Supreme Court & the case of the SSM cake

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  • I think that there is a big difference between anything pre-made or made according to a pre-existing formula and anything made custom for a wedding, and I think that a large corporation like a supermarket chain with its own bakery shops should not be given the same religious protections as a small baker who owns her/his own shop and bakes her/his own cakes. (I'm in a same sex marriage, by the way.)

    It should also be taken into consideration how many other businesses with similar services at similar prices exist in a given area. If there are many, which probably means that one of equal quality can be found, it makes little sense to compel a baker or other provider to create something they consider to be an expression of approval of the marriage. There probably is no clear-cut way to define how many comparable providers need to exist or how far away they would need to be, but that would just be one more area where the vagueness of the constitution would be argued over by the courts for centuries.

    Lastly, I believe that businesses should be compelled to make a cake for an interracial wedding even if the owners have a religious objection to it. (An objection to an interfaith wedding would be different.) I think that even if it should not be a crime to be opposed to interracial marriage, allowing any business to deny services to interracial couples, even when there are many comparable businesses in an area, is a greater insult to human rights, and a greater harm to the ability of any society we would want to live in to function, than allowing a business to deny custom-made services to a same-sex wedding. I think some human rights are more important than others.

    I say this knowing full well that I have grown up in an affluent white liberal bubble in a time and place where I have experienced little to no discrimination for my sexual orientation and that I might feel very differently if this were not the case. That's why I'm willing to listen to people who disagree with me!
  • I think that there is a big difference between anything pre-made or made according to a pre-existing formula and anything made custom for a wedding

    When it comes to baked goods I'm not sure there's a clear-cut distinction there. For example, Masterpiece Cakeshop had a catalog in the store of past wedding cakes to give prospective customers ideas of what was available and what was within the scope of the bakery to produce. This suggests that there's a certain amount of "pre-existing formula" in such offerings. If a same-sex couple were to point at one of the cakes so pictured and say "Make us one exactly like that!", doesn't that argue against the idea that such an item is "made custom". For that matter, couldn't it be argued that all from scratch cakes are, technically speaking, "made custom"?
    It should also be taken into consideration how many other businesses with similar services at similar prices exist in a given area. If there are many, which probably means that one of equal quality can be found, it makes little sense to compel a baker or other provider to create something they consider to be an expression of approval of the marriage.

    It seems both legally and logistically difficult to make the rights and obligations involved in a transaction dependent on the actions of a number of third parties. Your right to religiously-inspired discrimination is valid if there are four other bakers within a ten mile radius, but not if there are only two? What if there are numerous other businesses that provide the same service but all of them object to serving [ blacks / women / gays / whatever ]? It sounds like you're suggesting a return to the world of the Negro Motorist Green Book, where members of disliked groups are expected to navigate a maze of shifting and obscure information to find an establishment willing to serve "their kind". That's a pretty heavy burden to place on ordinary citizens just trying to go about their business.
    There probably is no clear-cut way to define how many comparable providers need to exist or how far away they would need to be, but that would just be one more area where the vagueness of the constitution would be argued over by the courts for centuries.

    Since "the constitution" doesn't specify any rights that are dependent on the actions of uninvolved third parties, I don't think that's where the "vagueness" is located.
    Lastly, I believe that businesses should be compelled to make a cake for an interracial wedding even if the owners have a religious objection to it. (An objection to an interfaith wedding would be different.)

    Why? If anti-discrimination laws can be extended to cover inter-racial marriages why not same-gendered marriages? Why is the state's power to protect citizens from gender or religious discrimination less than it's authority to prevent racial discrimination? This seems like simply reading your own personal prejudices into law.
  • Crœsos wrote: »
    I think that there is a big difference between anything pre-made or made according to a pre-existing formula and anything made custom for a wedding

    When it comes to baked goods I'm not sure there's a clear-cut distinction there. For example, Masterpiece Cakeshop had a catalog in the store of past wedding cakes to give prospective customers ideas of what was available and what was within the scope of the bakery to produce. This suggests that there's a certain amount of "pre-existing formula" in such offerings. If a same-sex couple were to point at one of the cakes so pictured and say "Make us one exactly like that!", doesn't that argue against the idea that such an item is "made custom". For that matter, couldn't it be argued that all from scratch cakes are, technically speaking, "made custom"?

    Honestly, I think any cake that is not pre-made that has anything on it about same-sex anything, including the name of the couple, on is custom-made in a way that forces an anti-same-sex-marriage cake-maker to do something that they might think is a violation of their faith.
    There probably is no clear-cut way to define how many comparable providers need to exist or how far away they would need to be, but that would just be one more area where the vagueness of the constitution would be argued over by the courts for centuries.

    All gay rights rulings (correct me if I am wrong) have come from four words in the Fourteenth Amendment: "due process" and "equal protection." They sound pretty vague to me. I think it's a good thing that courts have to wrangle with the meanings of these words over centuries, although I would rather that further amendments and legislation spell right out more concretely, once we have figured out (in the case of conflicting equality for LGBT folk and people's right to not be compelled to do something they believe their religion forbids) what those rights really are! I'm not speaking from a position of dogmatic certainty. And honestly, as a gay white affluent man who hasn't experienced much discrimination, I think my voice honestly should matter less in this discussion. I feel a little guilty even posting here, and I am not being sarcastic. However, I would like to flesh out my ideas a little, and maybe I'll realize I'm wrong!
    Lastly, I believe that businesses should be compelled to make a cake for an interracial wedding even if the owners have a religious objection to it. (An objection to an interfaith wedding would be different.)

    Why? If anti-discrimination laws can be extended to cover inter-racial marriages why not same-gendered marriages? Why is the state's power to protect citizens from gender or religious discrimination less than it's authority to prevent racial discrimination? This seems like simply reading your own personal prejudices into law.[/quote]

    Anti-discrimination laws should be extended to cover same-sex marriages, however, unlike interracial marriages, they should not cover same-sex marriages to the extent that they overrule religious freedoms to the extent that the rights of interracial couples do. As I said, I think some human rights are more important than others. Chattel slavery and its legacy (along with other evils of racism like the genocide and ethnocide of indigenous peoples) is an evil that centuries of oppression, violence, murder, and driving to suicide of LGBT people doesn't compare to, in my opinion, as horrific as anti-LGBT oppression has been. I may disagree with the US Constitution in this case, but if so, I think the Constitution should be changed!

    And intersectionality should matter in how judges rule. When poor LGBT people (of all races) are refused service by wealthier business owners and corporations, female LGBT people by males, trans people by cis people, LGBT people of color by whites, Muslim or Jewish LGBT people by people of differing religions than their own, etc., even if the refusal of service is on strictly religious grounds regarding sexual morality, the effect of the discrimination is amplified by the other forms of oppression the couple already experience in society and that needs to be taken into account in determining whether or not to compel the cakemaker to make a cake. The amount of trauma the members of the couple have already experienced because of anti-LGBT oppression should also be taken into account. Do I have trauma from systematic heteronormativity in society? I guess, but I'm relatively unscathed compared to countless other LGBT people.

    I realize that by making each case so context-dependent I am basically making the rule of law impossible and doing more to implement a tyranny of political correctness than the right accuses people who want blanket bans on denial of service to LGBT customers to be doing. But maybe I'm not that big on the rule of law when it serves to oppress people. Religious people are oppressed too - affluent white straight cis males from "respectable" Christian denominations, at least in our country, not so much - and as self-contradictory as all this may sound I think that, at least in the case of performing services for a same sex wedding, all else being equal (which it often isn't, as I have explained), religious freedom should be weighed about equally with LGBT equality, which I think is different from racial equality in terms of where it ranks on the hierarchy of human rights.

    Of course, religious freedom should never give anyone the right to physically harm LGBT people or non-physically harm them in any number of ways. I am singling out compelling someone to do something they believe is participating in a same sex wedding celebration (and everything within reason - I definitely do not think anyone has the right to refuse to deliver pizza to a same sex wedding).
  • Honestly, I think any cake that is not pre-made that has anything on it about same-sex anything, including the name of the couple, on is custom-made in a way that forces an anti-same-sex-marriage cake-maker to do something that they might think is a violation of their faith.
    I think if your religion says not to do things for people you disagree with, your religion is fucked. (generic "you") Certainly there is nothing in Christianity about that. Indeed, Christ explicitly says if you are asked to do something against your conscience, do them one better. Carry that cloak 2 miles. And so on.
  • Gee DGee D Shipmate

    And intersectionality should matter in how judges rule. When poor LGBT people (of all races) are refused service by wealthier business owners and corporations, female LGBT people by males, trans people by cis people, LGBT people of color by whites, Muslim or Jewish LGBT people by people of differing religions than their own, etc., even if the refusal of service is on strictly religious grounds regarding sexual morality, the effect of the discrimination is amplified by the other forms of oppression the couple already experience in society and that needs to be taken into account in determining whether or not to compel the cakemaker to make a cake. The amount of trauma the members of the couple have already experienced because of anti-LGBT oppression should also be taken into account. Do I have trauma from systematic heteronormativity in society? I guess, but I'm relatively unscathed compared to countless other LGBT people.

    That would involve the judge making a purely political decision, not a legal one.
  • Crœsos wrote: »
    When it comes to baked goods I'm not sure there's a clear-cut distinction there. For example, Masterpiece Cakeshop had a catalog in the store of past wedding cakes to give prospective customers ideas of what was available and what was within the scope of the bakery to produce. This suggests that there's a certain amount of "pre-existing formula" in such offerings. If a same-sex couple were to point at one of the cakes so pictured and say "Make us one exactly like that!", doesn't that argue against the idea that such an item is "made custom". For that matter, couldn't it be argued that all from scratch cakes are, technically speaking, "made custom"?
    Honestly, I think any cake that is not pre-made that has anything on it about same-sex anything, including the name of the couple, on is custom-made in a way that forces an anti-same-sex-marriage cake-maker to do something that they might think is a violation of their faith.

    You're assuming facts not present in the case at hand. Masterpiece Cakeshop's objection was to providing any kind of cake, marked or unmarked, to a same-sex couple for their wedding. Any kind of tiered cake with white frosting was out of the question, whether it had text or any other markings on it or not.
    All gay rights rulings (correct me if I am wrong) have come from four words in the Fourteenth Amendment: "due process" and "equal protection."

    "Due process" may sound vague to the layman, but it's a legal term of art that describes a fairly well-understood set of ideas. Lawyers even adjectize the term to distinguish between "procedural due process" and "substantive due process".

    Crœsos wrote: »
    Why? If anti-discrimination laws can be extended to cover inter-racial marriages why not same-gendered marriages? Why is the state's power to protect citizens from gender or religious discrimination less than it's authority to prevent racial discrimination? This seems like simply reading your own personal prejudices into law.

    Anti-discrimination laws should be extended to cover same-sex marriages, however, unlike interracial marriages, they should not cover same-sex marriages to the extent that they overrule religious freedoms to the extent that the rights of interracial couples do.

    I'm not sure "you're protected unless someone really wants to discriminate against you" counts as legal protection at all. Why does religion gets to be an excuse to opt out of a generally applicable law against anti-gay discrimination but not racial discrimination? It seems like you're assigning rights based on your personal prejudices rather than any kind of legally useful principle. Kind of a legal equivalent of TVtropes' "Asshole Victim"; those who are less personally sympathetic get less legal protection.
    I am singling out compelling someone to do something they believe is participating in a same sex wedding celebration (and everything within reason - I definitely do not think anyone has the right to refuse to deliver pizza to a same sex wedding).

    This seems very confused. Why is it okay to refuse to sell a tiered cake with white frosting to a same-sex couple for use in their wedding but not okay to refuse to sell pizzas to them for the same event? These are both baked goods. Both custom-made to order, in fact. (Does it make a legally-relevant difference if the couple ordered from recommended items or off the pick your own toppings menu? The "Meat Lovers" and "Hawaiian Special" aren't custom made but specifying your own toppings is?) Why is the cake baker "participating" in the wedding in a way that the caterer/pizza delivery guy/florist/bartender isn't? It seems like there's a distinction being drawn between a tiered cake covered in fondant and a flatbread covered in cheese, sauce, meats, and vegetables in a way that I'm not sure is legally justifiable.
  • mousethief wrote: »
    Honestly, I think any cake that is not pre-made that has anything on it about same-sex anything, including the name of the couple, on is custom-made in a way that forces an anti-same-sex-marriage cake-maker to do something that they might think is a violation of their faith.
    I think if your religion says not to do things for people you disagree with, your religion is fucked. (generic "you") Certainly there is nothing in Christianity about that. Indeed, Christ explicitly says if you are asked to do something against your conscience, do them one better. Carry that cloak 2 miles. And so on.
    Regardless of whether or not any such Christian baker were following the true teachings of Christ, I try to instead imagine a Muslim or Jewish baker who had the same objections. I would not feel comfortable calling their interpretation of Judaism or Islam cruel or heartless for not condoning the making of the cake.
  • I'll start by saying IANAL. This is my understanding of the current law in the USA, but if a lawyer who works in this area wants to correct me, I'm happy to be corrected.

    As I understand it, if you have a business that's open to the public, you can't refuse to serve people in protected classes. You can refuse to serve Nazis, because political affiliation is not a protected class. You can't refuse to serve Jewish people, because religion is a protected class.

    You don't have to sell products that you don't normally sell, just because someone in a protected class wants it. Nobody can insist that a Jewish deli sell bacon cheeseburgers. But if that deli chooses to sell bacon cheeseburgers, they can't refuse to sell them to people who are in a protected class.

    Likewise, nobody can insist that a Christian baker sell wedding cakes. But if the baker chooses to sell wedding cakes, they can't refuse to sell them to people who are in a protected class.

    It doesn't matter why they want to refuse. It doesn't matter if it's against their religion. They are not legally permitted to refuse service to people in a protected class.

    If you want to refuse to do business with a person who is part of protected class, though, you do have options. First, you can close your business (or the portion of the business that attracts customers you don't want). If you don't want to take high school graduation photos of kids with disabilities because you don't want to ruin your aesthetic with less than perfect people, you can quit doing high school graduation photos. If you don't want to sell wedding cakes to LGBT couples, you can quit selling wedding cakes.

    Second, you may be able to reframe your business as a private club, and sell only to members of your private club. So, if you only want to sell cakes to straight white Christians, you make a straight white Christian club, and one of the perks of club membership is buying your cakes. You'd need to get a lawyer to help you set it up right, because it's trickier than it sounds to make that work out legally. But it should be possible.

    Third, you can play the long game and elect people who will appoint judges who will agree with you that there shouldn't be protected classes, or that the classes you want to discriminate against shouldn't be protected.

    Currently, saying "it's against my religion to sell my product to people in this protected class" doesn't give you a pass. If you sell the product to other people, you sell to them.
  • Gee DGee D Shipmate
    Josephine,Much of what you say sets out the law here as I understand it. I can't say that that's so in other states though. I'm pretty sure that being a holder of a particular political view makes you a member of a protected class though in my state - and that's basically the reasoning behind the UK Supreme Court decision,

    Where you may be wrong is in your private club. Obviously you can have a group of friends you ask around to your house for a Saturday afternoon drink and you can't be accused of anti-Jewish discrimination. Your proposal seems to go further than that though because it has a commercial element to it. Any thoughts on that please?
  • EnochEnoch Shipmate
    Gee D wrote: »
    Josephine,Much of what you say sets out the law here as I understand it. I can't say that that's so in other states though. I'm pretty sure that being a holder of a particular political view makes you a member of a protected class though in my state - and that's basically the reasoning behind the UK Supreme Court decision. ...
    I'm sorry, but I don't agree that this is what the UK case is saying. It certainly doesn't say that holding a political view makes one a member of a 'protected class'. That depends on whether one comes within one of the categories on the list in the relevant legislation. Going back to the debate on these boards about a restaurant refusing to serve Ms Sarah Sanders, whether one likes it or not, if that had happened in the UK, there would have been nothing to discuss.

    What the UK case appears to be saying, though, is that being in a 'protected class' gives you the right not to be discriminated against in being denied service because you come within that category. It does not, though, give you the right to insist that other people proclaim your opinions or agree with them, particularly if there is a conflict between different protected categories. The protection from discrimination applies to people, not opinions.
  • Gee DGee D Shipmate
    edited October 2018
    I'm sorry, I was writing in a hurry and blurred my thoughts. I should have said:

    I'm pretty sure that being a holder of a particular political view does not make you you a member of a protected class though in my state - and that's basically the reasoning behind the UK Supreme Court decision,
  • CrœsosCrœsos Shipmate
    edited October 2018
    josephine wrote: »
    Second, you may be able to reframe your business as a private club, and sell only to members of your private club. So, if you only want to sell cakes to straight white Christians, you make a straight white Christian club, and one of the perks of club membership is buying your cakes. You'd need to get a lawyer to help you set it up right, because it's trickier than it sounds to make that work out legally. But it should be possible.
    Gee D wrote: »
    Where you may be wrong is in your private club. Obviously you can have a group of friends you ask around to your house for a Saturday afternoon drink and you can't be accused of anti-Jewish discrimination. Your proposal seems to go further than that though because it has a commercial element to it. Any thoughts on that please?

    Traditionally private clubs have had more latitude around anti-discrimination laws. Churches, for example, while not exactly private clubs are more akin to a private club than to a public accommodation, legally speaking. They're allowed to discriminate on the basis of otherwise protected characteristics, like religion.

    The two big factors in what's permitted, as far as ignoring otherwise generally applicable laws goes, is whether the action has something to do with the purpose of the club and the degree to which commercial activity is conducted by the club. Commerce is usually seen as sufficient grounds for regulation. That's how a lot of American country clubs got racially desegregated. It was successfully argued that country clubs, in addition to their other amenities, provided a place where commercial deals were negotiated and that by excluding non-whites from membership the clubs had created a racially-exclusive marketplace, and commerce fell under the purview of state and local governments to regulate. The country clubs with a harder-core commitment to being whites only responded by implementing rules that business was not to be discussed on club premises, which was deemed sufficient to prevent enforcement of anti-discrimination laws.

    So someone setting up a hypothetical Kristian Kake Klub would have to demonstrate that they're not simply a commercial entity in a new disguise.
  • Enoch wrote: »
    What the UK case appears to be saying, though, is that being in a 'protected class' gives you the right not to be discriminated against in being denied service because you come within that category. It does not, though, give you the right to insist that other people proclaim your opinions or agree with them, particularly if there is a conflict between different protected categories. The protection from discrimination applies to people, not opinions.

    And I would say that a baker is not proclaiming anything by the words on a cake, any more than a printer is proclaiming the words on a poster. Nor need they agree with them. If someone ordered a cake saying "My Dad is the Greatest!" the baker is not proclaiming that this person's dad is the greatest, nor need they agree with it. The very notion is absurd.
  • Boogie wrote: »
    The law seems to be an ass.
    At best, laws are written by disinterested parties with reasonable foresight and skill. There is no guarantee that all, or indeed any, of those criteria will be met, though.

  • mousethief wrote: »
    If someone ordered a cake saying "My Dad is the Greatest!" the baker is not proclaiming that this person's dad is the greatest, nor need they agree with it.
    One can just imagine, at Thanksgiving with the family all together: "Hey I heard you made a cake last month that said some kid's dad was the greatest. You said last year that I was the greatest dad. What gives?"
  • Gee DGee D Shipmate
    Like death notices.
  • josephine wrote: »
    I'll start by saying IANAL. This is my understanding of the current law in the USA, but if a lawyer who works in this area wants to correct me, I'm happy to be corrected.

    As I understand it, if you have a business that's open to the public, you can't refuse to serve people in protected classes. You can refuse to serve Nazis, because political affiliation is not a protected class. You can't refuse to serve Jewish people, because religion is a protected class.

    You don't have to sell products that you don't normally sell, just because someone in a protected class wants it. Nobody can insist that a Jewish deli sell bacon cheeseburgers. But if that deli chooses to sell bacon cheeseburgers, they can't refuse to sell them to people who are in a protected class.

    Likewise, nobody can insist that a Christian baker sell wedding cakes. But if the baker chooses to sell wedding cakes, they can't refuse to sell them to people who are in a protected class.

    It doesn't matter why they want to refuse. It doesn't matter if it's against their religion. They are not legally permitted to refuse service to people in a protected class.

    If you want to refuse to do business with a person who is part of protected class, though, you do have options. First, you can close your business (or the portion of the business that attracts customers you don't want). If you don't want to take high school graduation photos of kids with disabilities because you don't want to ruin your aesthetic with less than perfect people, you can quit doing high school graduation photos. If you don't want to sell wedding cakes to LGBT couples, you can quit selling wedding cakes.

    Second, you may be able to reframe your business as a private club, and sell only to members of your private club. So, if you only want to sell cakes to straight white Christians, you make a straight white Christian club, and one of the perks of club membership is buying your cakes. You'd need to get a lawyer to help you set it up right, because it's trickier than it sounds to make that work out legally. But it should be possible.

    Third, you can play the long game and elect people who will appoint judges who will agree with you that there shouldn't be protected classes, or that the classes you want to discriminate against shouldn't be protected.

    Currently, saying "it's against my religion to sell my product to people in this protected class" doesn't give you a pass. If you sell the product to other people, you sell to them.

    Except under Federal Law at least, LGBT people are not an explicitly protected class, at least for the purposes of employment, housing, and public accommodation. Obama's administration tried to argue that LGBT people were covered under the prohibition on sex discrimination (not be getting a law passed, but by having a new Executive Branch interpretation of existing law), but the Trump administration has reversed that. Congress needs to pass a law explicitly extending civil rights protections to cover sexual orientation and gender identity.

    A number of states do have such laws on the books, though, including Colorado where the wedding cake case originated.

    I think there is a strong majority in this country in favor of not letting people be fired or lose housing over sexual orientation, and a smaller majority or plurality in favor of prohibiting businesses from refusing service to people because of sexual orientation. Support for rights for trans people is sadly lower, even though they face the worst discrimination of all and rank highest of just about any group in terms of being at risk of violence and suicide.

    The right wing will pull out largely unsubstantiated (I can think of only one case) risks of women being assaulted or spied on for masturbatory purposes by straight men/boys pretending to be trans to gain access to women's/girls' bathrooms and locker rooms in public and in schools. The right pulls this out often when any LGBT rights legislation is being discussed (they also talk about how nondiscrimination in employment can lead employers to not ban employees from discussing their "sex lives" at work - because talking about your same sex partner is explicitly about the sex you have, they say, but talking about your opposite sex partner is not. Sigh.) The LGBT rights community rightly is now trying to keep gender identity legislation tied to sexual orientation legislation, or at least part of one big movement in solidarity if not in the same law (although the big HRC (Human Rights Campaign) gay rights lobby has in the past been willing to compromise by removing reference to gender identity, which was very controversial). So the right will talk about bathroom bills to no end.


    Despite what I say here, I am in favor of all such legislation, especially for trans people because they are the most discriminated against group in all our society in my opinion. I am not a very logically consistent person and my talking about religious rights here is partly an attempt to resolve cognitive dissonance. I know my arguments are flimsy. I just think we need to radically change our laws, constitution, and social norms in order to bring about revolutionary justice in ways that disprivilege elites like myself and lift up the oppressed.

    Supporting some, not all, religious liberty arguments for exceptions is my way, at the moment, to try to take into account the ways that religious people that I and my socio-economic-educational-cultural-geographic-political clique look down upon, especially when their rights are put up against those of highly privileged white gay affluent cis males like myself. I am sick and tired of seeing rich white gay men stand in the civil rights spotlight. The movement for justice is mostly not about us. We need to take a seat and let those much more oppressed than us lead. So my opinions don't matter that much anyway!
  • stonespringstonespring Shipmate
    edited October 2018
    Croesus,

    As a disclaimer, I am not particularly interested in the Colorado or Northern Ireland cases or in any country's existing laws or constitution. I am talking about how laws should be and how judges should rule in an ideal situation.

    As an aside, though, I should say, that in spite of tomes having been written and many precedents having been set in the US about what constitutes substantive due process, my understanding is that there is still quite a bit of disagreement among legal scholars as to whether the extension of this concept to include LGBT rights (or abortion rights, for that matter) is valid. Rather than build jurisprudence and precedent on very sparse language in our constitution (which we are forced to do thanks to Congress' inaction), it is imperative that new laws and constitutional amendments address LGBT rights and abortion rights explicitly. The problem is that, not only will social conservatives threaten to punish any moderate-leaning Republican in favor of even relatively watered down legal or constituional protections for LGBT people, but social liberals will also fear that if explicit language does not go as far as judicial precedent (based on the current sparse language I am talking about) has (or farther) in outlining abortion or LGBT rights, courts will rule that those rights are now limited to the language of the new laws or amendments, and it will be a loss for the rights they are fighting for.

    I am also aware that my arguments are contrary to the idea of equality before the law and keeping the judicial process above politics. I guess part of this is a sentiment that in order to tear down the privilege of people like myself, the oppressed do need to be more equal than others before the law - even if such ideas can be used by the oppressors when they are in power to entrench inequality. I also think it is absurd to think that any exercise of power (or any kind of human discourse) is (or can be) divorced form politics. All thought is political. All religion and spirituality is political. It either advances justice for the oppressed or it does not. So any talk about justice that is free from partisanship is laughable. It may be a game we have to play to keep the fascists at bay, who are eager to use an all-but-openly partisan judiciary in reversing the cause of human rights, but while we talk of judicial independence we should all bear in mind that even when a judge claims to be ruling based on the law and in spite of her/his political preferences, that judge is, even without being aware of it, deciding in the context of her/his biases and preconceptions of of both the parties to the case and the law itself (and remember how vague laws can be!).

    Lastly, and most importantly, let me talk about racial equality versus LGBTQ (or at least LGB) equality. Some human rights are more important than others, as I have said, and we have to consider cases where different rights conflict all the time (right to privacy vs right to government protection from crime/terrorism, right to free speech vs right to protection from hate speech, etc.).

    Race is not something most people can hide. It is also something passed down from generation to generation, so racial oppression and inequality also can accumulate and influence the whole structure of oppression someone is born into. All kinds of attitudes, fears, and biases are preconceived in someone's head from the second they see someone of a certain race and before they have any interaction with them whatsoever. That is why racial injustice is more insidious than injustice on the basis of sexual orientation.

    Gay and bi people, on the other hand, can be born into highly privileged situations (and into families, cultures, and geographical regions where they can enjoy relative acceptance). Being affluent, white, male, cis, and gay in a liberal Northeastern US city is basically having the world handed to you on a plate. You can calibrate how, even while outside of the closet, you express your sexual orientation in order to influence the attitudes you face from others. People of color (POC) may be able to code-switch in terms of their language, dress etc., based on whether they are within spaces of predominantly POC or predominantly whites, but they can never switch faces in the way gay and bi people can (even while remaining out of the closet, because out is a very relative term). Privileged gay men like myself can even get ahead somewhat based on sympathy for our "oppression." We benefit from affirmative action and we don't get called out as much as other privileged white men for our privilege when we speak our minds. Yes, even a privileged affluent well-educated white gay cis man can be brutally beaten or killed at any moment, in any city, for our sexual orientation, but in situations like mine, the threat of violence we face is insignificant compared to the threat of physical or sexual violence faced by any woman, anywhere, at any time.

    The only caveat I will insert is that the affects of prejudice against LGB people are synergistic when added to the oppression faced by LGB women for their sex, POC for their race/ethnicity, the working class and poor for their class status, etc. So, on the one hand, interracial couples should and must be more protected under the law than same-sex couples. However, same-sex couples who are also belonging to other oppressed categories should deserve special protection.

    Note that I have left trans people out of the above discussion. As I have said, they experience a level of discrimination, regardless of whatever other privilege they have, that is unimaginable by just about anyone else. So their relationships deserve extra special protection.

    And lastly, as an aside, anti-discrimination laws must address class, as hard as it is to define. Classism (and economic exploitation in general) is not in the same category as racism (because as I have said above, race is something that is harder to hide than just about any other identity status other than sex). However, the omission of class from civil rights legislation (at least in the US) not only perpetuates one of the greatest injustices of all, but it also breeds resentment among people who let their racism, and obsession with their status compared with that of racial (and other) groups that they look down upon and view as unfairly "privileged" by government programs, influence their politics (and their support and use of violence). But that is a separate discussion from the main one above - that racial equality is much more important than LGB equality.
  • Rather than build jurisprudence and precedent on very sparse language in our constitution (which we are forced to do thanks to Congress' inaction), it is imperative that new laws and constitutional amendments address LGBT rights and abortion rights explicitly.

    The U.S. Constitution is, by design, a set of governing rules and general principles. It is a particularly inept method of what we would normally call "legislating". The most prominent historical example of legislating via Constitutional amendment was Prohibition, which is almost universally regarded as a disaster. This isn't to say Constitutional amendments which guarantee broad, general rights are a bad idea. The Equal Rights Amendment still seems like a good idea to me, for example. But I'd argue that specific legal protections require legislation or judicial action.

    I'd also disagree with your premise that Congress has been inactive on the subject of either LGBT rights or abortion. Congress passed the Defense of Marriage Act and the Hyde Amendment, and that's not even getting into the various state-level legislation on these subjects. These may be wrong in our estimation, but don't mistake hostility for inactivity. At any rate, I'm not sure that a Congress which has trouble legislating gay rights would be able to get enough votes together to amend the Constitution (two-thirds of both Houses).
  • Crœsos wrote: »
    Rather than build jurisprudence and precedent on very sparse language in our constitution (which we are forced to do thanks to Congress' inaction), it is imperative that new laws and constitutional amendments address LGBT rights and abortion rights explicitly.

    The U.S. Constitution is, by design, a set of governing rules and general principles. It is a particularly inept method of what we would normally call "legislating". The most prominent historical example of legislating via Constitutional amendment was Prohibition, which is almost universally regarded as a disaster. This isn't to say Constitutional amendments which guarantee broad, general rights are a bad idea. The Equal Rights Amendment still seems like a good idea to me, for example. But I'd argue that specific legal protections require legislation or judicial action.

    I'd also disagree with your premise that Congress has been inactive on the subject of either LGBT rights or abortion. Congress passed the Defense of Marriage Act and the Hyde Amendment, and that's not even getting into the various state-level legislation on these subjects. These may be wrong in our estimation, but don't mistake hostility for inactivity. At any rate, I'm not sure that a Congress which has trouble legislating gay rights would be able to get enough votes together to amend the Constitution (two-thirds of both Houses).

    I share your pessimism on Congress' ability to pass much in the way of LGBT or reproductive rights legislation (given the existence, still, at least for now, of the 60 vote requirement to get anything passed in the Senate without some Reconciliation work around which is unlikely with this kind of legislation) - let alone an amendment to the Constitution.

    It is true, though, that the US Constitution is much shorter (and sparser in language in many places) than the constitutions of most countries, which were largely written after ours.
  • Thank God Congress can't amend the constitution right now, given the makeup of Congress. The results would inevitably be for the enworsenment of the lives of the 99%.
  • CrœsosCrœsos Shipmate
    edited February 22
    Bumping this thread because anti-gay discrimination seems to have spread out from wedding services to other areas.
    After getting married in July, Bailey and Samantha Brazzel were preparing to file their first joint taxes.

    They went to the same person Bailey has used the last four years, Nancy Fivecoate, who owns Carter Tax Service in Russiaville.

    "We thought it was just a boring trip to the tax office, but it turned into a lot more than that," Samantha said.

    "We went in and sat down like we always would and (Fivecoate) said 'How are you filing this year?' and I said 'married joint' and that's when it went downhill," Bailey said.

    They say Fivecoate refused to do their taxes because they were married.

    "I didn't go in there to talk about my marriage," Bailey said. "I went in to file my taxes, that was it...it's all I wanted."

    Reached at her office, Fivecoate said "the problem was not being gay, it's being married."

    She said she declined to provide tax services based on her "religious beliefs...I am a Christian and I believe marriage is between one man and one woman."

    It should be noted that Indiana does not include sexual orientation as a protected characteristic under its anti-discrimination law, so Fivecoate's action (or rather her inaction) here is legal. Are there notable differences between "no tax prep for queers" and "no cake for gays", or is there a difference because of the type of services involved?
  • I think the religious liberty argument is being taken beyond the "I will not participate in a same sex wedding ceremony or its associated preparations and festivities" to "I will not do anything that acknowledges that same sex marriage exists, or (in an even more extreme form) that conveys benefits, privileges or comforts to a same-sex couple that I believe should only go to opposite sex couples." Which is basically carte blanche to deny service of just about any sort to a same-sex couple.
  • Amanda B ReckondwythAmanda B Reckondwyth Mystery Worship Editor
    It is taken to the extreme of "I will gladly participate in preparations and festivities associated with divorcees and fornicators, but not those associated with a loving, caring, nurturing couple who happen both to be of the same sex."
  • In short, Jim Crow for gays.
  • BoogieBoogie Shipmate
    She said she declined to provide tax services based on her "religious beliefs...I am a Christian and I believe marriage is between one man and one woman."

    This person should not be allowed to use the word ‘Christian’ for her horrible, discriminatory beliefs.
  • What a mess!

    I was in confused, MOTR territory about the cake. I'm mostly pragmatic rather than litigious. (Other than occasional momentary wishes for people to be declared guilty and slammed into the slammer. Then I feel bad, so I usually keep it to the said moment.) I'm much more inclined towards working something out, where possible, or going elsewhere, or finding other ways to make do and survive.

    So I'm much more inclined to suggest going to another bakery; or asking around the community for someone who could make the cake; or the couple making it themselves; or buying a wedding cake without any personalization and without telling the baker who it's for, then buying and adding personal decorations.

    However it's handled, I *do* think they should have a cake.

    Taxes...

    Barring low/no income/assets, most Americans are required to file taxes. Even if SSM were evil (and I don't think it is, and I voted for it twice), a SSM couple filing their taxes is simply doing their legal duty. If Ms. Fivecoate believes she should only do the taxes of people who live Biblically-sanctioned lives across the board, then she's not going to have much business. And she should already be aware of that, because tax preparation gets into shadows and secrets and half-truths and avoidance and evasion and the grungy little corners of people's lives. So she's likely to routinely find out all sorts of sins that are likely worse than SSM would be (if it were a sin). So she might want to pick her battles, or advertise a religious counseling service along with tax prep, or have handy tracts to tuck into clients' paperwork.
  • CrœsosCrœsos Shipmate
    Forgot to include the link to the article. Sorry.
    mousethief wrote: »
    In short, Jim Crow for gays.

    Yeah, kind of like the way black Americans had to carefully navigate society to be careful of which stores/hotels/bathrooms/whatever were available for their use and which would be denied them. Maybe something like a green book for gay Americans will be needed soon. (The Pink Book? Possibly in app form for the 21st century?)

    Highlighting the "Separate but [ not really ] Equal" standard Fivecoate advocates was this statement from another interview:
    [ John and Nancy Fivecoate ] also emphasized that when they turned down the Brazzels, they offered to help them find other services that would accommodate them, and that if the Brazzels had wanted to file separate returns, they would’ve helped them.

    For those unfamiliar with the American tax system, individual taxpayers (as opposed to corporate entities) generally have four filing statuses available to them: Single, Married Filing Jointly, Married Filing Separately, and Head of Household. If you're legally married and not legally separated you have to file as either Married Filing Jointly or Married Filing Separately. In most cases married couples filing separate tax returns pay more taxes than those filing joint returns. So the Fivecoates are offering to file an inferior, second class return that would still acknowledge the Brazzels as legally married. I guess the second class citizen thing is more important to them than the deny services thing.
  • Crœsos wrote: »
    The Pink Book? Possibly in app form for the 21st century?
    Back in the days of Yellow Pages*, I remember seeing directories of gay-friendly businesses, known as the Pink Pages, in several cities.

    *For you youngsters, Yellow Pages were classified business directories published by the phone company. Back when there was one "phone company" for wherever you lived. And your phone was attached to the wall, and you couldn't use it as a camera. No, really!
  • .
    Golden Key wrote: »
    If Ms. Fivecoate believes she should only do the taxes of people who live Biblically-sanctioned lives across the board, then she's not going to have much business.

    But if she's like 99% of the other people who discriminate against married gay people, she has one or two pet issues, both having to do with sex, that she discriminates against, and the rest slide. You can bet she doesn't investigate who is having affairs, who is divorced, who is using birth control -- whatever her other list of peccadilloes includes, THIS is the one she's discriminating on the basis of.
  • stonespringstonespring Shipmate
    I wonder if there are any divorce lawyers who, for religious reasons, refuse to serve same-sex married couples. Have any said they will only take one or both spouses as clients if they are divorcing because they have come to believe that SSM and/or homosexual acts themselves are sinful?
  • Gee DGee D Shipmate
    I wonder if there are any divorce lawyers who, for religious reasons, refuse to serve same-sex married couples. Have any said they will only take one or both spouses as clients if they are divorcing because they have come to believe that SSM and/or homosexual acts themselves are sinful?

    How can you take on both clients? That would be ok if they came to you and instructed you to act for them on selling the house, or something like that, but your post suggests otherwise.
  • stonespringstonespring Shipmate
    Gee D wrote: »
    I wonder if there are any divorce lawyers who, for religious reasons, refuse to serve same-sex married couples. Have any said they will only take one or both spouses as clients if they are divorcing because they have come to believe that SSM and/or homosexual acts themselves are sinful?

    How can you take on both clients? That would be ok if they came to you and instructed you to act for them on selling the house, or something like that, but your post suggests otherwise.

    In some cases, I think, a couple can come to a lawyer and say they just want an amicable divorce and can you please make it quick and cheap and easy. It may depend on the jurisdiction.
  • Gee DGee D Shipmate
    It's an ethical question - you can't act for people on opposite sides of the record.
  • stonespringstonespring Shipmate
    Gee D wrote: »
    It's an ethical question - you can't act for people on opposite sides of the record.

    I really don't know enough about the law. Are the spouses considered "opposite sides" in every divorce? Are the rules regarding how many spouses a lawyer can represent different for mediators (or lawyers acting as mediators)? What if the lawyer is simply helping with paperwork rather than with trying to get the best result (as is probably the case with lawyers with signs outside their office advertising "$300 Divorce!")? Does this depend on the jurisdiction? I may be completely wrong about all of this.

    My question stands though - are there lawyers who will not work on divorce cases for same sex couples for religious reasons, and will they make an exception for a spouse seeking a divorce because they have come to believe SSM or homosexual acts are immoral?
  • MarsupialMarsupial Shipmate
    That would be truly bizarre, but not quite as bizarre as what Canadian law briefly was back in the early days of same-sex marriage.

    After the courts found the opposite-sex requirement for marriage to be unconstitutional, the Canadian government passed legislation to explicitly legalize SSM. But they forgot to amend the Divorce Act. So eventually the inevitable happened and some same-sex couple applied for a divorce. They also applied for a ruling that the opposite-sex requirement in the Divorce Act was unconstitutional, a result you would expect to be a no-brainer given what had already happened on the other side of the equation.

    But no, the judge at first instance ruled that whatever the case might be for SSM, it was perfectly constitutional for the state to prevent same-sex couples from getting divorced. This was appealed, successfully, pretty instantly. But for a brief moment in Canada it was perfectly possible for a same-sex couple to get married, but legally impossible for them to get divorced.
  • CrœsosCrœsos Shipmate
    Marsupial wrote: »
    But for a brief moment in Canada it was perfectly possible for a same-sex couple to get married, but legally impossible for them to get divorced.

    This was a problem in some jurisdictions in the U.S. before Obergefell. Same sex couples who married in a state where it was legal and moved to a state where it was not had no recourse to a legal divorce within their jurisdiction. This was particularly problematic in the two year span between the Windsor ruling (which held that the federal government had to treat legally married same-sex couples the same as opposite sex couples regardless of their current state of residence) and Obergefell (which ruled all states had to allow same-sex couples to marry on the same terms as opposite-sex couples).
  • Gee DGee D Shipmate
    Gee D wrote: »
    It's an ethical question - you can't act for people on opposite sides of the record.

    I really don't know enough about the law. Are the spouses considered "opposite sides" in every divorce? Are the rules regarding how many spouses a lawyer can represent different for mediators (or lawyers acting as mediators)? What if the lawyer is simply helping with paperwork rather than with trying to get the best result (as is probably the case with lawyers with signs outside their office advertising "$300 Divorce!")? Does this depend on the jurisdiction? I may be completely wrong about all of this.

    My question stands though - are there lawyers who will not work on divorce cases for same sex couples for religious reasons, and will they make an exception for a spouse seeking a divorce because they have come to believe SSM or homosexual acts are immoral?

    They are on opposite sides in the litigation to obtain a divorce. OTOH, if they both went to the solicitor they could give instructions to act for them both on the sale of property. I don't know about that sort of sign but out seems borderline unethical to me.

    As to your second paragraph, too early to say here as same-sex marriages became legal 15 months ago; the only ground for divorce is irretrievable breakdown of marriage and the only evidence permitted to show that is living separately and apart for a year. But I can't see why a lawyer would be entitled to refuse instructions on that basis any more than a shopkeeper would be entitled to refuse to sell the famous cake.
  • EnochEnoch Shipmate
    ... Are the spouses considered "opposite sides" in every divorce? ...
    Simple answer. Yes.

  • MarsupialMarsupial Shipmate
    While I'm at it, the case that established the principle of equality for same-sex relationships in Canada was actually a case where a same-sex relationship was falling apart and one of individuals in the relationship wanted access to the statutory scheme for support and division of property that applies for the dissolution of opposite-sex common-law relationships. The Supreme Court's ruling that she had an equality-based right to access this scheme set the stage for SSM five years later. (Which makes the lower court's subsequent decision about the Divorce Act all the more puzzling.)

    A lawyer cannot discriminate on the basis of sexual orientation in offering services to the public in Canada -- it's prohibited both by the relevant human rights code and also (at least in my province) by the Law Society's Rules of Professional Conduct. Same goes for wedding cakes, as far as the human rights code is concerned.
This discussion has been closed.