But see, TatinG, the people who disagree with your position suspect that fundamentalist Christian florists, bakers and photographers are putting up “Gays Keep Out” signs. I suspect that neither suspicion is very realistic.
I would rule he has to sell to them. If he didn’t want to sell to non Jews he would have to stop selling these particular items to everyone. That the store owner could even ask a customer his/her religion before selling an item, I would see as an invasion of privacy. I don’t see under any law it would be legal to ask a customer their religion. A kosher restaurant, for instance, doesn’t serve pork to anyone, regardless of their religion. It is the same for everyone. You cannot be forced to sell a particular product but you cannot sell a specific product to one person but not the other (or serve one person but not the other.)
A business owner can refuse to serve someone who isn’t wearing a shirt or shoes but can’t refuse service to only gay shirtless/shoeless people.
The distinction with which Pizzagirl began the thread seems relevant to me, although I’m still not clear to what extent it is relevant legally. I see a several tiers of potential discrimination, all of which seem to me subtly different:
- A gay couple walks into a bakery to buy a plate of cookies.The owner refuses service.
- A lesbian couple goes to a bridal shop to buy wedding dresses. The owner refuses service.
- A couple tries to hire a Christian-run catering company to provide the food at their same-sex wedding. They refuse service. 4.. A couple asks a baker to provide them a wedding cake with figurine of two women in wedding dresses kissing.The baker refuses service, although she would be willing to sell them a generic wedding cake.
In the first case, the rationale for refusing service is a very broad objection to gay people as individuals, as the cookies themselves are innocuous.
In cases two and three, the nature of the product/service becomes relevant, as the desired item is being used to facilitate a gay wedding, specifically. I distinguish between two and three because of the level of active support required of the owner - the bridal shop owner simply has to let the women purchase the dress and leave. The caterer is going to have to be on staff during the wedding, essentially making the event happen. Put in other terms,the caterer seems implicated in the event itself in a way the bridal shop owner does not.
In case four, we are no longer dealing with an inherently neutral product being used for a potentially objectionable purpose, but with a request in which the owner finds elements of the product itself to be objectionable. The baker would be fine selling them a cake - just not making a cake that specifically supports same-sex marriage.
It seems to me right that the law would require the owner to serve the couple in examples one and two and wrong for it to require the owner’s compliance in example 4; I’m less certain on 3, but I lean toward compelling the caterer to work the wedding. In the case of a neutral product or service – the owner isn’t being asked to do something they wouldn’t do for any other couple – I think it is reasonable to be able to prohibit refusal of service based on protected characteristics. Fundamentally, catering the gay wedding isn’t THAT different from selling the plate of cookies, even though it may feel different; in both cases you’re simply asking the person to provide service without regard to the customer’s membership in a protected class.I don’t, however, think an owner has to provide or design a product that he doesn’t want to offer to anyone, even if in practical terms the only person who would want the wedding topper with two women is a lesbian couple. To use Hunt’s example of the prayer shawl, it is one thing to tell an Orthodox Jew he has to sell a prayer shawl to anyone who wants one, including women, and another thing to tell him that he needs to stock pink and purple shawls designed for women – and still another thing to tell a tailor that he has to MAKE a pink and purple shawl if he isn’t inclined to do so.
For me, the issue is actually less one of religious liberty than it is of free expression. Designing a cake, especially if you routinely take custom orders, isn’t a major or terribly ideologically freighted form of creative expression, but requiring it still involves something too close to compelled speech for my liking.
“Do you support gay couples purposely seeking out religous florists, photographers and bakers knowing that they will likely refuse them and then suing? The purpose being to make a political statement and/or put that person out of business. With all the bakers, florists and photographers out there, I suspect this is what is happening.”
I don’t know and I don’t care They have every right to do that if that is their choice. If a business owner doesn’t want to get sued they can stop refusing to sell products or services to gay people.
You know, there were other schools, restaurants, bathrooms, etc. that black people could have used, too - and a seat in the back of the bus was no different than a seat at the front of a bus.
I see it more as a membership issue. If you are a member of a group, you can buy something. A place selling bishops’ vestments may sell them only to bishops. A veterans shop might sell items indicating rank or service only to the qualified.
I agree with Emilybee. As a practical matter, it may not be difficult to find another baker or restaurant or barber or hotel. (Except, of course, in a rural area where there may be only one business that provides such services.) But that shouldn’t really matter. After all, the same arguments were made 50 years ago against the Civil Rights laws: restaurants should have the right to refuse service to black people, because they can always go somewhere else.
I also find rather dubious the claim that it’s genuinely “religion” that justifies the potential refusal to serve gay customers. Where does the Bible say you shouldn’t sell food to gay people? You’re not supporting same-sex marriage by doing so. There isn’t even the kind of language in the Bible about LGBT people that segregationists used to point to, allegedly supporting separation of the races.
Emilybee: I think it matters if the gay couple is trying to set up a lawsuit or if they are actually trying to get a wedding cake. Intentions matter.
For a time in California there was a disabled man who was going to different restaurants and other establishments just looking for violations of the ADA, suing, getting a settlement. He sued thousands of places. That’s how he was earning his living. He wasn’t really being inconvenienced by the fact that a door was a little too narrow or an incline a little too steep. He was seeking out the violations.
If another florist just down the street will provide the wedding flowers is any real harm done?
I think most of us agree that private businesses can “pick and choose” whom to serve selectively. But, where does “selective” picking and choosing cross the line and become rampant discrimination, even for something as private an activity as baking and decorating a cake.
Which business activities carry enough of a public interest that they should not be allowed to pick and choose. Physicians and pharmacists, sure. Chiropractors? Dentists? Accountants? Hair stylists? Carpenters? Plumbers? Who knows where to draw that line? Who’s going to decide – judges? The civil court system is already overburdened.
If private business owners speak through their actions, consumers and other businesses can respond in kind. It appears already to have caused IN Governor Pense to have to back track:
http://www.nytimes.com/2015/03/30/us/politics/legislators-in-indiana-may-clarify-beliefs-law.html
There are real life examples to consider;
Just prior to the passage of same sex Civil Unions in New Jersey, a popular Christian wedding hall on the Jersey Shore lobbied for a religious exemption. They feared that they would be sued for not leasing their hall to same sex couples.
“I see it more as a membership issue. If you are a member of a group, you can buy something. A place selling bishops’ vestments may sell them only to bishops. A veterans shop might sell items indicating rank or service only to the qualified.”
How do they know, in the first place, if you are a member of a certain group? Is it illegal for someone to buy a bishop’s vestment if they are not a Bishop? And what if shop sells only to veterans and bishops but refuses to sell these products to gay bishops or to gay veterans?
"I think it matters if the gay couple is trying to set up a lawsuit or if they are actually trying to get a wedding cake. Intentions matter.
For a time in California there was a disabled man who was going to different restaurants and other establishments just looking for violations of the ADA, suing, getting a settlement. He sued thousands of places. That’s how he was earning his living. He wasn’t really being inconvenienced by the fact that a door was a little too narrow or an incline a little too steep. He was seeking out the violations."
So, the businesses should have been in compliance with the law. Their fault for not being so.
“If another florist just down the street will provide the wedding flowers is any real harm done?”
Yes, I like the floral arrangements by the first florist better than the second florist and he’s cheaper, too.
“Just prior to the passage of same sex Civil Unions in New Jersey, a popular Christian wedding hall on the Jersey Shore lobbied for a religious exemption. They feared that they would be sued for not leasing their hall to same sex couples.”
Are Jews allowed to be married there?
If it’s not a church I don’t see how it would be legal to get a religious exemption. Non Jews can get married at a kosher wedding hall - they just have to serve kosher food - like anyone who wants to get married there.
A wedding hall is not a church or a temple or a mosque.
I believe that there is some level of burden of proof as to the religion and the practice if these cases to make it to court. You do have to show that you are a practicer and that it is important to the religion itself.
And after much “reflection” …
Can a lawyer answer these questions:
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What does this allow a business to do in Indiana that it couldn’t already do before the law was passed?
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Gays are not a protected class in the state of Indiana. For example, it’s legal to fire someone for being gay in Indiana. But some Indiana cities have city ordinances including gays and lesbians as protected classes. Are these city ordinances now invalid?
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Let’s say that this new ordinance allows an Indianapolis baker to refuse to bake a cake for two brides, on the grounds that it offends his religion. Why does it make sense to allow the religious baker not to bake the cake on the grounds of sincere religious beliefs, but require an atheist baker to bake the cake even though the atheist’s belief that lesbians are yucky is equally sincere? Or whatever it is that sincere religious beliefs can allow someone to avoid-- why do religious people get to avoid things because of their sincere beliefs, but other people with equally sincere beliefs have to do them?
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Wasn’t it already legal in Indiana to refuse to bake the cake for the two brides, except in cities where gays and lesbians are a protected class?
Gotta love The Onion.
http://www.theonion.com/articles/indiana-governor-insists-new-law-has-nothing-to-do,38330/
Any claim that anti-gay animus had nothing to do with the passage of this law is belied by the very presence of the people who stood behind the governor of Indiana when he signed it. Including leading anti-LGBT activists Micah Clark, Curt Smith, and Eric Miller, all of whom are notorious for their extreme anti-gay comments. The details are in the article at Glaad.org.
^ Exactly Donna - which makes is very amusing watching people tie themselves into knots to defend this piece of crap legislation.
My takeaway from this thread is that people don’t want to read the law but rather prefer to recite what they’ve heard or read because that agrees with what they think it should say. See my post #2 about the contents of the actual law.
I note for example a bunch of posts that the law rehashes a federal law. If it did, no one would care. It’s the potential meaning of the difference that has people upset. And note again, in post #2 I described how the law differs and how it is unclear what it actually means in practice.
It’s fairly clear from the activity on this sort of law in a bunch of states that the changes in the Indiana law were meant by some to create a private right to discriminate based on religious beliefs. I don’t know if they succeeded in doing that, which isn’t a surprise to me because when you try to sneak things through you end up with poorly written legislation. As it stands, the entire statute is about government regulation of business and then there’s this added section about how a private person, which includes any business, may use this law as a defense even if there’s no government entity involved … but what does that mean? Does it mean, as some fear and as I’m sure some of the people behind this meant, that a private person can discriminate or does it mean a person (business) can refuse service after there’s been a governmental imposition - meaning a regulation or law - rather than the person (business) needing to sue the government. The former is really hard to take: it means that without government action, a private person (business) can just discriminate based on religious beliefs. But the latter is a way of saying you don’t have to sue the state if you have a religious objection to a regulation but can act, get sued by a customer and then this all gets worked out in court. That isn’t as bad. But it is genuinely unclear to me how the law would be interpreted in a court because, as I said in post #2, the thing’s a mess.
BTW, I wonder how people would think if this were phrased as what it could easily be, which is a way to discriminate against the religious because their beliefs offend your own. If it’s a substantial burden to serve a gay person, then it’s just as substantial a burden to serve a devout Christian. So maybe if this were called the “discrimination against Priests and Nuns Act”, people might see it differently.
@JHS Thanks for your post, #48.
I relish and enjoy the history that you include; that is great stuff. I was not even thinking of the drug use and tax examples when I wrote that post. Thanks for pointing those out. I was thinking specifically about larger moral issues such as gay marriage etc., which come directly from entrenched written doctrine.
I really like this summation:
Case-in-point: Chick FiL-A franchises. Never seen any signs or anything otherwise there.