On Wedding Cakes, Gay Weddings, And Free Speech

wedding cake

This is a reply to a comment left by MJJ on the Muslim Ban thread. I’m putting my response here, and hopefully further discussion of this issue will move to this thread.

I didn’t think Melissa’s cakes has gone bankrupt? They were fined $135,000, but they also received over $500,000 in donations to help them pay the fine, so if they really did go bankrupt it’s hard not to suspect that it wasn’t because of the fine.

Personally, I’m iffy about that case – both the size of the fine, and the ruling itself. But it’s a complex issue. IF we say that wedding cake makers can discriminate, how about grocers and hotels? How about doctors, pharmacists, and lawyers? Many of the same people arguing that Melissa’s Cakes should have been able to discriminate against a gay wedding say the same thing about city clerks – but it seems REALLY dubious to say that government employees should be able to pick and choose who to provide government services to.

This sort of discrimination has, in the past, been a cudgel for bigots to punish marginalized groups with, by making some basic necessities of life unavailable on the market to disfavored people. Everyone has a right to say and think whatever they want; but businesses the provide public accommodations (like selling to people) are more limited. What if the Kleins had refused to provide a cake for a wedding of two Asian customers – should that be legal, in your view?

Regarding two other arguments you made, I’m going to quote from the Judge’s ruling in the Colorado case. Regarding the idea that they weren’t discriminating against lgb people:

Respondents deny that they hold any animus toward homosexuals or gay couples, and would willingly provide other types of baked goods to Complainants or any other gay customer. On the other hand, Respondents would refuse to provide a wedding cake to a heterosexual customer if it was for a same-sex wedding. The ALJ rejects Respondents’ argument as a distinction without a difference.

The salient feature distinguishing same-sex weddings from heterosexual ones is the sexual orientation of its participants. Only same-sex couples engage in same-sex weddings. Therefore, it makes little sense to argue that refusal to provide a cake to a same-sex couple for use at their wedding is not “because of” their sexual orientation.

And regarding the idea that baking a cake is an act of speech (which might therefore receive first amendment protection):

The undisputed evidence is that Phillips categorically refused to prepare a cake for Complainants’ same-sex wedding before there was any discussion about what the cake would look like. Phillips was not asked to apply any message or symbol to the cake, or to construct the cake in any fashion that could be reasonably understood as advocating same-sex marriage. After being refused, Complainants immediately left the shop. For all Phillips knew at the time, Complainants might have wanted a nondescript cake that would have been suitable for consumption at any wedding. Therefore, Respondents’ claim that they refused to provide a cake because it would convey a message supporting same-sex marriage is specious. The act of preparing a cake is simply not “speech” warranting First Amendment protection.

The same thing is true of Melissa Klein; she refuses to bake a cake for a same-sex wedding, regardless of what message the cake conveys or what the content of the cake is. I don’t see how her speech is infringed by a generic wedding cake with no words or figures on it, for example. And if providing a generic good is an infringement on speech, then who else can claim that providing goods to a wedding is speech? The company that sells the aisle runner? The company that sells the disposable plates?

This entry posted in Free speech, censorship, copyright law, etc., Same-Sex Marriage. Bookmark the permalink. 

146 Responses to On Wedding Cakes, Gay Weddings, And Free Speech

  1. 1
    Ben Lehman says:

    The question, to me, is: is a cake a generic good or a unique artistic expression?

    This is very obviously ambiguous: Some cakes clearly are artistic expression. Other cakes are clearly a generic good.

    I don’t feel like I have enough expertise to know where to draw the line. The courts seem to have decided it one way fairly decisively: I’m inclined to trust their judgement.

    That said, I think that the argument about speech there feels off. If she had agreed to provide a cake only if it contained the message “real marriage = one man and one woman” on it, would that be protected?

  2. 2
    Sebastian H says:

    This is a pretty clear case of people not being committed enough to true multi-culturalism to bother to distinguish between important and unimportant cases.

    A perfectly workable system would be: If you sell undifferentiated goods (grocer for example) you sell to all comers. If you offer personal services you can say no to any client for any reason. So if you are a housecleaner who is offended by my S/M art, you can decline to serve me. If you are an artist, you can refuse my commission for any reason. I can’t force you to write a pro-conversion-therapy comic just because you hire yourself out.

    We used to distinguish between common carrier businesses and others. Things vital to the right to travel couldn’t discriminate, things vital to personal survival couldn’t discriminate. Government services couldn’t discriminate.

    “This sort of discrimination has, in the past, been a cudgel for bigots to punish marginalized groups with, by making some basic necessities of life unavailable on the market to disfavored people.”

    There may be a few edge cases where the discussion is difficult, but gay wedding cakes and gay wedding photography aren’t even close. This is not a basic necessity of life. It isn’t even close to a basic necessity of life. I’m all for the basic necessities of life being available to everyone. Are we really unable to distinguish between “basic necessities of life” and “wedding photography”? Are we that privileged?

    You don’t have a multi-cultural society if you can always force people who disagree with you to do whatever you just because they partake in the market society for work.

  3. 3
    Ampersand says:

    That said, I think that the argument about speech there feels off. If she had agreed to provide a cake only if it contained the message “real marriage = one man and one woman” on it, would that be protected?

    My understanding (and IANAL) is that if she only sold cakes with that message on it, no matter who the customer was, then she’d be okay. But if she only had that “it must have this message” rule on it for same-sex weddings, that would be discrimination, and an obvious pretext to avoid serving gay customers.

  4. 4
    Charles S says:

    We have a diversity among states over what the definition of public accommodations is. In some states, you are free to refuse to sell wedding cakes to black people or Mormons at your cake store, in other states, selling wedding cakes is a public accommodation. In many states, whatever the definition of public accommodation, sexual orientation is not a suspect class, so one is free to discriminate on the basis of sexual orientation even if one runs a hotel or a gas station.

    The Civil Rights Act of 1964 covered movie theaters, so the days you seem to be hearkening back to as the sensible solution are pre-Civil Rights Act. Indeed, the California Unruh Act of 1959 is absolutely as expansive as any modern public accommodations law (“the full and equal accommodations, advantages facilities, privileges, or services in all business establishments of every kind whatsoever.”). Early versions (going back to 1909) of California law forbade discrimination in such critical businesses as ice skating rinks and ice cream parlors. Unruh expanded this because the earlier law didn’t include such actually critical businesses as dentist offices and schools. So unless the golden age of sensible multiculturalism is the 19th century, I think your analysis is ahistorical.

    I don’t think there is any evidence that the states with narrower public accommodation laws (or that allow anti-LGBT discrimination) are more successfully multi-cultural societies. I think if you want to argue that, you have to argue it from evidence of actual conditions in those states and some consensus definition of successfully multi-cultural societies. It is not enough to simply declare that being allowed to refuse service to people in non-essential services is the criterion.

    I haven’t gone looking for the literature, but I would expect that being able to reliably engage in non-essential public services is actually a key to a successful multi-cultural society. Knowing that if you are in the small minority of people who own a small business that you have to deal with everyone from every suspect-class-related-subculture maintains a requirement for mutual tolerance (by the way, I don’t think your S/M art work is a feature of a protected class, even in California). Knowing that if you need a shoe mended or a wedding cake made, that you don’t have to stay within your insular community to avoid being refused service creates mutual confidence and comfort and an environment of open interaction across cultures. I would argue that those features are far more important to successful multiculturalism than is one’s ability to professionally express one’s hatred for others to their face through one’s work by refusing them access to services.

    You can’t force people to do whatever you [want], even in California. You can only force them to do the things that they advertise that they do for all comers.

  5. 5
    nobody.really says:

    Once again, I’ll trot out my proposal for altering the balance between anti-discrimination laws and autonomy: the Market Power Affirmative Defense.

    The theory underlying this defense is that civil rights laws should defend a person’s ability to obtain the best goods, services, housing, employment, and public accommodations (hereinafter public accommodations) on the best terms. But the law would not defend a person’s right to dictate from whom she receives these public accommodations. And, most significantly, it would not protect a person from enduring the businessman’s freedom of speech/association—that is, this policy would give greater priority to free speech/religion/association than to dignity interests.

    To be clear, Congress explicitly mentioned dignity interests as one of the focuses of the 1964 Civil Rights Act. So the Market Power Affirmative Defense would be a clear departure from Congress’s intent.

    Here’s how it would work: If 1) a vendor holds herself out as a provider of some public accommodation, 2) a would-be customer acts in reliance of that offer, 3) the vendor reneges, and 4) the would-be customer is harmed by the inability to obtain the public accommodation in question, then the vendor may be liable. But if the vendor can show that she informed the would-be customer where comparable public accommodations are available nearby at comparable terms, then the fourth element of the claim would fail: the would-be customer would not be deprived of access to the public accommodation, and so no compensable harm would arise.

    Ex. 1: Airport taxi driver says, “I’m so sorry, but my religion forbids me from transporting alcohol. But I know the next cab in the cue would be happy to accommodate you. And be assured, we all charge the same rates.”

    Ex. 2: Gov’t clerk says, “Oh, this is a license for a same-sex marriage? Oh. Um … Bruce, could you help these people? Please excuse me.”

    Ex. 3: Display at maître d’s lectern says, “Due to the since religious beliefs of the management, we regret that we will be unable to accommodate non-Christians at our restaurant. We understand that this is a sensitive matter for all concerned, and intend no offense. Please take a flyer listing the locations of other fine dining establishments in the area, including a coupon—with our compliments.”

    Ex. 4: Human resource director says, “I’m so sorry! When we extended the offer, it never occurred to me to check your ethnicity. This call center position reports directly to Ms. Duggins, and ever since she got back from Fallujah she’s had a terribly short fuse regarding Arabs. (Oh, dear—“short fuse” was a bad choice of words….) Now, as it happens, I was just about to re-post an opening for the same job because Mr. Walters needs another person for his call center. Since we already know you’re an excellent candidate, let’s assign you to him instead….”

    Ex. 5: Clerk at a hotel check-in desk says, “WE DON’T SERVE NIGGERS HERE! Haul your ass outside and down to the hotel next door. I know they take anybody.

    In each of these examples, the person being addressed is able to receive what she came to get—but not from the person she initially expected to get it from. Yet each example includes a variety degrees of rejection, perhaps making someone uncomfortably self-conscious of her status as a member of some disfavored group.

    And this exercise brings into sharper focus questions about the purpose of anti-discrimination laws. Do they exist to ensure that members of disfavored groups can get access to public accommodations on comparable terms to anyone else? Or do they exist to compel vendors, on threat of sanction, to suppress their actual views and bow to prevailing social norms?

    I believe in the rights of a Nazi to march in Skokie—even as I acknowledge that this behavior is antisocial. And my views don’t change when the Nazi runs a 7-Eleven. Now, 7-Eleven Inc. may have a view on this; they have their own free speech/association rights to protect. And if the 7-Eleven is the only store in the neighborhood open at 3am, then the Nazi’s discriminatory behavior may impose practical burdens in additional to dignity harms. But if you have the option to get your Big Gulp at the gas station next door instead, that doesn’t strike me as too big an accommodation to make for autonomy.

    Yet somehow I suspect views will differ about this….

  6. 6
    Sebastian H says:

    “by the way, I don’t think your S/M art work is a feature of a protected class, even in California”

    Yes, that is why I chose it. The example explicitly points out that it might be ok for a housekeeper to discriminate against me on the basis of his religious beliefs.

    ‘Protected class’ is just the current legal way of saying “I don’t want to draw lines about this issue”. We are discussing drawing lines about this issue.

  7. 7
    Sebastian H says:

    I think I’m not being clear enough.

    If my housekeeper was religiously offended by my S/M artwork and didn’t want to work around it I would tend to think that is OK (in the sense that he can choose not to work in places or for people that offend his religious sensibilities or maybe even for people who celebrate such things).

    If my housekeeper was religiously offended by my wedding pictures to my (completely hypothetical at this point) husband and didn’t want to work in a household that celebrated that I would tend to think that is OK (from an ethical perspective).

    If an atheist housekeeper is offended by religious displays, he shouldn’t be subjected to an anti-discrimination suit if he doesn’t want to clean up in a church. (Though religion is a protected class).

    The first isn’t a legally protected class. The second sometimes is a legally protected class. The third definitely is a legally protected class. But all three are essentially the same thing.

    If Amp doesn’t want to design cartoons for someone who wants to commission Christianist garbage, he should be able to choose to do so even if he is pretty much discriminating against them because of their religion (a definitely protected class). Some people want to make it a special “freedom of speech case”, but I’m not sure we should need to. We could make the general “don’t have to by force of law work with people you strongly disagree with” default. The exceptions would be for really important things like surgeries, or food, or with things that don’t really implicate close working together like buying something off the shelf. It feels kind of classist that the housekeeper has to suck it up, but the journalist/cartoonist/lawyer gets to choose their clients.

    It isn’t at all clear that we have struck the proper multi-cultural balance on the issue, and invoking “protected class” doesn’t help much to analyze whether or not we have done so.

  8. 8
    Charles S says:

    nobody.really,
    I think if there were any evidence that the current system created substantial problems, then there would be a reason to discuss radically different systems. Until you demonstrate that, I think your “Oh I have a great idea for how we could allow more discrimination and more opportunities for humiliation and fear for members of oppressed groups” proposal is not very useful or interesting.

  9. 9
    nobody.really says:

    I think if there were any evidence that the current system created substantial problems, then there would be a reason to discuss radically different systems. Until you demonstrate that, I think your “Oh I have a great idea for how we could allow more discrimination and more opportunities for humiliation and fear for members of oppressed groups” proposal is not very useful or interesting.

    To be sure, different people have different perceptions about whether the problems of the current system are substantial. But not everybody is entirely enthusiastic about the workings of our current anti-discrimination laws. See, for example, the discussion here.

  10. 10
    ScottM says:

    The big arguments against nobody.really’s solution @ 5 came up when we had pharmacists denying prescriptions due to religious beliefs. In a rural area, a company may be the only provider for hours of travel–what is the limit of the affirmative defense? I only made them drive 50 miles? Sure, I directed them to the Walgreens, where their pharmacist also coincidentally (wink) happened to deny them their prescription and sent them on to a 3rd or 4th place…

  11. 11
    nobody.really says:

    The big arguments against nobody.really’s solution @ 5 came up when we had pharmacists denying prescriptions due to religious beliefs. In a rural area, a company may be the only provider for hours of travel–what is the limit of the affirmative defense? I only made them drive 50 miles? Sure, I directed them to the Walgreens, where their pharmacist also coincidentally (wink) happened to deny them their prescription and sent them on to a 3rd or 4th place….

    Good question!

    To be sure, I’ve phrased the policy broadly: “But if the vendor can show that she informed the would-be customer where comparable public accommodations are available nearby at comparable terms, then the fourth element of the claim would fail: the would-be customer would not be deprived of access to the public accommodation, and so no compensable harm would arise.” Any of the bold-faced words might be refined. Alternatively, they could be left as-is, for a jury to evaluate.

    But in any event, it would be the vendor’s burden to show that he identified where comparable public accommodations would be available at comparable cost. This is an assumption-of-the-risk standard. Failure to show that you met the requirements means you have no defense; good faith is not a substitute.

    Ex. 6. The pharmacist refuses to serve a would-be customer, telling her to go to the next pharmacy 50 miles away. The would-be customer may do so, but could still sue. And the pharmacist would bear the risk that a jury would conclude that the pharmacist had failed to prove that 50 miles qualified as “nearby” for purposes of this defense.

    Ex. 7. The pharmacist refuses to serve a would-be customer, telling her to go to the pharmacy next door. The would-be customer goes next door, but finds she cannot get service there because that pharmacist —
    • is closed after 10pm.
    • is closed for a power outage.
    • is closed because there’s a hold-up going on.
    • refuses to serve the would-be customer for his own religious reasons.
    • refuses to serve the would-be customer for competitive advantage, in or order to get the customer to sue the first pharmacist.

    If any of these things occur, the first pharmacist has failed to meet the requirements of the affirmative defense, and thus has no defense for his conduct.

    The only way the first pharmacist can guarantee immunity from a discrimination suit is to not discriminate. The affirmative defense merely exists when the discrimination occurs but does not deprive a would-be customer of the benefits sought. If deprivation occurs, no defense.

    Ok, maybe that overstates the scope of the defense. Or maybe not. (After all, we can design it as broadly or narrowly as we like.) So how ’bout this example?

    Ex. 8. The pharmacist refuses to serve a would-be customer, telling her to go to the pharmacy next door. The would-be customer starts to go next door, but gets struck by lightning, and thus never gets the drugs sought. When the customer recovers, she sues the pharmacist. The pharmacist asserts the defense, and provides testimony from the neighboring pharmacist attesting that he was ready, willing, and able to serve the would-be customer on the night in question. What outcome?

    You could say that the first pharmacist assumes the risk of liability as soon as he refuses service. Or you could say that the pharmacist has actually proved his defense because, unlike Ex. 7, the record shows that the pharmacist provided information to the the would-be customer about where comparable services could be obtained nearby, and the information was accurate. We could draft the defense to achieve either outcome.

  12. 12
    nobody.really says:

    Regarding the Market Power Affirmative Defense: a note for the non-lawyers–

    There’s a distinction between the elements of a cause of action/crime, and the elements of an affirmative defense.

    • In order to win a civil or criminal case, the person bringing the claim (the plaintiff or prosecutor) bears the burden of proving all the elements of the cause of action/crime.

    • If they succeed, then the defendant bears the burden of proving all the elements of an affirmative defense.

    (As an aside, this distinction can have curious consequences. I understand that in some jurisdictions, criminal laws are drafted to make the prosecutor bear the burden of arguing that the defendant was sane at the time of the alleged crime. In effect, sanity is an element of every crime. In other jurisdictions, sanity is assumed, and the defendant bears the burden of proving his insanity. Thus, she who drafts the laws allocates the burden of proof–and it seems pretty arbitrary to me.)

  13. 13
    Kate says:

    Nobody really –
    I don’t think your plan will satsify people who want to discriminate:
    Take birth control. Most pharmacists who want to refuse to provide birth control also object to facilitating access by giving a referral. Some Catholic groups even refused to fill out paperwork stating that they would not provide birth control, because it would ultimately facilitate the woman gaining access to birth control. Similarly, Catholic emergency room not only won’t provide time sensitive birth control (plan B after rape) or abortion (when a woman is in the midst of a miscarriage, but the embryos heart is still beating), they also refuse to provide referals to places that will. In some cases, they’ve even refused to release women who are miscarrying, if they think they’ll go to another facility to have an abortion (which, to my mind, should be false imprisonment, but they don’t see it that way – to them filling in the release paperwork would be facilitating the abortion).
    I would expect most homophobic bakers to consider giving a referal to another baker to be implicitly endorsing same sex marriage as well.

  14. 14
    desipis says:

    Rather than an affirmative defence, I think the law would seem much more balanced if it was based around compensatory damages rather than fines. Discriminate against someone and force them to drive a little bit out of their way to get an equivalent good or service? Maybe it’ll cost you $20. On the other end of the scale, if someone is consistently discriminated against in a way that prevents them living their lives in that area, then the businesses that participate in the discrimination would be jointly liable for relocation costs and loss of income. That way, at least there would be some sense of proportionality to the law.

  15. 15
    nobody.really says:

    I don’t think your plan will satisfy people who want to discriminate:

    Take birth control. Most pharmacists who want to refuse to provide birth control also object to facilitating access by giving a referral….

    1. Thanks, I already take birth control.

    2. Yup, the policy wouldn’t resolve every conflict; only some. And if no providers wanted to offer the referrals, then all parties would remain as they were under the current legal regime–no harm, no foul.

    (Well, not quite, but we’ll save that discussion.)

    Can we think of a policy that would better accommodate a provider’s autonomy interests while also ensuring that would-be customers can get the public accommodations on the same terms as anyone else?

  16. 16
    Charles S says:

    The big argument against nobody.really’s Really Nifty Idea for subjecting minorities to constant low scale terrorism is stated in their first post here: “Congress explicitly mentioned dignity interests as one of the focuses of the 1964 Civil Rights Act. So the Market Power Affirmative Defense would be a clear departure from Congress’s intent.”

    Yes, let’s abandon human dignity and the basic right to participate on an equal footing in the public sphere as things worth protecting, so that bigots who own businesses can let their hate flag fly more freely. That seems like a great trade!

    Yuck.

  17. 17
    nobody.really says:

    Yes, let’s abandon human dignity and the basic right to participate on an equal footing in the public sphere as things worth protecting, so that bigots who own businesses can let their hate flag fly more freely. That seems like a great trade!

    Yuck.

    Yup, that’s a very familiar response. That was basically the argument against letting Nazis march in Skokie.

    I have long argued for the rights of people who differ from prevailing norms to live lives as authentic to their own values as possible. And I have long received the same response: “Yuck.”

    Suffice it to say, some people value autonomy and free speech even when we don’t value the substance of speech. It’s that whole, “I may not agree with what you say, but I’ll defend to the death your right to say it” thang.

    The appeal of free speech tends to be very great in the abstract–and much less so in practice. ‘Twas ever thus.

  18. 18
    Chris says:

    nobody.really, your proposal is needlessly complicated, and to be blunt, totally defies what I know about human behavior. The hypothetical quotes you provided are especially bizarre to me–do you know anyone who speaks like that?

    As others have already pointed out, people who are unwilling to provide public accommodations to certain classes of customers are unlikely to refer those customers to places that will serve them. If they’re currently willing to run the risk of lawsuits for the discrimination they engage in now, what makes you think they’d be any more likely to follow the law saying they have to refer people to another business?

    You’ve also created a new obligation for these vendors–they have to refer people they want to discriminate against to other businesses, and make sure they offer the same service at a comparable price. Again, why do you think people will do this?

    All your proposal does is create plausible deniability for bigots. You posit this as a compromise, but what exactly do people at risk of being discriminated against get out of this compromise?

    Sebastian H.

    It feels kind of classist that the housekeeper has to suck it up, but the journalist/cartoonist/lawyer gets to choose their clients.

    Are you asserting that this is currently the case? Because as far as I’m aware, it’s not. Housekeeping isn’t a public accommodation, and as far as I’m aware, housekeepers are free to choose their clients.

  19. 19
    kate says:

    I have long argued for the rights of people who differ from prevailing norms to live lives as authentic to their own values as possible.

    But we’re not talking about “people”. We’re talking about businesses, which have been incorporated precisely because the owners want that business to be separate from their persons for the purposes of personal liability. That protection comes with many restrictions.

  20. 20
    nobody.really says:

    I have long argued for the rights of people who differ from prevailing norms to live lives as authentic to their own values as possible.

    But we’re not talking about “people”. We’re talking about businesses, which have been incorporated precisely because the owners want that business to be separate from their persons for the purposes of personal liability. That protection comes with many restrictions.

    1. So if a bakery is run as a sole proprietorship or partnership instead of a corporation, it’s exempt from public accommodation laws? This is unclear to me.

    2. Still, I’m not surprised you would make this assertion. I would have made the same assertion –until the Supreme Court found that the corporation Hobby Lobby is entitled to the free exercise of religion. It’s baffling, but it’s the law. So no, it turns out that there are some substantial (if still vaguely deliniated) limits on the restrictions government can impose on corporations.

    3. In any event—I’m not arguing that government can’t impose limits on the rights of bakers to decline to provide cakes for gay weddings; as Amp’s original post notes, a court has recently upheld the finding of liability. I’m arguing that, in the interest of defending autonomy interests, it shouldn’t–except to the extent necessary to ensure that gays have comparable access to the public accommodations available to anyone else.

  21. 21
    Yalu says:

    I have long argued for the rights of people who differ from prevailing norms to live lives as authentic to their own values as possible

    A friend of mine came close to homelessness recently because of the sheer amount of antigay housing discrimination in his area. Any place he could afford to stay without the constant threat of eviction would have forced him to find a different job. His autonomy has been vastly more affected by this than any of the bigoted landlords in his area, yet somehow their autonomy is the only kind worth protecting.

    And cakes aren’t really that different from housing in this regard. Someone who doesn’t want to furnish me with a wedding cake could just as easily decide that they don’t want to “condone my lifestyle” by serving me at all – I see no reason why your legal formulation wouldn’t allow this. And even if I have access to “comparable” (read: segregated) accommodations, I bear the full cost of having to access them. So please don’t position yourself as sticking up for “people who differ from the prevailing norms.”

  22. 22
    Sebastian H says:

    “And cakes aren’t really that different from housing in this regard.”

    Wedding cakes really are different than housing. Pretending that they aren’t is the kind of argument that makes us look silly.

  23. 23
    Charles S says:

    “I have long argued for the rights of people who differ from prevailing norms to live lives as authentic to their own values as possible.”

    Except where living their lives involves eating at restaurants with their friends or buying clothing or staying at hotels etc. You are specifically arguing against the rights of people to live their lives as equal citizens. You are specifically, explicitly rejecting rights to human dignity and equal participation in public society rights. That is what I am saying “Yuck” to. Discriminating against LGBT people is still a prevailing norm in many places, discriminating against women is still a prevailing norm in many places, discriminating against black people is still a prevailing norm, etc. We just also have a prevailing norm (legally mandated) that that discrimination is not allowed to extend into public accommodations. You are advocating for tearing up that prevailing norm.

    “except to the extent necessary to ensure that gays have comparable access to the public accommodations available to anyone else.”

    The current rule is the extent necessary. Anyone else has access to any commercial bakery that is open to the public. They can pick and choose between the bakeries in their town. Being restricted to the one ghettoized bakery that is willing to serve gay customers is not equal access. We’ve tried “separate but equal” and it definitely wasn’t equal.

  24. 24
    Yalu says:

    Sebastian H,

    I fail to see how it’s silly. The purpose in both cases is to exclude a class of people from society. Sure, one is a necessity and the other isn’t, but we’ve banned discrimination in other non-necessary areas of life.

    I can maybe understand the free speech complaint when it comes the hypothetical baker making a custom cake. But I fully believe that the same baker would, if they could, refuse to sell someone even a generic cake if they knew it was for a same-sex wedding. Or if they just knew the customer was gay. And based on nobody.really’s formulation, which is what I’m responding to, they could do so could freely.

  25. 25
    Sebastian H says:

    If the free speech thing is just a distraction perhaps Amp could be required to make Christianist cartoons? Or rather that it would be OK to sue him for religious discrimination if he didn’t?

  26. 26
    Sebastian H says:

    Charles S, you ok with a housekeeper discriminating on my S/M sculptures? No dignity argument there?

  27. 27
    Charles S says:

    Sebastian,

    We have a long history of only protecting dignity rights in public accommodations along lines of protected classes, ones that have been recognized as both classes along which discrimination has historically greatly restricted the dignity rights of many people, and along which there is broad agreement that those classes should not be the basis for legitimate discrimination.

    Owning and displaying S/M sculpture (or erotic sculpture generally) is a particular act of speech, it is not a basis for a protected class. Being interested in S/M or practicing S/M could be a meaningful class, but we are a long way from recognizing it as a class that has suffered substantial discrimination in public accommodation or from agreeing that it is a class that is deserving of protection. I’m open to being convinced on either of those points, but I’m far from the only one who would require convincing.

    If your sexuality is obligate S/M, then you might be able to argue that it is covered under sexual orientation protection, but I doubt it would protect your dignity rights in displaying your S/M sculpture and not having house cleaners refuse to work for you, particularly if they could argue that they objected to working around highly sexual sculpture generally.

  28. 28
    Charles S says:

    If Amp had a business making cartoons for all customers on topics (and with content) of their choice, then he probably would not be able to refuse to work with Christians. If he lived in California, maybe he couldn’t refuse to make cartoons for Christianists (that’s political discrimination, not religious discrimination, that’s what the ‘-ists’ signifies).

    His actual business model bears no resemblance to that, so he isn’t a good example case.

    Now, if a Christian publication wanted to republish one of his cartoons, he might be forbidden from refusing them republication rights at his usual price, since republication of his cartoons is something that he publicly offers for sale. However, since he doesn’t live in California, he would still be free to refuse to sell republication rights if he didn’t like the political affiliation of the publication.

  29. 29
    nobody.really says:

    nobody.really, your proposal is needlessly complicated….

    Great. I’d be delighted to hear simpler ways to achieve the same outcomes.

    The hypothetical quotes you provided are especially bizarre to me–do you know anyone who speaks like that?

    I provided five examples, with people expressing a variety of attitudes. Perhaps I just lack the knack for dialogue.

    But the relevant features of each exchange were that the service provider declined to serve, but offered a substitute. And yes, people’s speech can change—especially speech in the workplace–when people are given a legal incentive to change it. Laws regarding hostile work environments and union organizing have altered workplace speech.

    As others have already pointed out, people who are unwilling to provide public accommodations to certain classes of customers are unlikely to refer those customers to places that will serve them.

    And as I’ve already pointed out, for these people, the existence of this affirmative defense would not represent any change at all to the current regime. Ergo, they’re irrelevant to the analysis.

    But the fact that a policy wouldn’t alter all undesired behavior doesn’t mean we should reject it. We know that flu shots won’t stop all flus, yet we still adopt a policy of promoting flu shots.

    nobody.really, your proposal … totally defies what I know about human behavior.

    I can’t claim any greater expertise in human behavior than I’ve gained of years of being one. And over those years I’ve observed that humans differ. Some behave in one say, some another. And they respond to different circumstances.

    Some people seem to have a sincere religious belief that God forbids people from working on the Sabbath. And we might conclude that all these people behave the same. But we’d be surprised.

    State and federal Religious Freedom Restoration Acts, and similar laws, often require employers to offer employees a reasonable accommodation to permit the employee to act in conformance with her faith. So when an employee makes a request for accommodation, the employer frequently offers to excuse her from working on the Sabbath, and instead schedules some other employee to worth those hours.

    Now, some religious employees reject such an accommodation. After all, in order to take advantage of it, the religious employee would become complicit in another employee working on the Sabbath. But other religious employees ARE willing to accept the accommodation. People do not all behave the same way—even when stereotype might lead to us to think that they would.

    So when a woman has an urgent need for a day-after pill and pulls up to a pharmacy, she may well encounter a pharmacist who refuses to sell her one. Under those circumstances, I would prefer that the pharmacist have a legal incentive to offer a referral.

    But that’s just my preference; I know that people differ.

    You’ve also created a new obligation for these vendors–they have to refer people they want to discriminate against to other businesses, and make sure they offer the same service at a comparable price. Again, why do you think people will do this?

    I’m proposing a smaller obligation than current law requires. So the question is, why should we expect anyone to comply with current law? And the answer is: To avoid liability. True, not everyone chooses to avoid liability under the current law, and not everyone would choose to do so under my proposed affirmative defense.

    All your proposal does is create plausible deniability for bigots.

    I’m not asking bigots to deny anything; to the contrary, I’m inviting bigots to openly own their bigotry. That said…

    I think you mean that my proposal might tend to destigmatize some expressions of bigotry. I sense many people have this reaction.

    And I share this concern.

    After all, public policy used to send a clear message: Homosexual sex is perverted. And this message was backed up by the law. Yet a substantial share of the population didn’t see it that way, and a lot of homosexual sex continued to occur, the law notwithstanding. But the law, even if it was not perfectly effective in deterring the unwanted behavior, remained to maintain the stigma. When the law changed, the latent public attitudes were revealed. But also, the very act of changing the law may have altered some people’s attitudes.

    Today we have a simple message: Bakers who turn down the opportunity to profit from becoming complicit in celebrating gay marriage are bigots. And this message is backed up by law. Yet a substantial share of the population doesn’t see it that way, and I suspect a variety of firms are finding ways to decline to involve themselves in gay weddings, the law notwithstanding. But the law remains to maintain stigma. Creating the affirmative defense might let people the attitudes that already exist. And the very act of changing the law might alter some people’s attitudes.

    So, if we’re persuaded that antidiscrimination laws are being widely flouted today, how important is it that we maintain the illusion that such violations are rare, and therefore shocking? Humans are social animals, and we have a natural tendency to conform to social norms as we perceive them. An affirmative defense that lets people acknowledge their actual beliefs and behaviors might erode the perception of social norms against certain kinds of discrimination.

    But it comes at a cost.

    You posit this as a compromise, but what exactly do people at risk of being discriminated against get out of this compromise?

    Well, I’d like to think that people who have had to subjugate their identities in order to conform would identify with others who have faces similar pressures. But I’m aware that this is the exception rather than the rule.

    So I’d offer this: Even Amp acknowledges misgivings about the baker litigation. He’s not the only one.

    It may have come to your attention that some people feel that they are being needlessly constrained by “political correctness.” These people see bakers being persecuted for standing up for their religious convictions—and see plaintiffs who have nothing to gain except the opportunity to engage in a triumphalist display of rubbing religious people’s noses in the dirt.

    That doesn’t mean that plaintiffs can’t win these cases in court. But they may lose in the court of public opinion. And that court rendered a hell of a verdict last November, and we’re all going to be living with the consequences for the next four years.

    Of course, we’re all free to dismiss roughly half of the nation’s voters as bigots. But in hindsight, did this attitude ultimately promote the interests of woman, ethnic minorities, or the LGBT?

    Prior to the decriminalization of gay sex, the majority of the public was straight. Afterwards, the majority of the public remained straight. Homosexuality did not become the norm; it just became less stigmatized as people surrendered their Norman Rockwell views of the world, the moral panic ebbed, and the public adopted a more accurate and candid understanding of the variety of people’s behaviors.

    Prior to the adopting of my affirmative defense, the majority of people think undue discrimination is wrong. After the adoption, I expect the majority will still find it wrong. Discrimination will not become the norm; but it may become less stigmatized as we surrender our Normal Rockwell views of the world, our moral panic ebbs, and we adopt a more accurate and candid understanding of the variety of people’s attitudes.

    I’m suggesting that we stop stigmatizing attitudes, and shift to stigmatizing behaviors that impose tangible costs—costs other than the costs that all of us are expected to bear when confronted with disagreeable speech.

  30. 30
    Yalu says:

    So when a woman has an urgent need for a day-after pill and pulls up to a pharmacy, she may well encounter a pharmacist who refuses to sell her one. Under those circumstances, I would prefer that the pharmacist have a legal incentive to offer a referral.

    This is not even remotely comparable to religious accommodations for the sabbath and you know it. It’s more akin to someone trying to force a business to close on the sabbath – it isn’t removing oneself from work, its denying a service to others. But of course the woman can just go to a “comparable accommodation,” even if that’s, I don’t know, three hours away. “Comparable” is such a legally flexible term, after all.

    I’m suggesting that we stop stigmatizing attitudes, and shift to stigmatizing behaviors that impose tangible costs—costs other than the costs that all of us are expected to bear when confronted with disagreeable speech.

    No amount of anyone saying “your proposal would impose massive costs on some groups and none on others” will get through to you, will it?

  31. 31
    Chris says:

    nobody.really:

    Well, I’d like to think that people who have had to subjugate their identities in order to conform would identify with others who have faces similar pressures.

    So the gay kid in Smallville, Kansas who spent most of his life in the closet, but still got gay-bashed anyway, is supposed to “identify” with the baker who refuses to sell him and his partner a wedding cake because they have both have faced “similar pressures,” since being gay in our society is just like being anti-gay in our society.

    I am stunned by this equivalency.

    Great. I’d be delighted to hear simpler ways to achieve the same outcomes.

    We don’t want the same outcomes. I want public accommodations to serve the entire public. You want legal segregation.

    Sebastian H.

    If the free speech thing is just a distraction perhaps Amp could be required to make Christianist cartoons? Or rather that it would be OK to sue him for religious discrimination if he didn’t?

    Charles S, you ok with a housekeeper discriminating on my S/M sculptures? No dignity argument there?

    Why do you keep saying things like this? Again, neither of these occupations are public accommodations. Cartoonists don’t have to make cartoons for anyone. Housekeepers don’t have to go in anyone’s house that makes them uncomfortable. These are not at all analogous to occupations that serve the public.

  32. 32
    Ampersand says:

    Moderator note:

    I’m not addressing any one person in particular.

    But please remember that, in deference to creating an environment I can function in, “Alas” does ask people to try and treat the other comment writers here with respect, even if we strongly disagree with their positions.

    Thanks to everyone for helping me out with this.

  33. 33
    nobody.really says:

    (Why won’t Amp ever address me in particular? Is it my syntax? My font? My typos? What?)

    A friend of mine came close to homelessness recently because of the sheer amount of antigay housing discrimination in his area. Any place he could afford to stay without the constant threat of eviction would have forced him to find a different job. His autonomy has been vastly more affected by this than any of the bigoted landlords in his area, yet somehow their autonomy is the only kind worth protecting.

    I’m sorry to hear of your friend’s circumstances.

    And I don’t understand how my proposed affirmative defense would alter his circumstances. You suggest that your friend is getting basically no protection under current law. That might be an appropriate object for your frustrations. In contrast, it’s not obvious that my proposed change would harm your friend’s circumstances; indeed, it’s not clear how it could.

    Someone who doesn’t want to furnish me with a wedding cake could just as easily decide that they don’t want to “condone my lifestyle” by serving me at all – I see no reason why your legal formulation wouldn’t allow this.

    That’s correct. I propose that the baker could refuse to serve you for any reason or no reason—provided she inform you where you could find comparable public accommodations nearby at comparable terms. (We could limit it to explicit exercises of religious freedom, if you like; I generally don’t.)

    And even if I have access to “comparable” (read: segregated) accommodations, I bear the full cost of having to access them.

    @5 I provide five examples.
    • Ex. 1: Airport taxi driver. Accommodation requested: Walk to the next cab in the cue.
    • Ex. 2: Office clerk. Accommodation requested: Let a different clerk, standing nearby, serve you instead.
    • Ex. 3: Restaurant. Accommodation requested: Dine at any of the neighboring establishments set forth in an attached map, and receive a coupon for your troubles.
    • Ex. 4: Human resource director. Accommodation requested: Take identical job with a different supervisor.
    • Ex. 5: Hotel. Accommodation requested: Stay at neighboring hotel.

    And yes, I propose that the would-be customer bear the burden of “accessing” these alternatives—that is, walking to the next cab in line, etc.

    But of course the woman can just go to a “comparable accommodation,” even if that’s, I don’t know, three hours away. “Comparable” is such a legally flexible term, after all.

    Indeed it is—although the flexible term you’re looking for in this context is “nearby,” not “comparable.”

    But if you’re concerned that a jury would wrongly conclude that something three hours away was “nearby,” then we can refine the terms. Maybe the affirmative defense would not apply if the substitute provider were further away than 1 mile? 1000 feet? (Or, on the web, one hyperlink?)

  34. 34
    Sebastian H says:

    Chris, until very recently “wedding cake provider” wouldn’t have been considered public accommodations either. We are talking about changes in the definitions. You saying “that isn’t the definition” a) seems to be insensitive to the fact that your side of the argument just changed the definition VERY recently, and b) that when discussing whether a definition should be changed “that isn’t the definition” isn’t really responding to the conversation.

    I would propose that we go back to the idea of public accommodations that we originally used in all the racial cases, loosely: publically offered trasnsportation, public services by the government, hotels and restaurants (due to freedom of travel issues), stores offering undifferentiated goods at a set price, and medically necessary services with a very broad understanding of necessary.

    I propose that expanding the definition was unnecessary and in fact a bad idea. One of the main reasons it is a bad idea is that most services require a level of satisfaction from the customer that isn’t easily litigated but which can be a pain if the service provider hates you for some reason. It is also because forcing someone to provide services seems more personal than providing goods so should be required only when really important. It is also because the law regularly lets service providers turn down business, so it is a pain to get deeply involved in why they choose to do so unlike the older version of public accommodations where things were relatively clear cut. It is also because when someone has moral objections to things we should try to accommodate them when it isn’t super important they we force them to do otherwise.

    Deciding to resolve that balance always in favor of “force them to do it if they want to be allowed to work” seems like less liberal and freedom oriented than necessary from people who value empathy.

  35. 35
    Ampersand says:

    the fact that your side of the argument just changed the definition VERY recently

    Sebastian, Charles provided links earlier this thread showing that the change in fact wasn’t all that recent. (See comment #4.)

    Are you disputing his claims? If so, then please present some evidence showing that Charles’ links were mistaken.

  36. 36
    nobody.really says:

    the fact that your side of the argument just changed the definition [of “public accommodation”] VERY recently

    Sebastian, Charles provided links earlier this thread showing that the change in fact wasn’t all that recent. (See comment #4.)

    For what it’s worth:

    @5, I articulate a legal theory that says that people who publicly declare themselves open to the public cannot later retract the offer without incurring liability. I modeled this on Sir William Blackstone, Commentaries on the Laws of England (1765–1769), which states,

    [I]f an inn-keeper, or other victualler, hangs out a sign and opens his house for travelers, it is an implied engagement to entertain all persons who travel that way; and upon this universal assumpsit an action on the case will lie against him for damages, if he without good reason refuses to admit a traveler.

    So clearly that concept of “public accommodation” goes way back.

    In 1964 Congress used its authority under the Commerce Clause to adopt the 1964 Civil Rights Act restricted the rights of private parties to discriminate in the provision of employment, housing, and public accommodations. So at least in theory the law could apply only to matters that might affect interstate commerce.

    (Note that the 1964 Act does not bar racial discrimination regarding housing or employment entirely. The Act does not restrict the power of an employee or renter to discriminate on the basis of suspect categories.)

    The feds are restricted to acting within the scope of a finite number of enumerated powers. States, in contrast, exercise plenary powers within their jurisdiction. So states have the discretion–and many have exercised that discretion–to bar discrimination on matters without regard to interstate commerce.

    Whether this was a wise move is a separate question.

  37. 37
    nobody.really says:

    I have long argued for the rights of people who differ from prevailing norms to live lives as authentic to their own values as possible.

    Except where living their lives involves eating at restaurants with their friends or buying clothing or staying at hotels etc. You are specifically arguing against the rights of people to live their lives as equal citizens. You are specifically, explicitly rejecting rights to human dignity and equal participation in public society rights.

    1. The simple rejoinder is that the affirmative defense could never operate to deprive a person of the opportunity to eat at a restaurant, or buy clothes, or say at a hotel. To make use of the affirmative defense, the defendant would have to identify a nearby comparable substitute.

    However, the affirmative defense would operate to deprive a person of a legal claim she were excluded from dining at a specific restaurant, shopping at a specific establishment, or staying at a specific hotel.

    (Since you bring it up: A proprietor who refuses to serve Joe and refers him elsewhere is also offering a referral for everyone joining Joe on that occasion. Store A might refuse to serve Joe’s party because Joe is black, and thus would refer the party to Store B that serves people regardless of race. But what if one of Joe’s guests is gay, and Store B refuses to serve gays? Because Store A assumes liability when it declines to serve and makes its referral, Store A remains liable because the referral was unworkable with respect to the entire party.

    Two practical consequences arise from this. First, establishments that want to rely on the affirmative defense should be prepared to refer would-be customers to a nearby establishment that does not discriminate against any protected classes

    Second, establishments than host events (e.g., wedding receptions) would want to avoid relying on the Market Power Affirmative Defense, because they would be unable to identify a “comparable facility.” If your objective is to attend Joe’s wedding reception, it doesn’t matter how nice the neighboring facility is if it isn’t host Joe’s wedding reception. It’s not a “comparable facility” for purposes of the affirmative defense.)

    2. But there’s also a more involved rejoinder. In any discussion about changing the status quo, at least half the challenge is in developing an accurate understanding of the status quo.

    @5, I articulate a legal theory that says that people who publicly declare themselves open to the public cannot later retract the offer without incurring liability. I offered this description as a simplified model of the law for purposes of introducing my proposed affirmative defense. But in the US this kind of detrimental reliance rule only applies to a category of businesses known as “common carriers.”

    The more general rule is that a proprietor may refuse service to anyone for any reason or no reason other than a forbidden reason. Some proprietors post signs saying “Management reserves the right to refuse service at its own discretion” or some such, but the management has this right with or without the sign.

    So, having established the status quo, let’s return to the objection:

    I have long argued for the rights of people who differ from prevailing norms to live lives as authentic to their own values as possible.

    Except where living their lives involves eating at restaurants with their friends or buying clothing or staying at hotels etc. You are specifically arguing against the rights of people to live their lives as equal citizens. You are specifically, explicitly rejecting rights to human dignity and equal participation in public society rights.

    The general rule is that you have no right to eat at a restaurant, shop at a store, or stay at a hotel. You do all of these things at the sufferance of management, and in the absence of some kind of contract, management is free to withdraw its consent to your presence at any time for any reason or no reason–other than a forbidden reason. As far as I know, a proprietor is free to post signs saying, “We don’t serve blonds!” You are free to sue for undue discrimination. You can claim that the policy is depriving blonds of the right to live their lives as equal citizens. You can complain that its denying them human dignity and equal participation in public society rights. And at common law, the court would dismiss your complaint.

    So, for the most part, the Market Power Affirmative Defense would NOT operate to deprive people of the right to live their lives as equal citizens, or to receive human dignity, or to have equal participation in public society—because, for the most part, no such rights exist.

    Instead of rights, we have social and commercial norms that favor the sovereignty of the consumer. We’ve come to expect that people seeking our business will behave solicitously toward us. But for the most part, they are under no duty to do so. The do so because it’s a cultural norm, and because it serves the interest of buyers and sellers.

    As far as I’m concerned, no one has a legal right to demand that another private party affirm her dignity. Indeed, I’m not persuaded that anyone has the right to have government affirm her dignity, whatever that might mean—although government may sometimes feel the need to offer some laudatory speech in redress for government’s prior disparaging speech. (Justice Kennedy loves talking about “equal dignity in the eyes of the law.” As far as I can tell, he’s talking about equal rights—and if so, I wish he’d speak with greater precision.)

    As I’ve said, there are also prohibitions on discrimination based on suspect categories. These prohibitions are the exception to the general rule. And yes, my proposed affirmative defense would narrow those exceptions where viable substitutes are available.

    We’ve tried “separate but equal” and it definitely wasn’t equal.

    1. Proprietors would not be able to rely on the affirmative defense unless there was an “integrated” establishment to which to refer people. So adopting the affirmative defense would not result in a separate but equal world. But it might result in a world with more segregated facilities.

    Then again, it might not. Segregated facilities are perfectly legal today, but they must organize themselves as “private clubs.” Thus, the Supreme Court upheld the right of the Boy Scouts of America, as a private club, to exclude gay scoutmasters.

    So it’s unclear to me that the existence of the affirmative defense would change the prevalence of segregated establishments.

    2. It’s true that the US use to have a policy of Separate but Equal schools—which, in practice, weren’t equal. Now we have a policy of integrated and equal schools—which, in practice, are neither.

    What exactly was the problem with Separate but Equal? I’ll suggest two.

    The first is the simplest, as stated above: “We’ve tried ‘separate but equal’ and it definitely wasn’t equal.” That is, the equality standard was not enforced. We could compare Separate but Equal to Christianity: It was not tried and found wanting; it was found difficult, and left untried. Under those circumstances, no law can offer a remedy—so my affirmative defense would generate neither benefit nor harm.

    The second problem with Separate but Equal is tricker: Some institutions/facilities are inherently unequal due to factors such as prestige. Even if the black school could be brought up to the standard of the white one, there was still a “badge of inferiority.”

    The Market Power Affirmative Defense only operates to the extent that the defendant can refer people to a comparable substitute provider. If there are no comparable substitutes by virtue of prestige, then the affirmative defense would provide no protection.

    And arguably this could lead to ironic results:

    Ex.8. Gay couple goes to baker seeking wedding cake. Baker refuses, but refers them to another comparable baker. Gay couple sues; baker asserts the Market Power Affirmative Defense. In a landmark ruling, the court upholds the baker’s actions.

    Ex. 9. Thereafter gay couple returns to baker, seeking wedding cake. Again baker refuses, offering the same referral as before. But now baker is famous for having won a landmark case, and gay couple argues that receiving a cake from no-name substitute baker is not comparable to receiving a cake from famous baker; there’s a disparity in prestige. What result?

  38. 38
    David Simon says:

    Nobody.really, who would be on the hook when there is no comparable nearby provider who would accept the customer?

    And more generally, how diligent would a proprietor have to be in their research? How could they be sure that the referred-to business would accept the customer? How sure should they have to be before their referral would fulfill their legal duty? How well does the referred-to business have to meet the customer’s original demand in order to be “viable”? What if the referred-to business changes its policies?

    Similar issues apply, albeit less strongly, when it’s one clerk referring to another within the same organization (e.g. the pharmacist example). What if the other clerk is sick that day? What if the other clerk changes their mind and now also refuses to serve the customer; is the organization now responsible for hiring a third clerk even when they only need two, and/or firing one of the current clerks even though their actions were protected by law? And in the mean time what recourse is there for the customer?

    To me it seems like the whole thing is just a CYA system; expecting proprietors to know everything they’d need to know to give genuinely helpful referrals would be unreasonable, and so in practice the referral system would either be strictly enforced and therefore unusable, or loosely enforced and therefore useless for the redirected customers.

  39. 39
    Sebastian H says:

    “Are you disputing his claims? If so, then please present some evidence showing that Charles’ links were mistaken.”

    His links aren’t mistaken, his characterization of them is. His examples of movie theaters and ice rinks were talked about under the idea that they were analogous to public squares, where barring people from them would be barring them from the community. Even the Unruh act (which as he notes was the MOST expansive version in the United States) initially distinguished between retail establishments and other types of providers when applied.

    There is a reason you didn’t see a wedding cake/race case or a wedding photographer/race case back when those cases were being hammered out. The law has expanded dramatically since then. There is also a reason why you didn’t see the first amendment issue until recently–it is because until recently there was very little chance that the types of businesses which dealt with expression were implicated.

    Since we are talking about change, why do the speaking classes get a pass? The 1st amendment allows all sorts of regulations of commercial speech (that’s why we have billboard laws and compelled speech on cigarette boxes). Perhaps we should allow discrimination lawsuits against cartoonists who refuse commissions based on religion unless they disclaim commercial activity? They could always choose other professions just like bakers can, right?

    When it comes down to it, isn’t the objection against forced paid speech just an extension of “I don’t want use my labor to support this thing I disagree strongly with”? Is there some other moral basis for the objection?

  40. 40
    gin-and-whiskey says:

    I never knew so many Alas supporters trusted Trump! Seriously:

    The right to force people to do things for you should be quite limited. The ability to use governmental / police power should be even more limited. It should not have taken the November election to point out that broad discretionary enforcement can be a dangerous thing. Are the supporters doing their best to imagine how these things get used against them?

    When I was much younger I went into a gay bar by mistake and got shooed away, in a reasonably friendly fashion, by the bartender: I had no problem with it then or now, and it’s clear that nobody here (including me) would intend that bar owner to have been hit with a $100,000 fine! But it was sex orientation discrimination, technically–the enforcement depends on the government leaving that gay bar alone. Or to move outside the business arena, if you look at the chants and actions of lot of “words are violence” folks, like those who sometimes protest “violent” speakers, they’re… well, they’re pretty violent.

    Some folks seem to think that only whites can be racist; only men can be sexist; only majorities can discriminate. But the law makes no such distinctions. The distinctions only exist w/r/t selective enforcement, and that can change on a whim. It’s always a pity to realize that in retrospect, after you give government more power to fuck with everything.

    Maybe I’m wrong. Perhaps folks think that it’s A-OK to force a gay bakery owner to produce a cake for the Evil Gays Will Burn In Hell Because Jesus Says So Society. Or to rent a house to the Evil chapter president.

    I doubt it, though. More likely, such folks are going through some sort of complicated mental dance to conclude that the Evil Gay folks are miraculously unprotected, while the Bill and Bob Forever folks need our help. And indeed, Bill and Bob are more worthy in my opinion, but there is almost no law we can fairly enforce which is guaranteed to avoid catching the gay baker. (who gets smacked by hate crime laws?)

    Because in reality, there’s no “right answer” for whether we should treat the gay cake different from the Jesus cake, any more than there’s a way to differentiate “hate speech” from other speech. So we have folks who make the determination for us about what is correct and what is not correct.

    Many of the top people in that category were elected in November. Trusting them is unwise.

  41. 41
    nobody.really says:

    [W]ho would be on the hook when there is no comparable nearby provider who would accept the customer?

    The proprietor. If the proprietor fails to meet the qualifications for the affirmative defense, the proprietor does not get the benefit.

    [H]ow diligent would a proprietor have to be in their research?

    As diligent as the proprietor cares to be to avoid liability for discriminating.

    How could they be sure that the referred-to business would accept the customer? [Etc.]

    How can you be sure that your parachute will open when you go skydiving? You can’t. If you choose to engage in the activity, you choose to bear the attendant risks. We call this assumption of the risk. It might seem crazy—yet people go skydiving every day.

    Of course, we’re discussing a hypothetical policy. I’m open to considering other answers, if someone wants to suggest one.

    And in the meantime what recourse is there for the customer?

    The same recourse customers have today under anti-discrimination laws: the right to sue (either individually, or to seek suit by some watchdog government agency or not-for-profit).

    To me it seems like the whole thing is just a CYA system….

    Well … mostly the opposite.

    A proprietor that wanted to avoid liability for violating anti-discrimination laws would have a simple CYA strategy: Comply with anti-discrimination laws. And that’s the same strategy that proprietors would adopt under current law. So for these proprietors, the affirmative defense would be irrelevant.

    The affirmative defense would only appeal to proprietors that were had already resolved not to comply with existing antidiscrimination laws (presumably for reasons of conscience). The defense would provide an incentive for these proprietors to minimize the burdens that their consciences would impose on others. For these proprietors, the affirmative defense would be a CYA strategy, because it let them shift from bearing an almost 100% chance of liability to something less. But that risk would never go to 0% because the proprietor would always bear the risk that a judge/jury would find that his referral failed to meet the requirements of the affirmative defense.

    [E[xpecting proprietors to know everything they’d need to know to give genuinely helpful referrals would be unreasonable, and so in practice the referral system would either be strictly enforced and therefore unusable….

    In which case, the policy would cause no change—and thus no harm.

    But where it would apply, even if those circumstances were rare, it would provide the opportunity for a proprietor to act consistent with her beliefs while imposing little additional burdens on any other party than we would expect them to bear in a world with free speech.

    And, to some extent, the policy would undercut sympathy for discriminators. Today it’s easy to look on conscientious objector bakers with sympathy; they claim that their faith leaves them with no choice. But what if we give them a choice? “Look, baker, spare me your ‘holier than thou’ routine. The law now offers you a reasonable accommodation: You don’t have to participate in jack shit if you don’t want to. But face it: You advertise wedding cakes, so you can’t blame people for coming to you for wedding cakes. The least you could do, after luring people into your store under false pretenses, it to offer a referral. *I don’t care* if the referral is to your competitor! You already decided to throw away this customer’s business, so what’s it to you? Honestly—why are you being such a butthead?”

    From principled conscientious objector to public butthead. Sure, the bakers will still be a hero in some circles–but they’ll be smaller circles.

    “Oh, but the share of people who would be attracted to this accommodation would be tiny.” Tiny, as in 0.045 percent? ‘Cuz if we could have swung that many votes from red to blue, and if they all happened to be in PA, MI, and WI, the world would look pretty different today.

    I value individual conscience for the sake of individual conscience. But I try to be mindful of aggregate effects—and I hope everyone else is, too. If we can find low-cost ways to better accommodate the sincere concerns of people we disagree with—even a small percentage of people we disagree with—it might reap big rewards.

  42. 42
    Chris says:

    Sebastian, I am still not understanding your assertion that cake bakers should not be considered a public accommodation, and should instead be seen as analogous to cartoonists. Cake bakers operate public businesses; I see them typically on downtown streets. I see people go into them and order cakes and walk out with them, quite frequently.

    I see no difference between this and a restaurant.

    Cartoonists simply do not operate this way.

    Now, there are of course bakers who do special commissions for certain types of cakes. My understanding is they can refuse to bake types of cakes they don’t usually do. But they cannot refuse to serve a specific class of customers. So they don’t have to bake “gay wedding cakes.” They do have to provide the same types of wedding cakes they make for straight couples to gay couples.

    This is fair. This is the compromise.

  43. 43
    Sebastian H says:

    “Now, there are of course bakers who do special commissions for certain types of cakes. My understanding is they can refuse to bake types of cakes they don’t usually do. ”

    Gack. Wedding cake bakers are the kind of bakers you are talking about. So your understanding is wrong.

    Wedding cakes aren’t like other cakes. They typically involve working closely together with a client to design the cake. They aren’t like going into a supermarket, picking a cake, putting it in a box and going away. They typically involve special artistic work on the part of the cake maker–often involving a message or decorations (very often depicting the people in the wedding which is the bone of contention). Providing a wedding cake is an artistic/craft service. If this was just “hey put that cake you’ve already made in a box” I would agree with you completely. But that isn’t how it works. Similarly the wedding photographer–who of course forced to actually attend the event that she is morally opposed to. I fully agree that if this were about purchasing already made or interchangeable units that the nexus between doing the work and supporting the ‘immoral’ activity is tenuous enough that we shouldn’t allow discrimination.

    That isn’t what we are talking about, which is why the cartoonist is at least potentially an appropriate parallel.

  44. 44
    Ampersand says:

    Actually, Sebastian – speaking as someone who was a wedding coordinator for 14 years – you’re mistaken. There are extremely customized one-of-a-kind wedding cakes, but those are unusual. Most wedding cakes, in my experience, use generic forms.

    By “generic forms,” I mean that the bakery has a “menu” of cake shapes that they do, of flavors that they do, of decorations that they do. And whoever is ordering the cake (usually the wedding couple) chooses their options from this “menu.” A typical wedding cake represents a skilled and creative craft, but not an individualized message.

    The large majority of wedding receptions I’ve attended – and I’ve attended literally hundreds – did not have a wedding cake with an image of the wedding couple on it. At most, they’d have cake toppers showing a bride and groom (or bride and bride or groom and groom) – and those toppers were usually added on site by someone from the wedding party, not put on at the bakery. This is even more likely to be true if the cake toppers were custom-made, because usually the person who custom-makes the toppers is not someone who works for the bakery.

    In any case, I don’t see how the “I refuse to use a cake to send that message” argument can apply to bakers who refused the job before they heard what cake the couple wanted. (See the original post).

    As for the wedding photographer, I agree with you that no individual wedding photographer should be forced to go to a wedding. Photographers are participants.

    In the one wedding photography case that I’m aware of, however, what was involved was a wedding photography company that routinely subcontracted weddings to other photographers, which seems to me to be a different thing. You don’t have to attend a wedding in order to subcontract it.

  45. 45
    Fibi says:

    In any case, I don’t see how the “I refuse to use a cake to send that message” argument can apply to bakers who refused the job before they heard what cake the couple wanted. (See the original post).

    This was actually the one part of the decision that bothered me. In this case, the plaintiff’s had made an appointment and were returning customers (the mother had been a client just a few years before). In context it would seem reasonable to interpret the rejection as a rejection of a custom cake.

    If the State believes that a particular business should be allowed to discriminate with respect to some services that are expressive in nature, but not in other goods and services it provides it shouldn’t require that a proprietor speak with the clarity of a lawyer at risk of six figure fines.

    I recognize that the decision was probably trying to avoid ruling on where the boundary between expressive conduct and public accommodation lies — it probably would have ruled for the plaintiffs anyway and was making its ruling more narrow by avoiding the question. But I don’t agree that the record was clear that the plaintiffs had categorically refused all service.

  46. 46
    Ampersand says:

    This was actually the one part of the decision that bothered me. In this case, the plaintiff’s had made an appointment and were returning customers (the mother had been a client just a few years before). In context it would seem reasonable to interpret the rejection as a rejection of a custom cake.

    I’m not following the logic here. Can you expand on this point a little?

  47. 47
    Humble Talent says:

    What blows my mind every time this comes up is the fervour in which same sex couples attempt to give money to bigots.

    I don’t understand the thought process: These people don’t like your lifestyle, they might even hate you. They’re small minded, ignorant, and lame. Obviously this is the kind of people you want to give your money to, and include in on the most special day of your life, right?

    “But Jeff!” You might say, “they might be the only baker in town.”

    That’s true. And in that case, I’d *understand* the outrage a little bit more. Me, myself, I’d rather bake my own damn cake (and anyone that knows me knows that’s damn near a death threat because my cooking is so toxic) than fork over my hard earned cash for one of those sweet sweet bigot cakes.

    But more than that, you want to tell me that in a field that has as high a penetration of gay professionals as Wedding Planning, that you can’t find someone to bake you a cake? I suppose it’s possible, but unlikely. And as luck would have it, I can’t think of a single example of that situation in practise. I CAN think of examples where gay couples went out of their way to purchase sweet, sweet bigot food. The most egregious was probably Memories Pizza. Really? Memories Pizza was the only pizza in town, and you wanted to serve fucking *pizza* at your wedding? No. That’s squicking the muggles. The couple knew the owners were religious, and they just wanted to get their jabs in. I have very little sympathy for people who purposefully go out there specifically to create a problem that is “solved” only by extreme amounts of media coverage… I’m looking at you Mr. Jordan “Love Wins, Fag” Brown.

    “But Jeff,” You might say, “Maybe they feel strongly about this, and this is activist.”

    That’s also true… And far be it for me to tell you how to express your activism. But if it were me, again… I think grandstanding politics at your wedding is gaudy as hell. More, I’m not sure it was effective. Look, and this ties in with me last point, it’s not effective to ask for equality by beating someone with the equality stick. It’s counterproductive to say: I’m just a normal guy, like you, while simultaneously dressing up in gimp gear and having your bear daddy paddle your ass red in a pride parade. It’s jarring. I think that we would have had all the rights and privileges of marriage a decade ago if only we could have found it in ourselves to leave the Christian bigots alone and divorce marriage from civil unions.

    I mean… I get it. Believe me I do. I didn’t bring my boyfriend to company Christmas parties for years because my manager kept a Bible in his desk drawer and brought it out every now and again for light reading. It’s frustrating and infuriating and lame to adjust your behaviour for people who for some boggling reason care about sexual orientation… Haven’t they heard? It’s the current year! But these people exist. And we aren’t going to change their mind by beating them with the law, we aren’t going to start conversations coming out swinging…. As with so many other rights movements, there will always be a fraction of a fraction too stupid to read the memo, they’ll eventually die, and their children will do better. In the meantime, we do our best to get along. Right?

  48. 48
    David Simon says:

    @nobody.really, OK, that’s starting to make more sense to me now.

    If I understand right, the goal is to create a “conscientious objector” category of discriminatory providers who are willing to put in enough serious effort to make their point without causing too much of a problem for the individuals they’re denying service to. Most providers would be unable or unwilling to take on this burden, and therefore would just have to provide service to everybody. But, they would not be as able to honestly say they were being “forced” to do so.

    I’ll have to think about this some more.

  49. 49
    nobody.really says:

    I have very little sympathy for people who purposefully go out there specifically to create a problem that is “solved” only by extreme amounts of media coverage… I’m looking at you Mr. Jordan “Love Wins, Fag” Brown.

    Sign at Woman’s March: “When They Go Low, We Go High. (Also, fuck you.)”

    I think that we would have had all the rights and privileges of marriage a decade ago if only we could have found it in ourselves to leave the Christian bigots alone and divorce marriage from civil unions.

    “I–who said forty years ago that we should have had Socialism already but for the Socialists–am quite willing to drop the name if dropping it will help me to get the thing.”

    George Bernard Shaw, The Intelligent Woman’s Guide To Socialism and Capitalism (1928), republished as The Intelligent Woman’s Guide To Socialism, Capitalism, Sovietism, and Fascism (1937).

  50. 50
    nobody.really says:

    If I understand right, the goal [of the Market Power Affirmative Defense] is to create a “conscientious objector” category of discriminatory providers who are willing to put in enough serious effort to make their point without causing too much of a problem for the individuals they’re denying service to. Most providers would be unable or unwilling to take on this burden, and therefore would just have to provide service to everybody.

    To clarify:

    – I expect most providers have a sincere interest in not discriminating on the basis of suspect categories. These providers would have no use for the Market Power Affirmative Defense.

    – Other providers have resolved to violate anti-discrimination laws, and to bear the resulting liability. They also would have no use of the affirmative defense.

    – But still other providers may want (say, for reasons of conscience) to avoid personally associating with certain people/groups/activities, but are amendable (in exchange for an exemption from liability) to make a referral. These are the people for whom the exemption is designed.

  51. 51
    Fibi says:

    Amp –

    From reading the decision, it appears that one of the plaintiffs had purchased a cake for her mother’s wedding in 2010, scheduled a tasting appointment in 2013, and it is at the tasting that she notified the proprietor that the new cake was for a same-sex wedding (when asked for the names of the bride and groom). The proprietor said that they didn’t make cakes for same sex weddings because of religious convictions and she walked out of the store in response (all of this is from the findings of fact).

    In that context I think the fairest approach is to deem that the proprietor declined to offer the plaintiff service substantially similar to what she had received three years prior for her mother’s wedding and not to conclude that the proprietor refused all service (even though taken literally that’s what his words meant). Instead the decision characterized it as a categorical refusal to provide any good or services for a same-sex wedding.

    If the decision found that the 2010 cake was not expressive in nature (perhaps using words like your own “skilled and creative craft” to distinguish it from truly expressive conduct), I would be okay with that decision (I don’t really know where to draw the line myself), because the proprietor clearly refused to provide that service. But the decision didn’t address whether a (or even some) wedding cake is expressive because it deemed the denial categorical.

    When trying to figure out why this doesn’t sit right with me, the best analogy I can come up with is a verbal resignation. You can resign from a job verbally but before you give up your property interest it has to be a clear an unambiguous resignation. Likewise, in this legal regime you can incur major liability because you deny service, but it should be clear that you are denying the service that would warrant that liability.

  52. 52
    Sebastian H says:

    “In the one wedding photography case that I’m aware of, however, what was involved was a wedding photography company that routinely subcontracted weddings to other photographers, which seems to me to be a different thing. You don’t have to attend a wedding in order to subcontract it.”

    Are you talking about Elane Photography v. Willock? I didn’t remember anything about subcontracting, and I nosed around and couldn’t find that reported anywhere. I’m certain that the court ruling doesn’t turn on the subcontracting issue at all. The court ruling (linked above) absolutely is saying that anyone who puts themselves out as a wedding photographer is in violation of the law if they won’t attend and take pictures of gay weddings. For them the key is advertising “First, we conclude that a commercial photography business that offers its services to the public, thereby increasing its visibility to potential clients, is subject to the antidiscrimination provisions of the NMHRA and must serve same-sex couples on the same basis that it serves opposite-sex couples. ”

    This also should trouble all of those who think that the housecleaner in my examples above is off the hook (say Chris at 31, or Charles S at 28). The atheist who doesn’t want to clean a church is in trouble. The Christian housecleaner who wants to object to S/M sculptures of men had better hope I can’t focus the Court’s attention on the ‘men’ part of it (sexual orientation discrimination) [welcome to litigious America].

    One thing really struck me when re-reading the decision. It cites a number of cases on ‘public accommodation’ which originally turned on such things as whether it interfered with the constitutional right to travel across the country (if you came into a city and couldn’t get a hotel, taxi or eat at a restaurant that clearly was going to lock you out of large areas of the country)

    The court then says: “Public accommodations have been expanded to preclude invidious discrimination in most every public business, including the Huguenin’s photography business.”

    But it never wrestles with the fact the justifications for the original public accommodations exception to “I reserve the right to refuse service” doesn’t exist in “most every public business”. It just assumes that having provided justification for the idea of “public accommodations” under the original definition, expanding the definition of “public accommodations” to “most every public business” is a technical refinement not worth justifying at all.

    It feels a bit like a bait and switch.

  53. 53
    Charles S says:

    I was referring to Elane Photography (I believe Amp was going off of something I said), but a quick search doesn’t turn anything up to support my claim.

    I actually disagree with Chris, and am not convinced that house cleaning companies aren’t “places of business” under California, Oregon, or New Mexico law, which was why I was arguing the S/M artwork ownership isn’t a protected class. IANAL, but I assume that “My company doesn’t clean black people’s houses” would not be legal in CA, OR, NM, or a couple of other states (WA?) that have the maximally expansive public accommodation laws that cover any business that provides goods or services. House cleaning is fairly obviously a service.

  54. 54
    Harlequin says:

    It’s actually in bullet point 3 of the initial human rights commission opinion, though I agree with Sebastian that this doesn’t seem to be part of the decision.

  55. 55
    pillsy says:

    I don’t understand the thought process: These people don’t like your lifestyle, they might even hate you. They’re small minded, ignorant, and lame. Obviously this is the kind of people you want to give your money to, and include in on the most special day of your life, right?

    No, because if the anti-discrimination law is read the way activists arguing that the bakers should be forced to bake the damn cake, they’d never know whether the person getting their money is a bigoted asshat. The people leading the resistance against the cake-baking, by the way, aren’t motivated by some sort of live-and-let-live libertarianism or a carefully balanced set of interests necessary for a multi-cultural society.

    There are some people out there who believe those things, but roughly 80% of them comment on this blog. The coalition that’s there to defend the rights of bakers to not bake, though, is antithetical to both impulses. If they weren’t, they wouldn’t have made Mike Pence and Jeff Sessions into major leaders of their movement. The coalition is not interested in vindicating abstract principles here, other than the one that says that socially conservative Christians [1] are very special, and their beliefs are so self-evidently decent that they can’t be questioned.

    If we’re talking about the deals that could have averted these problems, does anybody believe for a second that if, in 1996, social conservatives had come out with a bill legalizing same-sex marriage but ensuring that photographers and bakers didn’t have to participate if they didn’t want to, the gay rights movement wouldn’t have jumped at it? Of course, that’s not what happened, because the embattled bakers were never what the debate was about, nor were broader anti-discrimination principles.

    I don’t see any reason to pretend otherwise in order to salve egos on the right.

    [1] BTW, I think it was a mistake for Amp to break this post off from the Muslim Ban thread.

  56. 56
    Charles S says:

    Thanks, Harlequin. I was having trouble finding anything below the appellate level decision. For anyone else with the same search problem, here’s the commission decision.

    While that finding of fact is not referenced in the decision, I wonder whether it played a part in the fact that Ms Huguenin is referred to as the business co-owner, and not as the photographer, in the decision. To me, at least, there seems like there is a substantial difference between “my wedding photography company will not handle your wedding” and “I personally would not do my best photographic work at an event I disapprove of, so I recommend you hire someone else.” If Elane Photography LLC had instead been Elaine Huguenin, self-employed photographer, I think the arguments of the case would have been different and the question of whether Elaine Huguenin, professional photographer was a business establishment that provides services to the public would be a different question than it was for Elane Photography LLC.

    Going through these decisions, the courts reference a 1960 case in Massachusetts in which a dance instructor was found to have violated the law by refusing to provide dance lessons to a black man, a 1962 California case in which a real estate developer was found to have illegally discriminated under public accommodation law, not housing law, by refusing to sell a house in a development to a black family, a 1984 case in Minnesotta in which the JayCee’s were found to be a public accommodation, and the 1995 Supreme Court decision on the St Patrick’s Day parade that found that the parade organization that selected what organizations could officially march was not a public accommodation, but that also stated that broad public accommodation laws are well within the usual power of the legislature and do not generally violate the 1st or 14th amendments.

    How are bakers and florists and wedding photography companies less businesses that provide services than dance instructors?

  57. 57
    Humble Talent says:

    “The people leading the resistance against the cake-baking, by the way, aren’t motivated by some sort of live-and-let-live libertarianism or a carefully balanced set of interests necessary for a multi-cultural society.”

    I get that you went on to clarify this as to not mean that there aren’t any liberty minded people, and so I’ll mentally insert the asterisk: He isn’t talking about you there.

    What I’ve found, as a liberty minded person, is that (and I’m fully admitting that you have a point there) I’m in a minority. Far too often, and on both sides of the aisle, the politically active have their pet problems that can only be solved my more invasive government action.

    What that means for me is that unless I want to be some kind of Ron Paul purist flailing at windmills, I need to find people that have come to the same conclusions as me, even if they’ve come to that conclusion by vastly different means, and accept the strange bedfellows that come with those positions.

    You want to smoke weed? Legalise marijuana. Marriage laws? Don’t care: let people marry their cows if they want to. You sexually identify as a toaster? Have some bread. These positions however, wouldn’t make me very popular in the same circles as some of my other positions: I think we’re taxed to death and we need to have real discussion on what exactly a government should be responsible for (preferably before we edit the American dream to be: “Pay taxes and Collect Services”), I think that illegal immigration (note: not ‘immigration’ as a whole, specifically the illegal kind) is a genuine problem that needs addressing, and pertinent to this conversation: I’m very uncomfortable with the government forcing specific action… It’s fundamentally different to say: “you cannot do this” and “You MUST do this” there are connotations of indentured labour that I think we should all examine closely. And to be clear: This isn’t necessarily a partisan belief (although sometimes it feels like it, because these authoritarian decrees have tended to come from one direction these last few years.), I was fully supportive of the Rockettes who didn’t want to dance at Trump’s inauguration, for example.

    (And as an aside… What’s the formatting for blockquotes? I have the feeling that without nesting, this comment section can get confusing sometimes.)

  58. 58
    Fibi says:

    I am not sure if I found this link from the National Conference of State Legislatures here on Alas or through google, but it captures who is covered under each state’s public accommodations law and provides references to the definition of public accommodations each state uses.

    I spot-checked about a dozen states’ definitions and didn’t find one that wouldn’t cover bakers, florists and wedding photographers (although there are 5 states with no public accommodations law at all, only 22 states cover sexual orientation, and IIRC Federal law doesn’t cover these establishments).

    To me, the difficult question isn’t whether states can apply these sorts of laws to these sorts of establishments generally, but whether there should be some sort of First Amendment based exception that applies in these cases.

    A related question is whether carving out some exceptions legislatively and/or judicially would be the wisest course since these periodic cases probably make it less likely that additional states will expand their laws to cover sexual orientation.

  59. 59
    Chris says:

    Humble Talent, thanks for giving it another try here.

    I don’t understand the thought process: These people don’t like your lifestyle, they might even hate you. They’re small minded, ignorant, and lame. Obviously this is the kind of people you want to give your money to, and include in on the most special day of your life, right?

    My understanding is that most people who are concerned with stamping out bigotry don’t care about what’s in the hearts and minds of bigots. We care more about the effects. What we’re caring about is whether or not a gay person can get the same type of service as anyone else. If a bigot gets their money as a result, it’s no skin off my back, because that has no effect on whether or not people can still access the same services.

    I agree with you that Memories Pizza was treated unfairly; they never actually denied service to anyone.

    As for your blockquote question, simply highlight what you want and press the quote button. I actually find the lack of nesting less confusing.

  60. 60
    Kate says:

    I think we’re taxed to death and we need to have real discussion on what exactly a government should be responsible for

    Taxed to death compared to whom? or compared to what point in our history? Our tax rates are lower than they were in the 90’s under Clinton, which were still lower than they were under Reagan in the 1980’s. What country is getting better results than the U.S. in terms of literacy, heathcare, infrastructure (etc. etc. etc.) with less government investment?

  61. 61
    pillsy says:

    @Humble Talent:

    What that means for me is that unless I want to be some kind of Ron Paul purist flailing at windmills, I need to find people that have come to the same conclusions as me, even if they’ve come to that conclusion by vastly different means, and accept the strange bedfellows that come with those positions.

    This is a common need in politics, and not one I object to in general. I just don’t actually believe that the strange bedfellows in this instance have come to a conclusion that’s actually much like yours, and I’m pretty secure in that belief. It seems to be at least as much focused on promoting state discrimination against LGBT persons as it does about advocating for the rights of individual business owners.

    Now, this doesn’t matter that much if it comes down to court decisions, but increasingly it’s looking like it’s going to be a matter of legislation [1], and the legislation that’s coming out is not, credibly, about freedom from government intrusion. That’s the lesson I’ve taken from NC’s HB2, from similar laws springing up elsewhere, and from the new SD “religious freedom” law that protects government employees who want to discriminate against private citizens.

    [1] I could be persuaded that the courts are deciding these cases wrongly, but it doesn’t look like they’re missing slam dunk arguments.

  62. 62
    pillsy says:

    Also, you can do block quotes by wrapping HTML tags around what you want to quote: <blockquote>stuff</blockquote>.

  63. 63
    Ell says:

    Kate sez:

    “… which were still lower than they were under Reagan in the 1980’s.”

    ______________

    Ummm … what? Income tax rates WERE outrageous right at the start of the Reagan presidency. They were left over from Jimmy Carter.

    Then Reagan pushed through one of the biggest, or the biggest, tax drops in US history. I remember that the top marginal rate was only 28%.

    I was working and paying taxes back then, and I am working and paying taxes today. My tax burden was really easier under Reagan.

  64. 64
    desipis says:

    Kate:

    Taxed to death compared to whom? or compared to what point in our history? Our tax rates are lower than they were in the 90’s under Clinton, which were still lower than they were under Reagan in the 1980’s. What country is getting better results than the U.S. in terms of literacy, heathcare, infrastructure (etc. etc. etc.) with less government investment?

    I think you’re a little off the mark trying to make a consequentialist argument. Humble Talent’s comment looks to me much more deontological to me:

    I’m very uncomfortable with the government forcing specific action… It’s fundamentally different to say: “you cannot do this” and “You MUST do this” there are connotations of indentured labour that I think we should all examine closely.

    That sort of position appears to define government imposition as morally wrong, irrespective of potentially beneficial outcomes. That is, no end can ever justify those means.

    It’s the same sort of ideological devotion as was seen in soviet Russia. Collectivisation of agricultural production was considered morally right regardless of millions of deaths it would go on to cause. Many libertarians would see the misery, suffering and deaths of millions of Americans as a reasonable sacrifice to achieve their aims of small government.

  65. 65
    Ben Lehman says:

    They weren’t left over from Carter, they were left over from Eisenhower.

    If conservatives want to return to the top marginal tax rate under of the majority of the Reagan Presidency (50%) then, speaking as a liberal Democrat, I would be willing to consider that compromise.

  66. 66
    Kate says:

    Depsis – sure, there are some libertarians who are even gleefull about people who don’t buy heath insurance (for whatever reason) dying in the streets. I remember that there was cheering for that position during one Republican debate (I think Ron Paul was asked the question, so it was probably 2012). But, I think that if they were actually honest about this position, they’d be losing in landslides. Part of the reason why so many people voted for Trump is that they really believed that he was going to make their heathcare more affordable. I don’t understand HOW they could believe that. But, the Trump supporters I know seem genuinely shocked by the GOP proposal.

  67. 67
    nobody.really says:

    What that means for me is that unless I want to be some kind of Ron Paul purist flailing at windmills, I need to find people that have come to the same conclusions as me, even if they’ve come to that conclusion by vastly different means, and accept the strange bedfellows that come with those positions.

    This is a common need in politics, and not one I object to in general. I just don’t actually believe that the strange bedfellows in this instance have come to a conclusion that’s actually much like yours, and I’m pretty secure in that belief. It seems to be at least as much focused on promoting state discrimination against LGBT persons as it does about advocating for the rights of individual business owners.

    “At all times sincere friends of freedom have been rare, and its triumphs have been due to minorities, that have prevailed by associating themselves with auxiliaries whose objects differed from their own; and this association, which is always dangerous, has been sometimes disastrous, by giving to opponents just grounds of opposition.”

    Lord Acton, The History of Freedom in Antiquity (1877)

  68. 68
    Humble Talent says:

    Kate says:
    March 16, 2017 at 3:08 pm

    Taxed to death compared to whom? or compared to what point in our history? Our tax rates are lower than they were in the 90’s under Clinton, which were still lower than they were under Reagan in the 1980’s. What country is getting better results than the U.S. in terms of literacy, heathcare, infrastructure (etc. etc. etc.) with less government investment?

    Canada? Off the top of my head. Look… People tend to look at their income tax rates and call it a done deal, but that’s not the whole picture of taxation. You hear the talking point over and over again: “Adjusted for inflation, the middle class has not has a raise in 20 years.” It’s true… In theory, the middle class earner in the same job has just as much inflation adjusted earning potential as they would have in the same position 20 years ago. That’s not necessarily a bad thing on it’s own, but it’s also true that The average wage earner has less spending power than they did 20 years ago. How does that reconcile? Other forms of taxation. Payroll taxes, property taxes, school taxes, sales taxes. The fact that your adjusted rate of income tax is lower than it was by a couple of percentage points simply does not negate the insidious nickle and diming that governments have been imposing for decades.

    Payroll taxes in particular are insidious, depending on where you are, it can be higher, but the effective rate of Federal payroll taxes hovers around 12%, and that’s before you tack on state numbers. Payroll taxes are a relatively new imposition, and their creation signalled a fundamental change in government philosophy over taxation, governments used to tax profit… But they have eased up on profit driven taxation and instead focused on wage based taxation. Why? A couple reasons, I think: First, You can deduct your way out of paying income tax, but you’ll always have to pay employees, so it’s a much more consistent form of taxation. Second, because it’s consistent and calculated every time you make payroll, it’s a year round cash flow, and third, because they’re either deducted off cheques or charged to the employer, the average person doesn’t need to take specific action to pay those taxes, they tend to fly under the radar.

    Many libertarians would see the misery, suffering and deaths of millions of Americans as a reasonable sacrifice to achieve their aims of small government.

    Purists at such a rarity as to resemble a strawman. There are obvious legitimate reasons for governments to take action, and I’d like to think I’d draw that line far on the safe side of mass starvation. I just can’t bring myself to think that government action is the answer to confectionery distribution.

  69. 69
    Sebastian H says:

    Pilsy:

    Now, this doesn’t matter that much if it comes down to court decisions, but increasingly it’s looking like it’s going to be a matter of legislation [1], and the legislation that’s coming out is not, credibly, about freedom from government intrusion. That’s the lesson I’ve taken from NC’s HB2, from similar laws springing up elsewhere, and from the new SD “religious freedom” law that protects government employees who want to discriminate against private citizens.

    I know this is my hobbyhorse, but this is a great crystalization of very common thinking on this type of issue so I’m going to talk about it again (which I also did in the religious camps thread so I apologize for repeating myself.

    Legislation ‘coming out’ isn’t in a vacuum. It is legislation being forwarded by extremists who are rather nasty. That is true, and is about as far as the analysis typically goes.

    Nasty extremists exist all the time. They don’t win all the time. They win when non-nasty, non-extremists feel like the political world or economic world (or both) is tilting against them.

    So a lot of these discussions tend to go along these lines:

    1. Yes this law tends to go too far, and in theory we would probably be ok with having common sense exceptions to it.
    2. But we CAN’T because the scary extremists will use that as the first blow at totally destroying this thing we like.
    3. So we won’t deal with the law going too far.

    Now don’t think this is meant as a criticism of just liberals or the left. I hear the exact same argument all the time with my friends on the right (see especially on immigration issues for example).

    I don’t think this is a good argument because I don’t think slippery slopes usually operate straight down a cliff. I think a lot of them operate like a boulder rolling into and out of a valley. If your status quo is well in line with public opinion on justice, your opponents are going to have a lot of trouble moving the boulder UP the hill in their extremist direction. However if your status quo is seen as an injustice by general public opinion, it is easier for the people in the middle to agree with your extremist opponents because their craziness is theoretical, while the injustice they can see in the legal structure defended by you is concrete. So if things come to a head they will vote for the extremists and then your stubbornly clinging to the good thing with an injustice attached will have helped cause the swing to the extremists.

    Like all good ideas, it shouldn’t be universalized into an argument against change. The public won’t always agree with you, and if you can lead them to where you are now, that is great.

    How far to take my insight (such as it is) is highly contextual. But for the purposes of “should we moderate this thing to settle deeper into public opinon” or “should we maintain an ongoing injustice that isn’t needed in the fear of the slippery slope” we should tend to fear the slippery slope less than we do.

    So on this thread there are definitely some people who say “there isn’t a shred of injustice in being forced to bake wedding cakes for gay weddings”. I have other arguments for you.

    But for those who say “yes, but I’m afraid that carving out exceptions for unimportant things is the first step toward letting minorities have protections for important things ripped away” I don’t think that is true. Quite the opposite. I think that refusing to realize that unimportant things are unimportant lets extremists paint us as unreasonable. They will ALWAYS try to paint us as unreasonable of course. But how easily they can successfully do it is often a function of how unreasonable we are actually being.

  70. 70
    Kate says:

    Canada? Off the top of my head.

    Canada has governement investment in schools, roads and, most notably, universal healthcare. If you’re for a system more like Canadia’s, I’m with you. Universal healthcare would probably lower tax burdens in the U.S. eventually, because giving everyone preventative care costs less than dealing with the consequences of putting that care off. Similarly, relatively small investments in early childhood education and after school care have the potential to save billions in lower crime and incarceration rates. It is far cheaper to house the chronically homeless than to pay for their repeated emergency room bills and stints in prison. Removing lead from homes and water systems will also more than pay for itself. I think that these should all be moral imperatives anyway. But they are also cost effective in the long run.

    The average wage earner has less spending power than they did 20 years ago. How does that reconcile? Other forms of taxation. Payroll taxes, property taxes, school taxes, sales taxes.

    The average earner has less income pre-tax. Income stagnation is the direct result of an ever larger percentage of corporate income going to the top 1%. There are lots of reasons for that. Part of it is supply and demand. Worker productivity has gone up. In theory, that might mean that workers could be paid more, because they are producing more. In practice, it means that demand for labor is down, so the price of labor drops. Huge numbers of middle class jobs – secretaries, administrative assistants, etc. have been lost to computerization (I digitized myself out of my old job in the 1990’s). Huge numbers of manufacturing jobs have gone overseas. This has been worstened by changes in corporate culture. CEO income has skyrocketed ridiculously. Companies used to feel responsibilities for their employees and customers as well as shareholders and the bottom line. This is now rare.
    At the same time, a huge share of the tax burden has been taken away from the wealthy, by taxing investment income at lower rates than employment income and eliminating the estate tax. We could make a lot of the investments I suggest above by going back to taxing investment income and large inheritances at the same rate as employment income.

    Payroll taxes in particular are insidious, depending on where you are, it can be higher, but the effective rate of Federal payroll taxes hovers around 12%, and that’s before you tack on state numbers.

    So, do you want to end social security, or fund it differently? If the former, that’s a recipe for mass poverty, and, yes, mass starvation, among the elderly and disabled. That’s why social security was established in the first place. The free market will not feed and shelter, much less provide healthcare, to people too old or too sick to work. Charity and family can’t fill in the gaps. My sister and I are quite well off (easily top 10% in family income), so we could provide food and shelter for our disabled brother, elderly parents and childfree aunt and uncle. But there’s no way we could provide them with healthcare as well. Our communities could not fill in that gap with charity, because pretty much every family would be, like us, streatched to their limit helping their own elderly and disabled relatives. Poorer people would be in the same position we’re in with healthcare with regards to food and shelter as well.
    If you just want to fund social security differently, again, I’m with you. But that’s not the conversation that most people claiming to be “taxed to death” want to have. Ending the cap on payroll taxes would allow lower rates, for lower and middle class income earners, for starters.

  71. 71
    Ampersand says:

    Humble Talent:

    Canada?

    Canada’s total taxes are about 32% of GDP. The USA’s are about 26%. (Source).

    These figures include all levels of government – federal, state, and local. They include payroll taxes, capital gains taxes, income taxes, property taxes, and sales taxes. (Source.)

    It’s no surprise that the US pays less in taxes than Canada, since we pay less in taxes than every wealthy western nation.

    How does that reconcile? Other forms of taxation. Payroll taxes, property taxes, school taxes, sales taxes. The fact that your adjusted rate of income tax is lower than it was by a couple of percentage points simply does not negate the insidious nickle and diming that governments have been imposing for decades.

    That’s not true. Total US taxes, including all those things, have been up and down – but over the long term, they really haven’t changed very much. From the OECD site:

    tax-revenues-gdp-1966-2015

    We are simply not being “taxed to death.”

  72. 72
    desipis says:

    Humble Talent (quoting me):

    Many libertarians would see the misery, suffering and deaths of millions of Americans as a reasonable sacrifice to achieve their aims of small government.

    Purists at such a rarity as to resemble a strawman.

    So most libertarians support universal healthcare now?

  73. 73
    Charles S says:

    According to the Heritage Foundation (ugh!), the Canadian government collect 31% of GDP as revenue. The US government collect 26% of GDP as revenue, so the average tax burden in the US is about 5/6th the average tax burden in Canada. The World Bank gives different numbers, but again the US and Canada are pretty similar (World Bank numbers I found were from 2015, so during the Harper regime, before the recent tax increase- historically, revenue as % of GDP was higher in Canada).

    Fairly clearly, if US taxes are killing you, moving to Canada will not save you. While the Federal top marginal rate in Canada is lower than the top rate in the US (because naturally how we treat our poor suffering rich people is the proper metric for who is being taxed to death!), Canada has a VAT (around 15% when federal and provincial taxes are combined, much higher than average US sales taxes) and much higher provincial income taxes than US state income taxes.

    So, no, not Canada. Maybe Chile or Mexico [or a bunch of other <$20k per capita GDP countries], Malaysia or Taiwan? (Taiwan's government revenue as a percentage of GDP is a shocking 13%, according to Heritage- I admit I'm suspicious). The oil states (except Norway) and the city states (Macao, Singapore and Hong Kong) and the tax havens (Bahamas) also have really low taxes, but those aren't really comparable solutions [‘oil states’ sort of includes Malaysia]. Chile and Mexico are both substantially poorer than the US, and poorer countries generally have weaker governments with lower revenue to GDPs, but trading an average income of $55k for an income of under $20k in order to get a lower tax rate seems like a bad deal- you can also get a much lower tax rate in the US by cutting your income by more than half. South Korea and Trinidad and Tobago are about the same as the US in revenue as % of GDP.

    The US is actually killing its citizenry with low tax rates, and correspondingly poor health care and after-assistance poverty rates. European countries with Revenue as % of GDP of 35% (Germany) to 50% (Denmark) do much better on not actually killing their citizenry through neglect.

  74. 74
    Sebastian H says:

    I don’t want to get too deeply in a tax sidetrack, as I don’t really have a dog in the fight. I just want to note that ‘taxes collected as a percentage of GDP’ don’t necessarily reflect what the average person is paying. For example it is quite possible that a country in which the highest percentile earners don’t pay high taxes that the GDP to tax ratio might be lower even if the average taxpayer in that country was paying more. Also, in theory a low effective corporate tax (such as in the US) might change that figure in a way that wouldn’t reflect the common person’s experience with taxes. I’m not saying that Amp and Charles are wrong in their overall point (in fact I strongly suspect that they are right overall), just that I’m not sure the statistics being quoted bear on the question quite like you think.

  75. 75
    Charles S says:

    Agreed, but top marginal tax rate is an even worse metric. Rich people don’t get taxed to death (oh, poor Dr. Henderson!). Median individual total effective tax rate would probably be my choice of best metric, but I don’t think anyone calculates that (and it would take a bunch of modeling to get to generate it, so it would be a metric with a huge uncertainty).

  76. 76
    Ampersand says:

    The table at the top of this Pew article has some information.

  77. 77
    pillsy says:

    @Sebastian H:

    Legislation ‘coming out’ isn’t in a vacuum. It is legislation being forwarded by extremists who are rather nasty. That is true, and is about as far as the analysis typically goes.

    Who is going to pass your legislation? It’s not like there’s an overwhelming upswell of support among liberals and leftists who think there’s a grave injustice here, since most of them think (quite defensibly) that it’s just anti-discrimination laws working the way anti-discrimination laws are supposed to work and have always worked.

    The problem isn’t that making the exceptions is necessarily a slippery slope, the problem is that in order to make exceptions, procedurally, I’m going to have to work closely with those nasty extremists, they may well use our support in ways that you didn’t expect or intend. In this particular case, given the low stakes, the risk really doesn’t seem justified, nor does making members of the coalition on the left wonder whose side I’m really on. People on the left are terrified, with good reason, of being sold out by liberals and moderates in their coalition, and stoking that fear has negative consequences that are outweigh the possibility that a flower arranger might have to arrange some fucking flowers.

    The horror of stupid bakers having to take money to bake cakes for people they hate because of that self-same stupidity is not, I have to say, all that keen, even if the world wouldn’t end if we let them use their awful religion justify idiotically spiteful behavior. By the way, if you balk at my description of their behavior, good luck persuading people who think they’re awful bigots that you’re actually interested in a civil libertarian point of principle rather than defending bigotry.

  78. 78
    Sebastian H says:

    “It’s not like there’s an overwhelming upswell of support among liberals and leftists who think there’s a grave injustice here, since most of them think (quite defensibly) that it’s just anti-discrimination laws working the way anti-discrimination laws are supposed to work and have always worked.”

    It isn’t how they have always worked. It is like the voter ID issue, in lots of cases you can do it on your own if you want to take away the weapon from the other side.

    The problem is that at this point we have forgotten how moderation in law takes away the weapon from the other side.

    “I’m going to have to work closely with those nasty extremists, they may well use our support in ways that you didn’t expect or intend. ”

    This doesn’t make sense. If you don’t like how they use it, you vote against it. They have to work with YOU too.

    “People on the left are terrified, with good reason, of being sold out by liberals and moderates in their coalition, and stoking that fear has negative consequences that are outweigh the possibility that a flower arranger might have to arrange some fucking flowers.”

    Yes, we absolutely CAN continue the politics of polarization to the ultimate conclusion of civil war. We absolutely CAN stoke the fears of one side against the other to whip up support.

    It just might not be a good idea.

    “The horror of stupid bakers having to take money to bake cakes for people they hate because of that self-same stupidity is not, I have to say, all that keen, even if the world wouldn’t end if we let them use their awful religion justify idiotically spiteful behavior.”

    I forsee religious suits AGAINST people like Amp in the near future. When paired with the left’s recent shift against free speech we have an interesting couple of years coming.

    I would prefer to take away some the weapons of the other side by deliberately de-escalating unimportant flashpoints. You aren’t engaging the idea at all (not even enough to say that it is wrong) so it is difficult to talk further about it because you’re ignoring the main point that I’m making.

    Amp suggests that at least Elane Photography might be wrong. Maybe we should move to correct that?

  79. 79
    Kate says:

    I’m unwilling to compromise with people on the right because they are fundamentally dishonest about their goals.
    In the cases being discussed here, their goal is not religious freedom (just ask them what they think of religious freedom for Muslims), it is the marginalization of LGBT people and the right to impose their religious views on others.
    The same is true of voter ID. The goal of Republicans is not to make sure in person voter fraud doesn’t happen. Their goal is to reduce Democratic turnout. Any solution to their publicized goal which compromises their real goal is rejected out of hand.
    The same is true of healthcare. The goal of Paul Ryan and most Republicans is not to expand access to healthcare, it is a system in which you can only get the heathcare that you can pay for yourself. If you don’t have the money, you either turn to charity or go without. They know that thousands will die who could have been saved. They don’t care. The ACA was our attempt to compromise with them. In retrospect, we should have tried to push a better bill through reconciliation, like the Republicans are attempting with their garbage plan now.
    Democrats also aren’t the ones who ran away from compromise with comprehensive immigration reform. They worked with John McCain and Marco Rubio on a plan. Both men then ran away from their own plan.
    The list could go on. I don’t see a solution, but pretending that conseratives are acting in good faith is just silly.
    Whether you agree with the left or disagree, I don’t think that we are dishonest about our real goals.

  80. 80
    Charles S says:

    “I forsee [sic] religious suits AGAINST people like Amp in the near future.”

    The difference between a business that offers services to the public ( a baker or wedding photography company) and a contract based business that doesn’t publicly advertise its services and that negotiates contracts for specific jobs is well established. A bakery, a wedding photography company and a dance studio that offers private lessons are on one side of the line (and have been since 1960, this isn’t a new idea). Private contractors are not. Go reread the Alas thread from 2013. Gin and whiskey explains this, and I dug up some relevant Oregon case law back then.

    In addition to everything else about how Amp does business, I just noticed something else: Amp doesn’t sell to the public. He sells to publishers. Graham v. Kold Kist (Oregon 1979) found that a business that rented ice machines to grocery stores was not a public accommodation because it didn’t rent to the public, and only entered into specific contracts to rent a limited number of machines to businesses. Parsons v Henry applies that same rule to a building contractor:

    [who] is a custom builder who constructs homes for those with whom he contracts after a bid process or negotiation. There is no evidence that he advertises his services to the general public. Here, defendants heard of plaintiff from another person and contacted him to discuss the design and construction of a home on defendants’ lot. After bidding and negotiation, a contract was signed …. On those facts, even if some builders might be subject to the act, plaintiff cannot be said to have “offered his services to the public” within the meaning of ORS 30.675(1).

    Frivolous lawsuits are a thing, but in Oregon you’d stand no chance suing Amp for not creating a cartoon for you, even if you could demonstrate the he refused explicitly because of your religion and not for content-based reasons (Kold Kist refused to rent to a black grocery store owner simply because he was black). If Amp doesn’t want to create cartoons for Scientologist publishers, or white publishers, or Latvian-American publishers, he is fully protected under well-established Oregon law. I think his rights to refuse republication rights (which he does advertise) to anyone for any reason are protected by copyright law, but I can’t find anything specific on that, but they’re also protected because the public doesn’t by republication rights.

    Graham v. Kold Kist has relatively recent citations nationally, so it looks like a reasonable guess as to what other states’ courts are likely to decide is meant by even an expansive definition of “public accommodation.” (Total sidetrack, but this case really confirms me in my hatred for companies that use multiple Ks for Cs in their Korporate names, I see what those KKs are doing!)

    Closest case I can find to what you are imagining is Vejo v. Portland Public Schools, but a public school system is pretty clearly not a person like Amp, and Vejo claims the alleged discrimination involved pretty clear national origin discrimination, not just content based discrimination (Portland Public School’s claim is that it was content-based discrimination, that Vejo was anti-black and anti-LGBT in ways that disqualified her from being a counselor intern in the school). That case started in 2014 and has now progressed to the 9th circuit, but I can’t seem to find any meaningful details on what has been decided in it so far. I realize you say they will happen in the future, not that they are happening now, but I can’t see why they wouldn’t have already started.

  81. 81
    pillsy says:

    The problem is that at this point we have forgotten how moderation in law takes away the weapon from the other side.

    Because it doesn’t. Moderating the laws in Oregon doesn’t do a damn thing to protect people in South Dakota or North Carolina. The only places that we could conceivably “defang” these weapons are places where we don’t need to defang them.

    This doesn’t make sense. If you don’t like how they use it, you vote against it. They have to work with YOU too.

    You can’t vote against it unless you’re actually in the legislature. So now you’re left with choices like making votes in primaries for candidates who are overall worse on gay rights issues [1], or, worse, voting for a member of Trump’s GOP in the general election. Which is going to do wonders for the coalition you’re trying to do part of.

    And given the way that the legislative process works, cooperating with them early (for instance, when the bill is in committee) can make it easier for them to fuck you over later once it’s on the floor and they start amending it.

    Or, you know, you could let it go because your basic point is true–it’s not that important. That one cuts both ways.

    [1] In principle it needn’t work that way, but in practice it almost certainly will.

  82. 82
    pillsy says:

    Also, too:

    Yes, we absolutely CAN continue the politics of polarization to the ultimate conclusion of civil war. We absolutely CAN stoke the fears of one side against the other to whip up support.

    It just might not be a good idea.

    It’s a clearly dominant political strategy, what with the GOP having control of two branches of the federal government and putting the final touches on outright stealing the third. So there really isn’t a lot of choice.

    And of course, it’s always on the left to be the ones to moderate. The right lacks any sort of agency, so we just have to appease them endlessly, lest they, I don’t know, put a bunch of Nazis in the West Wing.

  83. 83
    Elusis says:

    Closest case I can find to what you are imagining is Vejo v. Portland Public Schools, but a public school system is pretty clearly not a person like Amp, and Vejo claims the alleged discrimination involved pretty clear national origin discrimination, not just content based discrimination .

    In fact, that’s not the case. If you read the document you linked to, you will see that it’s a ruling on requests for summary judgement (immediate dismissal), not on the totality of the case. Re: the national origin discrimination, the judge authoring the opinion writes that Lewis & Clark College could be interpreted as setting a non-native student up to fail by letting her to go internship without passing Law & Ethics and Social Justice courses, when they noted ongoing concerns about her understanding in this area. However, looking closely at the things they did to work with her (letting her audit one of the classes for free; letting her take an incomplete rather than failing her so she’d have a chance to re-do work and pass, intensive one-on-one work with her, etc.) their actions could also be interpreted as giving her extra support due to her non-native origin.

    The judge goes on to write “A reasonable juror could infer from these facts that Lewis & Clark was basing its decisions on legitimate educational/certification concerns and was making a genuine attempt to provide a way for plaintiff to gain the necessary competencies to graduate. However, as explained, that is not the only way to read the record. Because a reasonable juror could conclude Lewis & Clark acted in a discriminatory fashion and denied plaintiff a fair chance at graduating, plaintiff’s contract claims survive summary judgment.”

    So claims of race/national origin don’t get thrown out in summary judgment, but they’ll have to go before a jury to be argued because there is a case both for and against.

    On the other hand, the student also claimed religious discrimination, and that was thrown out in summary judgment, because: “Lewis & Clark had a valid and vested interest in ensuring plaintiff achieved competency in topics such as educational equity and approach to LGBTQ issues. The fact that plaintiff belongs to a religion with tenets addressing sexual orientation, gender identity, and gender expression does not convert Lewis & Clark’s concern about cultural competency on these topics into religious discrimination.”

    Personally, as someone who worked as graduate faculty in counseling programs for many years, I think anyone who lets a student go to internship without having passed Law & Ethics and a multicultural competency course is incredibly foolish. Almost every program I’ve worked in requires successful completion those classes before students have any contact with real clients, even in intensively supervised situations. And almost every program I’ve worked in has a policy in their handbook in writing that says “you do not get to go on to internship until you are evaluated as ready to see clients by the following standards: _______” to forestall exactly this kind of claim – “oh you’re discriminating against me because now it’s going to take me longer to graduate.” Unlike advanced-level math courses or whatever, clinical work is not something one can just automatically proceed to tackle because one matriculated X numbers of semesters ago and has taken the pre-requisites (which, again, should include L&E and multicultural/social justice classes anyway).

    Yes, this means that of number of students A, some number of students B are going to be delayed in completing the program because they take longer to be ready for internship, and some number of students C are going to get part way through their program and be put on a leave of absence or eventually dismissed because they cannot seem to make progress toward being ready to see clients. It is an aspect of a clinical degree that is particularly delicate for faculty and supervisors to manage, and very hard for some students to understand, even when you tell them over and over and over again “being accepted into this program does NOT mean you’re guaranteed to be able to complete the degree, if it turns out you don’t have the requisite clinical skills and professional judgment.”

    Unfortunately, this makes them particularly fertile ground for religious discrimination claims lately, as conservative Christian students attempt to have their cake and eat it to by going into a profession whose ethical codes clearly state that professionals must not discriminate against LGBTQ people (and other protected groups), must not exercise personal bias in their professional dealings, and must provide culturally competent service to clients, while the body of literature on cultural competence makes it clear that this requires affirming, normalizing, supporting, and offering affirming resources to such clients, among other things. “I don’t want to do this thing my profession requires me to do” suddenly seems to these students to be a reasonable thing to demand.

    Which is exactly what all these “religious freedom” laws are trying to encourage. “I want protection from personal financial liability by incorporating my business as an entity, but I want to be able to pick and choose whom to deal with based on my personal religious beliefs.” “I want to be free to exercise my personal animus against a group of people even though the law requires me not to, because I can draw some kind of vague connection between my animus and a religious text [even though many other people see no such basis for that animus in said text, nor does said text say anything about treating people whom one disagrees with or finds immoral with said animus].”

  84. 84
    Charles S says:

    Elusis,

    Thanks! I’d only read parts of the summary judgement decision before I posted it.

    I appreciate your analysis of the responsibilities of counselors as it relates to this case.

    I’d been thinking about this over the past day, and it struck me that the national origin discrimination argument seems much more viable, because it claims that the public school administrators decided that, as a Russian immigrant, she was incapable of treating LGBT students fairly, while the religious discrimination argument is less viable, because in it Vejo is claiming that, as a Christian, she is incapable of treating LGBT students fairly. If the school is just recognizing that she won’t treat LGBT students fairly, that isn’t religious discrimination. If the school was kicking her out because they assumed that as a Christian, she would be incapable of treating LGBT students fairly, that would be religious discrimination, but it is her claim that her religion prevents her from treating students fairly, not the school administrators’ claim.

    The fact that plaintiff belongs to a religion with tenets addressing sexual orientation, gender identity, and gender expression does not convert Lewis & Clark’s concern about cultural competency on these topics into religious discrimination.

    However, the Judge disagrees with me with respect to PPS, and finds that PPS may have discriminated against Vejo on a national origin basis or a religious basis, and denies PPS’s request for summary judgement (section C 3 ii, prima facia case).

    When you responded to me saying:

    “Vejo claims the alleged discrimination involved pretty clear national origin discrimination, not just content based discrimination.”

    with:

    In fact, that’s not the case.

    Your “that’s not the case” phrase confuses me. Do you mean (a) the thing I linked to is just the summary judgement decision, and not the case itself; or (b) that my summary of what Vejo claims happened is incorrect (“not the case”)?

    If (a), sorry my phrasing was unclear, if (b), this is the part I was thinking of:
    Vejo: “When I said that I am a Christian and I have Christian value, she immediately said, you judge people. And I say, no, I don’t judge. And she said, you Russians judge people. I say, no, we don’t judge. She said, your Russian government judge people.”

    For the public accommodation issue, I was focused more on the PPS side than the Lewis & Clark side, since PPS was ruled to be a public accommodation, while Lewis & Clark was not (since it rejects applicants). The Lewis & Clark part proceeds as a contracts claim instead of as a public accommodation case.

  85. 85
    Sebastian H says:

    “And of course, it’s always on the left to be the ones to moderate. The right lacks any sort of agency, so we just have to appease them endlessly, lest they, I don’t know, put a bunch of Nazis in the West Wing.”

    First, if moderating things had kept someone like Trump out you wouldn’t have done it? That would be quite a stance.

    Second, that isn’t true at all. On THIS issue, the left would have to be the ones to moderate because it involves government overreach of the type that the left enacts. So it gets blamed for the intrusion.

    There are issues where I would (and in fact do) ask the right to moderate. Immigration is one such case. Police procedures is another. Military expenditures is a third.

    Additionally placing it on the “why does the left have to be the ones to ‘appease'” scale like that strikes me as potentially lacking empathy in the situation.

    From their perspective it is: they won the right to marry, do they have to force photographers who don’t like them to attend the wedding?

    Your answer is “Yes, I refuse to appease a photographer who doesn’t want to attend a gay wedding”.

    From their perspective that wouldn’t be appeasement. You still won. But the way you choose to act as a winner can increase or decrease social harmony. From what I can see, this method is decreasing social harmony.

  86. 86
    pillsy says:

    First, if moderating things had kept someone like Trump out you wouldn’t have done it? That would be quite a stance.

    No, I’m saying that the things they’ll supposedly do “unless we moderate” are either identical to, or not actually as bad as, things that they’re doing anyway.

    I’m also saying that if moderation was the key to victory, President Hillary Clinton would be enjoying a Democratic majority in both chambers of Congress, and Justice Merrick Garland would be sitting on the Supreme Court. It might be nice to live in such a universe, but we clearly do not.

    Second, that isn’t true at all. On THIS issue, the left would have to be the ones to moderate because it involves government overreach of the type that the left enacts. So it gets blamed for the intrusion.

    It’s not about issues. The Republicans just put a misogynist Birther in the White House, and he’s surrounded himself with an appalling array of racists, Islamaphobes, transphobes, homophobes and anti-Semites. But it’s always, always, always the left being scolded for demonizing the right and being polarized.

    That’s bullshit.

    From their perspective it is: they won the right to marry, do they have to force photographers who don’t like them to attend the wedding?

    You’re the one saying if we don’t give way on this, extremists will use it as an excuse to pass laws allowing the state to discriminate against LGBT people, harass trans folks who use public bathrooms, and the like. What are you advocating if not appeasement?

  87. 87
    Sebastian H says:

    I’m advocating actual tolerance of people you don’t agree with. I’m advocating letting them live their lives and earn a living. I advocating letting even white trash people in lower class jobs sometimes choose who to work with if it isn’t in a crucial area.

    That isn’t appeasement. That is multi-culturalism.

  88. 88
    pillsy says:

    Yeah, let’s make life easier on Trump’s GOP, and save them campaign funds, cut up our own coalition during primary election knife fights, and maybe vote for some of their candidate. That will do multiculturalism loads of good.

  89. 89
    Kate says:

    First, if moderating things had kept someone like Trump out you wouldn’t have done it? That would be quite a stance.

    Obama spent eight years in pursuit of moderate compromise, from the ACA to the nomination of Merrick Garland. Clinton would have governed in much the same way. The Democratic party is not the mirror image of the Republicans – they are centrists and have been for decades.
    The loss of Democrats comes down to three issues:
    Abortion. I am amazed by how little attention is paid to this, but much of the evangelical base is composed of single-issue voters on this point. This is also a classic issue on which the left reaches out to the right repeatedly to try to institute programs that will reduce the abortion rate, only to be rebuffed. Meanwhile, the right wants employers to have the right to tell employees how they spend their compensation, and to micormanage which medications they need to stay healthy. Pro-lifers will not accept compromise. They want both abortion and birth control to be illegal. They don’t want young people educated about sexuality in schools. They don’t want insurance to cover any reproductive healthcare (the Republicans are even advocating for prenatal care and childbirth to not be covered by insurance). We know beyond any shadow of a doubt, that when their policies are instituted it leads to more abortions, more children born into poverty, more human suffering. That is o.k. with them, because as Depsis reminded me @ 64

    That sort of position appears to define government imposition as morally wrong, irrespective of potentially beneficial outcomes. That is, no end can ever justify those means.

    There is no compromise position that the right will accept on this point. As long as the Democrats are pro-choice they will vote for the Republican, no matter how vile he might be otherwise.
    Immigration. Again, Obama and the Democrats spent eight years trying to work with Republicans. McCain and Rubio walked away from their own legislation. Their argument was that they didn’t believe that Democrats would enforce the law. How can you negotiate with that?
    Hillary Clinton’s e-mails and the Clinton Foundation. Seriously, with all the scandal surrounding Trump University, the Trump Foundation, Russian hacking, the Trump corporation’s entaglements with foreign contries – the press chose to focus on the possiblity that there might be something to these Clinton non-scandals. It was journalistic malpractice. Comey’s completely improper announcement a week before the election was just the topper.

  90. 90
    Ampersand says:

    I would request that folks not use the term “white trash” in Alas comments. Thanks for helping me out on this.

  91. 91
    nobody.really says:

    For what its worth, here’s the perspective of … well, nobody, really:

    1. Why must liberals always be the ones to compromise?

    Daniel Kahneman won the Nobel Prize for his work on Prospect Theory, an explanation of decision-making under risk. Among other things, he documented that people feel losses greater than they feel gains. This dynamic impedes all negotiations because wherever compromises occur, people feel their own sacrifices (relative to a maximalist position) deeply, and are prone to dismiss the sacrifices made by the other side.

    On another blog I rebut conservatives who complain bitterly about the fact that government keeps growing, which they take as iron-clad proof that conservatives are the ones who do all the compromising, whereas those all-powerful liberals are never willing to reciprocate.

    (In rejoinder, I reject the idea that “the size of government” reflects a relevant variable. I suggest that people who care about the size of government move to places devoid of any effective government—say, large swaths of Afghanistan, the heart of the Amazon rainforest, the middle of the ocean—and see how they like it. And I suggest that they focus on measures of “freedom” such as per capita discretionary income–a variable that has never been higher.)

    2. The larger point: Our inability to appreciate the perspectives of people who differ from us is both natural (according to Kahneman) and threatening to democracy (according to me).

    I’d like fundamentalist Christians to have some empathy for the circumstances of gays, and gays to have some sympathy for the circumstances of fundamentalist Christians. And I think I’ve made some real progress … among gay fundamentalist Christians. Otherwise, not so much.

    3. A SEPARATE point involves political strategy: In order to advance a given cause, would we be more likely to succeed by seeking to compromise—thereby attracting support (or reducing opposition) from people in the middle of the spectrum? Or do we do better by adopting a maximalist position, thereby energizing the base?

    In the last election the Republicans rejected the moderate candidates in favor of a maximalist one (at lease, maximalist from a populist perspective; Trump was quite a compromise for many traditional Republicans). In contrast, the Democrats took the more moderate course. And the Republicans prevailed.

    Still, Trump prevailed by the thinnest of margins in three states. What that tells us is, basically, ANYTHING might have swayed the outcome. Sure, we can always cite voters that would be unswayable. And we can also cite variables that are unrelated to the moderate/maximalist debate. But we can also speculate about what would have happened if we’d been a little more moderate, or a little more doctrinaire.

    So here goes: As I previously remarked, maybe if Democrats has signaled a modicum of concern for the perspectives of religious fundamentalists, we would have swung the tiny sliver of votes required to win PA, MI, and WI.

    But at the same time, Samatha Bee observed that while Trump’s margin of victory was small, the missing Democratic voters were legion. This election was the Democrats to lose—and we nailed it! Thus, there’s a strong case that the Democrats should have been MORE doctrinaire, not less. Yeah, we might have lost MI and WI by wider margins, but we might have won other states with large non-white populations.

    So here’s the irony: Some complain that we treat the Republican base as if it lacks agency, and thus must be pandered to. The truth is, it’s the Democratic base that lacks agency. It’s the Democratic turn-out that ebbs and flows. They’re the ones who can’t be bothered to vote for their own self-interest simply because it’s in their self-interest, and thus the party must trot out some charismatic macro-figure to cajole them to the polls like a circus barker. (And hell, even Obama couldn’t pull off the same turn-out for his second election. And don’t get me started on the turn-out during midterm elections!) Honestly, can anyone explain this voting pattern in a manner that doesn’t make the electorate sound abjectly infantile?

    [*Deep breath*] Anyway….

    I’ll conclude by saying here what I’ve said in more conservative climes:

    I can find no substance to this “I’ve had to compromise more than you!” argument. As far as I can tell, it’s an arbitrary exercise in picking reference points. I don’t mean to disparage acknowledging that people actually think this way. I merely mean to emphasize that people on either end of the political spectrum can, and do, make the same arguments, while ignoring the equally valid (or equally invalid) arguments of their counterparts.

    I hope we could acknowledge that each side perceives itself to live within a context of painful compromise relative to their maximalist position. This acknowledgement does not compromise anyone’s ability to fight over questions of strategy.

  92. 92
    Kate says:

    Our inability to appreciate the perspectives of people who differ from us is both natural (according to Kahneman) and threatening to democracy (according to me).

    I’d like fundamentalist Christians to have some empathy for the circumstances of gays, and gays to have some sympathy for the circumstances of fundamentalist Christians. And I think I’ve made some real progress … among gay fundamentalist Christians. Otherwise, not so much.

    I suggest that you check out some African American churches. They are increasingly supporting gay rights in the public sphere, even as they don’t practice gay marriage in their churches and personal lives.

    Many liberals in the African American, and Latino community also ARE conservative Christians. Many liberals (like myself) were raised by/with conservative Christians. We understand their perspective intimately. We came to our positions through years of struggle, because those belief structures had a fundamental disrespect for who we are, and we couldn’t live with that.

  93. 93
    Kate says:

    I can find no substance to this “I’ve had to compromise more than you!” argument. As far as I can tell, it’s an arbitrary exercise in picking reference points. I don’t mean to disparage acknowledging that people actually think this way. I merely mean to emphasize that people on either end of the political spectrum can, and do, make the same arguments, while ignoring the equally valid (or equally invalid) arguments of their counterparts.

    In eight years, what compromise did Republicans in congress offer Obama? Seriously, name one.

  94. 94
    nobody.really says:

    In eight years, what compromise did Republicans in congress offer Obama? Seriously, name one.

    Ok, I’ll grant you, Congressional Republicans have been unprecedentedly obstreperous with Obama–and Democrats may well hope to use the same strategy against the Republicans.

    But seriously, can you recall no compromises? Well, here’s one: Republican Congressmen repeatedly voted to fund the entire federal government. In case you missed that day in civics class, the Executive cannot appropriate funds by fiat; he needs Congress to do that.

    Now, did these votes represent a compromise? I have an inkling that they did. For example, if you’d checked the papers, there was some talk that the Republicans were not entirely wild about a policy called Obamacare. This came up more than once. Yet Republicans voted to fund it–again and again. How do I know? Because in 2013 they decided they wouldn’t–and virtually the entire federal government shut down until the Republicans once again compromised (a/k/a “caved in”). Wikipedia offers a blow-by-blow recap.

    Now, how is it possible that the Republicans could remonstrate for years on end about how much they hate Obamacare, yet people not acknowledge that the continued operation of Obamacare reflected a concession? I can only chalk it up to cognitive bias. I’m reminded of an old adage of labor unions in contract negotiations: “What’s ours is ours; what’s yours is what we negotiate over.” It’s an honest–and transparently biased–assessment of negotiations.

    I may be biased. I try not to be transparently biased.

  95. 95
    Kate says:

    So, Democrats:
    * offered a compromise position on healthcare (the ACA is a market-based plan rooted in Republican ideas, the Dole plan and Romenycare. The Republicans moved to goalposts)
    * were ready to accept Republian immigration plans, put forward by Rubio and McCain until Republicans, again moved the goal posts, and yanked them
    * social security and taxes (the so-called “Grand Bargain” which Republicans insisted didn’t go far enough, without ever proposing an alternative in which they conceded anything.
    * supreme court justice (Garland was cited as the type of centrist candidate Obama would never nominate before he, in fact, nominated him. The Republicans refusal to hold hearing and a vote on him is unparalleled)

    – and proably more that I can’t think of off the top of my head, and the best you can come up with on the other side is that Repubicans, after not managing to actually pass a repeal of Obamacare agreed to continue to fund the government (which is their responsibility) and to not (figuratively) blow up the world financial system by defauling on our debts. That seems “transparently biased” to me.

  96. 96
    Sebastian H says:

    “But at the same time, Samatha Bee observed that while Trump’s margin of victory was small, the missing Democratic voters were legion. This election was the Democrats to lose—and we nailed it! Thus, there’s a strong case that the Democrats should have been MORE doctrinaire, not less. ”

    What makes it so clear that entrenching on issues like forcing photographers to attend gay weddings can only turn off Republican voters? Politics is largely tribal. There are all sorts of people who may be vaguely Democratic leaning voters who feel like the Democrats are signalling that they are no longer part of the Democratic tribe. They wouldn’t vote for Republicans, but then just don’t show up.

    And of course abortion was mentioned which is another great area where both sides get to turn off the middle depending on which side’s maximalists are louder.

    The thing that seems to be missing is that concessions don’t have to be made to the maximalists–they can be made to the center. Defining that as “giving in to the extremists” is part of the problem. Moving toward the center and minimizing apparent injustices DOES NOT HAVE TO BE MOVING TOWARD THE EXTREMIST SIDE. If you do it right it is defusing the issue by making it much less likely that the middle will ever be roused to act on the issue.

    Yes you will probably never win the extremists over. So what? Your goal should be to get the maximally just outcomes WITHOUT making it likely that their extremists will be able to get support from the middle.

    Yes the extremists will argue for more, but the other people won’t be interested in playing along because the status quo looks ok to them.

    It isn’t a tug of war between extremists over an issue in a straight line. It is a tug of war between extremists over getting the middle to care about their issue.

    That is a very different way of understanding politics, but a much more accurate one.

  97. 97
    Kate says:

    Its even worse than that, actually. The Republicans had to pass continuing resolutions because they didn’t do their f***ing jobs and pass actual budgets. That wasn’t on Democrats, either. That was on their right wing refusing to compromise with their moderates. If they would have let their right flank go, the centrists probably could have got enough Democrats on board to pass something acceptable to the vast majority of Amerians, but HASTERT RULE – party came before country. There has never been a Democratic congress that has obstruced the way the last three Republican ones did. So far, we can’t tell if Democrats would compromise with a moderate Republican congress, because the Republicans aren’t offering any opportunities for anything but full-on capitulation. Never has there been a parade of appointees who are so transparently unqualified and encumbered by massive conflicts of interest. And still, some Democrats are supporting some of these horrible, horrible nominees and letting votes go forward. Meanwhile, Democrats often haven’t supported their own party’s nominees over failing to pay their nannys Social Security taxes, and other such relatively trivial transgressions.

  98. 98
    Kate says:

    Sebastion – the far left postion on abortion is China’s one child policy. No one in the U.S. is advocating for that postion. Pro-choice is the moderate position. The right screams about abortions being allowed right up to birth – but they aren’t. Third trimester abortion is heavily regulated in the U.S.. Since Dr. Tiller was killed, there are only one or two clinic in the U.S. that perform them – and they are only allowed in cases where the mother’s life or health are in danger or when the fetus has conditions incompatible with life. Now, that goes against Catholic, and much Christian doctrine. But according to both Muslims and Jews, when there is a conflict between the life of a pregnant woman and the life of an embryo or fetus, one is supposed to save the mother. For reasons of religious freedom, the government should not be making that decision for people. What compromise to you expect pro-choice people to make?

  99. 99
    Charles S says:

    The idea that shop owners, wedding photography owners, bakery owners, florist shop owners, etc, are the working poor is bizarre. Workers don’t generally get to choose whether or not to discriminate, they get ordered by their bosses to discriminate or not as the owner wants. If an employee at Sweet Cakes would have been perfectly happy to make a cake for a lesbian commitment ceremony, that employee was out of luck. If a homophobic baptist in North Carolina works for a bakery that supports marriage equality, that homophobic baptist can either make cakes for lesbian weddings, or he can find another job.

    Expanding the right to discriminate for business owners isn’t striking a blow for the working class. It is striking a blow for the petty capitalists.

  100. 100
    nobody.really says:

    As I previously remarked, maybe if Democrats has signaled a modicum of concern for the perspectives of religious fundamentalists, we would have swung the tiny sliver of votes required to win PA, MI, and WI.

    But at the same time, Samatha Bee observed that while Trump’s margin of victory was small, the missing Democratic voters were legion. This election was the Democrats to lose—and we nailed it! Thus, there’s a strong case that the Democrats should have been MORE doctrinaire, not less.

    What makes it so clear that entrenching on issues like forcing photographers to attend gay weddings can only turn off Republican voters?

    I make no such claim. As I previously remarked, maybe if Democrats has signaled a modicum of concern for the perspectives of religious fundamentalists, we would have swung the tiny sliver of votes required to win PA, MI, and WI. That tiny sliver need not come solely from the Republican party.

    That said, lots of people who would seem likely to be in the Democratic base, and who had previously voted for Obama, did not vote Democratic in the last election. I’m hypothesizing that there might have been some message that would have gotten more of them to the polls. And traditionally the strategy of “playing to the base” involves offering such messages, even at the risk of repelling swing voters.

    That’s what I meant by “doctrinaire.” But in fairness, perhaps I’m too presumptuous about the content of the message that would turn out the base.

    Politics is largely tribal. There are all sorts of people who may be vaguely Democratic leaning voters who feel like the Democrats are signalling that they are no longer part of the Democratic tribe. They wouldn’t vote for Republicans, but then just don’t show up.

    I agree–but I suspect we might disagree about what what behaviors signal membership in the Democratic tribe. In this context, I’d say that solicitude for the concerns of the LGBT signals such membership. I’m sensing you have some different signal in mind.

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