Lawyerly law stuff that's interesting

I like your post a lot but this part seems unsatisfactory. (Since it invites the response: well, why not make gays a protected class?) The real answer would have to be that protected classes aren’t what’s keeping us from Nazi shops on every corner that exclude blacks. Society has changed, people make decisions based on information and generally don’t like racism, and people who think the only thing keeping us all from the 1950s is Supreme Court strict scrutiny jurisprudence are being too cynical for their own good. Would you get a handful more Nazi shops? Sure, but you can avoid them. And it’s probably good they out themselves.

I mean… you say that and then talk about how it shouldn’t be?

Maybe I just got lost along the way.

Nobody said that the baker has to make a cake that says “Gay marriage is great!”, “Down with Trump”, or anything of the sort. He simply has to provide the same service to gays that he would provide to anyone else.

So if he refuses to put rainbow flags on a straight couple’s cake, then he can refuse to put rainbow flags on a gay couple’s cake. If he always puts a portrait of Trump on a straight couple’s cake, then he can put a portrait of Trump on a gay couple’s cake. All he had to do is exactly what he was already doing. His chosen means of self-expression does not change in the slightest. The only thing that changes is the audience.

And here’s the thing about the First Amendment. It guarantees freedom of expression. But not freedom to select your audience.

It very well could be.

You are assuming the bigot is working the counter. But more likely, the bigot is in the back office or the boardroom. It’s quite possible that the person who is actually providing goods or services would be quite happy to provide them to anyone, but is prevented from doing so by some jackass in management.

Case in point: when blacks were denied the same educational opportunities as whites, it wasn’t necessarily because the teachers were racist. It was because the teachers had to obey a racist boss who wrote a racist policy.

Somewhat bizarrely, the whole point of the decision was that the First Amendment also guarantees religious freedom, and there’s a non-trivial argument here that the guy’s religious objection to having to serve certain audiences was constitutionally legitimate. Apparently this took everyone by surprise, because no one was really talking about the commission’s anti-religious statements.

This is remarkable, I had missed this:

Do you know what he was asked to put on the cake? I’m 20 pages into reading the opinion and I haven’t seen what was asked. In fact there is some dispute what direction if any he was given. But lets assume that it followed tradition and somewhere on the cake it said. “Charlie and Dave” the couple’s name. Isn’t simply having two male names pretty much the endorsing gay marriage, which wasn’t legal in Colorado. Not wanting to go there the baker, shutdown the discussion by turning down this couple just as he had down with previous same sex couples. I’ve never been involved in ordering a wedding cake. Presumably it is more involved than simply say I want vanilla or lemon cake large enough to feed 50 or 100 people.

The state courts said that they never got to the point where they discussed specifics about what would go on the cake (that is why the state courts thought there was no First Amendment issue).

If there is any artistic expression involved in making a cake, then surely it isn’t found in writing down the names of customers. Writing names is something that everyone from County Clerks to hotel owners are required to do. They aren’t “endorsing” gay marriage, they are acknowledging its existence.

Here’s a link to the stipulated facts by both parties.

Just your daily reminder that Talking Points Memo has less journalistic integrity than most high school newspapers.

Literally every response is people telling her that she’s an idiot.

It doesn’t, but that part of my position is less concrete than the other. There MAY be benefits to having protected classes, but I am not certain. Not that I question the motivation of those laws, I just question the effectiveness and whether they achieved their goals.

There are two facets to what I’m saying:

  1. Clearly, outside of protected classes, there is no legitimate argument for forcing people to engage in commerce with each other.
  2. Protected classes themselves, while valid from a morale perspective, may not actually achieve their goal.

In most of these cases, the schools were institutions of the government. In that case, it’s totally acceptable to force them to be equally accessible to everyone, even beyond protected classes. They’re public schools. The government cannot discriminate against anyone.

But the government is different from private individuals.

I understand your arguments that these laws (and protected classes) are not sufficient to achieve their goals. I think I agree with them. I am certainly swayed by them.

But I’ve yet to hear solid arguments they are not necessary, even if not sufficient.

Personally I agree with Timex that you can’t legislate morality. In a perfect world, you wouldn’t have to. But we don’t live in that world, so I agree with you also that you have to do things that are necessary to promote a just and equal world.

It seems silly. I mean of course you don’t want someone who hates you to make your hamburger. Is he going to spit in it? Maybe, but there’s certainly more of a chance of that than if he didn’t hate you.

But I also think this is mostly, hopefully, a first-generation problem. By enforcing equality you are allowing and even encouraging different types of people to be in near proximity to each other. And I think that alone exposes people to different viewpoints and experiences, and that’s good for society.

So instead of all southern blacks just moving out of those terrible places where everyone seemingly hated them, thus creating nearly white-only neighborhoods and towns, they stayed. And those peoples’ kids grew up together, and I’d like to hope those kids were marginally more accepting of each other than their parents.

So yeah, a generation might get spitters, but I bet you most of them would be more than willing to put up with that chance in the hopes that their kids and their grandkids won’t.

You get to choose to live in the same headspace of discrimination as Nazis if you want to. That’s your choice. But know that you are living there. And I know how much you hate Nazis, so that’s gotta be an uncomfortable place to be.

I’ve said what I feel is my whole addition to this discussion, which is people shouldn’t be shitty to each other based on anything. Pretty much old school Christian. Funny that that is where an atheist lands, no?

I don’t think that I would make an argument that they are not necessary, at least in that I recognize the injustice. However, I also do not know if “not sufficient” is correct either, in that I am not entirely convinced that such laws actually helped achieve their desired goals at all.

This is a valid point, and I think for things like desegregation it’s true. In some cases though, the flip side is that you run the risk of creating resentment, so that some of the situations where you are forcing people to be in proximity, you are forcing them to be in proximity in a situation with various other negative factors at play. This runs the risk of turning that proximity into a negative experience, and thus actually fomenting the racial animus that you seek to prevent.

That being said, I also would not go so far as to suggest that racists need to be coddled in safe spaces where they are allowed to enjoy their racism in peace.

Yes and no. We actually see the strongest racial animus in places where different races co-exist. The hostility exists, which colors the experiences of the people (racists being dickheads to people), which then creates more hostility, resulting in a negative feedback loop.

Nah, you’re full of shit.

Being able to ostracize nazis is not the same as being a nazi. You can take that and shove it WAY up your ass.

As I’m sure you’re aware, some stayed. Others had enough and tried out a diaspora.

IANAL. That said, I would agree we should never legislate morality, but I would argue we should be able to regulate commerce and that includes protections from bigotry. I’m glad Timex brought up the question about the Jewish songwriter; I think contract work stands apart from public business like a baker, grocer, or McDonalds.

We’ve had this conversation before, and I think I’ve posted this same clarification before: There is a difference between doing business and providing a public accommodation.

Let’s say you have a… financial consulting company, and you have a corporate headquarters somewhere (not a store-front, just a place where your drones go to do work). You have to hire a gardening service because you want the building to look nice. It’s absolutely your right to refuse to hire the “No-Jew Nature Nazis” to do your shrubbery work. You may also refuse to hire a company that you suspect uses undocumented labor, even if you have no proof. You can choose to not hire those guys who mostly use African Americans as gardeners because you don’t want “those people” to touch your daffodils… and you could even say as much to their faces (assuming you are not receiving Federal funds).

Likewise, if you’re out there looking for work for your legion of financial consultants, you do NOT have to bid on the work offered by “Reverend Joe’s Pray The Gay Away Clinic” if you don’t want to. You may refuse a request from the Pentagon to work on a contract. You can choose not to partner with any firm east of the Rockies. You may choose to never offer your services to any woman-owner company. (Again, assuming you are not receiving federal funds.)

That is different from a Public Accommodation. As soon as you open up a store-front selling anything for retail, or open a hotel, or operate a bar, or even provide a website where people can place orders for your goods or services, THEN you fall into the area governed by Title II. At that point, you pretty much have to treat everyone equally.

This is why we need to make sure everyone knows that gay rights are civil rights. It starts with a cake, then this, then being pushed out of restaurants.

No, you do not. Only protected classes of people are protected against discrimination.

Now, to be clear, perhaps this hinges upon what it means to “treat everyone equally”.

Public accomodations absolutely have the right to refuse service to anyone they want, for any reason, EXCEPT for the reason that someone is a member of a protected class.

If I own a bar, and you come in with an attire that does not meet my dress code (for instance, no shirt, or not wearing a jacket in a restaurant that requires one), then I am absolutely within my legal rights to throw you out. The key is that I must treat everyone equally under this code. I cannot, for instance, only demand that black people wear jackets.

Likewise, I am free to just throw you out for essentially no reason whatsoever, based on purely personal preference. I may just not like you, personally. And I am absolutely allowed to throw you out. However, I cannot just “coincidentally” not like all the black people. In that case, if it could be established that I have a pattern of behavior where I throw out black people at a rate whose difference is significantly different from white people, there would be an argument that I was discriminating against a protected class, which is illegal.

But if you walk into my establishment wearing a Nazi uniform, or a KKK hood, or even a shirt that has curse words on it, I can throw you out. Again, owners of public accomodation generally have a right to refuse service to anyone, except for being a member of a protected class.

Correct. Sorry, I thought citing Title II of the Civil Rights Act as the reason would make that clear.