Your argument in response to that framework is equally absurd. If the law requires offering a product to all comers, and you say "I'm not offering this car to black people because it's a non-black-person-car" you ae still violating Dietl's framework. You are failing to offer the product to all comers. Your wordplay doesn't change that, it's just an exercise in absurdity.
Your argument in response to that framework is equally absurd.
A debate is not a contest to see who can use more overwrought verbiage like "absurd," "clearly," and "silly." Arguments are judged on their intellectual merits, not the fervor of their proponent.
If the law requires offering a product to all comers, and you say "I'm not offering this car to black people because it's a non-black-person-car" you a[r]e still violating Dietl's framework. You are failing to offer the product to all comers. Your wordplay doesn't change that, it's just an exercise in absurdity.
That's certainly one way to interpret his framework, but it's not the only reasonable way to do so.
If the test for improper discrimination is "do you offer product X to all comers?" tell me how we resolve this situation:
A photographer runs a small business of which he is the sole owner and employee. He will accept business from any customer regardless of race, sex, sexual orientation, etc. However, the only service he offers is "photographing the weddings of heterosexual couples." Anyone, whether gay or straight, can hire him to perform this service.
That's a very poor argument for your side. An argument stands on its merits, it's not a challenge to see who can state the rules more frequently and with the most fervor.
Or wait... Was that not intended to be your argument? And am I just cherry-picking out something from your post that clearly isn't intended to be the basis of your argument, then criticizing it as if it somehow WAS the basis of your argument?
That almost sounds like a silly thing to do. My mistake for doing that.
I'm calling your argument absurd because I believe it to be absurd. I have also included reasons why I believe it to be absurd. I would appreciate if you'd engage more directly, rather than drifting into cherry-stem-strawmen.
If the test for improper discrimination is "do you offer product X to all comers?" tell me how we resolve this situation:
A photographer runs a small business of which he is the sole owner and employee. He will accept business from any customer regardless of race, sex, sexual orientation, etc. However, the only service he offers is "photographing the weddings of heterosexual couples." Anyone, whether gay or straight, can hire him to perform this service.
Is his business discriminating?
*Points up to previous posts where this was answered before*
*Points up to previous posts where this was answered before*
I have re-read all of your posts in this thread, and I don't see any where you answer this hypothetical. Which would make sense, because the photographer hypo I just posed hasn't been discussed in this thread yet.
Or are you dismissing this as another example of "silly wordplay?" If so, why? This hypothetical satisfies your criteria requiring the same product to be offered to all comers.
I feel we're destined to do this forever. You aren't' offering any new ideas, you're just restating the same argument you made with Steaks for non-black people and Straight Wedding Cakes. The semantic differences are not relevant. Once I respond to this hypothetical, you seem like you'll just propose a new scenario on the same principle and demand I answer this specific version too. That's a waste of my time.
I feel we're destined to do this forever. You aren't' offering any new ideas, you're just restating the same argument you made with Steaks for non-black people and Straight Wedding Cakes. The semantic differences are not relevant. Once I respond to this hypothetical, you seem like you'll just propose a new scenario on the same principle and demand I answer this specific version too. That's a waste of my time.
Please understand, this new hypothetical is not at all a "semantic difference." In this new hypothetical, the same product is being offered to everyone.
For example, my hypothetical photographer would not refuse service to a gay couple who wanted to hire a photographer for their child's heterosexual wedding. However, he would refuse service to anyone, gay or straight, who wanted to hire him to photograph anything else, such as a sunset, a prom photo, or a gay wedding.
Since he is offering the exact same service to all comers, why does this count as discrimination under the rule you are advocating? This is a sincere question and it's not a semantic game. Your definition of what does and doesn't count as "discrimination" is literally the heart of the debate, is it not?
But maybe you are taking a hard-line position. A business may not engage in what you call "wordplay" to restrict the scope of the services it offers in a way that is at all exclusionary to any customer based on race, sex, sexual orientation, religion, etc.
If so, consider this hypothetical:
A photographer runs a small business of which he is the sole owner and employee. His business is located in the state of Colorado where marijuana is legal. The photographer is a recovering alcohol and drug addict who stays completely sober and avoids places where alcohol and drugs are used because it might cause him to relapse. The Rastafarian church considers marijuana to be a religious sacrament and the local Rastafarian congregation smokes marijuana at all church functions. Accordingly, the photographer posts a sign in his business saying that he will not photograph events for the Rastafarian church.
"I'm offering to provide education to white kids. Anyone can pay me for the kid's education, but black kids aren't allowed in my school."
No, it's not different - it's the same thing. You can't shift the discrimination into the product description, and suddenly make the discrimination okay. This is the exact same thing as "steaks for white people" and "cakes for straight weddings" and so on.
"I'm offering to provide education to white kids. Anyone can pay me for the kid's education, but black kids aren't allowed in my school."
No, it's not different - it's the same thing. You can't shift the discrimination into the product description, and suddenly make the discrimination okay. This is the exact same thing as "steaks for white people" and "cakes for straight weddings" and so on.
Ok, please see my edit to my post above. "Anyone can pay me to photograph an event, but I will not photograph Rastafarian church events." Does the same rule still apply?
Also: "Anyone can pay me to photograph an event, but I will not photograph events for the Westboro Baptist Church."
Also: "anyone can pay me to bake and custom-decorate a cake, but I will not custom-decorate a cake with a message I personally find offensive." (e.g. a picture of mohammed or "marriage = 1 man + 1 woman")
It's not my obligation to evaluate every hypothetical scenario you can come up with. Neither is it my obligation to explain every iteration of every corner case as portrayed in various legal textbooks that complicate what can be considered as "murder"... I can still say we should outlaw murder. And I do.
I'm not interested in dealing with the same iterations on the same principles I've gone over half a dozen times so far. Nothing you've proposed so far has come close to making me think the law under discussion is a bad idea or would be a net loss for society.
It's not my obligation to evaluate every hypothetical scenario you can come up with. Neither is it my obligation to explain every iteration of every corner case as portrayed in various legal textbooks that complicate what can be considered as "murder"... I can still say we should outlaw murder. And I do.
At the end of the day, murder laws allow us to classify every action as either "murder" or "not murder." Are the hypotheticals above "discrimination" or "not discrimination?"
I'm not interested in dealing with the same iterations on the same principles I've gone over half a dozen times so far. Nothing you've proposed so far has come close to making me think the law under discussion is a bad idea or would be a net loss for society.
Again, what law is "under discussion" that you support? It's not at all clear to me that the positions you're espousing are consistent with the current state of Federal law under the RFRA, if that's what you're talking about. Take a look at the Hobby Lobby case, for instance.
It's not clear to me how you can at the one point be discussing legalese and the next point claiming not to even know what law we're talking about. Please pick one.
You do know that a law can be discussed without it being currently implemented on the federal level, correct?
It's not clear to me how you can at the one point be discussing legalese and the next point claiming not to even know what law we're talking about. Please pick one.
I thought we were discussing a hypothetical rule that requires a business to offer its products "to all comers" as you have repeatedly espoused. To my knowledge, no law exists that embodies this rule.
I pointed this out very clearly several posts ago:
I see the confusion here. What you seem to be calling the "current one" is the Federal RFRA. And that law does not impose a hard-line rule of "businesses [are] not ... allowed to discriminate, while private individuals are." The Hobby Lobby case, for example, recently held that Hobby Lobby (a business) could refuse to offer birth control to its employees based on religious objections.
I'm not arguing against "the current law" if by "the current law" you mean the Federal RFRA. But if you're proposing a rule that allows all individuals to discriminate and forbids all businesses from doing so, then you certainly are arguing against the Federal RFRA.
If there's something you don't understand about my "legalese," let me know and I'll be happy to clarify.
I thought we were discussing a hypothetical rule that requires a business to offer its products "to all comers" as you have repeatedly espoused.
And what do we call a "rule" that is established and enforced by the government?
Additionally, I have never said businesses should be required to offer products to everyone. I'm in favor of a military weapons manufacturer not selling to terrorist groups.
However, you can't not sell to some people on the basis of certain factors. Not selling weapons to confirmed terrorists? Fine. Not selling to muslims? Not fine. This is not complex.
I haven't DRAFTED such legislation, because I'm not qualified to do so and because it would take both a lot of effort and be irrelevant to the discussion. We manage to have laws against not hiring people because they're black.
Here's what might be more productive. Say what YOU think the law should be, because I have no idea what you're suggesting or how it would be superior. No solution will ever be perfect and no written law will ever seem correct in all cases and twists. What do you think the BEST possible law here is?
I thought we were discussing a hypothetical rule that requires a business to offer its products "to all comers" as you have repeatedly espoused.
And what do we call a "rule" that is established and enforced by the government?
Additionally, I have never said businesses should be required to offer products to everyone. I'm in favor of a military weapons manufacturer not selling to terrorist groups.
However, you can't not sell to some people on the basis of certain factors. Not selling weapons to confirmed terrorists? Fine. Not selling to muslims? Not fine.
Got it, we're discussing a hypothetical law that imposes the following rule: "A business must not refuse service on the basis of factors such as race, religion, sex, sexual orientation, etc."
So under your law:
A recovering addict photographer must photograph Rastafarian church events where he is exposed to widespread marijuana use.
A gay photographer must photograph Westboro Baptist Church events where they are holding signs like "God Hates ****."
A Muslim baker who offers custom cake decorations must custom-decorate a cake with a picture of Mohammed on it, assuming the person requesting the picture of Mohammed has some religious justification for doing so.
Do I have this right?
This is not complex.
You keep using that word. I do not think it means what you think it means.
I haven't DRAFTED such legislation, because I'm not qualified to do so and because it would take both a lot of effort and be irrelevant to the discussion. We manage to have laws against not hiring people because they're black. Here's what might be more productive. Say what YOU think the law should be, because I have no idea what you're suggesting or how it would be superior. No solution will ever be perfect and no written law will ever seem correct in all cases and twists. What do you think the BEST possible law here is?
Sure. I think the best would be something like the following: Publicly-traded companies may not discriminate on the basis of race, sex, sexual orientation, or religion. Companies that receive government subsidies or government contracts are similarly forbidden from discriminating. Privately-held companies are allowed to discriminate the same way individuals can.
Got it, we're discussing a hypothetical law that imposes the following rule: "A business must not refuse service on the basis of factors such as race, religion, sex, sexual orientation, etc."
So under your law:
A recovering addict photographer must photograph Rastafarian church events where he is exposed to widespread marijuana use.
No, and neither must a normal person be required to perform a function at a suicide-pact cult, or one that worships mass-murder and has its meetings involve bullets flying everywhere. Just as you aren't allowed to murder someone for working on sunday and say, "But I have freedom of religion, you aren't allowed to oppress my religion" you can avoid a function for OTHER reasons.
A gay photographer must photograph Westboro Baptist Church events where they are holding signs like "God Hates ****."
Would a gay employee of a publicly traded photography service provider be required to do this under your scenario? Could they be fired for refusing? What if the CEO of that company is gay?
Actually, you're mixing up your stuff. People here are saying, "I want to discriminate against gays because my religion tells me to". Not, "I want to discriminate against holders of a religious belief". If we want to allow people to discriminate against religion for some reason, you can write the law to NOT include that as part of the criteria you aren't allowed to discriminate based on.
Of course, I'm not advocating that. Like free speech, you have to take some bad with the good.
The point is: This is a situation we'd want to avoid, naturally, but not only are situations like this going to happen no matter what anti-discrimination law you bring up... But it's a smaller net loss to have to force people to deal with those they dislike than to allow a community to blacklist people like in the era of segregation.
A Muslim baker who offers custom cake decorations must custom-decorate a cake with a picture of Mohammed on it, assuming the person requesting the picture of Mohammed has some religious justification for doing so.
Finally, a much better example. It still fails though, because you ARE allowed to control what products you make. You just aren't allowed to control who you provide the products too.
This is still a good example though, because you could argue that "I'll photograph any wedding as long as that wedding doesn't represent a conflict with my beliefs" is the same as, "I'll draw anything on this cake as long as the drawing doesn't conflict with my beliefs". This is why most laws are not black and white, and many cases have to weigh multiple factors. This is why I haven't attempted to draft the law, because while the principle is very simple - doing so would require weighing it against multiple other legal protections and deciding which should take precedence when they come into conflict. Free Speech is a right, but you aren't allowed to shout "fire" in a crowded theater.
If you were arguing against enacting protections for free speech on the basis of many potentially conflicting or gray-area scenarios like the Fire example - you'd be silly to do so. There are always going to be such debates going on. Laws and protections develop and get refined over time. The principle is pretty darn simple, and bringing up one potential negative outcome doesn't invalidate that. Watch.
"So, under free speech Nazis could be shouting and sermonizing on street corners... And the Westboro Baptist church could be protesting the funerals of dead gay soldiers?"
Yes. Yes they can. Deal with it.
This is not complex.
You keep using that word. I do not think it means what you think it means.[/quote]
It's not complex in principle, and it's taken until now to get some reasonable examples of complex scenarios. The repeated head-slamming into the exact same, "I'm offering steaks-for-white-people, so it's not discrimination but you can't eat one if your black" is not complex at all. It's a laughably simplistic attempt at word-play. It's nice to finally get some scenarios with nuance.
Sure. I think the best would be something like the following: Publicly-traded companies may not discriminate on the basis of race, sex, sexual orientation, or religion. Companies that receive government subsidies or government contracts are similarly forbidden from discriminating. Privately-held companies are allowed to discriminate the same way individuals can.
So any local business can hang a "no blacks" sign out front. You do know the vast majority of businesses are privately held right? Congratulations, you want to take us back to segregation - except for publicly traded companies. You honestly think that it's better to allow communities to shut out and shun people, instead of requiring them to allow black people to eat in their restaurants and buy from their stores? No, that's not going to lead to a better society.
But in any case, let's go down the ladder.
1) Would gay employees of this company be required to photograph the westboro baptist church? If it's a gay CEO, would he be required to have his company do tis?
2) Would a muslim CEO have to allow his billboard company to provide services to people that want billboards showing pictures of muhammad? Would muslim employees have to do this work?
Etc, etc, etc. You aren't solving any of your quandaries. You're just allowing segregation to come back.
I may have missed it, did anyone ever answer if my friend who does wedding photography on the side is a business or an individual?
Got it, we're discussing a hypothetical law that imposes the following rule: "A business must not refuse service on the basis of factors such as race, religion, sex, sexual orientation, etc."
So under your law:
A recovering addict photographer must photograph Rastafarian church events where he is exposed to widespread marijuana use.
No, and neither must a normal person be required to perform a function at a suicide-pact cult, or one that worships mass-murder and has its meetings involve bullets flying everywhere. Just as you aren't allowed to murder someone for working on sunday and say, "But I have freedom of religion, you aren't allowed to oppress my religion" you can avoid a function for OTHER reasons.
What qualifies as valid "OTHER reasons" for refusing service to an entire religion? Why is the former-addict photographer's concern valid?
What if a photographer refuses to photograph gay weddings because he's afraid being around gay people might turn him gay.
"That belief doesn't make any sense" you might respond. Sure, but who's to say the former-addict photographer's belief makes sense? Maybe he's completely wrong that being around marijuana will cause him to relapse. After all, marijuana isn't an addictive drug. We can't go around making case-by-case determinations about the reasonableness of these peoples' beliefs, just like we don't go around making case-by-case determinations that only "reasonable" speech is permitted under the first amendment.
A gay photographer must photograph Westboro Baptist Church events where they are holding signs like "God Hates ****."
Actually, you're mixing up your stuff. People here are saying, "I want to discriminate against gays because my religion tells me to". Not, "I want to discriminate against holders of a religious belief". If we want to allow people to discriminate against religion for some reason, you can write the law to NOT include that as part of the criteria you aren't allowed to discriminate based on.
Why would it be ok to discriminate against people based on their religion, but not their sexual orientation?
A Muslim baker who offers custom cake decorations must custom-decorate a cake with a picture of Mohammed on it, assuming the person requesting the picture of Mohammed has some religious justification for doing so.
Finally, a much better example. It still fails though, because you ARE allowed to control what products you make. You just aren't allowed to control who you provide the products too.
This is still a good example though, because you could argue that "I'll photograph any wedding as long as that wedding doesn't represent a conflict with my beliefs" is the same as, "I'll draw anything on this cake as long as the drawing doesn't conflict with my beliefs". This is why most laws are not black and white, and many cases have to weigh multiple factors. This is why I haven't attempted to draft the law, because while the principle is very simple - doing so would require weighing it against multiple other legal protections and deciding which should take precedence when they come into conflict. Free Speech is a right, but you aren't allowed to shout "fire" in a crowded theater.
If you were arguing against enacting protections for free speech on the basis of many potentially conflicting or gray-area scenarios like the Fire example - you'd be silly to do so. There are always going to be such debates going on. Laws and protections develop and get refined over time. The principle is pretty darn simple, and bringing up one potential negative outcome doesn't invalidate that. Watch.
"So, under free speech Nazis could be shouting and sermonizing on street corners... And the Westboro Baptist church could be protesting the funerals of dead gay soldiers?"
Yes. Yes they can. Deal with it.
You keep going back to the fire in a crowded theatre example "grey area." But this is very different from the "grey areas" we get with the discrimination law you're proposing.
The grey areas of free speech only come at the extremes or the fringes. Most people will never say anything in their lives that would fall outside of their free speech rights. And if they do, it's usually pretty obvious. Making death threats. Shouting fire in a theater. These things are hard to do by accident and most people would never come close to doing them.
The grey areas of your proposed law affect huge swaths of people and the everyday operations of businesses. There are many evangelical Christians who think being gay is wrong. And there are many gay people who wouldn't want to do work for members of bigoted churches.
So any local business can hang a "no blacks" sign out front. You do know the vast majority of businesses are privately held right? Congratulations, you want to take us back to segregation - except for publicly traded companies. You honestly think that it's better to allow communities to shut out and shun people, instead of requiring them to allow black people to eat in their restaurants and buy from their stores? No, that's not going to lead to a better society.
But in any case, let's go down the ladder.
1) Would gay employees of this company be required to photograph the westboro baptist church? If it's a gay CEO, would he be required to have his company do tis?
2) Would a muslim CEO have to allow his billboard company to provide services to people that want billboards showing pictures of muhammad? Would muslim employees have to do this work?
Etc, etc, etc. You aren't solving any of your quandaries. You're just allowing segregation to come back.
First of all, segregation was a state of legal affairs. It was propped up by government discrimination in things like zoning and education. I am not proposing allowing the government to discriminate, and I am not proposing a return to segregation. We both agree that individuals should be allowed to be racists if they want to. I'm saying when someone opens a private business, they're still acting in their capacity as an individual and they shouldn't be required to surrender their legal rights.
Second, most of the problems I've identified do go away. In my proposed framework, people are allowed to do business as they please. A gay photographer who doesn't want to work for the Westboro Baptist Church can start his own business and isn't required to take them as a client.
Third, yes, corporations are required to serve the Westboro Baptist church even if they have a gay CEO.
Let me explain why this makes sense: publicly-traded corporations are only allowed to exist because we believe that they promote economic efficiency and growth. Thus the sole purpose of a public corporation is to maximize shareholder profits while following the requirements of the law. A CEO has a fiduciary duty to maximize shareholder profits, meaning he's required to set his personal preferences aside and do what's best for the bottom line. Publicly-traded corporations are supposed to act like efficiency machines that only care about maximizing economic value.
For example, let's say we have a CEO of a publicly-traded corporation who personally believes that it's morally wrong to pay his employees less than a living wage. However, paying his employees a living wage would reduce shareholder profits. As a fiduciary to his shareholders, his personal beliefs come second. He is supposed to make the decision to maximize profits (as long as that decision is legal) even if he personally doesn't like it. So the same is true of a gay CEO or a Muslim CEO or a Christian CEO. Their personal beliefs have to come second. If they can't put their personal beliefs second, then they shouldn't be a CEO of a public corporation. They should start a private business where they have no shareholders to answer to.
Certainly you can argue that it's bad to only care about profits (and many do), but if you make that argument, what you're essentially saying is that publicly-traded companies shouldn't exist at all. The one and only advantage of a publicly-traded corporation over a private company is that publicly-traded corporations are (at least in theory) better at maximizing profits and economic efficiency.
What if a photographer refuses to photograph gay weddings because he's afraid being around gay people might turn him gay.
"That belief doesn't make any sense" you might respond. Sure, but who's to say the former-addict photographer's beleif makes sense? Maybe he's completely wrong that being around marijuana will cause him to relapse.
It seems you need to take some law classes. You're making basic mistakes and it's causing you a lot of confusion. You don't seem to understand how the legal system works, or what reasonable tests are for plaintiffs to prove. I don't believe engaging with you further on this subject will be fruitful. I don't have time to establish how legal protections work, what constitutes reasonable standards, how laws can be drafted and so on.
I also think we're standing too far apart on the principles at stake here. Outside of public institutions, you seem to think the only thing that trumps the desire to discriminate and exile people from their communities should be a shareholder's money. You look at a person exiled from every local business or store in a bigoted town, shrug as businesses put up signs saying "No blacks allowed", "No Irish Allowed,", "No Gays Allowed' and, "Muslims keep out". According to you, that might be bad - but it's not as bad as the idea of a christian being required to sell a pizza to a gay couple.
Seeing as we've made no progress so far, and as it's by no means the topic of the thread, I don't believe it will be productive to engage you further on this topic - on any level.
Well now I just feel silly. I wasn't seeing any reference to standard legal tests or anything, so I clearly made a bad assumption. And I did it with an aggressive tone which shouldn't be excusable in any case. I was really sick and having a bad day. In any case, apologies.
Well now I just feel silly. I wasn't seeing any reference to standard legal tests or anything, so I clearly made a bad assumption. And I did it with an aggressive tone which shouldn't be excusable in any case. I was really sick and having a bad day. In any case, apologies.
Apology accepted. Humility is a rare virtue in the debate forums.
To address your substantive point: Courts and juries are perfectly capable of answering million-dollar questions like "was this person's decision reasonable?" But I call it a million-dollar question because in some cases it will literally cost a million dollars to hire attorneys and go through the rigor of discovery, motion practice, trial, appeal, etc. A good law is one where we can usually figure out whether it's been violated without going to court every time. It's in line with the reasoning you gave when we talked about why hate speech is legal. We don't want courts and juries asking whether something is hate speech every time someone utters a controversial statement.
If your law basically boils down to "businesses may not discriminate unless a court decides the discrimination was reasonable," it's not a good law. That's why I keep taking you to task for saying that the legal system can sort out the grey areas. If your law is basically one giant grey area then it's a very inefficient solution that pushes the hard decisions off on the courts.
A huge problem in this thread as a whole is the belief that all forms of discrimination are equivalent.
Yes, denying a customer a product because he is not willing or can't buy it is discrimination, but one we accept. Me caring for my children more then other children is natural form of discrimination. Universities giving priority to students with more potential is another form acceptable discrimination. And the list goes on and on...
A good debate would be why certain forms of discrimination are acceptable while others aren't.
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A debate is not a contest to see who can use more overwrought verbiage like "absurd," "clearly," and "silly." Arguments are judged on their intellectual merits, not the fervor of their proponent.
That's certainly one way to interpret his framework, but it's not the only reasonable way to do so.
If the test for improper discrimination is "do you offer product X to all comers?" tell me how we resolve this situation:
A photographer runs a small business of which he is the sole owner and employee. He will accept business from any customer regardless of race, sex, sexual orientation, etc. However, the only service he offers is "photographing the weddings of heterosexual couples." Anyone, whether gay or straight, can hire him to perform this service.
Is his business discriminating?
That's a very poor argument for your side. An argument stands on its merits, it's not a challenge to see who can state the rules more frequently and with the most fervor.
Or wait... Was that not intended to be your argument? And am I just cherry-picking out something from your post that clearly isn't intended to be the basis of your argument, then criticizing it as if it somehow WAS the basis of your argument?
That almost sounds like a silly thing to do. My mistake for doing that.
I'm calling your argument absurd because I believe it to be absurd. I have also included reasons why I believe it to be absurd. I would appreciate if you'd engage more directly, rather than drifting into cherry-stem-strawmen.
*Points up to previous posts where this was answered before*
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I have re-read all of your posts in this thread, and I don't see any where you answer this hypothetical. Which would make sense, because the photographer hypo I just posed hasn't been discussed in this thread yet.
Or are you dismissing this as another example of "silly wordplay?" If so, why? This hypothetical satisfies your criteria requiring the same product to be offered to all comers.
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Please understand, this new hypothetical is not at all a "semantic difference." In this new hypothetical, the same product is being offered to everyone.
For example, my hypothetical photographer would not refuse service to a gay couple who wanted to hire a photographer for their child's heterosexual wedding. However, he would refuse service to anyone, gay or straight, who wanted to hire him to photograph anything else, such as a sunset, a prom photo, or a gay wedding.
Since he is offering the exact same service to all comers, why does this count as discrimination under the rule you are advocating? This is a sincere question and it's not a semantic game. Your definition of what does and doesn't count as "discrimination" is literally the heart of the debate, is it not?
But maybe you are taking a hard-line position. A business may not engage in what you call "wordplay" to restrict the scope of the services it offers in a way that is at all exclusionary to any customer based on race, sex, sexual orientation, religion, etc.
If so, consider this hypothetical:
A photographer runs a small business of which he is the sole owner and employee. His business is located in the state of Colorado where marijuana is legal. The photographer is a recovering alcohol and drug addict who stays completely sober and avoids places where alcohol and drugs are used because it might cause him to relapse. The Rastafarian church considers marijuana to be a religious sacrament and the local Rastafarian congregation smokes marijuana at all church functions. Accordingly, the photographer posts a sign in his business saying that he will not photograph events for the Rastafarian church.
Is this religious discrimination?
No, it's not different - it's the same thing. You can't shift the discrimination into the product description, and suddenly make the discrimination okay. This is the exact same thing as "steaks for white people" and "cakes for straight weddings" and so on.
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Ok, please see my edit to my post above. "Anyone can pay me to photograph an event, but I will not photograph Rastafarian church events." Does the same rule still apply?
Also: "Anyone can pay me to photograph an event, but I will not photograph events for the Westboro Baptist Church."
Also: "anyone can pay me to bake and custom-decorate a cake, but I will not custom-decorate a cake with a message I personally find offensive." (e.g. a picture of mohammed or "marriage = 1 man + 1 woman")
It's not my obligation to evaluate every hypothetical scenario you can come up with. Neither is it my obligation to explain every iteration of every corner case as portrayed in various legal textbooks that complicate what can be considered as "murder"... I can still say we should outlaw murder. And I do.
I'm not interested in dealing with the same iterations on the same principles I've gone over half a dozen times so far. Nothing you've proposed so far has come close to making me think the law under discussion is a bad idea or would be a net loss for society.
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At the end of the day, murder laws allow us to classify every action as either "murder" or "not murder." Are the hypotheticals above "discrimination" or "not discrimination?"
Again, what law is "under discussion" that you support? It's not at all clear to me that the positions you're espousing are consistent with the current state of Federal law under the RFRA, if that's what you're talking about. Take a look at the Hobby Lobby case, for instance.
You do know that a law can be discussed without it being currently implemented on the federal level, correct?
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I thought we were discussing a hypothetical rule that requires a business to offer its products "to all comers" as you have repeatedly espoused. To my knowledge, no law exists that embodies this rule.
I pointed this out very clearly several posts ago:
If there's something you don't understand about my "legalese," let me know and I'll be happy to clarify.
Ok, you stumped me. What law are you referring to?
And what do we call a "rule" that is established and enforced by the government?
Additionally, I have never said businesses should be required to offer products to everyone. I'm in favor of a military weapons manufacturer not selling to terrorist groups.
However, you can't not sell to some people on the basis of certain factors. Not selling weapons to confirmed terrorists? Fine. Not selling to muslims? Not fine. This is not complex.
I haven't DRAFTED such legislation, because I'm not qualified to do so and because it would take both a lot of effort and be irrelevant to the discussion. We manage to have laws against not hiring people because they're black.
Here's what might be more productive. Say what YOU think the law should be, because I have no idea what you're suggesting or how it would be superior. No solution will ever be perfect and no written law will ever seem correct in all cases and twists. What do you think the BEST possible law here is?
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Got it, we're discussing a hypothetical law that imposes the following rule: "A business must not refuse service on the basis of factors such as race, religion, sex, sexual orientation, etc."
So under your law:
A recovering addict photographer must photograph Rastafarian church events where he is exposed to widespread marijuana use.
A gay photographer must photograph Westboro Baptist Church events where they are holding signs like "God Hates ****."
A Muslim baker who offers custom cake decorations must custom-decorate a cake with a picture of Mohammed on it, assuming the person requesting the picture of Mohammed has some religious justification for doing so.
Do I have this right?
You keep using that word. I do not think it means what you think it means.
Sure. I think the best would be something like the following: Publicly-traded companies may not discriminate on the basis of race, sex, sexual orientation, or religion. Companies that receive government subsidies or government contracts are similarly forbidden from discriminating. Privately-held companies are allowed to discriminate the same way individuals can.
No, and neither must a normal person be required to perform a function at a suicide-pact cult, or one that worships mass-murder and has its meetings involve bullets flying everywhere. Just as you aren't allowed to murder someone for working on sunday and say, "But I have freedom of religion, you aren't allowed to oppress my religion" you can avoid a function for OTHER reasons.
Would a gay employee of a publicly traded photography service provider be required to do this under your scenario? Could they be fired for refusing? What if the CEO of that company is gay?
Actually, you're mixing up your stuff. People here are saying, "I want to discriminate against gays because my religion tells me to". Not, "I want to discriminate against holders of a religious belief". If we want to allow people to discriminate against religion for some reason, you can write the law to NOT include that as part of the criteria you aren't allowed to discriminate based on.
Of course, I'm not advocating that. Like free speech, you have to take some bad with the good.
The point is: This is a situation we'd want to avoid, naturally, but not only are situations like this going to happen no matter what anti-discrimination law you bring up... But it's a smaller net loss to have to force people to deal with those they dislike than to allow a community to blacklist people like in the era of segregation.
Finally, a much better example. It still fails though, because you ARE allowed to control what products you make. You just aren't allowed to control who you provide the products too.
This is still a good example though, because you could argue that "I'll photograph any wedding as long as that wedding doesn't represent a conflict with my beliefs" is the same as, "I'll draw anything on this cake as long as the drawing doesn't conflict with my beliefs". This is why most laws are not black and white, and many cases have to weigh multiple factors. This is why I haven't attempted to draft the law, because while the principle is very simple - doing so would require weighing it against multiple other legal protections and deciding which should take precedence when they come into conflict. Free Speech is a right, but you aren't allowed to shout "fire" in a crowded theater.
If you were arguing against enacting protections for free speech on the basis of many potentially conflicting or gray-area scenarios like the Fire example - you'd be silly to do so. There are always going to be such debates going on. Laws and protections develop and get refined over time. The principle is pretty darn simple, and bringing up one potential negative outcome doesn't invalidate that. Watch.
"So, under free speech Nazis could be shouting and sermonizing on street corners... And the Westboro Baptist church could be protesting the funerals of dead gay soldiers?"
Yes. Yes they can. Deal with it.
You keep using that word. I do not think it means what you think it means.[/quote]
It's not complex in principle, and it's taken until now to get some reasonable examples of complex scenarios. The repeated head-slamming into the exact same, "I'm offering steaks-for-white-people, so it's not discrimination but you can't eat one if your black" is not complex at all. It's a laughably simplistic attempt at word-play. It's nice to finally get some scenarios with nuance.
So any local business can hang a "no blacks" sign out front. You do know the vast majority of businesses are privately held right? Congratulations, you want to take us back to segregation - except for publicly traded companies. You honestly think that it's better to allow communities to shut out and shun people, instead of requiring them to allow black people to eat in their restaurants and buy from their stores? No, that's not going to lead to a better society.
But in any case, let's go down the ladder.
1) Would gay employees of this company be required to photograph the westboro baptist church? If it's a gay CEO, would he be required to have his company do tis?
2) Would a muslim CEO have to allow his billboard company to provide services to people that want billboards showing pictures of muhammad? Would muslim employees have to do this work?
Etc, etc, etc. You aren't solving any of your quandaries. You're just allowing segregation to come back.
Check with the small business administration.
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What qualifies as valid "OTHER reasons" for refusing service to an entire religion? Why is the former-addict photographer's concern valid?
What if a photographer refuses to photograph gay weddings because he's afraid being around gay people might turn him gay.
"That belief doesn't make any sense" you might respond. Sure, but who's to say the former-addict photographer's belief makes sense? Maybe he's completely wrong that being around marijuana will cause him to relapse. After all, marijuana isn't an addictive drug. We can't go around making case-by-case determinations about the reasonableness of these peoples' beliefs, just like we don't go around making case-by-case determinations that only "reasonable" speech is permitted under the first amendment.
Why would it be ok to discriminate against people based on their religion, but not their sexual orientation?
You keep going back to the fire in a crowded theatre example "grey area." But this is very different from the "grey areas" we get with the discrimination law you're proposing.
The grey areas of free speech only come at the extremes or the fringes. Most people will never say anything in their lives that would fall outside of their free speech rights. And if they do, it's usually pretty obvious. Making death threats. Shouting fire in a theater. These things are hard to do by accident and most people would never come close to doing them.
The grey areas of your proposed law affect huge swaths of people and the everyday operations of businesses. There are many evangelical Christians who think being gay is wrong. And there are many gay people who wouldn't want to do work for members of bigoted churches.
First of all, segregation was a state of legal affairs. It was propped up by government discrimination in things like zoning and education. I am not proposing allowing the government to discriminate, and I am not proposing a return to segregation. We both agree that individuals should be allowed to be racists if they want to. I'm saying when someone opens a private business, they're still acting in their capacity as an individual and they shouldn't be required to surrender their legal rights.
Second, most of the problems I've identified do go away. In my proposed framework, people are allowed to do business as they please. A gay photographer who doesn't want to work for the Westboro Baptist Church can start his own business and isn't required to take them as a client.
Third, yes, corporations are required to serve the Westboro Baptist church even if they have a gay CEO.
Let me explain why this makes sense: publicly-traded corporations are only allowed to exist because we believe that they promote economic efficiency and growth. Thus the sole purpose of a public corporation is to maximize shareholder profits while following the requirements of the law. A CEO has a fiduciary duty to maximize shareholder profits, meaning he's required to set his personal preferences aside and do what's best for the bottom line. Publicly-traded corporations are supposed to act like efficiency machines that only care about maximizing economic value.
For example, let's say we have a CEO of a publicly-traded corporation who personally believes that it's morally wrong to pay his employees less than a living wage. However, paying his employees a living wage would reduce shareholder profits. As a fiduciary to his shareholders, his personal beliefs come second. He is supposed to make the decision to maximize profits (as long as that decision is legal) even if he personally doesn't like it. So the same is true of a gay CEO or a Muslim CEO or a Christian CEO. Their personal beliefs have to come second. If they can't put their personal beliefs second, then they shouldn't be a CEO of a public corporation. They should start a private business where they have no shareholders to answer to.
Certainly you can argue that it's bad to only care about profits (and many do), but if you make that argument, what you're essentially saying is that publicly-traded companies shouldn't exist at all. The one and only advantage of a publicly-traded corporation over a private company is that publicly-traded corporations are (at least in theory) better at maximizing profits and economic efficiency.
It seems you need to take some law classes. You're making basic mistakes and it's causing you a lot of confusion. You don't seem to understand how the legal system works, or what reasonable tests are for plaintiffs to prove. I don't believe engaging with you further on this subject will be fruitful. I don't have time to establish how legal protections work, what constitutes reasonable standards, how laws can be drafted and so on.
I also think we're standing too far apart on the principles at stake here. Outside of public institutions, you seem to think the only thing that trumps the desire to discriminate and exile people from their communities should be a shareholder's money. You look at a person exiled from every local business or store in a bigoted town, shrug as businesses put up signs saying "No blacks allowed", "No Irish Allowed,", "No Gays Allowed' and, "Muslims keep out". According to you, that might be bad - but it's not as bad as the idea of a christian being required to sell a pizza to a gay couple.
Seeing as we've made no progress so far, and as it's by no means the topic of the thread, I don't believe it will be productive to engage you further on this topic - on any level.
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Sig-Heroes of the Plane
Bitterroot is an Attorney.
Remaking Magic - A Podcast for those that love MTG and Game Design
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Sig-Heroes of the Plane
Apology accepted. Humility is a rare virtue in the debate forums.
To address your substantive point: Courts and juries are perfectly capable of answering million-dollar questions like "was this person's decision reasonable?" But I call it a million-dollar question because in some cases it will literally cost a million dollars to hire attorneys and go through the rigor of discovery, motion practice, trial, appeal, etc. A good law is one where we can usually figure out whether it's been violated without going to court every time. It's in line with the reasoning you gave when we talked about why hate speech is legal. We don't want courts and juries asking whether something is hate speech every time someone utters a controversial statement.
If your law basically boils down to "businesses may not discriminate unless a court decides the discrimination was reasonable," it's not a good law. That's why I keep taking you to task for saying that the legal system can sort out the grey areas. If your law is basically one giant grey area then it's a very inefficient solution that pushes the hard decisions off on the courts.
Yes, denying a customer a product because he is not willing or can't buy it is discrimination, but one we accept. Me caring for my children more then other children is natural form of discrimination. Universities giving priority to students with more potential is another form acceptable discrimination. And the list goes on and on...
A good debate would be why certain forms of discrimination are acceptable while others aren't.
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