Lawyerly law stuff that's interesting


Ehh… maybe. Technically nothing says they can’t do it, which is what people were hoping the cake case would sort out. Instead the SCOTUS punted it back on a technicality and didn’t answer any of those questions.

I mean you can refuse service to people for… nearly anything. If you walk into the grocery store wearing a Vikings shirt and the owner is a Packers fan he can refuse you service. Which is probably a stupid move on his part once it gets out, but if everyone is a Packers fan in the area…


You can’t refuse service for a reason that violates a civil rights law, state or federal. Wearing a Vikings shirt isn’t a civil right, at least not wear I live in Wisconsin.


Yes. Protected classes. Of which homosexuals technically aren’t. Or more accurately, they’re in limbo since SCOTUS hasn’t decided (and odds are pretty good SCOTUS would decide against them and we’d need an Amendment to grant it to them).

I mean… yes. That’s why I chose it as an example of something utterly dumb and random you can be denied service for.


Considering where Justice Kennedy came down on the gay marriage case, I’d say you’re wrong about that. If Trump gets to replace him, then we’ve got a problem. Probably an easier road than amending the Constitution is to get state courts to interpret their civil rights laws to protect gay rights or to get state legislatures to amend their laws.


Maybe. But as you say, he could easily die or retire and then a couple years down the road they overturn all of that stuff, including gay marriage and everyone is fucked.

Which is what they’ll do the second any of the liberals or Kennedy is gone. They’re still fighting for overturning Roe v. Wade from 45 years ago and that was a 7-2 decision based on the concept of a right to privacy. They’re not gonna let this one slide if they can help it, especially with it eking by with 5-4 only three years ago.


They are a protected class in Colorado, as well as other nineteen other states.


Yes, but that’s overruled by federal laws, where they are not a protected class.
Thus, when it comes in conflict with federally protected classes (religion, race), it will lose.


I mean… let’s be honest Colorado isn’t likely to be the problem area. The only reason the cake case got anywhere is because it happened before the law added them to the list.

It’s places like Alabama that will be the problem.


Nah, shouldn’t be an issue. States can give people extra rights and there isn’t much the feds can do about it for the most part. Then again this IS a religious freedom issue at least on it’s face, so that could be the lever they’d use to pull the Feds in. And if the Feds say there is no protected class vs religious freedom… well religious freedom isn’t going to lose.

You know what, I take it back, you’re right.


You’re confusing the issue. The bakery ruling had nothing to do with the federal Civil Rights act, which is where federally protected classes are defined.

Furthermore, being in a federally protected class means you are protected as a customer, student, or employee. Not as an owner, employer, or service provider. So I can’t think of a case where two protected classes “came into conflict”.


I mean… sort of. The technical terms might be different, but Hobby Lobby didn’t win their case without religion.


He’s right though, the protections for the owner of the store stem from their 1st amendment rights, not the Civil Rights act.



But we’re going to at some point see Religion vs Gays. And one of them is enshrined in the Constitution and one isn’t. Odds are fairly good the one in the Constitution wins and if they don’t they certainly will if we get a new justice.

Or we could just pass an Amendment giving gay people protection and avoid the whole thing.


The First Amendment prevents the government from targeting a religious group. It does not mean that a religious group can disobey a law for religious reasons. So, for instance, Congress can’t write a law that targets Quakers, but it can jail Quakers who don’t register for the draft due to religious reasons.

That said, the government recently passed the RFRA, which requires them to make reasonable accommodations for religion. This still doesn’t mean you can disobey the law for religious reasons. But this is how Hobby Lobby won its exemption from the ACA.

Neither really applies to the Colorado baker. A law about protecting gays does not specifically target any religion, and there isn’t really any sort of reasonable compromise to be made. The Colorado baker only won because of mistakes made by the Colorado government when they went after him.

In other words, the SCOTUS did not say that the Colorado law violated his First Amendment rights (which would invalidate the law). It said the Colorado bureaucracy violated his rights when applying the law.


Eh, this is wrong.

The freedom of religion in the Constitution gives you the right to be a conscientious objector on the basis of those religious beliefs. There are various requirements to make that case, but there is a large body of constitutional law supporting that. If you are drafted, and you are a quaker, you will be drafted for non-combat service.

A law that infringes upon your constitutional rights, and forces you to act in a manner which directly conflicts with your religious views, ends up being ruled unconstitutional.

This is true, but they just didn’t RULE on the issue of religious rights, because the colorado buracracy boned it so hard that it never even got to that issue.

That’s not the same as them saying that the guy didn’t have a 1st amendment supported case. Merely that he didn’t even need to make that case.

There is a huge body of legal precedent for people being able to not be bound by various laws due to religious considerations.


Er… they can though. There are provisions and exemptions and rules, but they can totally do that.

I mean look at fucking vaccines. “Religious exemptions” abound for those. And conscientious objection is a thing, even if it’s sporadic in how it’s enforced at times.


You have the right to be a conscientious objector only because Congress wrote a specific law for it. In the past (e.g. during the Civil War) Quakers most certainly did go to jail when they resisted the draft.

Likewise, Mormons have been and still are prosecuted when they practice polygamy.

Likewise, Native Americans who used peyote for religious purposes were prosecuted for it, until lawmakers finally wrote a special exemption for them.

From the SCOTUS, regarding peyote (my emphasis):

It is a permissible reading of the [free exercise clause]…to say that if prohibiting the exercise of religion is not the object of the [law] but merely the incidental effect of a generally applicable and otherwise valid provision, the First Amendment has not been offended… To make an individual’s obligation to obey such a law contingent upon the law’s coincidence with his religious beliefs, except where the State’s interest is “compelling”–permitting him, by virtue of his beliefs, “to become a law unto himself,”–contradicts both constitutional tradition and common sense. To adopt a true “compelling interest” requirement for laws that affect religious practice would lead towards anarchy.

Written by Scalia, as a matter of fact!


I mean I agree with Scalia. But he’s also dead and we have people like Alito and Thomas along with whatever Trump is going to throw in there, which means someone that probably makes me appreciate Thomas right before I suffocate on my own vomit.


Dude, there are at least half a dozen separate SCOTUS cases dealing with it. It’s not just because they made a law. The reason the law for selective service includes the ability for people to object on religious grounds, is because the constitution guarantees your right to freely practice your religion.

And again, there are a half dozen cases that specifically hinge upon your freedom to practice your religion, specifically in the context of concientious objection. It’s the entire constitutional basis for it.

The part that you didn’t bold covers this. They can’t force you to kill people, because it’s forcing you to internalize practices which are directly at odds with your religious practices. They couldn’t force you to eat pork if you were a muslim, for instance. The first amendment prohibits the government from compelling you to believe things, or prohibiting you from believing in them.

In Employment Division v. Smith, you are missing a critical aspect of the decision.

The rules were that you can’t do peyote as part of that job. It was NOT that you couldn’t do Peyote. That’s the critical thing, in that the government was not prohibiting the practice of the religion, or forcing someone to do something that was against their religion. Indeed, there are numerous other cases which specifically say that you cannot prosecute someone for Peyote possession, in cases where they are using it for religious purposes. This was covered in U.S. v. Boyll in 1991.


Actually, it pretty much is.

Until 1963, the government could make a law that forced you to violate your religious practice, as long as it wasn’t directly targeting your religion. Hence it could outlaw polygamy, jail Quakers, etc.

In 1963, the SCOTUS decided in Sherbert that the government could no longer force you to violate your religious practice, for all intents and purposes.

But in 1990, the SCOTUS reversed itself. In Smith, which I quoted, the court decided that the court would no longer protect people who felt they were being forced to violate their religious practice. I’m just gonna quote Wikipedia:

Rather than interpret the First Amendment to require the exemption that Smith and Black sought, the Court encouraged them to seek redress from the legislature. It observed that Arizona, Colorado, and New Mexico already specifically exempted religious uses from their otherwise generally applicable peyote bans. “Just as a society that believes in the negative protection accorded to the press by the First Amendment is likely to enact laws that affirmatively foster the dissemination of the printed word, so also a society that believes in the negative protection afforded to religious belief can be expected to be solicitous of that value in its legislation as well.” Requiring claims for religious exemptions to be vetted through the legislative process might put less popular religions at a disadvantage, but the Court held that this situation was preferable to the relative anarchy that would result from "a system in which each conscience is a law unto itself."

Congress responded a few years later by passing the RFRA. However, the SCOTUS then noted that the RFRA only binds the federal government. It cannot be used to challenge a state law.

Again, quoting Wikipedia:

Although states have the power to accommodate otherwise illegal acts performed in pursuit of religious beliefs, they are not required to do so.

And even for federal laws, it’s not absolute. For instance, today Sikhs cannot carry traditional kirpans on airplanes, even though it is their religious duty to always carry them.

Boyll was not a SCOTUS case. In Boyll, the government argued that the peyote religious exemption (which was already written into law) applied only to 'Persons who [sic] ethnic descent is at least twenty-five percent derived from American Indian stock, and to the spouses of such persons". Which the judge rejected for obvious reasons.

Not exactly. Most of the case was already settled, except for one issue. The SCOTUS was involved specifically to determine whether the state was required to make a peyote exemption for religious purposes.

Quoting Scalia for the majority :