crimes of individuals- turns from an ethical calculation into a risk/reward one. In which case, slavery in the South was the best thing ever. It made a large proportion of the population wealthy, and provided medical benefits to a proportion of the population of Africa that would never have had them. The Holocaust was a successful winnowing of a population down into a form where they could create the country they wanted. And the slaughter of the native americans created a country that stretched from the pacific to the atlantic, with (presently) the largest economy and military in the world.

    Denying natural rights means defending- or at least, admitting that there was no fault in- the greatest atrocities of all time. Natural rights are not a theistic notion.

    Denying natural rights also implies that no form of government is superior to another- that dictatorships, and kingdoms, republics, democracies, parliaments, etc. should be judged by the end result of their actions rather than by the rights they deny their citizens. It means, again, that the third reich was one of the most successful republics on the face of the earth because it resurrected a dead economy into a powerhouse capable of facing down most of the world combined.

    And I think, from a philosophical perspective, that these things are unconscionable results- and that, while you can quibble about the semantics, that ultimately the end will always be the same- denying natural rights means denying any form of objective secular morality. Denying objective secular morality means either admitting of no morality or of a subjective one. If no morality, then existence is pointless and fruitless. If a subjective one, then nothing can excuse the cases where subjectively correct acts were responsible for industrial-scale actrocities.

  155. Mark - Lord of the Albino Squirrels says:

    @Shane

    "Because the baker etc … can not compel you (force you, ultimately at the end of a gun) to do something. They can use fraud, they can use deceit (and they can be punished for these), but the use of force is reserved to the government."

    So denying a person's personal liberty to discriminate is okay if that person's employer has the power to compel you to do something by force? Does someone who has the legal right to compel my actions through force who is *not* a government employee – such as a security guard, homeowner I am robbing, bouncer, etc. – also lose that personal liberty?

    Might makes no rights.

    It's an interesting idea, I'll give you that.

  156. Shane says:

    @Wick Deer

    No. There are no such thing as God-given rights. There are no "rights" without a legal structure creating and enforcing them.

    Do we have the right to protect ourselves? When there were no cities, when we lived on the plains did we still possess this right? When we organized into societys did we somehow lose this right? The right to protect ones self is innate to our nature as a human being, no greater being gave us this. We by our very nature posses it, regardless of the structure under which we live.

    You may have the ability to do anything you want to do, but there would be no right to do what you wanteds, because there would be no one to come to your aid if your "rights" were abridged.

    And you are somehow helpless, without some governing force, in the face of someone violating your rights. This is patently absurd.

  157. Shane says:

    @Mark – Lord of the Albino Squirrels

    So denying a person's personal liberty to discriminate is okay if that person's employer has the power to compel you to do something by force?

    You are really not understanding the issue of force. Let's say that you have robbed someone, and you are discovered and caught. The government will then detain you. What if you don't want to be detained, and you ignore government agents that come to enforce the law regarding robbery. Do you see that they will do violent things to put you in a cage. If you try to run they will try to stop you using the means at their disposal. What if you believe that they can't do this and you try to "protect" yourself with force. I am not trying to be pedantic, but you must understand that when the government uses force it really means at the end of a gun.

    Now, what if you employer "forces" you to work at 9:00 am when shift starts at 11:00 am. What can the employer do to "make" you work the earlier shift. Please compare and contrast with the above example.

    … through force who is *not* a government employee – such as a security guard, homeowner I am robbing, bouncer, etc. – also lose that personal liberty?

    A security guard, homeowner and a bouncer all have one thing in common in the above comment. They are all protecting property. If you are somehow infringing on their property then who is really infringing on who's personal liberty.

  158. Shane says:

    @HandOfGod137

    … but the idea you can "smash the state" and live in some anarcho paradise seems naive in the extreme.

    Why do I have to "smash the state", to retain my liberty? Why can't the state recognize my nature and my right to fulfill it? Why does not violating me as a human being mean the end to all laws?

    Unless the goal is for us all to live in heavily fortified compounds, polishing our guns, knitting our own yoghurt and reminiscing about the days when we had a sufficiently developed infrastructure to have an internet, I suspect the majority would be horrified at how we would end up existing.

    Because human beings are patently evil, and the only way that you can make them even remotely good is to stick a gun in their face and tell them how to be good. This is your angle?

    We are just animals: rights are constructs made manifest in legal and social structures we create.

    No we are not animals, we are human beings and we have a specific nature, based on our biological structure. Rights flow from what we are, and how we function. How do you think we decide on legal and social structures? Out of pure randomness?

    I'd say we need to accept that the benefits we gain from the it are paid for in part by accepting limitations on our behaviour.

    So the almighty state hands us our existence and we must meekly be glad that at least we get something from it? Have we fallen so far as to believe that this is proper?

    We've had pharmacists refusing to sell "day after" birth control products on the grounds of religious conviction here in England, and I just don't think attempting to impose morality in that way is acceptable in a civilized society.

    So in a "civilized" society it is acceptable to use the threat of violence to coerce people to violate their convictions.

    If roles were reversed, I wouldn't demand the customer abandon their faith before I would take their business.

    LOL, if the roles where reversed the customer wouldn't be trying to buy morning after pills from the pharmacist.

  159. Jay says:

    @ John Kindley

    ["The source of my right to life is me."

    Maybe, but from my perspective the source of your right to life is not you, or God, or the State, or society, but me.]

    Then I bid you, come try and take it from me, and I will show you that, when faced with no other option, I will protect my life with my life. I can assure you though, that the sacrifice of your life, whether by my hand or another, cannot compel me to give my life unless I choose. So again, who truly controls the source of an individuals life?

  160. Steven says:

    It seems to me that there's a big difference between being required to photograph a same-sex wedding and being required to accept a gay client for, say, a studio portrait session. I won't weigh in on what the law here actually is (i.e., whether the court got it wrong), but I'm a lot more comfortable telling a photographer that they aren't allowed to decline gay people as customers than I am telling them they have to photograph same-sex marriages.

  161. Jay says:

    @ Handofgod137

    Ugh, where do I begin. You're inability to imagine a scenario does not exclude the possibility of such a scenario to exist. In the case of your (unfortunately ignorant) summation of what a non-state existence might be like, I would counter that a non-state existence would be whatever we (as a collective human race) want for ourselves (as individuals). How many people do you think desire to live in the scenario you've portrayed? Few I would guess, which means that it is extremely unlikely that it would take place. We as a human race have lived far longer without the concept of a state than we have with, and although I will succeed that the state concept has stimulated (i guess by that I mean forced at the point of a gun/bow/sword/weapon of choice) cooperation and singular goal driven development, I must say that without the state, we may have discovered advancements that we have been specifically prevented from simply because of imposed laws. In fact, looking throughout history, you will find more cases contributing to the assumption that the state is far more detrimental to cultural/scientific/moral development than it is beneficial.

    Furthermore, your argument that "natural rights" do not exist is ludicrous! Every form of life in the Universe has unalienable natural rights. The right to defend oneself from obliteration being first and foremost. Are we always able to enforce our rights? No, but that doesn't at all mean that we didn't have the right in the first place. What makes the state such a threat to those rights is its ability to FORCE its will upon everyone and everything. For example, if the state wants to kill me for some reason, it can force individuals (who probably have no personal motivation to kill me other than to appease the state) to band together and overwhelm me to the point where I am utterly defenseless.

  162. Jay says:

    ^secede

  163. JonB says:

    Well… this is a long discussion here about law itself and particular application of that law to rendering services.

    My question for You all: How should be law worded and how should it be described so that no group of people is discriminated but also allow those who discriminate to openly decide about themselves and their business?

    For example: I discriminate all citizens of Germany and Austria and also all people with openly communist views. I would love to inform those people that I am not willing to do business with them (or at least I will not negotiate prices with them; I will charge them full price of all services and I will render my services in worst possible way while not putting me in danger of being associated with bad work), but going as far as supporters of Nazi regime did in pre-1939 France (eg "No jews and dogs allowed in our shop") would be IMO very bad thing to do. At the same time I believe that government should not discriminate those people that I discriminate because that would also allow government to discriminate against me shall it chose to do so.

  164. Shane says:

    @James Pollock

    People who assume that the source of their rights lies anywhere other than in the tolerance of their neighbors or absence thereof is in danger of finding the truth in a spectacularly non-ideal way.

    And if my neighbors are so smart then they will get immediately that I too can co-operate with others in a form of mutual defense of each of our individual rights.

    Allowing that my existence and from that existence my rights, is dependent on someone else is are recipe for suicide. If I believe you have to sanction me then I can never sanction myself and my "self" comes from others that must validate me as a person. That is not called life that is called abdication.

  165. Mark - Lord of the Albino Squirrels says:

    @Shane

    "Let's say that you have robbed someone, and you are discovered and caught."

    That's easy, I could get shot, detained, beaten up, hog tied, or something else unpleasant by government agents responding, or by the private citizen / business who just caught me robbing them.

    "Now, what if you employer "forces" you to work at 9:00 am when shift starts at 11:00 am. What can the employer do to "make" you work the earlier shift. Please compare and contrast with the above example."

    Well a Senator could threaten to fire me, or cut my pay, or give me a stern talking to – pretty much the same thing that Larry the Assistant Manager could do legally. Or did you mean that a Senator can legally shoot me (or get a cop or soldier to shoot me) if I won't accept a shift change? Maybe he could get me shot for being a Terrorist I suppose…but that would be fraud or deceit which you said bakers etc. could use too.

    Looks like in your first scenario I can be shot (or otherwise violently compelled) by a government employee or non government employee to stop a robbery. In your second scenario, I can be threatened with job loss (or otherwise non-violently compelled) by a government or non-goverment employee to get me to change shifts. Lot of compare, not much contrast.

    "A security guard, homeowner and a bouncer all have one thing in common in the above comment. They are all protecting property. If you are somehow infringing on their property then who is really infringing on who's personal liberty."

    Well, both of us are obviously. They are infringing on my liberty to go where I want to. I am infringing on their liberty to not have me on their property. They are well within their legal rights to compel my actions by force in this scenario. The use of force to compel action (legally) is not reserved for the government.

    That said, it seems important to you that only government can (legally or illegally) use force. They do seem to enjoy it quite a bit, so I'll go along. That still leaves the same question: Why is it okay to infringe on the liberty of a government employee to discriminate but not a lonely artist's?

    Your answer seems to be that it is okay to infringe on a Mailman or Park Ranger's personal liberty more than a non-government employee's because the government is somehow the only legal wielder of force.

    How does that follow?

  166. Rich Rostrom says:

    I'll say this again, and again, and again.

    There is a difference between

    Requiring the sale of a good or service to a person with a characteristic which is irrelevant to that good or service.

    Requiring the sale of a good or service to a person engaged in particular conduct where the good or service is expressive of that conduct.

    There is no "black" content to eating a restaurant meal, sleeping in a hotel room, riding in a first class train carriage, or attending a university. These and other goods were denied to blacks to injure them and humiliate them for being black, not for any reason connected to the goods.

    The ceremony the plaintiffs demanded Elane photograph was very specifically homosexual in content.

  167. David Schwartz says:

    "The reason for antidiscrimination laws is that without them, one class will actively suppress another."

    You mean like when the class of people who thinks discrimination against homosexuals is wrong compels a person who thinks homosexual unions are wrong to photograph one? You haven't seen active suppression until you've seen with the force of law.

  168. HandOfGod137 says:

    @Jay
    "Every form of life in the Universe has unalienable natural rights" is a statement, not an argument, and seems to have no basis in fact. I think you may be mistaking "capacity" or "capability" for "right".
    I'm having a little difficulty parsing your first paragraph, but you seem to be arguing that many major developments have been made without or prior to the state. Can you give an example? If you honestly think science and technology would develop faster outside the infrastructure provided by civilization, I think you may be mistaken.

  169. grouch says:

    I am a fourth-class citizen.

    My first reduction in class comes from religion. I'm not sure Clark's invisible magic friend gave me any inalienable rights. The rights I once thought I had appear to be crumbling away at an increasing rate, therefore must not be inalienable and therefore could not be "God-given" to me. (I must admit that the various levels of government are somewhat less discriminatory over my doubts than are my fellow citizens).

    Second, I'm a cigarette addict. This means there are whole cities in which I am denied access to my fix, even as other citizens are free to use their addictions to dump far greater hazardous material into the air around us within those same cities — petroleum fumes, volatile organic compounds, etc. (Some of these same perfume-, exhaust-, and pesticide-laden cities were built on tobacco revenues. So it goes; laws are fads and commodities).

    Third, I do not use any Microsoft software and therefore have less access to "my" government than the majority of citizens. (I must've missed the election that elevated a single corporation to the status of gatekeeper for some government services).

    Does this put me into the untouchables class? I don't think there are enough of us to hope for parades and inclusion in anti-discrimination laws.

    Oh, yeah, almost forgot the immediate topic. I cannot find fault with the Honorable Judge's logic. That could be simply me being dense.

    This stood out to me:

    United States Supreme Court precedent makes it clear that the right to speak freely
    includes the right to refrain from speaking. See, e.g., Wooley v. Maynard, 430 U.S. 705, 714
    (1977) (“[T]he right of freedom of thought protected by the First Amendment against state
    action includes both the right to speak freely and the right to refrain from speaking at all.”).

    Isn't the federal government currently engaged in forcing all of us to speak by way of the actions of the NSA, FBI and FISA?

  170. grouch says:


    And I think, from a philosophical perspective, that these things are unconscionable results- and that, while you can quibble about the semantics, that ultimately the end will always be the same- denying natural rights means denying any form of objective secular morality. Denying objective secular morality means either admitting of no morality or of a subjective one.

    They are unnatural rights, as unnatural as philosophy and morality. If they are natural, please point to their location and physiology. Such rights exist because we imbue our species of animal with them. I suppose, then, that they may be more correctly termed supernatural, but you cannot point to the rights organ or cut it from a person to examine its contents. That ain't natural.

  171. Clownius says:

    @Shane

    And if my neighbors are so smart then they will get immediately that I too can co-operate with others in a form of mutual defense of each of our individual rights.

    Congratulations you just created the start of a Government to protect your rights.

  172. Sami says:

    There is no such thing as an objective morality. That is, more-or-less, the difference between ethics and morals.

    It's also ridiculous to suggest that there's such a thing as inalienable rights. What right? To go for the classics: Life? How's that working out for you if you get shot in the head – or struck by lightning, for that matter? Liberty? Well, since life was already inalienable, thus rendering capital punishment impossible, what do you plan to do about criminals, if their right to liberty is inalienable?

    Such pretty words for slave-holders to fight for, though.

    (I'll give you the pursuit of happiness. I cannot stop you pursuing happiness, even if you're pursuing it in a rat-filled oubliette.)

    Clark declares:

    no matter how many billions of people might be made perfectly happy, it is never acceptable to infringe on the God-given rights of even one small person.

    So… you're suggesting that there should be no criminal justice system whatsoever. No prisons, no reform schools, no mandatory counselling to address the problems that led to an individual committing a crime – nothing, because all of those infringe that person's liberty and freedom of choice and action and all sorts of things.

    And, of course, since it's a matter of self-expression, I should have total, unimpeded freedom to walk into a Catholic church during Mass, take over the pulpit and start declaiming at volume about how Catholicism is unbiblical and the Catholic Church is corrupt, venal and evil, right?

    If you say no, you're INFRINGING ON MY RIGHTS.

    So what do you do when two people's rights are in conflict? For example, anti-choice advocates argue that the right to life of the unborn child is abrogated should the mother get an abortion. But to deny her one violates her right to self-determination, to control over her own health choices, to her own body.

    It's a childish fantasy to imagine that everyone can live in total freedom unbound by social contract in anything other than the worst apocalyptic hellscape ever envisioned.

    No rights are inalienable. The rights and freedoms you have are the rights and freedoms society has collectively agreed to indulge. Trying to insist that your individual rights invariably trump the collective benefit of society at large is a degree of selfish petulance I find genuinely hard to comprehend, since I know a three-year-old whose moral compass has already managed to advance further than that.

  173. Drebin says:

    This may be my fuzzy-headedness due to posting at 3am local, but I'm getting a strong undertone of "rights = simple capability", like it exists in some sort of personal-only, society-less vacuum. Aren't rights more of concept of permission or protection by society?

    That's a poor way to phrase it on my part, perhaps. Let me try to thought-stream it out.

    What comes to mind looking up at some of the comments about rights to life, personal defence, etc. is, to me, a right permits me to either undertake an action, or conversely hinder an action performed towards me, rather then the actual ability on my part to either perform or hinder the action in question. They have to based entirely in society, since the above assumes there will be some sort of consequence to the action in question that is broader then just the participants in scope.

    If I were a black man in the late 1800's in the USA, I could very well have the capability to defend myself from a white person, but not the permission to. Consequently, should I take up hand against a white man, I would be punished, if not by the white person directly, then by society at large. However, if having evaded punishment long enough to travel to a British colony, I would suddenly gain the permission to defend myself against any person of race, along with the tangent right that if I were unable to, society would (hopefully) do that for me. By switching societies, I suddenly gain rights, beyond my actual capability to exercise those freedoms/permissions.

    Thinking about the comments made about rights to life and defending oneself, in a land where there is only myself and the attacker, what purpose can rights have, let alone any real meaning. If I kill my attacker, what consequence beyond living longer is there (including new resources gained in that)? If the attacker kills me, what is left to the attacker other then the same? I can't rationally expect either myself or the attacker to go "oh deary me, I killed someone, I should punish myself". So how can a right then be tangibly and solely personal, like some sort of body part or genetic expression? Doesn't it need a third party to look at the actions between myself and my attacker, and judge some sort of external consequence beyond the result of the fight?

    So, with that in mind, how can rights be anything but solely enforced by society in part or as a whole?

  174. Clark says:

    @Rob:

    I see what you did there… ;)

    Glad someone caught it! ;-)

  175. Clark says:

    @Wick Deer

    @Clark

    No. There are no such thing as God-given rights.

    If you believe that then you're living in the wrong country.

    We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

  176. Clark says:

    @Kevin Kirkpatrick

    Clark tends to choose his words carefully

    Thank you for noticing!

    which is why his use of that phrase really kind of throws me…

    See above; I was specifically referencing the US Declaration of Independence.

  177. Clark says:

    @Mark

    This is irrelevant to the thread – and a little bit of the "dance
    monkey, dance!" thing that many bloggers hate – but would love to
    see a post looking at anarchism and/or libertarianism in science
    fiction. Just puttin' that out there.

    Mark,

    You're a man after my own heart.

    I'd love to write that post. I just need to find the time.

    In the mean time, please enjoy anarchist David Friedman's two hour lecture on the topic:

  178. Clark says:

    @HandOfGod137

    the idea you can "smash the state" and live in some anarcho paradise seems naive in the extreme.

    I don't think anyone argues that anarchy is paradise. Some of us merely argue that the result of very very small government would be much better than what we have now.

    I note, as one minor example, that under a limited government in 1780 the US had slavery. I further note that under maximal government in 2013 more black men in America are in chains today than then.

    I am equally confused at the idea of "God-given rights": if this is shorthand for "natural rights", I would argue no such thing exists.

    OK; I'm listening.

    We are just animals: rights are constructs

    Not an argument so far; just a restatement of your thesis.

    Surely we've reached the point where we can use more sophisticated ideas than bronze-age creation myths?

    Is this the core of your argument? That anyone who believes in natural law and inalienable rights believes that the Earth was constructed in six days by a bearded guy who separated the water from the land and made woman by pulling a rib from a man formed of clay?

    If so, I find it (a) not compelling, (b) not really an argument, (c) provably wrong.

    we need to accept that the benefits we gain from the it are paid for in part by accepting limitations on our behaviour.

    Asserted with out argument.

    I have absolutely no problem in including anti-discrimination laws as part of the acceptable price.

    That's might generous of you to decide that to secure something you want you're willing to trade away someone else's rights.

    I suggest that this is often how arguments for big government work – people rarely say "here is right X which I treasure, and I am willing to trade it away for thing Y". Instead they say "no person I know wants to own a gun – we should trade that away for thing Y".

    When a cultural leftist says something like "gay intercourse is responsible for 95% of all AIDS cases; in the name of public health we should make it illegal", or "blacks commit violence at 5 to 10 times the rate as whites, and at 25 to 50 times the rate as Asians; we should single them out for special attention", then by goring their own oxes I will take seriously their rhetoric of "sacrifice" (I will still think that they're fascists, and likely disagree with their policy proposals, but at least I'll think that they're engaged in fair dealing).

    @Zack

    @HandofGod137: Here's the problem with that.

    If we are animals, then why was the Holocaust wrong?

    Excellent point. If the Holocaust was done legally, according to German law (and it was), then what's the problem? Government is the source of all rights, and the German government decided, in its wisdom, to change those rights. Shrug. Nothing to see here; move along.

    …except, of course, when pressed, lefties squirm at this and other ideas because they do have a conception of the true rights that exist "out there in the universe".

  179. Oomph says:

    I note, as one minor example, that under a limited government in 1780 the US had slavery. I further note that under maximal government in 2013 more black men in America are in chains today than then.

    Per capita??

  180. pillsy says:

    @Clark, regarding disbelief "God-given rights":

    If you believe that then you're living in the wrong country.

    Many Americans reject the notion of God-given rights on the basis that they reject the notion of God. I don't think American atheists are living in the wrong country, and I find ample support for that belief in the Constitution, which bars religious tests for office, as well as state establishment of religion.

  181. Docrailgun says:

    Shane wrote:
    "No, No, No, No. You can not enforce free will at the end of a gun.

    My point: you are one of the partners of the [mixed-race] couple in question, do you really want someone who has refused to take pictures of your wedding because they don't like your being [a black person marrying a white person], to photograph this important moment in your life. Really? Or are you really just trying to use the state to enforce your idea of rainbows and unicorns. The supreme court and all of the other ninny's can say whatever they want about this but the facts are that a person can find ten ways around a law, and still comply with it.

    This is what we have come to. Pass a bunch of laws and hope that the dupes will comply. Silly. You can not regulate human thought.

    Anti-discrimination laws are beyond silly, and have clearly crossed into assinine territory."

    At first, I was going to write 'Sorry that I picked your post to eidt and then make my point with'… but then I read it more closely.
    See, not that long ago it was illegal for people not of the same race to be married in some places in the US. It wasn't THAT long ago that some people were the property of other people in the US. No doubt you'll say 'Oh, of course I know that!' but clearly you either don't, or don't care. That's rather the point of anti-discrimination laws: there are people in the US (and everywhere) who don't like the fact that [insert different-from-us group here] is stealing our white women/men/whatever and trying to corrupt our precious bodily fluids. And though there are (legally) no slaves in the US anymore, there are still people who don't want women, brown people, and groups of white men who they don't like for some reason not to be able to vote/marry/have social mobility. Thus, voter ID laws and other such end runs around anti-discrimination laws.
    You may think it's silly, but it wasn't that long ago when people just like you told black (and white) civil rights and/or labor leaders not to rock the boat, that it was silly to try to change society, that it would never work. It wasn't that long ago that otherwise sane and sober US citizens said that black and white people would never be integrated in schools, that noone would ever challenge the power of the barons of industry to improve worker conditions, that a black man could be President of the United States, or even that a bunch of hick colonists could rebel against the most powerful empire on Earth to form their own country.
    The struggle goes on, and you're part of the problem. You've forgotten the lessons of history, or simply don't care. Either way you make it possible for these injustices to continue.

  182. John Kindley says:

    The problem with viewing "rights" as dependent upon and given by a given society is that it is contrary to the clear connotation of "right" and "wrong." Slavery and the Holocaust were wrong and a violation of rights, even if only one person contra mundum recognized their wrongness. But on the other hand it's always and everywhere the case that there is only one ultimate judge of right and wrong: me. (You might say it's you.) This apparent dichotomy between subjectivity and objectivity has been resolved since ancient times by, inter alia, the Upanishads. That is, the dichotomy is only apparent.

  183. Jerry says:

    @Ken, in distinguishing between a photographer who only does "Abrahamic" weddings and a church that only rents its hall to co-religionists, says: "No, because a photographer is not a church or private club. As the decision points out, you could be a photographer who worked by invitation only. But if you advertise and have a storefront and such, you're a public accommodation."

    Most churches I see around me have "storefronts": Places in which they offer services (ahem) that are, by design, clearly recognizable and in many cases open to the public. Many churches also advertise. I suppose some may be "by invitation only", but most welcome anyone.

    While I agree there's a distinction between churches and photography businesses, it's much more subtle than that. But analogies between religious institutions and other institutions, when arguing about the laws of the United States, are pointless. We've made churches different from the beginning. The First Amendment refers to "establishment of religion", not "establishment of a belief system". If it had said "belief system", a First Amendment claim by the photographer would have had quite a different force.

    — Jerry

  184. Ken Mencher says:

    While I respect Clark's position, I wonder about where it would end…

    Could a police officer refuse to investigate the murder of a black man because they felt they "deserved it" by living in a "White county"?

    (I could take it into the ridiculous by asking if it would be okay for a racist to kill someone of a different racial group because they don't believe they're even human)

    Could the Christian Science Monitor be forced to publish an ad calling for Jihad against the US? (Probably…should they be? No…should the situation even come up in the first place? Probably not…)

    I think there needs to be some limits on commerce…for example, the ADA requires places of business to accommodate handicapped persons, and I agree this should be done, otherwise, most business wouldn't cater to them, as they make up a limited percentage of the population, and businesses could readily ignore them, leaving them unable to participate in many forms of commerce entirely.

    I don't believe that the marketplace has all the answers…businesses have too much leverage over individuals (we can go back to the days of child labor and the sweatshop fire to prove that, or even just go to Bangladesh, and the recent building collapse…) Government needs to protect the rights of everyone, but balancing the "tyranny of the minority" against the "rights of the majority" is delicate…and I don't think we've got it yet…

  185. Mike says:

    It's working from different assumptions. In general, we prevent discrimination on things that are seen as innate or core to our body, history, or culture. So religion, race, etc.

    But is "gayness" one of those things? One side sees it as an adjective. The other side sees it as an action.

    We allow discrimination against criminals – murderers, child molesters (even simply statutory rapists where the victim was willing). We allow discrimination in all sorts of ways based on people's *actions*.

    So if being gay is an action, then it can be condemned. If it is a state of being, it can't. By assuming one or the other you tend to pick your side of this argument.

  186. pillsy says:

    @Mike:

    So if being gay is an action, then it can be condemned. If it is a state of being, it can't. By assuming one or the other you tend to pick your side of this argument.

    I don't see how being gay is any less core to one's being than one's religion, and there's much less evidence that sexual orientation is mutable than religion. Religious conversion is a relatively common occurrence. Nor do we decouple religion from actions, since it determines so many of our actions.

    No, I think we bar discrimination on certain grounds because discrimination on those grounds has a tendency to lead to awful places. We have ample examples in both history and the contemporary world of discrimination on the basis of race and religion leading to horrors, but we also have ample examples in both history and the contemporary world of discrimination on the basis of sexual orientation leading to horrors.

    On the other hand, we have ample examples of laws against these sorts of discrimination not leading to horrors.

  187. Tarrou says:

    My thought is this, it reminds me of the proposed "journalist shield" law.

    The religious may discriminate on the basis of their beliefs, but to do this, you must be a "recognized" religious body. In other words, you must have a certain status which allows you the free exercise of your beliefs, a status which is licensed by the state. Mere citizens do not, according to this court case, have this ability.

    Scenario, a barber would not have the right to refuse to cut the hair of a member of X group. But what if it is a trade school run by a religious organization, with an explicit line against X group? They offer cheap haircuts to train their students, the students are being taught that X group is bad, would forcing a religious school fall outside that law? There's a whole area of nuance here.

    But mostly, I think that people should not go about suing people to force them to do business with you. It's ridiculous, childish and pathetic.

  188. stillnotking says:

    I think "public accommodation" laws were reasonable in 1947 Georgia. I'm not at all sure they're reasonable in 2013 Georgia.

    We're always told that the position of the judiciary needs to evolve in accordance with society. On that basis, it's important to recognize that the law is no longer trying to compel a majority of business owners to provide services to minorities; it's trying to compel a tiny number of weirdo holdouts. I seriously doubt there are any gay couples in America who would have even slight difficulty securing the services of a wedding photographer, or black couples renting a hotel room. Has the cost/benefit calculation shifted enough that it's time to start favoring the side of freedom of individual conscience, however weird? I'd say yeah, probably.

    So I will defend the right of a photographer not to take pictures of gays, or African-Americans, or Caucasians, or women, or men, or whatever, because there simply aren't enough of those people to justify state intervention anymore.

  189. Clark says:

    We're always told that the position of the judiciary needs to evolve in accordance with society.

    Note that the phrase "always told" reveals more about which factions won the wars to control the educational and media bureacracies in the 1950s than they reveal about any objective truth as to whether the judiciary truly should change its interpretation of the laws or of the Constitution.

    In other parts of the world people are "always told" that Kim Jong-il fought off the Americans single handedly.

  190. Gabriel says:

    @Wick Deer

    Any law is inherently an infringement on individual liberty. Laws tell people that they must do something they don't want to do or tell them that they may not do something they don't want to do. That's what laws do.

    Those are two very importantly different types of law, though. Laws telling people they may not do something take away one option: you may do anything you wish, except this. Laws telling people that they must do something take away all of your options: You must do exactly this.

    Enforcement of negative rights, the rights to be left alone while minding my own business, is generally accepted as a proper function of the justice mechanism is any state or stateless society. But the enforcement of positive rights- rights to expect and demand that someone else provide me with goods or services- is a very different matter with a lot more controversy.

  191. stillnotking says:

    I was really just trying to duck that question, Clark! My point is that even Living Constitution types should recognize that "standing up for the underdog" means something totally different in 2013 than it did in 1947. The social justification for public accommodation laws doesn't exist today, whether or not one believes it was sufficient at the time.

  192. Ben says:

    If I'm reading this right, then under the current legal regime, a church can legally refuse to marry a black person, or an ethnically Jewish person, or a physically handicapped person. Is this true? *Should* this be true? To echo Ken's argument, is this any different from allowing churches to refuse service to gay couples?

  193. Gabriel says:

    None of black people, Jews, or handicapped persons can lawfully marry a church in any state.

  194. Gare Reeve says:

    Ideally: nobody, including the government, should be able to compel me to DO anything without my consent. Government can, and SHOULD, prevent from taking actions that violate the rights of others and/or punish me for taking those actions (or attempting to).

    Practically: Taxes of some measure probably need to exist in order to fund a government capable of protecting my rights from the depredations of others, and to enforce contracts between private parties. This is major discrepancy in my political views: I don't know how to fund a government capable of protecting everybody's fundamental rights without COMPELLING its own funding, and without turning into a mercenary force that only assists those with the means to pay for protection (sales taxes are is the best option I can think of).

    I don't make any other exceptions. The Government should not force me to PERFORM any service for any person, for any reason. If I own a grocery store, and I don't want to serve ethnic minorities, homosexuals, liberals, conservatives, etc, the Government should not have any ability to force me to do otherwise.

    The Government also shouldn't prevent people from picketing my store (so long as they're not on my property), boycotting my store, convincing my other customers to boycott me, convincing my suppliers to stop doing business with me, convincing my best employees to quit, etc.

    I believe that most historic discrimination in the past was either compelled by the force of government, or private remedies to the discrimination were hobbled by the government either violating peoples rights, or refusing to protect people's rights. Example: blacks couldn't open their own hotels down south to compete with the discriminating hotels because the government would either not allow them to, through selective zoning/licensing practices, or would refuse to protect them from harassment, or would prevent them from defending themselves from harassment.

  195. John Kindley says:

    @Gare Reeve: "This is major discrepancy in my political views: I don't know how to fund a government capable of protecting everybody's fundamental rights without COMPELLING its own funding…"

    See Henry George's "Single 'Tax'" on the unimproved value of land, which is not only as Milton Friedman called it the "least bad tax," but is also a positively good "tax," without which the exclusive possession of valuable land is theft.

  196. Bruce the Cat says:

    To throw my two cents into the debate here, I am entirely unsure of where the idea that any person has any rights aside from those that have been accepted and will be enforced by the majority of the people around them. This functions when looking at a neighborhood, town, nation, or group of nations.

    An example of this is the Holocaust scenario that Clark brings up, the actions of Germany during World War Two were determined to be unacceptable by the majority people around them and as such the rights of Germans to life, liberty and such were shown no deference and their state was violently dismantled. Of course, it was the Germans who decided first this same thing, but their argument lost out :).

    If we start from a position of having only the rights that we can gain for ourselves (through peaceful cooperation preferably) then any law should be looked at through the lens of whether the benefits outweigh the negatives. For the case looked at here, there is an fairly powerful argument that having one specific wedding photography business serve you is not valuable enough to support a restriction on the business being able to determine who they will serve. The issue here is that wholesale removal of the anti-discrimination laws that restrict the photography company also restrain other businesses who may be much more necessary for existence. Should a grocery store be bound by these laws? A pharmacy? A bakery?

    A distinction could be created by revamping this law to allow discrimination when the business is creating an expressive work, specifically for one customer or group. For now, I believe that the law as written is fine and the restrictions it places on business are minor enough that it is an overall good, but I could be persuaded (and have been to an extent by the commentary here. My first reaction was much less nuanced that what I have written here).

    In any case, thanks for the awesome debate!

  197. pillsy says:

    @Gabriel:

    I think the distinction between laws which compel people to do things and laws that compel people not to do things are a lot less clear in this case that you make out. There are a panoply of options available to a person that allow them to avoid photographing gay weddings if they don't want to, and it can just as easily be seen as prohibiting behavior as compelling it, in that it prohibits offering services to the general public unless you meet certain conditions.

  198. Shane says:

    @Mark – Lord of the Albino Squirrels

    Well, both of us are obviously. They are infringing on my liberty to go where I want to.

    Ok but what if you want to "go" inside of my body? This is the ludicrous extreme, but useful for illustration. Secondly if you invalidate the right to own/protect property by exercising your "right" to go anywhere you would like to unfettered, then you too no longer have the right to own/protect property (or yourself), and you too must allow unfettered access to me and wherever I want to go. I don't think that that is something that you really want.

    Your answer seems to be that it is okay to infringe on a Mailman or Park Ranger's personal liberty more than a non-government employee's because the government is somehow the only legal wielder of force.

    How does that follow?

    You are not infringing on the mailman or the park ranger. The government is the employer of the mailman and the park ranger therefore the mailman and park ranger carry out the edicts of the government in their jobs. If the edicts of the government employer are discriminatory then the government employee carries the weight of force with him when he carries out the edict as part of his job. The "customer" that the government employee carries out the edict on, is compelled by the threat of force to follow the edict handed out by the government employee. The government employee if he refuse to carry out his employers edict can NOT be forced to do so. In other words the employee is NOT a slave. He can not be compelled to do what he does not want to do. The employer/employee relationship is one of mutual agreement and when one party or the other does not agree then the relationship is terminated.

  199. Shane says:

    @Rich Rostrom

    Requiring the sale of a good or service to a person with a characteristic which is irrelevant to that good or service.

    Requiring the sale of a good or service to a person engaged in particular conduct where the good or service is expressive of that conduct

    I think that you are misunderstanding the principle involved here. What is relevant is this: "Requiring the sale of a good or service .. ". What business does anyone have in using the force of government to compel the sale of a good or service to another party. People discriminate, splitting hairs over it and saying that we must force people to not discriminate is well into ludicrous territory. Because as is clearly stated before, discrimination becomes one of whim and quickly devolves into in crowd/out crowd ideology.

  200. Shane says:

    @HandOfGod137

    If you honestly think science and technology would develop faster outside the infrastructure provided by civilization, I think you may be mistaken.

    You are really confused. Tell me this, what has North Korea contributed to science and technology as compared to the United States or even Great Britain? North Korea has a strong infrastructure, how come it hasn't really contributed?

    Government isn't a "yes we have it" or "no we don't have it" situation. Civilization is created by the inhabitants of said civilization, the rules that those inhabitants set up are so that they can deal with one another, and those others that are not part of said civilization. What is being presented here is how those "rules" might better help the inhabitants of a civilization, not the elimination of rules carte blanche.

  201. Blaze Miskulin says:

    It's late at night and I'm tired, so I'm going to skip from #30 to the end so I can comment. I'll read the rest tomorrow. My apologies if someone else has stated this in comments 31-2999

    Ken, I think the argument presented is, in this case and in some important ways, inherently flawed in it's premise. It hinges on this phrase:

    anti-discrimination laws make merchants sell goods and services to same-sex couples

    If the case in question involved a photography supply store, or a store which repaired cameras or developed film (yes, they still exist), then there would be no justification for discrimination. And yes, I would agree that the purveyor should be required to follow the law equally for all protected classes. I might disagree with which classes should be protected, but I believe the law should be applied evenly.

    However, this is different. Not because the plaintifs are homosexual, but because the service in question does involve speech–constitutionally-protected speech.

    Photographing a wedding is not a documentary service. The purpose is not to record the facts. If it were, then, yes, the discrimination laws should apply. The role of a wedding photographer, however, is to celebrate the event; to capture the happy moments, the subtle moments, the intensity of emotion, the love, the sense of family, and the hopes of "forever", and present them in such a way as to paint the event as a joyous and breathtaking event for the happy couple.

    Should a professional poet–who is an avowed atheist–be required to write wedding vows for orthodox Jews?

    Should a singer–who is a radical feminist–be required to perform at a stag party?

    Should a composer–who is Indian–be required to compose an anthem for a Pakistani Veteran's society?

    Do we really want to be a nation where the ideal of "fair" becomes twisted into a whip forcing people to celebrate that which violates their deeply held beliefs?

    Creative works are not public accommodation; they are speech. They should be held to a different standard, and protected under the First Amendment.

    To paraphrase an oft-stated premise on this blog: The answer is not forcing speech, it's using your own speech. I'm 100% behind anyone who would stand up and say "These photographers are bigots; don't use them."

    And, to answer your initial question (in a round-about way): I believe that sexual orientation and race should be treated equally–but not in the way you suggest. I would fully support the idea that a member of the Klan could refuse to photograph an inter-racial marriage. I would also fully support anyone and everyone who stood up and ridiculed him for the stupid bigot he is.

    Remember: The answer is more speech.

  202. Awesome post! Thank you. I believe that the reasoning around this judgement, both yours and the court's, also go to the heart of Clark's post later today about rights. To me, as an agnostic, the argument about rights is about neither God nor rationalism. It's about figuring how to make the Golden Rule work in practice. How can we all accommodate one another while retaining our own freedoms? I don't think there's any right answer; it's a continuing struggle informed as much by where we were and where we are as by where we want to be going. I liked your quote from Justice Bosson in that regard.

  203. Bi the Way says:

    I came out Bi last year. I've had people tell me on the Internet that I deserve to die because the Bible says so. But as much as I have no interest in the opinions of people that think that way, the case here under discussion seems like a *very* slippery slope. Too slippery.
    I seriously doubt that I will ever marry, either a male or a female, but if I do, I'll just ask the wedding photographer and such how they feel about Same Sex Marriage on the initial contact. I'm confident I can then determine if said photographer should get my commerce.

  204. Shane says:

    @grouch

    … therefore must not be inalienable …

    If you allow someone to take your rights, they don't stop being inalienable.

    Second, I'm a cigarette addict. This means there are whole cities in which I am denied access to my fix

    I loathe cigarettes, but I am pissed that you are compelled by force to not smoke on your own property or the property of others that find it amenable to them. Discrimination against smokers is the kind of out crowd thinking that I believe that many of the "libertarians" are arguing here.

    They are unnatural rights, as unnatural as philosophy and morality. If they are natural, please point to their location and physiology. Such rights exist because we imbue our species of animal with them.

    You seriously confused about the idea of rights. @Clarke seems to have posted on this subject, I haven't read post but based on what I know of @Clarke then it is probably thorough. Or if you are really bored and atheist find Ayn Rand's book "Virtue of Selfishness".

  205. Dan Weber says:

    Remember: The answer is more speech.

    Eh. I'm kind of on Clark's side here, and he and I have both pointed out problems with that mantra.

    If you are an unpopular minority, and everyone can refuse to do business with you — blackballing anyone who breaks the blockade — you can really suffer.

    I don't think boycotts should be in any way illegal. But they shouldn't be socially acceptable beyond very limited range.

  206. Shane says:

    @Docrailgun

    See, not that long ago it was illegal for people not of the same race to be married in some places in the US.

    Notice that a law was created to do this, hence it's illegality. Just so I am clear here, a law comes with an implicit threat of violence if it is violated.

    You may think it's silly, but it wasn't that long ago when people just like you told black (and white) civil rights and/or labor leaders not to rock the boat,

    WTF? I one hundred percent believe that the civil rights leaders of the 50's and 60's should have "rocked" the boat to end laws that violated "black" people's rights, and made them into beings that had rights that were not equal to their white counterparts.

    there are still people who don't want women, brown people, and groups of white men who they don't like for some reason not to be able to vote/marry/have social mobility

    And I am taking the moral stand of arguing that they have every right in their personal and commercial affairs to be douche canoe's. But the moment that said douche canoes try to enact laws against these things then we part ways.

    It wasn't that long ago that otherwise sane and sober US citizens said that black and white people would never be integrated in schools,

    It is a good thing that you speak for all of the sane and sober citizens of yesteryear. Thankfully I am not one of those. I disagree completely with the idea of public schools, but if we must have them then rules must be in place to ensure that discrimination doesn't take place. But it would be much better if we just let people decide where they want to send their children to school, instead of forcing them at the point of a gun to go where some bureaucrat says that they have to go.

    that noone would ever challenge the power of the barons of industry to improve worker conditions,

    Right, because workers have no rights without the government. They are powerless children without free will and the ability to formulate options and compare situations. And ohh yeah they are dumber than me too.

    … that a black man could be President of the United States,

    What the Fuck does this have to do with anything. We haven't had a Native American as a president or an Asian or a Hispanic. Have I covered all of the color bases for you, cause that shit is fucking irrelevant. If you are used to debating with Republicans then you are going to be in for very big surprise in debating with a "Libertarian".

    … and you're part of the problem.

    Asserted without evidence.

  207. Shane says:

    @Ken Mencher

    Could a police officer refuse to investigate the murder of a black man because they felt they "deserved it" by living in a "White county"?

    It is not interesting if the police officer refuses, but I think what you are getting at is if an appointed or elected official does this. This can happen and if you don't believe that the government that you are living under is protecting your rights then you have several options to deal with it. Try to get appointed/elected official thrown out. Organize a protest of the government that is violating your rights. Leave jurisdiction of said government. Protect your rights yourself.

    (I could take it into the ridiculous by asking if it would be okay for a racist to kill someone of a different racial group because they don't believe they're even human)

    Just because someone thinks that you are inhuman doesn't make it so. One hundred people can stand around a dead cat claiming it was a cute kitten, but this does not make it so.

    I think there needs to be some limits on commerce…for example, the ADA requires places of business to accommodate handicapped persons, and I agree this should be done, otherwise, most business wouldn't cater to them, …

    And I think that McDonalds should only serve vegetarian cuisine let's enact a law and stop this travesty. Ever noticed that when a service moves into commodity that business' start to compete on a wide variety of tangential perks. This is the beauty of a free market, but it doesn't happen overnight and being impatient and passing a law just exacerbates the situation. Remember when there were calls to split Microsoft? Seems kinda silly now doesn't it?

  208. Tyrsius says:

    Clark, how far do you think the right of conscience extends?

    Does it cover the right of a southern baptist doctor to deny medical care to black men?
    Does it cover the right of southern baptist grocers to deny the sales of food to black men?
    How about the right of southern baptist police officers to protect black men from criminal assault?

  209. grouch says:


    You seriously confused about the idea of rights.

    No, I'm not. Alas, until you present more than a bald assertion, neither can I.


    Or if you are really bored and atheist find Ayn Rand's book "Virtue of Selfishness".

    For whatever heinous insult I have given you that brought that on, I heartily apologize. Would you settle for just roasting me over a disposable lighter? Maybe a firing squad of trebuchets and porcupines?

  210. Anglave says:

    The topic of anti-discrimination laws and their relationship to our rights (citizens' rights, natural rights, God-given rights…) is obviously of great interest to many of us, as demonstrated by the length and intensity of this comment thread.

    It's also a challenging topic for me personally. Upon reading Justice Bosson's words (quoted in the main post), I found myself in general agreement with them. Upon reading Clark's rebuttal of those same words, I found myself in strong agreement with Clark.

    I feel that a private business or citizen should have the right to deny service to anyone, for any reason, and that the government attempting to force equal treatment of certain protected groups is a violation of that right, and amounts to favoritism which creates inequality.

    As the proposed Carron debate doesn't look likely, I'd dearly love to see a "debate style" post (or series of posts) on this topic, perhaps with sides argued by Ken and Clark. Not that I'm putting a position in Ken's mouth, but arguing opposite Clark will obviously require a debater of substantial ability.

    Clark, I <3 this:

    So @Clark, should a devoutly old school Southern Baptist be allowed to refuse accommodation in his hotel to an African-American couple?

    Should he?

    No. It's treating one of God's children poorly.

    Should he be allowed to?

    Yes. Without question.

    (my first time with blockquotes, please be gentle, and/or point me at a guide!)

  211. Al says:

    @Ken White

    I'm all for subjects being discussed. I just find that Libertarians (big L intentional) always seem to be surprised that they're still at the margins. This particular discussion is a textbook example of how that happens.

  212. Ken White says:

    @Al:

    I'm all for subjects being discussed. I just find that Libertarians (big L intentional) always seem to be surprised that they're still at the margins. This particular discussion is a textbook example of how that happens.

    I don't find that much more illuminating than your initial comment.

    What's a textbook example? Saying that there is tension between anti-discrimination law and freedoms of speech/association/religion? Saying that anti-discrimination laws impose some liberty costs? Coming to a particular conclusion about whether that cost is right/just/acceptable? Burn-it-all-down-and-salt-the-earth rhetoric?

    Sometimes I'm inclined to poke fun at Clark's revolutionary rhetoric. Some days, quite frankly, I'm tempted to indulge myself.

  213. Erwin says:

    @Shane
    Your article seems to indicate that enforcing a discriminatory law against a religious practice (headscarves) results in violence. So, I'm not sure I understand your point. Perhaps you were arguing that laws discriminating against a religious practice are a bad idea?

    In terms of Ken's original question, I believe that there is grounds for, if not outrage, a difference in opinion regarding enforcement of nondiscrimination in relation to (race/religion) relative to (basically everything else) based on the fact that discrimination based on (race/religion) has traditionally been grounds for conflicts that adversely impact the broad majority of society. (tribal factors)

    Given the danger to society, my take on it is that sensible people will not revoke nondiscrimination laws based on (race/religion) until it can be rationally argued that they are a complete non-issue. Libertarians favoring this stance won't get my vote for, probably, about 150 years. This is sad, because I'm closer to a Lib than either a Demo or a Repub.

    I can, however, understand a principled stance that claims that revocation of non-discrimination laws based on gender and sexual orientation would not risk tribal violence and that their other benefits are not sufficient to justify governmental intrusion and the contingent threat of violence. I see such stances as principled and sensible, although I disagree. I could be persuaded by a rational cost/benefit analysis.

    My observation is that there's plenty of hate in the world and that the cumulative weight of the resulting discrimination can result in extreme damage to a significant fraction of individuals in a society. The cost of nondiscrimination laws for (not race/religion) in terms of restraint of liberty, in my judgement, is outweighed by the reduction in damage to the individuals affected.

    Of course, I'm fairly pragmatic. And, I'm perfectly comfortable with enacting laws that reduce individual liberty to enforce a reasonable social contract based on optimization of overall utility. I wonder about the reasoning between claiming that utilitarianism is evil?

    –Erwin

  214. Mitch says:

    Wait, I thought I had to fear the wrath of Ken if I accused him of revolutionary agitation, or at least be afraid that the TSA was going to hoist me up and check my undercarriage?

    To quote my favorite scene from Godfather II, "This panel owes my client an apology, Senator. An apology!"

  215. Mitch says:

    Let me try that again:

    Wait, I thought I had to fear the wrath of Ken if I accused Clark of revolutionary agitation, or at least be afraid that the TSA was going to hoist me up and check my undercarriage?

    To quote my favorite scene from Godfather II, "This panel owes my client an apology, Senator. An apology!"

  216. Manatee says:

    @Shane,

    I'm curious about your choice to describe African-Americans as "black" and Caucasian-Americans as white (no quotes.) I thought maybe you saw the same special as me the other day about how much of the black community that has been here since slave days (as opposed to recent African immigrants) is actually heavily bi-racial by ancestry, yet still chose to form a coherent ethnic community.

  217. Manatee says:

    @Erwin,

    I think many libertarians, including myself, generally agree with much of what you say, except for the point where anti-discrimination laws no longer are necessary, or even do more harm than good. For most, the point where race is a non-issue is simply far beyond that point. In fact, sometimes I think it's not really achievable.

    I have no problem with imposing these laws on the former Confederate states after the war. Generally, I don't think the government should do much to interfere with how people navigate the free market to earn a living and to buy the goods and services they need.

    However, I do recognize that suddenly freed blacks living in states where just a few months prior blacks pretty much weren't allowed to own the stores, the places of employment, or real property in general, and whites were allowed to own blacks, presented a very special set of circumstances. I also acknowledge that the eventual shift in attitudes to generally condemn that sort of discrimination on the basis of race might not have occurred in the same way without the change in laws, though we'll never know for sure. However, as imperfect as things are now, and as shocking and overt as bigotry still is in certain parts of the country, we've gone far past the point where these laws are necessary. It wouldn't surprise me if there were areas in the South after the Civil War where blacks literally could not find someone willing to hire them, or to rent them a room, or to sell them food, or if they did, only at a substantial mark-up. But today, even in the crappiest, most racist and self-segregated parts of this country, I would be very surprised if you couldn't find some businesses that would happily serve anyone even without NMHRA. Perhaps even some that are minority-owned. I'm not saying that every currently protected group would have an easy time–it's still on them to watch for discrimination and to seek good businesses out–but they would have a reasonable chance. I think that's all the government should be expected to guarantee, especially when government intervention carries such a hefty price tag.

  218. Manatee says:

    @Shane:

    My question, and I apologize if I didn't make it obvious in my last post, was why you decided to bring it up the black panthers? You were arguing that anti-discrimination laws weren't needed and weren't effective. Given the structure of the rest of your arguments, and the fact that you didn't articulate your argument more than you did, I had to infer your point. Maybe it was unrelated to everything else you posted, meaning that it was just there to score a cheap rhetorical point or to defend the KKK. Having read a few of your posts in the last few points and generally respected what you had to say, I thought both were beneath you. So clearly, it had to be related to the large argument about anti-discrimination laws, good or bad. That was the interpretation I went with when I responded to you.

    "And now they are a militant violent group that believes in racial segregation. I don't care how they started this is where they are now. They have become the very thing that they wanted to end."

    And I don't disagree with you. Black Panthers bad and scary, got it. The guy you were responding to cited the KKK, implying they were a bad thing that flourished thanks to a lack of anti-discrimination laws. Your response was to note the Black Panthers was bad too, implying that they were the result of actually having anti-discrimination laws. My reason for describing the origins of the Black Panther party was not to justify their future violent actions, but to illustrate my position that you are mistaken–that the main reason they gained power was not the Civil Rights Act of 1968, but rather the conditions that existed for decades before, and continued to exist for years even after its passage. While I disagree with the implementation of the NMHRA, I don't think it's fair to blame its passage for the rise of the black panthers. In fact, I think you undercut your own argument when you later point out: "If the black panthers had the power that the KKK had, they would do exactly the same thing." If your proposition is correct, then it actually argues in favor of anti-discrimination laws, to protect the ever shrinking white percentage of the population from both the extra-judicial oppression of militant black nationalists, as well as any discriminatory legislation passed by a powerful block of black nationalist Senators.

  219. Shane says:

    @Erwin

    Your article seems to indicate that enforcing a discriminatory law against a religious practice (headscarves) results in violence.

    No my point is that the GOVERNMENT violating someones rights with laws intended to discriminate, results in violence. Why can't the muslim women wear headscarves? What if a new fad to cover most of your long hair with a piece of cloth pops up?

    … my take on it is that sensible people will not revoke nondiscrimination laws based on (race/religion) until it can be rationally argued that they are a complete non-issue.

    I disagree with "sensible" people and I suspect that emotional should be substituted for sensible. Unfortunately history shows that laws have lives unto themselves and a culture has to damn near collapse before laws will be removed from the books. This is the creeping state that "sensible" people are promulgating. Many laws are created from emotion and justified by the same means. When this occurs the unintended consequences are huge because some "smart" person will hijack what was once a "sensible" law and turn it to their own benefit. Laws are best built around principles, and not around emotions, because unintended consequences are minimized. This also keeps the number of laws small.

    Libertarians favoring this stance won't get my vote for, probably, about 150 years. This is sad, because I'm closer to a Lib than either a Demo or a Repub.

    So the groups that are slowly, and surely eroding your rights are the ones that you are going to stick with because they are? Safe?

    My observation is that there's plenty of hate in the world and that the cumulative weight of the resulting discrimination can result in extreme damage to a significant fraction of individuals in a society. The cost of nondiscrimination laws for (not race/religion) in terms of restraint of liberty, in my judgement, is outweighed by the reduction in damage to the individuals affected.

    How can you verify this to be true? As stated before, patience in the correction of problem is necessary. Splitting up Microsoft today seems pretty silly, but just a few years ago it was viewed as mandatory to a free functioning economy.

    And, I'm perfectly comfortable with enacting laws that reduce individual liberty to enforce a reasonable social contract based on optimization of overall utility.

    This was the same justification used to enact the Jim Crow laws, because "black" people were too stupid to know how to vote. Are you sure that you want to stand by this statement?

    I wonder about the reasoning between claiming that utilitarianism is evil?

    Utilitarianism is evil because it does not recognize individual rights, and only allows the collective to determine the meaning of utility.

  220. Gare Reeve says:

    @Tyrsius :

    I'm not Clark, and I do NOT claim to speak for him, but he and I seem to have some similar beliefs, so my answers to your questions MIGHT be similar to his.

    A Southern Baptist Doctor should not be compelled by force to provide medical care to a black man if he does not wish to.

    A Southern Baptist Grocer should not be compelled by force to sell groceries to a black man if he does not wish to.

    A Southern Baptist Police Officer who refuses to perform his duty, which I believe includes protecting black men from criminal assaults, should be immediately fired. He is a Government Agent. Governments should not discriminate, and their agents should not discriminate while engaged in their duties to the government.

    If the doctor or grocer are benefiting from some government program, the government can and should include a non-discrimination clause into the contact as a requirement to receive those benefits (the government shouldn't be involved AT ALL, IMO, but that's an argument for another time).

  221. Clark says:

    @Elf

    As a devout Pagan

    Always fun to hear from one!

    I find debates between Christian and Christian atheists* alternate between fascinating and baffling.

    First, I want to compliment you on your perspicacity on identifying western atheists as Christian atheists. There's a deep truth there, one that most western atheists themselves don't see.

    Second, as a Christian, I find the debates somewhat baffling myself.

    I cannot figure out why so many atheists care what Christians believe.

    Mencious Moldbug has an answer:

    http://unqualified-reservations.blogspot.com/2009/01/gentle-introduction-to-unqualified.html

    You see, the problem is not just that our present system of government – which might be described succinctly as an atheistic theocracy – is accidentally similar to Puritan Massachusetts. As anatomists put it, these structures are not just analogous. They are homologous. This architecture of government – theocracy secured through democratic means – is a single continuous thread in American history.

    Unsurprisingly, this sect [ the modern left Progressives ], best known as ecumenical mainline Protestantism, is historically the most powerful form of American Christianity – and happens to be the direct, linear descendant of Professor Staloff's Puritans. (You can also see it in abolitionism, the Social Gospel, the Prohibitionists, and straight on down to global warming. The mindset never changes.)

    Thus we see the whole, awful picture merge together. It is Cthulhu. We don't just live in something vaguely like a Puritan theocracy. We live in an actual, genuine, functioning if hardly healthy, 21st-century Puritan theocracy.

    Modern western atheism is Puritanism v 5.0. Every sect goes to war with its progenitor. The absolute worst crime in Puritanism 5.0 is to be a Puritan v 4.0.

    Thus western atheism is really anti-Christianity (or Christian atheism), and not general atheism.

    You can see this in the squabbles between the vanguard of the party (working on Puritanism 5.1) and the proletariat (still stuck in Puritanism 5.0).

    See, for example, Salon reporting on how Richard Dawkins has the temerity to disbelieve in the Muslim faith when the proper role of Puritanism is to merely hate on the Christian faith:

    http://www.salon.com/2013/08/10/richard_dawkins_does_it_again_new_atheisms_islamophobia_problem/

    Yes, the truth is that Muslims have received fewer Nobel Prizes than the sophisticated academic specialists at Trinity. But who in the hell cares apart from people like Dawkins who hope either to embarrass or discredit the faith group by pointing out such arbitrary things?

    Because, you know, western atheists are normally so careful to never embarrass or discredit religion!

  222. Clark says:

    @Gare Reeve

    @Tyrsius :

    I'm not Clark, and I do NOT claim to speak for him, but he and I seem to have some similar beliefs, so my answers to your questions MIGHT be similar to his.

    A Southern Baptist Doctor should not be compelled by force to provide medical care to a black man if he does not wish to.

    A Southern Baptist Grocer should not be compelled by force to sell groceries to a black man if he does not wish to.

    A Southern Baptist Police Officer who refuses to perform his duty, which I believe includes protecting black men from criminal assaults, should be immediately fired. He is a Government Agent. Governments should not discriminate, and their agents should not discriminate while engaged in their duties to the government.

    If the doctor or grocer are benefiting from some government program, the government can and should include a non-discrimination clause into the contact as a requirement to receive those benefits (the government shouldn't be involved AT ALL, IMO, but that's an argument for another time).

    We agree entirely.

  223. Shane says:

    @Manatee

    I'm curious about your choice to describe African-Americans as "black" and Caucasian-Americans as white (no quotes.)

    Ok noted … "white" is what I meant.

    I find the distinction of color of ones skin to be superfluous and a waste of time. Because the color of your skin does not indicate who you are.

    I thought maybe you saw the same special as me the other day about how much of the black community that has been here since slave days (as opposed to recent African immigrants) is actually heavily bi-racial by ancestry, yet still chose to form a coherent ethnic community.

    I am not really interested in ethnic communities or their machinations. I see them as a form of tribalism. I do not identify with other people because they are "white", or hetro, or blue eyed, like me, because I find this distinction profoundly immoral. I am the smallest of all ethnic minorities. I am an individual. What ethnic communities do amongst themselves I have no care for, but if one fucking law is passed that infringes on their rights as individuals then I will say and do what I can to get it struck down, because if they want to get together and talk about their bi-raciality (whatever that is), then that is their right. If they want to say that I am a stupid racist, they can do that too. But I will tolerate no law that inhibits them from thinking what they like.

    My question, and I apologize if I didn't make it obvious in my last post, was why you decided to bring it up the black panthers?

    Because the black panthers are a racist violent group but because of their "blackness" they are tolerated. The KKK is a racist violent group but because of their "whiteness" they are not tolerated. My point is that neither of these groups should be tolerated and to bring up one group over the other over and over again is wrong. Code Pink is starting to cross over into violence, and when the gay rights movement is over will they just go away? I can only hope.

    responding to cited the KKK, implying they were a bad thing that flourished thanks to a lack of anti-discrimination laws.

    They didn't flourish because of lack of anti-discrimination laws they flourished because of the discriminatory laws of the "whites" of the time. Honestly I would have found it to be better if the discriminatory laws were simply struck down, but we have penchant for passing laws so that is what we did.

    Civil Rights Act of 1968, but rather the conditions that existed for decades before, and continued to exist for years even after its passage.

    Two wrongs don't make a right. I understand that you are upset about the conditions that existed in the South during the time of Jim Crow, and I am too that is why I am arguing these points, but creating a group to combat the violence with more violence seems to be pointless especially when others used non-violent means so much more effectively.

    If your proposition is correct, then it actually argues in favor of anti-discrimination laws,

    Once again the laws that are used to discriminate and oppress must be struck down no matter what ethnic group they are aimed at. Adding new laws to bandage old laws is a waste of time. Strike down discriminatory laws. I understand that if these laws can be passed and used against a "black" man, or a "gay" man, then what protection do I have if the political tides change and said same laws will be pointed at me a "white" man.

  224. azazel1024 says:

    I am honestly in awe of Justice Bossons concurrence. That was just…it was beautifully written.

    I want to frame that thing.

  225. Rob says:

    Ken Mencher • Aug 23, 2013 @5:39 am

    While I respect Clark's position, I wonder about where it would end…

    Could a police officer refuse to investigate the murder of a black man because they felt they "deserved it" by living in a "White county"?

    As a government agent, police officers are bound by the equal protection clause, and thus are required to treat everyone equally. That's a condition of their employment, and goes for all public officials. This is about the rights of private individuals.

    (I could take it into the ridiculous by asking if it would be okay for a racist to kill someone of a different racial group because they don't believe they're even human)

    There is a categorical difference between being able to refuse to do something for somebody, and being able to actively harm that person.

    Could the Christian Science Monitor be forced to publish an ad calling for Jihad against the US? (Probably…should they be? No…should the situation even come up in the first place? Probably not…)

    And here your thinking becomes REALLY confused, to the point where I can't suss out how you got from point A to point B. Being able to deny someone a service, for whatever reason, doesn't lead to NOT being able to deny someone a service. This is completely antithetical to what Clark and others have been arguing.

    I think there needs to be some limits on commerce…for example, the ADA requires places of business to accommodate handicapped persons, and I agree this should be done, otherwise, most business wouldn't cater to them, as they make up a limited percentage of the population, and businesses could readily ignore them, leaving them unable to participate in many forms of commerce entirely.

    I've seen some pretty good arguments that the ADA's requirements not only don't particularly help handicapped persons, but that they may actively harm them and society as a whole. For instance, recently ADA regs changed to require that public pools install a wheelchair lift, an item that is rarely used by anyone (including by swimmers who are wheelchair bound) and can be quite expensive to install and operate. As a result, many pools that couldn't afford to install them simply shut down, reducing the community's access to a healthy pastime.

    I don't believe that the marketplace has all the answers…businesses have too much leverage over individuals (we can go back to the days of child labor and the sweatshop fire to prove that, or even just go to Bangladesh, and the recent building collapse…) Government needs to protect the rights of everyone, but balancing the "tyranny of the minority" against the "rights of the majority" is delicate…and I don't think we've got it yet…

    The market doesn't have all the answers, but it often is in a much better place to determine what the correct answer is than the government. The trillions of interactions between human beings every day is far too complicated for the government understand, let alone be able to come up with a suitable one-size-fits-all answer for it all. Letting individual businesses and people figure out their own way of dealing with these situations would – on average – result in better outcomes.

    The government, if we are too have one, should focus on punishing people who initiate force, fraud, and theft, and let the rest of us figure out how to order are lives outside of those areas.

  226. Erwin says:

    @Shane
    I wonder if there was any point at which you would have seen anti-discrimination laws as justifiable? We're not many generations from the sort of consistent discrimination that can, and still does, alienate people from the 'American' tribe. I'm not certain that ending anti-discrimination laws would have significant effects, but I worry that it might.

    I don't have any good choices right now. There's the Libertarians, who I don't trust to govern the country and who combine a lot of good ideas with plans that I think would be disastrous…and who seem to have a substantial racist intellectual fringe – which worries me – because this country put people resembling me in camps not so long ago. Heck, we still keep people in prison camps based on race. The Republicrats (the Dems and Repubs are not too distinct, IMHO), with the problems of big government and loss of liberty – with the only real distinction being a more noticeable racist fringe for the Republicans. I probably want a Reform party more than anything else.
    (Small government, smaller military, reformed health care system, extreme transparency*, elimination of need for financial firm bailouts, end this ridiculous war on terror…)

    And, well, yep, I would stand by that statement. Logic can be used to justify horrible things.

    Regarding utilitarianism, I disagree. I would say that a utility estimate must include the cost of limitations of individual rights. Under that framework, it is possible to prohibit murder, dumping dioxin in the drinking water, and overly encroaching laws.

    @Manatee
    If I understand you correctly, the tipping point for non-discrimination laws is the point where a group can survive, reasonably well, without them? I understand and respect that argument, but disagree. The problem is that, well past that point, I strongly suspect that normal human discrimination tends to result in the formation of tribal groupings and, eventually, destabilizing violence. The cost of non-discrimination laws is teensy tiny by comparison to turning into Ireland or Pakistan/India.

    –Erwin
    *I'd prefer continuous wiretaps/internet taps -> publicly searchable database, with very, very few exceptions for all government employees, including elected officials. I guess I don't exactly trust the government.

  227. Manatee says:

    @Shane,

    I find the distinction of color of ones skin to be superfluous and a waste of time. Because the color of your skin does not indicate who you are.

    That's very progressive of you. I agree completely. However, I also find that acknowledging the color of skin is a sad necessity when we're talking about issues that arose from a time where your rights under the law could be limited by the color of your skin.

    I'm curious about your choice to describe African-Americans as "black" and Caucasian-Americans as white (no quotes.)

    Ok noted … "white" is what I meant.

    I find the distinction of color of ones skin to be superfluous and a waste of time. Because the color of your skin does not indicate who you are.

    I am not really interested in ethnic communities or their machinations. I see them as a form of tribalism.

    Because the black panthers are a racist violent group but because of their "blackness" they are tolerated. The KKK is a racist violent group but because of their "whiteness" they are not tolerated. My point is that neither of these groups should be tolerated and to bring up one group over the other over and over again is wrong.

    … first of all, are the Black Panthers are "tolerated" more than the KKK? First of all, in your previous posts you focus not on they have done (which is already enough to earn my condemnation, but I digress) but what "they would do if they had the chance." This is a nation of laws and due process. From a legal standpoint, we tolerate groups and people based on what they have done, not "what they would have done given the chance." From a social standpoint, I don't see much more tolerance for one or the other. There are Black Panther Party members who have mainstreamed and are accepted, but there are also former KKK members. I'm not white (I make this statement not because I feel it defines who I am as an individual, but because it does have an impact on how people in the community who care about such things interact with me) but I have a few friends with parents who were Klan members, parents who have treated me with nothing but respect as an individual. As I understand it, one really bought into the dogma and has since changed his beliefs, while the others say they went along with it as much as a social institution/political movement as anything else, and never entirely agreed with all of the extremist philosophy. Mentioning past affiliations with either group brings a certain amount of social baggage and prejudgment, but in general, individuals who are decent people who happened to have been a black panther or a Klansman can find acceptance in our society. Hell, it wasn't long ago that we had Senators for both parties with past Klan affiliations.

    People bring up the KKK "over and over again" not because they hate white people, or think that the black panthers or the Hitler Youth or Pol Pot's regime are any better, but because it's relevant to the discussion. This freedom-destroying law you hate so much was motivated in part by the actual existence and actions of the KKK and similar groups. To complain that people discussing that law, its validity, its flaws, its history, and its effects are mentioning the KKK in terms of its actual relationship to the law–rather than talking about the Muslim Brotherhood, or the Muslim Brotherhood, or I dunno, the Asian Pride Militant Genocide Brigade of 1988–are being unfair to a certain tribe of light skinned individuals is, well, kind of engaging in petty tribalism, isn't it?

  228. Manatee says:

    @Erwin,

    For such laws as implemented, yes, that's pretty much where I stand, although I would categorize it more as a relatively fair chance than bare survival. A world where the color of your skin means you can get groceries, but pay 5 times more is one where bare survival is possible, but it's not quite what I envision. However, in a world where A-Mart and B-Mart can legally discriminate based on race, and actively do so, but C, D, E, and F-mart also exist and can compete on fairly even footing with A and B-mart, I think that the general infringement on the freedom of everyone becomes a much greater evil than the potential market inequities faced by "black" tribal groups, as they say.

    I'm not against less intrusive government interactions at this point, however. For example, to the extent that the government should and must be a market actor, I am fine with–for example–the military making it a policy to refuse to buy weapons from a company that will only hire Hispanics. While I'm generally against hate crime laws and a sentencing process that considers protected class status at all, I am okay with the courts allowing juries to consider "hate crime motivation" as an element of mens rea–in fact, I feel like that is one of those legal fictions where we can instruct a jury to ignore certain facts, but nobody actually thinks they really are. But in general, I think that the main job of the government is to not pass any new laws that are discriminatory on the face, and make all efforts to clean out any such laws that remain on the books.

    @Shane again,

    "They didn't flourish because of lack of anti-discrimination laws they flourished because of the discriminatory laws of the "whites" of the time."

    This is half-true. Technically many of their activities were illegal even during Jim Crow days. The flourished primarily because of jury nullification and prosecutorial discretion. In that respect, nothing in the law changed.

  229. princessartemis says:

    I've seen some pretty good arguments that the ADA's requirements not only don't particularly help handicapped persons, but that they may actively harm them and society as a whole. For instance, recently ADA regs changed to require that public pools install a wheelchair lift, an item that is rarely used by anyone (including by swimmers who are wheelchair bound) and can be quite expensive to install and operate. As a result, many pools that couldn't afford to install them simply shut down, reducing the community's access to a healthy pastime.

    This could stand to have a "some" placed in there. The ADA requirements for the maximum force required to open a door at a public place of commerce sure as heck do help me, and considering how those sorts of pneumatic door closers are neither expensive nor onerous to install, plus they are often a convenience to others, you must amend your statement. I also find ramps on sidewalks hella useful at those times I use a wheelchair, and frequently so do the able-bodied when they push carts or strollers. Amend it to "some ADA requirements don't help handicapped people while also actively harming the community", then we can be agreed.

  230. Shane says:

    @Manatee

    That's very progressive of you.

    I am not progressive for the record. I loathe and despise those that hold this as a moniker to describe themselves, and as for the Scooby snack that you are presenting here, you can keep it because I don't want it.

    First of all, in your previous posts you focus not on they have done (which is already enough to earn my condemnation, but I digress) but what "they would do if they had the chance."

    You are pushing this way out of context. The original quote was to indicate their moral equivalency with the KKK. That is all. If you want me to list the things that they have done then I will, but that wasn't the original intent of my making that comment. As to the black panthers doing what they KKK would do once again is to assert that they are morally equivalent. Honestly I don't see why you are hung up on this, unless you are trying to paint me as some sort of closeted racist. If that is what you are getting from what I am saying then so be it. I think that clearer minds will see otherwise.

    From a legal standpoint, we tolerate groups and people based on what they have done, not "what they would have done given the chance."

    If this is a nation of laws as you assert then we don't tolerate a group from a legal standpoint, we tolerate them because they haven't broken a law. If you want a better example of a nation of laws try Cuba. This country was founded on principles not laws.

    … but I have a few friends with parents who were Klan members, parents who have treated me with nothing but respect as an individual. As I understand it, one really bought into the dogma and has since changed his beliefs, while the others say they went along with it as much as a social institution/political movement as anything else, and never entirely agreed with all of the extremist philosophy

    This sounds to me like the "I have (insert ethnic minority here) friends therefore I can't be a racist, homophobe etc …". I don't believe you are racist but I believe that you are fearful of others being that. I have a suggestion. Stop looking for racists, and you will stop finding them.

    As I understand it, one really bought into the dogma and has since changed his beliefs,

    American History X. A must see.

    People bring up the KKK "over and over again" not because they hate white people, or think that the black panthers or the Hitler Youth or Pol Pot's regime are any better, but because it's relevant to the discussion.

    Then why don't they bring up the black panthers or la raza over and over and over again? Because by this logic, they too are relevant to the discussion. My wife's coworker said something that is painfully relevant to this discussion. There was some discussion going on about the Zimmerman trial and my wife's coworker said " Why is there only two races in this country. " Point taken. I am tired of the "black"/"white" thing, and wish that we could move on from it, even now ::sigh::

    This freedom-destroying law you hate so much was motivated in part by the actual existence and actions of the KKK and similar groups.

    So destroying freedom by passing more laws that create more discrimination only in reverse is some sort of saintly activity. INSTEAD OF JUST INVALIDATING THE FREEDOM DESTROYING LAWS THAT WHERE ORIGINALLY PASSED? ::sigh:: Can you not see that by passing more laws that discriminate creates more discrimination.

    … and its effects are mentioning the KKK in terms of its actual relationship to the law–rather than talking about the Muslim Brotherhood, or the Muslim Brotherhood, or I dunno, the Asian Pride Militant Genocide Brigade of 1988–are being unfair to a certain tribe of light skinned individuals is, well, kind of engaging in petty tribalism, isn't it?

    Is that what you got from what I said? That it isn't fair that we pick on only one group for being violent and racist. I give up.

  231. Mark - Lord of the Albino Squirrels says:

    @Shane

    "The government employee if he refuse to carry out his employers edict can NOT be forced to do so."

    I believe this statement is incorrect. Do you have support for this assertion?

  232. Shane says:

    @Mark – Lord of the Albino Squirrels

    This person was told to not bring up evidence that he found.

    What you are REALLY not getting is that firing someone is NOT the use of force. Putting someone in a cage at the end of a gun is. This person was fired but he is free to go about his business.

  233. AlphaCentauri says:

    If that government employee is a member of the military, he can indeed be jailed for failure to follow orders, even if he was a conscript.

  234. James Pollock says:

    "If I'm reading this right, then under the current legal regime, a church can legally refuse to marry a black person, or an ethnically Jewish person, or a physically handicapped person."
    Depends. If we're talking about LEGAL marriage, then a church cannot marry any of these groups or anyone else; the state maintains a monopoly. If you're talking RELIGIOUS marriage, then a church can marry any combination of individuals as it sees fit… and the resulting marriage has no legal effect. Similarly, declining to marry any combination of individuals ALSO has no legal effect.

    "Is this true?"
    Yes.

    "*Should* this be true?"
    Yes.

    "To echo Ken's argument, is this any different from allowing churches to refuse service to gay couples?"
    No.

    If you can avoid confusing marriage (the status conferred by the state according to statute) and marriage (a religious ceremony conferred by a church) from marriage (a relationship between two (or more) individuals irrespective of church and state) then this isn't hard. It only seems complicated if you start confusing these different things that have the same name.

  235. Mark - Lord of the Albino Squirrels says:

    @Shane

    "What you are REALLY not getting is that firing someone is NOT the use of force. Putting someone in a cage at the end of a gun is. This person was fired but he is free to go about his business."

    What I am REALLY not getting is how a government employee cannot be put "in a cage at the end of a gun" or otherwise forcibly compelled to go along with a government edict.

    Is Bradley Manning compelled to stay in a cage through the power of friendship?
    Were employees at a school in Arkansas compelled to integrate their student population because the National Guard unit sent by the government beat them at poker?
    Is Edward Snowden avoiding the U.S. because he loves hide and seek?

    I ask, because evidently none of those examples involve force based on this:

    "The government employee if he refuse to carry out his employers edict can NOT be forced to do so."

  236. Manatee says:

    @Shane

    Can you not see that by passing more laws that discriminate creates more discrimination.

    If you couldn't already tell by the fact that I've explicitly argued it many, many times, I am AGAINST anti-discrimination laws in general, then I am at a loss as to how to make it more clear.

    I am not progressive for the record. I loathe and despise those that hold this as a moniker to describe themselves, and as for the Scooby snack that you are presenting here, you can keep it because I don't want it

    I'm sorry that you hate all progressives/liberals, and Scooby snacks, and saddened that you took what was meant as a sincere compliment with hostility. I honestly don't know any better, simpler word to express the idea that if your mind really doesn't register race/skin color/culture/ethnicity at all, then you are much closer to where I would like this country to be than most people are. So I'll just say it's awesome that you're able to rise so completely about the tribal fray, but that I think you sell yourself short by not realizing how much less awesome than you many people are in the world.

    This sounds to me like the "I have (insert ethnic minority here) friends therefore I can't be a racist, homophobe etc …".

    If that's what it sounds like to you, then perhaps you are coloring it that way. To clarify, I am saying that I have some limited anecdotal evidence of specific former Klan members who are accepted as members of society, while acknowledging that the label does still carry some baggage. The point of that evidence was to refute your assertion that somehow that somehow the Klan is singularly picked on by society, while the Black Panthers/Skin Heads/NAMBLA/insert other odious group has somehow been spared society's scorn. As more anecdotal evidence, I stated that despite the baggage of "former-Klansman," people, including me, were willing to believe that someone was a decent person who judged people mostly as individuals, and not as a member of another tribe. In contrast, if someone told me he was a former NAMBLA member, I don't know if there's anything he could do to convince people he wasn't currently a pedophile. I admit, anecdotal evidence isn't the most rigorous of evidence, but since you were neither offering nor demanding anything more empirical anyway, I assumed that we were just exchanging ideas without having to dig for sources.

    If you think that I am, I don't know, trying to establish some sort of legitimacy by saying I know former Klan's members, I am not. Trust me, if I need to have a former Klansman friend to have your respect, I do not want it.

    Actually, if we follow the structure of your analogy to the letter, you're implying that I'm saying, "Because I have former Klansmen friends, I don't hate the Klan." Let me make this even more clear for you: I hate the Klan. I hate what they stand for, I hate what they have done as an organization. I hate any group that uses violence and fear to advance their agenda, whether it's racial purity or racial segregation or even a cause I support.

    I don't believe you are racist but I believe that you are fearful of others being that.

    Umm, thank you? I don't know what I've said that would give any rational person reason to think I'm a racist. I try to leave racial and other biases and stereotypes at the door when I meet a new individual. Unlike you, I'm not always 100% confident that I don't have unconscious biases that I'm not aware of. In that sense, I am fearful of myself being a racist without realizing it.

    As for others? Well, some people have argued that having a CWP is motivated on some level by fear. I suppose that on some level I am fearful of people being violent racists, or violent muggers, or violent terrorists, or violently insane, and on what might happen if I encounter one unprepared, so that argument isn't completely invalid. However, I feel that the fear is a minor reason compared to simply wanting to always be prepared, to assert independence and moral agency, and a number of other reasons that Clark and others have articulated so well before.

    I have a suggestion. Stop looking for racists, and you will stop finding them.

    I appreciate the advice, though it comes off as a tad condescending. However, it's already been proven wrong. I don't have to look for racists, they unfortunately find me. The guy got out of his car, took one look at me, and immediately started shouting about how "of course it was an Asian", "you chinks need to learn how to drive," and my favorite "get off my roads and go back to Vietnam."

    Now, I will concede that maybe this guy wasn't a racist–he could have just been a non-racist douchebag who decided that using racial stereotypes and racial slurs was the best way to accomplish some goal. Alternately, he might have been engaged in a bit of performance art that would make Charles Carreon proud. Now that I think about it, since he continued shouting at me after the highway patrol arrived, maybe it was a deliberate attempt to piss off the cops and get arrested on trumped up charges in order to set up a juicy civil rights suit. But my first instinct is to say that this guy was a racist, one who I was certainly not looking for. Really, I tend not to be looking for racists, or people in general, crashing into my rear bumper 40-50 seconds after I stopped at a red light.

    Random aside, I actually have to thank that guy for putting me into a very positive series of interactions with some very professional highway patrol officers. It was just the thing I needed after a Popehat binge was leaving me very down on law enforcement.

    If this is a nation of laws as you assert

    I'm assuming that you're referring to my statement that "this is a nation of laws and due process." By this, I mean that

    then we don't tolerate a group from a legal standpoint, we tolerate them because they haven't broken a law.

    I honestly don't understand what you're trying to say. Are you objecting to my use of the phrase "from a legal standpoint?"

    If you want a better example of a nation of laws try Cuba.

    Judging by context, I'm guessing you're trying to use this example to illustrate that "nation of laws" is a bad thing. However, as I pointed out, you seem to be using the phrase as a term of art that I am not entirely familiar with, and therefore attributing some meaning to the phrase that I did not intend to convey.

    This country was founded on principles not laws.

    I, um, agree with you? I never said otherwise, and I don't really see how the point is relevant to my arguments. The nation was founded on principles, but it is governed by laws based on these principles. One of these principles

    Then why don't they bring up the black panthers or la raza over and over and over again?

    Because humans are simple creatures, and we often focus on antecedent and possibly causal events when trying to understand/explain something? Slaughtering the Alamo probably wasn't the worst thing Mexico did to Texas, but I imagine in discussions about "crap Mexico did to Texas," it will come up over and over again, not because people are trying to imply that nothing worse happened, or that other fallen Texans were somehow less heroic than the guys who died at the Alamo, but rather because "Remember the Alamo" became a thing.

    You seem angry that there is some deliberate effort to single out the KKK, or that the fact that they're brought up "over and over again" reflects some sort of special scorn. I disagree that this conclusion necessarily follows.

    When people talk about the American Revolution, they talk about the Stamp Act. They talk about taxation without representation, over and over again. They talk about these things because they happened before the Declaration of Independence–because according to our national narrative, these were among the abuses that finally pushed us over the edge and forced us to act.

    The fact that people talk about this over and over does not, as you imply, reflect a deliberate effort to single out the British empire for condemnation above all others. It does not mean that people think what the British did to us was singularly bad compared to what other empires did to their colonies (compared to the Aztecs, we got off easy.) It does not mean we think that what the British did to us was singularly bad compared to what the British did to their other colonies. Hell, it doesn't even mean that we think what the British did to us before the revolution was any worse their their efforts to keep us under their thumb even after independence (I mean, drafting sailors, what the hell?) It does not mean that we think the British were all bad, that the Americans are all good, or that we never did anything remotely dodgy once we started gaining our own quasi-colonies. It does not mean that how the U.S. governed the Philippines, or how the U.S.S.R. governed its satellite nations, are irrelevant to a discussion of the American Revolution and how it illustrates principles of self-determination. All it means is that when someone mentions "the American Revolution," the first thing many people think of is "taxation without representation."

    Because by this logic, they too are relevant to the discussion.

    Can you please articulate what you mean by "this logic"? And by that, I don't mean for you to say "your [my] logic," since clearly that is what you are referring to. While I don't necessarily disagree with your conclusions, I don't see where in my posts I articulated a line of reasoning that leads to those conclusions.

  237. Manatee says:

    @Shane, something got cut off somehow

    When I talk about this being "a nation of laws and due process," I am speaking in the sense of rule of law, and John Addams' sentiments that we have a government of laws, not men. In other words, to me "tolerance" in the legal sense is best illustrated how the First Amendment: the government does not pass laws banning speech based on content, it does not pass deliberately vague laws governing time/place/manner of speech so that some officially essentially has the power to single out speech he doesn't, and it does not tell private citizens that "If something where to happen to those guys who say all the things we don't like, *wink wink*, I don't think we'll have much time to look into who did it.

    I think where we are miscommunicating is where you take the "nation of laws" part out of context and take it as some term of art standing, I am guessing, in contrast to a "nation of principles" at opposite ends of some axis. I haven't thought as much about that particular distinction, and I was not making an assertion either way.

  238. Manatee says:

    @James,

    The distinction between legal and religious marriage isn't what confuses the issue with regard to NMHRA. Even if a church has no power to grant a legal marriage, it is still an actor with first amendment rights, meaning that it can endorse any marriage. In other words, without regard to whether it grants a religious marriage and what that actually means within your religion, a church can always exercise its free speech rights to express approval of a legal marriage, and the government cannot compel it to express approval for any marriage against its will. The main source of confusion is that somewhere between traditional church wedding overseen by the pastor, and "Okay, your check cleared, you have the room until six, make sure you pick up all your trash," there is some sort of line. On one side of the line, the church is implicitly endorsing the union between two people. On the other side, it is holding itself out as a public accommodation and just renting out space. And nobody can agree where that line is. On one hand you can argue that the mere act of renting the venue–even if no church members directly participate–is a symbolic act expressing approval, meaning that the church should not be forced to do even that. On the other hand, if you characterize the church's actions as those of a vendor offering public accommodations, NMHRA becomes relevant.

  239. Clark says:

    @AlphaCentauri:

    If that government employee is a member of the military, he can indeed be jailed for failure to follow orders, even if he was a conscript.

    A "double jailing", if you will.

  240. Shane says:

    @AlphaCentauri @Mark – Lord of the Albino Squirrels

    If that government employee is a member of the military, he can indeed be jailed for failure to follow orders, even if he was a conscript.

    UCMJ are the laws that apply to the military, not U.S laws. Notice how the military has a separate set of laws than the U.S. Failure to follow a direct order is a law under the UCMJ and it's punishment is jail. As a member of the military you are not really an employee, you are a conscript (slave) and considered property, things work differently in the military. Really in the military you have no constitutional protections because your employer is not bound by the constitution.

    Is Bradley Manning compelled to stay in a cage through the power of friendship?

    FFS, Bradley Manning broke a law. So he is now the customer not the employee. This is equivalent of Bradley Manning killing his girlfriend (or boyfriend as the case may be).

    Were employees at a school in Arkansas compelled to integrate their student population because the National Guard unit sent by the government beat them at poker?

    If the teachers/employees did not want to carry out the integration they could have refused which would have resulted in their firing, or they could have quit. The National Guard was there to protect the kids from the forces that would want to hurt/remove them, not to force the teachers to comply.

    Is Edward Snowden avoiding the U.S. because he loves hide and seek?

    No, because he broke the law.

    "The government employee if he refuse to carry out his employers edict can NOT be forced to do so."

    This is still true despite your attempt to twist it into something totally out of proportion. I provided an example for you that illustrates exactly what I am talking about.

    I am not sure what it is that you are trying to get at with this. It seems rather nit-picky, and clearly off the original point.

  241. Shane says:

    @Clark

    A "double jailing", if you will.

    ROFLMAO, I was half awake when I first read this, took a while for it to sink in. I am now convinced that you are British.

  242. Mark - Lord of the Albino Squirrels says:

    @Shane
    "FFS, Bradley Manning broke a law. So he is now the customer not the employee."

    Odd. Manning is still an employee of the government from what I've read – at the time of sentencing he had not been discharged. He remained an employee of government while he was a customer of government. Have you considered the possibility that government employees are *always* customers of their employer?

    Also, would you care to clarify how failing to carry out the government's edict (to keep classified information secret) is not the same as breaking the law requiring classified info be kept secret in Manning's case?

    "If the teachers/employees did not want to carry out the integration they could have refused which would have resulted in their firing"

    Many government employees did refuse – to the point where the Governor called out the Arkansas state National Guard to stop minority students from going to school. It did not result in their firing. Instead, it resulted in the federal government rendering that refusal moot – through the threat of force in the form of the 101st Airborne Division arriving in Little Rock.

    In other words, any government employees at the school who wished to integrate (like the Little Rock schoolboard) were compelled through force (the Arkansas National Guard) to obey their state's edicts – whether they liked it or not. That resulted in federal government employees (the Army) arriving to compel through force the state employees to obey their country's laws – again whether they liked it or not.

    Yet somehow the Arkansas National Guard and the 101st Airborne Division do not not constitute force…..

    "No, because he broke the law."

    Yes, as you said with the Manning. Snowden is not hiding because he refused to carry out a government edict to keep classified information secret, because:

    "The government employee if he refuse to carry out his employers edict can NOT be forced to do so."

    Instead, Snowden is hiding because he refused to carry out a government law to keep classified info secret.

    And you say I'm being nit-picky.

    Note: In my prior post, I incorrectly identified the federal troops sent by Washington to Little Rock as the National Guard. This was incorrect. The troops sent were in fact the 101st Airborne Division of the U.S. Army. My only excuse in this mistake is sleepiness and over reliance on foggy memory.

  243. Shane says:

    @Mark – Lord of the Albino Squirrels

    Odd. Manning is still an employee of the government

    No he is a member of the military, and I discussed that.

    Instead, Snowden is hiding because he refused to carry out a government law to keep classified info secret.

    No he is hiding because he broke a government law just as surely as if you or I hacked into the NSA to do the same thing.

    Look, what is your point here? That one tiny piece of what I said under circumstances that I didn't bring up because they are outliers i.e. the U.S. military, causes everything that I said to be entirely invalidated. Ok you have the right to believe that.

    I thought that you were looking for some sort of clarification, but instead I see that you simply want to argue with me. I am not interested in arguing because the only point of an argument is to win.

    I concede you win

  244. James Pollock says:

    "Even if a church has no power to grant a legal marriage, it is still an actor with first amendment rights, meaning that it can endorse any marriage"
    True.

    "The main source of confusion is that somewhere between traditional church wedding overseen by the pastor, and "Okay, your check cleared, you have the room until six, make sure you pick up all your trash," there is some sort of line."
    Yes, and that line is drawn right on top of the line between "We make this hall available to members of our congregation only" and "we make this hall available to any member of the public who can and will pay our rental price".
    It's not a first-amendment issue. The same rules apply to anyone else who owns a hall… if it's open to the public, then accomodation laws apply; if it's not open to the public, but only to members, then accomodation laws do not apply. This isn't to say that gray areas don't exist, only that those gray areas do not arise out of any first-amendment protections.
    Example 1: The Elks club has a building which is open to members and guests only. A random member of the public may not demand that they allow him or her to hold their event.
    Example 2: A property association owns an event center, which is available to tenants only. A random member of the public may not demand that they allow him or her to hold their event, but may have a complaint if they've been systematically excluded from tenancy.
    Example 3: The "Chapel of the Gorgeous Scenic View" operates a hall which accepts rental reservations from the public. They may be legally required to accept reservations from anyone who can pay the rental price.

    On a similar note, I think it IS possible that a church might be legally required to host a same-sex marriage. The circumstances where that might occur, however, would appear to be rooted in contract law. (Can a court force a church to host such a wedding if they have accepted a lawful contract to do so? (by lawful, I mean not obtained by fraud or malfeasance on behalf of the church's representative) I would think so.)

  245. Dion starfire says:

    I know anecdotes aren't a legitimate debate tactic, but this story illustrates one of the drawbacks of anti-discrimination laws. There are also many stories about discrimination causing equal (or worse) problems.

    To me, that's one of the hallmarks of a fair or well-balanced law; it benefits and limits (or offends) people on all sides of an issue. There's some good and some bad for everybody.

    Free speech protects both minority opinions and offensive, abusive, or obscene language. "Innocent until proven guilty" (usually) protects us from being punished for simply appearing suspicious, but it also means some crimes go unpunished because guilt couldn't be proven.

    If you're going to limit others, it's only fair to limit yourself to the same degree (in things that are as important to you as the ones you want to limit are important to others)

  246. Mark - Lord of the Albino Squirrels says:

    @Shane

    "No he is a member of the military, and I discussed that"

    Of course. He is paid by the government. His ultimate boss is the government. He cannot act as a member of the military without the government's approval. But he is not a government employee because he works for a somehow independent military? Okay.

    Who or what then is the federal government's "gun" in the following statement:
    "I am not trying to be pedantic, but you must understand that when the government uses force it really means at the end of a gun."

    I was under the evidently mistaken impression that it was the military.

    "I thought that you were looking for some sort of clarification, but instead I see that you simply want to argue with me."

    I was looking for a resolution to my conundrum and I still am. This conundrum:

    "So for the artist expressing themselves I find anti-discrimination laws loathsome as they oppress that artist's rights. That said, for The Man, servant-o-the-beast, Johnny Law etc.. I find them just and crucial. Because who can trust those guys?

    My conundrum is that I cannot come up with a rationale or system that explains why those two stances are not contradictory. Pragmatism? Gut feeling? Just becuz?"

    Your offered solution to that conundrum was unsatisfactory to me. Basically because I see no evidence that a government employee is any more protected from the use of compelling force by the government than the lonely artist is.

    If it helps, Clark did offer a solution to my conundrum from what I will (fairly or not) call an Anarchist perspective. This was with his comment about double jailing for military members. If I am not reading too much into his comment, he is saying that anti-discrimination laws are equally infringing on personal liberty to all members of a society from the lonely artist to the Arkansas National Guard. Any "good" that arises from reigning in state sanctioned racism through law is entirely offset by the "evil" of that initial infringing on liberty – the first jailing if you like – of having those laws in the first place. My conundrum, *if* that valuation of benefit and harm is correct, would evaporate.

    Of course, that brings up a huge subject concerning the merits of Anarchist models, but that can wait for another day.

    All that said, thank you for offering your solution to my conundrum. I'll assume it was offered in the spirit of debate and exploration and am therefore grateful.

  247. Terrence Allen says:

    The baker isn't refusing to serve homosexuals (who are specifically protected by law) he's refusing to serve people who advocate for homosexual marriage. The law appears not to protect that group.

  248. Shane says:

    @Mark – Lord of the Albino Squirrels

    Ok, here is the deal with the military. If you are in the military you are not an employee of the state. That was why Clark's comment was so funny. A military member is a slave of the state. If you are in the military and you get sunburned and you go to the emergency room to have it fixed, you will be written up i.e. reprimanded. The reason that you will be reprimanded is for the destruction of government property. As a soldier you have no more rights than the cot that you sleep on.

    "So for the artist expressing themselves I find anti-discrimination laws loathsome as they oppress that artist's rights. That said, for The Man, servant-o-the-beast, Johnny Law etc.. I find them just and crucial. Because who can trust those guys?

    Ahh ok, to restate what I think you are saying "I want to to be free from coercion, but sometimes coercion is necessary." Is this correct?

  249. Al says:

    @Ken White

    What's a textbook example?

    The whole conversation. There was never any doubt in my mind that it would lead right here.

    To an outsider looking in there's only a couple of ways to take that. Either Libertarians cling to ideas that just plan don't work in the real world or something more sinister. It doesn't matter which conclusion people come to. If that's the pitch, you're boned.

  250. Analee says:

    I'm going to be 100% honest: I'm failing to see anything wrong with the decision, since there's that whole line about "all men are created equal" in the beginning of the Declaration of Independence, but I also agree with some of Clark's points, so I'm confused and have no idea what to think about the whole situation at hand.

    However, since I'm a fan of Knowing Things and also Learning Things, could one person from each side of the argument please explain their point of view to me so I can figure out what side I truly fall on in this debate, preferrably with visibly marked paragraphs and no run-on sentences if possible? (Not that any of you have actually done that; it's just that it's close to my bedtime and I don't know that I'd be able to process and understand responses if anything WASN'T clearly marked.)

  251. Gare Reeve says:

    @Al

    Can you please elaborate on your statement that my views can't work, or that I'm hiding some sinister agenda? I honestly don't understand what's so horrifying about my opinion that private individuals should not be compelled by force to provide goods or services to other people.

  252. AlphaCentauri says:

    @Terrence Allen, agree. I am really uncomfortable with forcing someone to produce art they don't agree with. It's not like they refused to sell birthday cakes to homosexuals. And while they may not have had a written policy covering it, I would bet they would have refused to produce a cake with a message they considered profane. Buying off the shelf is a public business; expecting a specific message is too much like denying someone the right to regulate speech in his own living room.

  253. Gare Reeve says:

    @Analee

    Since I'm still awake, I'll try to explain my viewpoint. While it MAY have similarities to Clark's views, I speak ONLY for myself. I've never met Clark, or anybody else associated with this blog.

    I believe that the government should not be able to force any private individual to provide a good or service to another individual.

    This is because I feel there is a zero-sum balance between individual liberty and governmental power, and I believe that the only legitimate functions of government is to prevent others from violating my natural rights, and to impartially interpret and enforce contracts.

    (Those two duties alone encompass law enforcement, criminal courts, civil courts, and national defense.)

    An individual's natural rights should only be restricted as a punishment if he or she is convicted, in a proper court of law, of violating the rights of another. The extent of the punishment should be specifically defined in the criminal code relating to the law that was broken.

    How my views apply to the case in hand is as follows: I do not believe that the photographer should be forced to provide his services to anybody if he does not want to (all laws are backed up with the threat of force). His motivations for his refusal should not matter to the government.

    People who object to his decision and/or his motivations are welcome to make their disapproval known (pickets, protests, boycotts, etc) provided that do not violate anybody's rights while they do so.

  254. James Pollock says:

    "I believe that the government should not be able to force any private individual to provide a good or service to another individual."
    Then who SHOULD enforce contracts?

    To make a long story short, it appears that you do NOT believe that "(insert minority group here) has a right to be treated the same as (insert majority group here)". Proponents of the adverse approach DO believe that such a right exists, and that the government is right to enforce it.

  255. James Pollock says:

    "As a soldier you have no more rights than the cot that you sleep on."
    It certainly feels this way sometimes, but this is not the case. This topic is covered in BMT.

    "If you are in the military and you get sunburned and you go to the emergency room to have it fixed, you will be written up i.e. reprimanded. "
    YMMV. I did basic in San Antonio during July and August, and if you got a patch of sunburn, you told the training instructor and were sent to the BX to buy some lidocaine. Most of the people who went on sick call did so because of blisters. It wasn't a big problem because we did PT and most other outside stuff before or at dawn, and did inside activities during most of the day.
    If anyone got written up for sunburn, it was because they were out of uniform outside the barracks.

  256. Nobody says:

    I'm not sure the situation is completely parallel. One cannot choose how much melanin is in their skin. One can choose who they marry and who they have sex with, however much or little control one has over their attraction.

  257. Gare Reeve says:

    @James Pollock

    Then who SHOULD enforce contracts?

    As I stated in the paragraph directly below the one of mine that you quoted: "I believe that the only legitimate functions of government is to prevent others from violating my natural rights, and to impartially interpret and enforce contracts."

    To make a long story short, it appears that you do NOT believe that "(insert minority group here) has a right to be treated the same as (insert majority group here)"

    You are partially correct. Private citizens should be allowed to discriminate as much as they want, against whomever they want, so long as they're not subsidized by the taxpayers as they do so.

    I personally consider such behavior to be reprehensible, and I hope that they're picketed, boycotted, and driven into bankruptcy, but I don't believe that forcing somebody, at gunpoint, to behave in a manner I find acceptable, is a proper function of government.

    I simply don't believe that anybody has a right to my services if I do not wish to provide it to them. Compelling somebody with force to provide a good or service against their will is slavery. And ALL government laws and regulations are backed by the threat of force.

    The Government, on the other hand, must NOT discriminate. And anybody who accepts taxpayer money in return for providing a good or service should not be allowed to discriminate in who they provide that good or service to, whether they work directly for the government (police, public officials, etc), or whether they accept taxpayer money (defense contractors, etc). Those people they wish to discriminate are, afterall, paying their salaries with their taxes.

  258. Gare Reeve says:

    Correction to my last sentence: Those people they wish to discriminate AGAINST are, afterall, paying their salaries with their in the form of taxes.

  259. Analee says:

    @Gare Reeve,

    I think I understand now. They should be allowed to do it, but that still doesn't make the act of discrimination acceptable to everyone and those who disagree should tell them so, if it is a private citizen-run business that does NOT accept government funds.

    HOWEVER, if it IS a government-run business OR accepts government funds, because it is essentially a function of the government itself, that right disappears automatically because the government has sworn NOT to discriminate against its constituents.

    Do I have that right? If so, I think I'm seeing it as a case of "You were so worried about if you COULD, you didn't stop to think if you SHOULD" case for both sides.

  260. Gare Reeve says:

    @Analee

    You are correct. In a free society, not all legal behavior is decent behavior, and not all reprehensible behavior should be illegal behavior.

  261. James Pollock says:

    "As I stated in the paragraph directly below the one of mine that you quoted:"
    Repeating the same thing doesn't make it any less mutually exclusive. In order to enforce contracts for goods and services, the government MUST "be able to force any private individual to provide a good or service to another individual."

    But you say: ""I believe that the government should not be able to force any private individual to provide a good or service to another individual."

    So, you're STILL saying that the government both should and should not be able to force private individuals to provide goods and services to other individuals.

    "Private citizens should be allowed to discriminate as much as they want, against whomever they want, so long as they're not subsidized by the taxpayers as they do so."
    Really? This would seem to cover lynch mobs and a whole bunch of other violence… as long as they picked up after themselves, so as not to require the services of government trash collectors.

    "I don't believe that forcing somebody, at gunpoint, to behave in a manner I find acceptable, is a proper function of government."
    How SHOULD criminals be brought to justice?

    "The Government, on the other hand, must NOT discriminate."
    The government discriminates all the time, as it should. For example, minors may not vote, healthy people may not park in the good spaces right next to stores and government offices, and wealthy people may not receive welfare.

    I'm afraid your opinions can't even be brought into consistency with each other, much less with reality.

  262. spinetingler says:

    should a devoutly old school Southern Baptist be allowed to refuse accommodation in his hotel to an African-American couple?

    Clark

    Should he be allowed to?

    Yes. Without question.

    As if I needed any more reason to disregard anything Clark writes…

  263. Gare Reeve says:

    @James Pollock

    In order to enforce contracts for goods and services, the government MUST "be able to force any private individual to provide a good or service to another individual."

    If I chose to SIGN A CONTRACT with somebody to provide a good or service then, yes, the government can then force me to fulfill my end of the contract, or penalize me for violating a contract that I signed.

    I have yet to sign a contract with my local grocer to pay him $1.50 in exchange for his giving me with a bottle of Dr. Pepper.

    Most criminals can and should be brought to justice because they take actions that violate the rights of others.

    If you steal my property, you have violated my rights.
    If you threaten me with violence, you have violated my rights.
    If you commit an act of violence on me, you have violated my rights. If you refuse to sell me a pack of bubblegum, you are NOT violating my rights, you're just being a jerk.

    Really? This would seem to cover lynch mobs and a whole bunch of other violence… as long as they picked up after themselves, so as not to require the services of government trash collectors.

    It's very difficult to lynch somebody without violating their rights. Unless the person being lynched consented to it and then forgot their safe-word, of course, in which case the whole thing is a tragic accident.

    Crimes that do not violate anybody's rights (gambling, prostitution, drug use) shouldn't be crimes in the first place.

    As for voting/welfare/handicapped parking:
    Non-citizens also can't vote. Voting is one of those unusual rights (probably why it's not one of the so-called Natural Rights) that only certain people qualify for but, if you have the right, the government should not violate it or allow others to do so, regardless factors such as race, gender, sexual orientation, etc. This also applies to welfare and handicapped parking.

    And, yes, children do not enjoy the same rights as adults. They also enjoy certain protections that adults do not have. The rights and protections of children under the law is a lively debate in its own right.

    I admit that "discriminate" was a poor word choice, since that can obviously be interpreted in a number of ways that I didn't consider. I'd like to rephrase: "Private citizens should be allowed to refuse to provide goods or services to anybody they do not wish to provide goods or services to, for any reason."

  264. James Pollock says:

    "If I chose to SIGN A CONTRACT with somebody to provide a good or service then, yes, the government can then force me to fulfill my end of the contract, or penalize me for violating a contract that I signed."

    Contracts don't have to be signed, or even written down, to be contracts. Most don't have to be signed, or even written down, to be enforceable in court (depending on your local statute of frauds).

    "I have yet to sign a contract with my local grocer to pay him $1.50 in exchange for his giving me with a bottle of Dr. Pepper."
    The majority of people today sign that contract electronically, by providing a PIN. But it useta be, you'd sign either a check or a credit-card slip. What does this have to do with the issue of whether or not the government will enforce contracts for sale of goods or services?

    Are you trying to say you don't enter such contracts, or that you're special and the government won't enforce yours, if need be?

    Here's the deal: a Merchant makes goods available for sale. This is called an "offer". Customers may then select goods for purchase at the offered price; this is called an "acceptance". At the point of acceptance, a contract exists. If the merchant then asserts "I won't sell to YOU" (whoever "YOU" happens to be) they are breaking a contract. You say you want the government to enforce contracts. Therefore, you support the government requiring merchants who offer goods or services to the public to sell to all members of the public.

    "Most criminals can and should be brought to justice because they take actions that violate the rights of others."
    This is a circular logic chain unless you posit that "the rights of others" vary from person to person, and are therefore set by consensus, or by force.

    ""Private citizens should be allowed to refuse to provide goods or services to anybody they do not wish to provide goods or services to, for any reason."
    Ah, well.
    Done! Don't offer goods or services for sale to the public, AND pay your debts and obligations as they come due, and you won't be required to provide goods or services to anyone you don't wish to provide goods or services to. Good luck!

  265. Gare Reeve says:

    @James Pollock

    Here's the deal: a Merchant makes goods available for sale. This is called an "offer". Customers may then select goods for purchase at the offered price; this is called an "acceptance". At the point of acceptance, a contract exists. If the merchant then asserts "I won't sell to YOU" (whoever "YOU" happens to be) they are breaking a contract. You say you want the government to enforce contracts. Therefore, you support the government requiring merchants who offer goods or services to the public to sell to all members of the public.

    Are you arguing that my beliefs are evil or unworkable because they run counter to our current business laws? I have NEVER claimed that the current laws support my beliefs, any more than I would ever claim that current laws support my belief that gambling, drug use and prostitution should all be activities that consenting adults can all freely engage in if they choose to.

    I DO believe that current business laws should be amended, so that no private individual is forced to provide a good or service to an individual that they do not with to provide a good or service to, whether that person is a doctor, shop owner, prostitute, heroin dealer, or plumber.

    A willingly signed contract should STILL be enforced, or else written and signed contracts become worthless. I'd hope that anybody signing such a contract would realize who they're doing business with, and back out before the signing if they don't with to do business with that person. If not, it's their own damn fault.

    For example, if my beliefs were reflected by law: if a prostitute willingly signs a contract with me to have sex with me in exchange for $300.00 and THEN, upon being offered the money, she says "Forget it, I don't screw bald, ugly, pear-shaped, pseudo-intellectual assholes", the government should be able to step in and enforce the signed contract. (How a prostitute could POSSIBLY survive without that particular demographic is beyond me, but that's a different matter entirely).

    If, on the other hand, I call up a prostitute to come to my house and, upon arrival, she realizes that I'm a bald, ugly, pear-shaped, pseudo-intellectual asshole, she should have the right to refuse my money and not have sex with me.

  266. Gare Reeve says:

    @James Pollack

    "Most criminals can and should be brought to justice because they take actions that violate the rights of others."
    This is a circular logic chain unless you posit that "the rights of others" vary from person to person, and are therefore set by consensus, or by force.

    Rights generally do not vary from person to person except for some, such as the right to vote, which doesn't apply to all people.

    Please elaborate on how my statement "Most criminals can and should be brought to justice because they take actions that violate the rights of others." employs circular logic. There's very few crimes that don't involve somebody my violating my rights.

  267. James Pollock says:

    "Rights generally do not vary from person to person except for some, such as the right to vote, which doesn't apply to all people."

    This is the part where I was pointing out that your views don't seem to intersect with reality. There's absolutely NO "right" that doesn't have at least some people who don't believe in it. Go ahead, pick ANY "right" you like, and I'll find a person or group that doesn't respect it. I'll knock down a few easy ones right here:
    Right to property: thieves, communists
    Right to life: Anybody in a war
    Right to due process: lynch mobs
    Right to free speech: authors of the alien and sedition acts

    ""Most criminals can and should be brought to justice because they take actions that violate the rights of others." employs circular logic. There's very few crimes that don't involve somebody my violating my rights."
    It's circular in the sense that "violating my rights" is defined by you, built out of "rights" that are invisible and indetectable until you suddenly call them into being in order to justify your impingement on someone else's "rights".
    Maybe "circular" isn't the correct complaint. More "it's not ok when you do it to me, but it's ok when I do it to you".

    "Are you arguing that my beliefs are evil or unworkable because they run counter to our current business laws?"
    No. I never called them evil at all, and I called them a variant of "unworkable" because you can't seem to elaborate them without contradicting yourself. You want government to enforce contracts, but you don't believe in contracts. I begin to see that you don't actually know what a "contract" actually is. If you can't get your notions to the point of self-consistency, getting them to the point of consistency with reality is a pipe dream.

    "I have NEVER claimed that the current laws support my beliefs, any more than I would ever claim that current laws support my belief that gambling, drug use and prostitution should all be activities that consenting adults can all freely engage in"
    You should get out more. Not only does my state allow gambling and drug use, it's actually in the business of providing same. Admittedly, prostitution is only legal in some counties in Nevada domestically, but overseas sex tourism is a thing (and you don't even have to go over an actual sea… both Tijuana and Vancouver have thriving sex trades, at opposite ends of I-5).

  268. Gare Reeve says:

    @James Pollock

    Our debate is going all over the map, including topics not specifically related to this thread. I'm going to try to narrow the focus.

    I assert the following two beliefs (I am NOT claiming that things ARE this way, but that I believe SHOULD BE this way):

    1: The government should not be able to force a private individual to provide a good or service to a party that they do not wish to provide that good or service to.

    2: If a private individual willingly signs a contact with another party, agreeing to provide a good or service, then they should be bound by that contract to provide that good or service, and cannot use my first assertion as a means to get out of the contract.

    You appear to believe that these assertions are contradictory, or impossible to achieve. I honestly do not understand why this is, but I look forward to discussing the matter further.

    If you wish to debate the nature of rights and criminal justice, or any other matter not directly related to this thread, let me know, and I'll post my e-mail address for you so we don't keep cluttering up Ken's living room.

  269. James Pollock says:

    "You appear to believe that these assertions are contradictory"
    You keep changing them. Previously, they WERE contradictory.

    Now, they boil down to "X should be (il)legal" and "except when it isn't".
    In other words, you've finally noted that what you stated in absolute terms actually has exceptions, and now you (finally!) say so. I'm fairly sure, if you probed further, you'd discover that there are other exceptions, too. (Foreclosure sale? Bankruptcy sale?) After a while, your simple, absolute principle will wind up looking a LOT like what you see right now, in the real world: individuals can refuse to deal with other individuals, except in certain circumstances. Did you not notice that you can (largely) achieve your principle through the simple expedient of not becoming a merchant?

    "If you wish to debate the nature of rights and criminal justice, or any other matter not directly related to this thread, let me know"
    Not really. It's too short a discussion. "Rights" are those things that other people will defend for you. You can debate forever what they SHOULD BE, but what they ARE is fundamental (so is where they come from, which is consensus. Don't believe me? A thought experiment: Suppose you find yourself surrounded by a group of angry, armed people who do not believe that you have a right to life, with nobody around but you who thinks that you do. What result? I can provide real examples from history… alas, history is full of examples of "rights" that disappeared with public opinion).
    For that debate, you can move over to the thread on rights that people think they have, rights that are consensually awarded, and the differences between types of rights. It seems a lively debate, although it seems to have a bit of theology mixed in as well, so I gave it a pass.

  270. Ken White says:

    Someone posed a question to me that I think illustrates the problem:

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

  271. James Pollock says:

    "Imagine that Westboro Baptist Church is holding a wedding for two of its members."
    They're all related already. Ick. Thanks for that.

    "Must a gay photographer accept a request to photograph it?"
    Depends. Did they advertise to the public that they were available to photograph weddings? Did they accept a contract to photograph it?
    (Note: Assuming that you mean "gay photographer" to mean that the photographer is gay, not that they are a photographer OF gays.)

    Ultimately, I think the answer is going to be "yes", because "religious affiliation" is one of the protected classes.

    The interesting question is going to revolve around the question of whether or not you can refuse to take part in a "wedding" that the state itself does not condone, whether because of consanguinity or because it's a same-sex wedding in a state that does not recognize them (yet). That's the situation we have in Oregon right now… a baker being sued for declining to make a wedding cake for a gay wedding… which are not legal in Oregon. I think the baker ought to win that case (until we pass the repeal of the ban on same-sex marriage next year) but I wouldn't bet on it.

  272. Neil says:

    Ken, your comment about the Westboro church wedding hits the nail on the head as to where this ruling leads, especially if it goes national in it's application. Christian photographers that photograph baptisms would now have to photograph Satanic rituals. Michelangelo, if he were in business as a painter, would be required to paint images at the Church of Satan after doing so at the Sistine Chapel if he was asked to do so. And with regard to Westboro, D.C. law forbids discrimination based on both political affiliation and religion. This is a deep rabbit hole.

  273. James Pollock says:

    "Ken, your comment about the Westboro church wedding hits the nail on the head as to where this ruling leads,"

    Actually, I don't think it changed the WBC wedding scenario. Religious affiliation has been one of the "protected classes" all along.

    "Christian photographers that photograph baptisms would now have to photograph Satanic rituals."
    Perhaps. My understanding is that they've been TRYING to photograph actual Satanic rituals for quite some time, and the holdup has been finding actual Satanists (as opposed to people trying to prank the Christians.) In any case, this is easily solved by putting the photographer on the Church's payroll. Once the photographer offers photography services to the public, offering to photograph religious ceremonies, then yes, the field is open to all comers…. However, another possible out is having hours of operation that do not include midnight.

  274. NickM says:

    Ken, here's a small variation on your question.
    What if instead of a Klan Rally, it was a Christian Identity rally? Mainly the same people, just meeting under a religious group rather than a political/social one. Could the African-American photographer be forced to photograph that?

  275. Gare Reeve says:

    Another concern that I have with this precedent:

    What if the couple at the gay wedding are unsatisfied with the way the cake turns out? Can they then sue the baker, arguing that he deliberately sabotaged his work because he didn't approve of the the wedding in the first place, even if the evidence is purely subjective?

  276. Erwin says:

    In theory, I favor anti-discrimination laws, particularly for race or religion. But, I can see how the impact of these laws is broader than I could argue is useful. (refusing to sell to people at the local grocery is one thing…and I'm dead set against property deeds with a 'no mixed races addendum' because they are inherently highly divisive, but…wedding photographs asks more of the seller and is less necessary to the buyer than seems equitable.) I guess I rationalize the wedding photographer as an acceptable cost of the positive benefits of such laws.

    On an off-topic note, my roommate crashed a Satanic wedding once. He went away sad, as they were way too soft-core and were scared of him… Poor disillusioned guy. It was apparently Christian, with upside-down crosses, different names, and no actual blood-drinking.

    –Erwin

  277. James Pollock says:

    "What if the couple at the gay wedding are unsatisfied with the way the cake turns out?"
    In reality? They should have picked a different baker, if one was available. I suspect this is not the type of answer you're looking for.

    "Can they then sue the baker"
    Can they? Yes. Should they? Different question. See below.

    "…arguing that he deliberately sabotaged his work because he didn't approve of the the wedding in the first place, even if the evidence is purely subjective?"
    The plaintiff in a case always has the burden of proving their case. So if there is evidence that the cake was sabotaged, then yes, they can proceed, and probably should. But if there isn't evidence that the cake was sabotaged, beyond that it wasn't the idealized cake the purchasers imagined they would receive, then the plaintiff's lawyer will tell them they probably aren't going to win. They may want to press the case anyway, but the lawyer has some ethical rules that apply to filing a lawsuit without evidence sufficient to win.

    Thus, it seems likely that rather than a lawsuit, their proper recourse is truthful online reviews. ("This cake was not as good as we expected.")

  278. Gare Reeve says:

    Did you not notice that you can (largely) achieve your principle through the simple expedient of not becoming a merchant?

    I indeed noticed this, as well as the fact that your statement can be used to justify forcing merchants to do… well… pretty much ANYTHING.

    With that in mind, where would you draw the line of "The government can't force you to do THIS, and tell you to stop being a merchant if you object."?

  279. James Pollock says:

    Oh, also note that if the cake is visibly flawed (i.e., it's ugly, or the writing on it says "die fags die" instead of "congratulations to the newly married couple", then ordinary rules of inspecting the goods before acceptance apply… the buyers may reject the goods offered and demand replacement or sue for breach.

  280. James Pollock says:

    "I indeed noticed this, as well as the fact that your statement can be used to justify forcing merchants to do… well… pretty much ANYTHING."
    Yes. Of course, merchants are citizens, and are free to see to their interests through the political process just as are any other citizens.

    "With that in mind, where would you draw the line of "The government can't force you to do THIS, and tell you to stop being a merchant if you object."?"
    There's not just one line, there's THOUSANDS. Merchants must make regulatory filings. Merchants must stand by their wares. Merchants must be compliant with laws governing materials restricted in so many ways. (No booze sales to those under 21. No tobacco sales to anyone under 18. Keep the dirty magazines and the pseudo-ephidrine behind the counter.) Comply with wage and hour laws. ADA. Fire codes. and so on. Plus everybody's favorite, act as a tax collector for the state (but not in my state, no matter how many times they put it on the ballot.)

  281. Gare Reeve says:

    @James Pollock

    So you believe that merchants should be subjected to any regulation or restriction, no matter how outrageous, impractical, or financially devastating, so long as 50.000001% of the populace support it?

  282. James Pollock says:

    "So you believe that merchants should be subjected to any regulation or restriction, no matter how outrageous, impractical, or financially devastating, so long as 50.000001% of the populace support it?"

    That's how it works, yes. (although, as a practical matter, it usually takes less than 50% of the populace to do it.)
    After all, if you look at our society, the one thing that jumps out is "oh, those poor, poor merchants, trapped by the will of the public, how they suffer so!"

    I'm afraid that if you look at the Constitution, you won't find anywhere a right to be a merchant, must less a right to be a merchant on terms favorable to you.

  283. WhangoTango says:

    "I'm afraid that if you look at the Constitution, you won't find anywhere a right to be a merchant, must less a right to be a merchant on terms favorable to you."

    You won't find anywhere a right to be homosexual, either.

  284. Al says:

    @Gare Reeve

    Can you please elaborate on your statement that my views can't work

    Arachno-capitalism doesn't work in the real world. At the very least, it's worse than our current form of government.

    I honestly don't understand what's so horrifying about my opinion that private individuals should not be compelled by force to provide goods or services to other people.

    Public accommodation law didn't come about because people's feelings were hurt. It came up because minorities found themselves locked out of large swaths of society because they couldn't access basic goods and services.

  285. Al says:

    Or, you know, maybe it's just that I don't like spiders.

  286. James Pollock says:

    "You won't find anywhere a right to be homosexual, either."

    Nor heterosexual.

  287. James Pollock says:

    "Arachno-capitalism doesn't work in the real world. At the very least, it's worse than our current form of government."
    Well, I don't know about the spiders, but for much of our nation's history, the frontier served as a destination for people who chafed under the oppressive weight of civil society and all its restrictions on personal freedoms. It worked, in the sense that people were able to live under terms and conditions more suited to them. Mountain men who stayed isolated for most of the year being the extreme, but religious freedom was available in the west where intolerance reigned in the east (hence the migration of the LDS pioneers from NY to UT). We've spent a considerable time, now, without a meaningful frontier, Captain Kirk's claims notwithstanding.

    The real problem is that anarcho-libertarians seem to assume that if you withdraw government force from people, that vacuum won't be filled with OTHER forces acting upon people. When government withdraws, the result is less freedom, not more, time and time again.

  288. markm says:

    Al: "Public accommodation law didn't come about because people's feelings were hurt. It came up because minorities found themselves locked out of large swaths of society because they couldn't access basic goods and services."

    Somewhere on the Volokh Conspiracy, there's a discussion of the history of Jim Crow. It didn't start with private businesses deciding to turn away customers, or to have to provide separate railroad cars and dining rooms for whites and colored – it started with laws forcing them to discriminate. The CRA was necessary in 1964 to reverse the public expectation of white-only accommodations that had grown under Jim Crow, but there would not have been nearly as much to correct if public accommodation law hadn't been allowed to step into this area in the first place, or if all three branches of the federal government hadn't supported discrimination rather than enforcing the 14th Amendment on state and local governments for about 80 years.

    Perhaps your next argument will invoke the KKK and lynchings? Such things were possible only because,

    1) Political compromises in Washington resulted in corrupting Reconstruction for private profit, and then withdrawing federal troops from the south long before the need for them to enforce respect for the rights of blacks was gone.

    2) Blacks could not defend themselves because governments took their guns. The Supreme Court only enforced the right to keep and bear arms for whites until the Civil War, and stopped enforcing it at all after the 14th Amendment required extending such rights (or "privileges and immunities") to blacks.

    3) The SC also allowed discrimination in law enforcement and laws.

  289. James Pollock says:

    "Somewhere on the Volokh Conspiracy, there's a discussion of the history of Jim Crow. It didn't start with private businesses deciding to turn away customers, or to have to provide separate railroad cars and dining rooms for whites and colored – it started with laws forcing them to discriminate"

    True. There was a huge F.U. to the federal government, basically saying "you can free our slaves, but you can't make us treat them as people".
    On the other hand, I suggest taking a look at race relations OUTSIDE of the former Confederate states. Oregon provides an interesting case… there wasn't a significant population of blacks in the state until ramped up production in the shipyards caused an influx during WWII. In many parts of the NW, this is still true. Oregon didn't have the same history with slavery and rebellion… it was admitted as a free state and was on the side of the Union… but it still has a "proud" history of "whites only" signs, restrictive covenants, and redlining.

  290. TM says:

    @James Pollock

    I'm afraid that if you look at the Constitution, you won't find anywhere a right to be a merchant, must less a right to be a merchant on terms favorable to you.

    If you look at the Constitution, you wont find any rights to be or do anything, because the Constitution does not give you rights. It explicitly outlines the rights granted to the federal and prohibited to the state governments.

    Or alternatively, if you want constitutional justification, it would be found in Amendments IX and X

  291. James Pollock says:

    "If you look at the Constitution, you wont find any rights to be or do anything"

    Here's an example of the Constitution explicitly providing a right "to be" something:
    "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated,"

    This one is perhaps more far-reaching, doesn't use a "to be" phrasing, and actually creates something you CANNOT be, but is perhaps on point:
    "Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction."

    This one, also spelled out in negative terms, nevertheless outlines the fundamental point of American freedom… that any American child may someday grow up to be President:
    "No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty-five Years, and been fourteen Years a Resident within the United States."

  292. TM says:

    @ James Pollock

    "The right of the people … shall not be violated" does not grant a right, it presupposes an existing right and forbids the government from violating it.

    The same is true for the remaining items. They do not establish rights, they impose restrictions on the government. That in doing so they appear to define and enumerate rights is why there are also Amendments IX and X, to ensure that it was understood that the Constitution is not a list of the rights of the people.

  293. James Pollock says:

    ""The right of the people … shall not be violated" does not grant a right, it presupposes an existing right and forbids the government from violating it."

    If you want to argue whether rights are things that exist outside of space and time or are merely a construct of human society, you're in the wrong thread.

  294. TM says:

    @ James Pollock

    Regardless of whether rights are natural constructs, god given or a construct of society, my point is the phrase "The constitution doesn't give you a right to do or be X" (and its variations) is a meaningless statement as the constitution does not, by its own language, give the people any rights. The constitution was written with a presupposition of existing rights, regardless of their source and that people cede certain parts of those rights to a government for the sake of securing the general welfare. The constitution is a framework and restrictive covenant on the federal and state governments (and to a lesser degree on the people by it's nature of granting rights to the government and thereby prohibiting them from the people).

  295. James Pollock says:

    "the constitution does not, by its own language, give the people any rights."
    This is not the current interpretation. YMMV.

  296. andrews says:

    Well, while we are still here, let me go back to the original question.

    Why should places of public accommodation be barred from discrimination? After all, most of them are private property.

    I will start with the sometimes unstated assumption that the public (and taxpayers) include persons of unfavored skin color, religion, sex orientation, &c. So if the public furnish a good, that good is furnished by members of the protected class involved in anti-discrimination law. With that assumption stated, let us consider the public accommodations subject to anti-discrimination laws.

    Let's start with transportation. The railroad is privately owned, and it pays taxes on the dirt under the tracks. But that dirt was given to it as a land grant, often a mile-wide swath hundreds of miles long. The land was not very valuable until some laid down some rails so you could get there, but the fact is that the land (and its assembly) were given by the public.

    The bus station appears more private. Except that the public built the roads on which the accommodation operates, and that's the expensive part of the bus company. Think of it as a hidden subsidy, or simply a grant from the public.

    The airlines land at publicly built airports which do not pay property taxes.

    And it is the travellers on those trains, &c., who show up at the Heart of Dixie restaurant. The public paid to enable the interstate travellers who apply to eat at Heart of Dixie and stay at the Mondessen hotel. Why should they have to pay taxes to enable these things, yet not enjoy the benefits?

  297. David says:

    @andrews: Point taken on the trains and planes, but not so much on the hotels and restaurants. And especially not on bridal photographers. It does not follow that because the government builds roads, I should have to take your picture. We don't give up all rights because the government provided something that may be useful to us. I drive on the roads and find them uesful, but that doesn't mean that I need to let people into my house who got there via that road system, even if they want to pay me.

  298. mattheww says:

    Though new to this site I have picked up on the most important thing to know about it: Ken is the smart one and Clark is a moron. I get the pairing; frission! But egads Clark, you are hopeless.

    All these hypotheticals where we have an actual real world to work from! Compel all the African-American photographers you want to photograph KKK rallies when so engaged, because zero will be. Meanwhile I, a gay man, will be without a wedding cake if I live in the wrong town and you have your way. Hopefully too I don't need a job as a baker or want to rent a spare room from the local cake shop's owner. Hopefully someone won't hate me and I can rent from them. It's a lot to hope my friend, but you straight white males don't need to worry about any of this, so, hey, don't! #youstandwithpax

  299. Clark says:

    @mattheww

    Though new to this site I have picked up on the most important thing to know about it: Ken is the smart one and Clark is a moron.

    Also possible:

    Ken is the one who will be tempted to delete your comment for name-calling and Clark is the one who will insist that it stick around.

    egads Clark, you are hopeless.

    Well argued; I feel chastised by your superior intelligence already.

    I, a gay man, will be without a wedding cake if I live in the wrong town and you have your way.

    Yep. If my terrible right-wing dystopia were implemented, it's true: you might have to make your own cake, have a friend make it, or go buy it two towns over.

    It's like the Nazis were never defeated, isn't it?

    Hopefully too I don't need a job as a baker or want to rent a spare room from the local cake shop's owner. Hopefully someone won't hate me and I can rent from them. It's a lot to hope my friend

    It is a lot to hope for. My God, life would be terrible for gay men who want to rent rooms from bakers if it weren't for laws that prevented freedom of conscience.

    You've made convincing case, though – now I'm totally ready to sacrifice freedom because you might want to be a baker some day.

    but you straight white males don't need to worry about any of this, so, hey, don't! #youstandwithpax

    Please stop back and leave comments awesome; I've learned so much.

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