Jerks, Liars, Hypocrites, Fools and Hoosiers: 10 Ethics Observations On Indiana’s Religious Freedom Restoration Act Controversy

Indiana5

1. The law was passed to make discrimination against gays, trans individuals and especially same-sex couples seeking marriage if not easier, to at least seem easier. Anyone claiming otherwise is lying, or being intentionally obtuse. Would Indiana be passing this law without the Hobby Lobby decision or the various court rulings requiring photographers, bakers, and other businesses to provide the same products and services to gay couples that they do to heterosexuals? Yes, you say? Tell me another.

As GLAAD alertly pointed out, Governor Pence was surrounded by anti-gay activists when he signed the bill:

GLAAD Pence

This is res ipsa loquitur, and doesn’t speak well for the Governor’s candor or intelligence.

2. Context matters. The original laws of this sort (the Federal law signed by President Clinton is also called the Religious Freedom Restoration Act) were part of the left’s long range pro-drug strategy, like medical marijuana. It was essentially a hippie law designed to create a slippery slope to recreational drug legalization by allowing fringe religious groups, specifically Native American tribes, to use peyote in tribal ceremonies. Now you understand why Clinton signed the bill.

Oops. Excuse me if I enjoy the spectacle of the clever members of the Church of the Perpetually Stoned—including the ACLU, which once supported such laws as long as they pointed the way to their young lawyers being able to have their Saturday night joints legally but now opposes them—being hoisted on their own petard.

“When the federal government adopted a religious protection act in 1993, same-sex marriage was not on the horizon,” whines the New York Times. Well, competent, well-considered, properly drafted, responsibly passed laws don’t suddenly become unbearable, then fine, then unbearable again with every shift of the cultural winds. The intent of the law was never to protect mainstream religions, but cloaked itself in language that did. It backfired.

3. That being stipulated, the good states need to read their own laws before they start grandstanding. Connecticut Governor Dan Malloy just announced on Twitter that he plans to sign an executive order banning state travel to Indiana in response to its Religious Freedom Restoration Act. Yet Connecticut, hippie enclave and bedroom community of rich, white, liberal New Yorkers that it is, happily jumped on the religious freedom train with a law of its own, one that, as the Federalist points out, makes discrimination on the basis of religion easier than the Hoosier version, which only prohibits the government from substantially burdening religion. Connecticut’s law does not include the word “substantially,” meaning that all government-enacted burdens on religion are theoretically illegal.

I wonder how Malloy is going to ban government travel to Connecticut? Is the theory that the same law can be good when liberal states pass it and evil when those bad conservative states pass it? It is more likely that the governor hasn’t looked at his own state’s law.

4. The hysteria being stirred up over the supposed horribles Indiana’s law will lead to is irresponsible. Jonathan Adler explains on The Volokh Conspiracy:

“Are the claims made against the new Indiana law accurate? Not really. This law, like other RFRAs, merely requires that state laws meet a demanding, but hardly insurmountable, test before infringing upon the religious practice or conscience of religious believers. If the law imposes a substantial burden on religious belief, the law must yield unless the law serves a compelling state interest and is the least burdensome way to advance that interest. Here’s more background on how these sorts of laws work. RFRA laws are common…Whether or not such laws are good policy, they are about accommodating religious belief, not authorizing discrimination.

Courts have routinely upheld the application of nondiscrimination laws against RFRA-based challenges on the grounds that preventing discrimination is a compelling state interest. Of course it’s possible that a court in the future would reach a different conclusion, but there’s no reason to think such a result is likely, and there is nothing about the Indiana law that makes it a particular threat in this regard. That is, such a court decision is just as possible in one of the other dozen-plus states that has had its own RFRA on the books for years or in one of the many other states that have equivalent protections for religious belief under their state constitutions.”

These claims, for example, are nonsense:

Indiana1

Asserting that the law “could” allow these things is pure deceit and both appeals to and encourages ignorance. Never. Impossible under established legal principles.  Yes, a counselor could refuse to do his job and help gay students, but there is nothing in the laws, any of them, that would require a school to keep him in a job he refuses to do. These overblown warnings are exactly as unethical as anti-gay advocates saying that without the law, a minister could be forced to perform a gay marriage.

5. Ann Althouse argues that the attention on Indiana is unfair:

Indiana has focused attention on RFRA laws, but it’s stupid to focus on Indiana. These laws are all over the place. Understand them. Understand how they apply in many different scenarios and how they are limited by courts in their application. Understand that if we’re going to relieve religious believers of the burdens of generally applicable laws, courts are going to have to avoid preferring one religion over another. You can’t accommodate the religions you agree with or think are sweet and fuzzy and say no to the ones who seem mean or ugly. We need to figure that out. If, in the end, you think the Indiana RFRA is a bad idea, check that map and see if your state has RFRA (or a RFRA-like state constitutional provision) and push for repeal in your state. And get after Congress. Congress started it. Unless you’re Hoosier, leave Indiana alone.

It is a point worth making, but Althouse is ignoring the “wink-wink nudge-nudge” intent of Indiana’s law, which is to deliver a shot across the bow of the gay marriage movement while looking innocent and crying, “Why are you picking on little old me?” She says, “Instead of picking on Indiana, why don’t we figure out if we want RFRA laws or not?” We can, and should, do both, Ann.

6. No, the Indiana law isn’t “license to discriminate” any more than the other laws are. It is, however, license to be a mean-spirited, divisive, un-American jerk because you think gays and transgender citizens do icky things behind closed doors. That makes it an ugly, offensive, unethical law. The intent is to defy the gay marriage movement, or at least to stick a big finger in the movement’s metaphorical eye to show that the godly won’t surrender to the sodomites without a fight. How sad, petty, ignorant and demeaning.

7. Mike Pence may be a tool and a coward, but he obviously is not comfortable lying outright. An accomplished liar—a Clinton, for example— would have had no problem answering this question…

GEORGE STEPHANOPOULOS: But I think one of the problems that people have pointed out is that in Indiana, your civil rights laws don’t include sexual orientation as a protected class. And even some of the supporters of the bill who were — who appeared with you when you signed the bill, Eric Miller of Advanced America wrote that, “It will protect those who oppose gay marriage.”He put up this example. He said, “Christian bakers, florists and photographers should not be punished for refusing to participate in a homosexual marriage.” So this is a yes or no question: Is Advance America right when they say a florist in Indiana can now refuse to serve a gay couple without fear of punishment?

…with a resounding “NO!” or a “YES!” Interestingly, both would be lies. Such discrimination might still be found to violate public accommodation laws and precedent, so the yes isn’t necessarily true, though supporters of the law hope it is. “No” would be misleading too, however, so Pence defaulted to double talk and the politician equivalent of Ralph Kramden’s “Humminahuminahumina.

Pence was able to spin safely in his ghost-written op-ed in the Wall Street Journal, where he said that “I abhor discrimination. I believe in the Golden Rule that you should ‘do unto others as you would have them do unto you.’ If I saw a restaurant owner refuse to serve a gay couple, I wouldn’t eat there anymore.” And if you saw a baker refuse to sell a wedding cake to Rosie O’Donnell and the lucky, lucky gal she marries next, Governor? What then? “Humminahuminahumina.

Then he writes: “As governor of Indiana, if I were presented a bill that legalized discrimination against any person or group, I would veto it. Indiana’s new law contains no reference to sexual orientation. It simply mirrors federal law that President Bill Clinton signed in 1993.”

See above. Pence knows very well that Bill was signing the law so he might be able to legally inhale with Monica in retirement and not because gay marriage was knocking on the Supreme Court’s door. Pence signed his law to make anti-gay zealots and homophobes feel better,  to show them he cared about their fears, and to let gays know that they are less than welcome in Indiana.

8. I’m sure Democrats are cheering the Republican mass-immolation on the altar of stubbornness, ignorance and intransigence, and I don’t blame them. The irrational GOP position on gay marriage seriously and perhaps fatally undermines its ability to be effective in other matters where conservative arguments are ethical, strong and important: illegal immigration and abortion policy. That makes the Indiana fiasco especially harmful and irresponsible. Opposing same-sex marriage is a needlessly devisive and cruel position that exposes the worst of religious-social conservatism. It will drive the young, the fair, the logical and the educated away from both organized religion and the Republican Party, and accomplish nothing beneficial in return.

9. The best comparison to this episode is Arizona’s misguided effort to reject Martin Luther King Day. It may not have been entirely driven by racism, but in the end it didn’t matter what the “real” reason for not honoring Dr. King and the civil rights movement was. Arizona was embarrassed, hurt economically, and had to capitulate. States have rights, but the nation also has a culture that trumps local culture in important areas, like human rights. That was the lesson of Jim Crow. Whether Indiana’s law is unique or not, the timing of its passage and the impetus behind it has placed Indiana in opposition to a strengthening national cultural consensus. This is still one nation. Indiana is going to lose this fight, just like Arizona did.

10. If a religion’s tenets require its adherents to abuse, embarrass, isolate and inconvenience gays and same-sex couples, the law is not going to support those practices. Selling a cake, taking a photo, printing an invitation and renting a hall are not  the exercise of religion. Discrimination against people for who they love is indistinguishable ethically from discriminating against them for the color of their skin. The message of Indiana’s declares that religious beliefs make it acceptable to treat other human beings as less than human in the United States of America.

They don’t.

______________________

Sources: The Volokh Conspiracy, ABC News, New York Times, Tristate, Indy Star, Althouse, The Atlantic,

69 Comments

Filed under Business & Commercial, Citizenship, Etiquette and manners, Gender and Sex, Government & Politics, Law & Law Enforcement, Leadership, Religion and Philosophy, Rights, U.S. Society

69 responses to “Jerks, Liars, Hypocrites, Fools and Hoosiers: 10 Ethics Observations On Indiana’s Religious Freedom Restoration Act Controversy

  1. charlesgreen

    I think that’s an excellent analysis: cold sober, even-handed, pointed. Also wise.

  2. Other Bill

    Alas, the GOP will never sever its ties to the Bible Thumpers. Of course, if it hadn’t been for integration, all the Bible Thumpers would still be good ol’ Yeller Dog Demmycrats. But the GOP made their deal with the devil and left the field to the Democrats. Very sad. But Democrat and Republican are the only two options.

    • This is called “a poison pill” in the corporate world.

      • Steve-O-in-NJ

        Unfortunately, neither the libertarians nor the religious right are strong enough on their own, especially against the moocher class.

    • Isaac

      Republicans in Congress backed integration far more than Democrats did. And a great deal of Bible-thumping in the North and South helped to end slavery and segregation. Brush up. When Congress decided they weren’t even going to entertain debate about slavery after a petition for abolition by Ben Franklin and a bunch of Bible-thumping Quakers, the church took over the heavy lifting of the abolition movement more or less by itself. Thump.

      Anyways, if Al Sharpton is to be believed, the African American community started to align with Democrats after the Hoover years, when the Democratic party offered more entitlements than Republicans did. At which point, again, I’m quoting Sharpton, “we decided to ride this donkey as far as it would take us.”

      • BUT Christians are evilzzzz! They say I need to have standards!!!! They say there is something even greater than GOVERNMENT that should dictate how I live my life….

        ME NO LIKE NOT GOVERNMENT TELL ME HOW LIVE!!!

        • joed68

          It’s so easy to see the motives of the left’s hierarchy, when you realize that they attack everything that gives people any sort of mooring. You’ve got to be really twisted to look to this cabal of villains for a sense of grounding and direction.

      • Which, ironically, perfectly describes African -American support for Al…

      • Other Bill

        Brush up? Of course the Republicans ended slavery and they were essential to the civil rights movement. But we’re talking about SOUTHERN Bible Thumpers, not abolitionists or Quakers. For God’s sake. Brush up yourself. Southern “Christians” of every stripe left the Democratic party and fled to the Republicans once their all white Democratic Party let black people in. Ever heard of Reconstruction? Of course the Republicans were despised. They put former slaves in positions of power right after the North crushed the South. Give me a break. We’re talking 1960, not 1860.

  3. joed68

    Do you ever wonder if things like this are actually left-wing engineered as a sort of “poisoning the well” strategy? If so, they’re brilliant.

  4. Steve-O-in-NJ

    He’s going to amend it, in the end everyone sells out. BUT, I think we’ve now also seen how wedded to the militant gay agenda the left is, and it doesn’t make THEM look so great either. I also don’t mind the idea of a “shot across the bow” telling the militants: tolerance yes, acceptance, if we must, forced celebration NEVER!

    • Mark

      Oh, Lord. The “Militant Gay Agenda”? What the hell is that?!?!? I don’t feel very militant and the only agenda I have is figuring out how to have a safe, decent, respectable life just like you and everybody else. Obviously, I didn’t get the memo from the Rainbow Warriors but it appears you did – care to fill me in?

      • Steve-O-in-NJ

        The agenda that drives couples to sue and impose ruinous fines instead of look elsewhere for people when they come up against people who won’t compromise their consciences. The agenda that leads to shrill activists lighting their hair on fire and screaming “BOYCOTTT!” rather than actually reading the statute. The agenda that leads to poison pen columns that are 1/3 cursing and insults. The agenda that leads to public bizarre behavior like kiss-ins and strutting down Fifth Avenue in assless chaps that show your hairy balloon knot to the world. Generally speaking, the agenda that says “you will be MADE to care!” That agenda.

      • You owe me a keyboard for the image of “the Rainbow Warriors.”

      • Isaac

        Maybe the memo from the Rainbow Warriors was when Masha Gessen said, “Fighting for gay marriage generally involves lying about what we’re going to do with marriage when we get there…It’s a no-brainer that the institution of marriage should not exist.”

        Or Michaelangelo Signorile wanting to “redefine the institution of marriage completely…radically alter an archaic institution.”

        Or the original Gay Pride movement in Britain in the 70’s: Gay is Good-(“women and men who, from the time of our earliest memories, have been in revolt against the sex-role structure and the nuclear family structure”), the Gay Liberation Front: (“complete sexual liberation for all people cannot come about unless existing social institutions are abolished”.) The Gay Manifesto (marriage is “a rotten, oppressive institution”,) etc.

        Or Dan Savage insisting that marriage should not include an expectation of monogamy. Or the book “beyond same-sex marriage” in which 300 GLBT authors and allies campaign for the recognition of polygamous and “small group marriages.”

        I’m just saying, there are candidates.

        • Isaac

          It’s something of an abandonment of earlier principles when the movement suddenly just says it wants to settle down and raise a quaint, nuclear family. Or else it’s something of a trick.

  5. Michael Ejercito

    The law was passed to make discrimination against gays, trans individuals and especially same-sex couples seeking marriage if not easier, to at least seem easier. Anyone claiming otherwise is lying, or being intentionally obtuse. Would Indiana be passing this law without the Hobby Lobby decision or the various court rulings requiring photographers, bakers, and other businesses to provide the same products and services to gay couples that they do to heterosexuals? Yes, you say? Tell me another.

    It only seems easier to the extent that it allows an allegation of a substantial burden on religious practice as a defense.

    Presently, Indiana bans discrimination on the basis of religion. That a seller of photography supplies disagrees with a purpoted customer’s Catholic faith does not justify refusing to sell photography supplies. It would clearly be religious discrimination,. I find it unlikely that an RFRA defense would be successful.

    But what about a photographer who refuses to photograph a Catholic baptism due to theological differences, but has been shown to be willing to photograph a Catholic’s birthday party or graduation party or other secular events? One could argue that it really is not discrimination, because the photographer is simply refusing to film a religious ceremony.

    However some states like New Mexico have rejected this distinction.

    We agree that when a law prohibits discrimination on the basis of sexual orientation, that
    law similarly protects conduct that is inextricably tied to sexual orientation.

    Elane Photography v. Willock, N.M. sup. Ct. (2013)

    It is easy to rephrase this passage in Elane Photgraphy

    We agree that when a law prohibits discrimination on the basis of religion, that
    law similarly protects conduct that is inextricably tied to religion

    Thus, it is clear that under New Mexico law, a photographer who disagrees with the Catholic faith may nevertheless be required to directly support a Catholic baptism or other Catholic rite.

    One issue regarding protecting conduct-based statuses is whether or not people should effectively be required to participate in the conduct associated with the status. Elane Photography means that in New Mexico, this is true, whether the conduct in question is a same-sex commitment ceremony or a baptism. This is one of the reasons there is support for the RFRA. Nobody is arguing for the right to deny paramedic services, or filet mignon tacoes, or airline tickets on the basis of religion or sexual orientation. But both religion and sexual orientation are associated with conduct, conduct that people may disagree with. an RFRA challenge will allow courts to make a distinction between refusing to provide goods and services because a particular person engaged in protected conduct in the past, and refusing to provide goods and services that directly support the conduct in question.

    * In New Mexico, a gay person who refuses to film a Catholic baptism on the basis of disagreement with the Catholic teaching on homosexuality would be violating the state’s religious discrimination law under Elane Photography forecloses a defense. In Indiana though,a gay person sued for religious discrimination for this reason may likely win. thus, Indiana’s RFRA actually increases protections for gays.

    • Taking a photograph of a gay couple is not in violation of any religious tenet. It stretches the concept of religious practice to its breaking point to even make the assertion.

      • Michael Ejercito

        What about a photograph of a baptism? Or a Westboro Baptist Church picket? Should photographers be required by antidiscrimination statutes to photograph or film those?

        The issue here is the interpretation of antidiscrimination statutes to require people to directly support conduct that they object to. If antidiscrimination statutes are to prohibit discrimination based upon conduct, whether religious or sexual, there must be an exception to providing goods and services that directly support the conduct in question.

        (BTW, I noticed you do not deny that New Mexico law would require a homosexual photographer to film a Catholic baptism even if he disagrees with Catholic teaching on homosexuality)

  6. Let me correct this one line for you:

    “The irrational GOP position on gay marriage seriously and perhaps fatally undermines its ability to be effective in other matters where conservative arguments are ethical, strong and important: practically everything else.”

  7. Just watched the MSNBC clip where Ed Schultz claimed the law opened the door to “blatant discrimination,” using the idiotic hypothetical of a gay couple being turned away from a restaurant because of the owner’s religious beliefs. This, of course, is impossible. Yet MSNBC will continue to put an utter, meat-for-brains dolt like Schultz on TV to make its viewers even more ignorant than anyone who would watch MSNBC already is. It is active misrepresentation—TV commentary malpractice.

    • Steve-O-in-NJ

      But it’s working, this is drawing the candidates for next year into the social issues war. Since Harry Reid says it’s all about winning, that’s all that matters.

      • Michael Ejercito

        Here is the thing.

        Most Americans believe that the state should not be require people to provide direct support to same-sex weddings and relationships, that refusing to provide such support is not discrimination.

        • charlesgreen

          Agreed; but issues of discrimination are typically the most likely to involve a tyranny of a majority over a minority. Hence mere vote-taking to settle such issues is particularly inappropriate. There’s a need in such cases to refer back to guiding principles, e.g. notions of fairness, or a constitution where possible.

        • But that’s a misleading characterization of the issue. All Americans should provide the same community support in terms of products and services offered for sale to all Americans engaged in legal activities, and not doing so based on race, age, gender, sexual orientation, military status or other characteristics is discrimination, unethical, a Golden Rule breach just plain cruel.

          • Steve-O-in-NJ

            That well’s been poisoned, though. Now people are going to do things not because they follow the Golden Rule, but because they are afraid of being ruined financially and held up as horrible human beings. Ironically everyone here is saying it’s terrible that Christians are being murdered in Iraq for standing up for their faith (of course they won’t lift a finger to help them), but the minute someone here stands up for their beliefs, it’s a problem.

            • charlesgreen

              You can believe anything you want about other people in this country, even say what you believe, short of hate speech and crying fire in theaters. But it becomes discrimination when your beliefs actively harm someone, or actively treat someone less than. It’s like sticks and stones vs name-calling.

            • When standing up for beliefs means denying rights to those who don’t share the beliefs, THAT’S the problem.

              • Steve-O-in-NJ

                Since when is there a right to cake or a right to force others to do what you won’t? Religious freedom is only freedom if it doesn’t end at the door of your home or your church.

                • There is a societal obligation to cooperate reasonable with fellow citizens attempts to live peaceful, priductive and happy lives. Throwing obstacles in their way to demonstrate contempt for their legitimate choices is bad citizenship. One’s conduct affects others. A couple choosing to marry affects nobody; a merchant’s gratuitous decision to inconvenience them out of irrational animus inconveniences and harms without justification.

                  • Steve-O-in-NJ

                    And if you consider their choices not to be legitimate and don’t want to be involved?

                    • You cannot take an excessive view of “involved,” that’s all. Selling someone food for their wedding reception is not being involved in the wedding.

                  • Michael Ejercito

                    Now here is the thing about antidiscrimination laws in this context.

                    There is no such thing as black conduct or white conduct, race is not “inextricably tied” to one or more forms of conduct. thus, selling film, taking pictures of birthday parties, or taking pictures of baptisms- or the refusal thereof- is the same whether the customer is black or white.

                    But religion and sexual orientation are closely tied to conduct. A Catholic baptism, for example, is “inextricably tied” to the Roman Catholic faith. Photographing a baptism constitutes material support of baptism. Your yourself conceded that New Mexico law considers the refusal to photograph a Catholic baptism due to doctrinal differences with the Church to be unlawful religious discrimination. This, in effect, imposes a requirement to participate in religious ceremonies with which one disagrees.

                    Is this how far we should extend antidiscrimination laws, to require people to facilitate conduct with which they disagree? To effectively impose a duty to participate in religious services?

                    (by the way, have you asked yourself why the Roman Catholic church would support this law? After all, this law would open the door to widespread discrimination against Catholics, if what all the naysayers say is true.)

                  • You’re mentioning animus and contempt, and this may be the motive force behind some, but not necessarily all cases of vendors denying service. However, there are most certainly “Rainbow Warriors” that have intentionally targeted businesses run by evangelicals and others in an attempt to force them to react in this way. To me, this is just as bad, if not worse, because there is only one party being denied the right of association. You might be able to make the case that serving a certain group doesn’t violate the tenets of their faith, but isn’t that entirely a matter of subjective interpretation? Should the state really be empowered to make this interpretation for them? Maybe this is a false equivalency, and this might have already been covered, but couldn’t a case also be made that an OB/GYN can’t deny a patient an abortion if the abortion in question is legal? After all, in the eyes of abortion advocates, this choice only affects the mother, as the fetus is only a “clump of tissue”. This is yet another reason to me why market pressure would be a more fair and equitable arbiter of such matters.

                    • Steve-O-in-NJ

                      So how about that lesbian coach who tweeted that she was going to go to the pizza place that preemptively said they would not cater a gay wedding and burn it down? How about the people blowing up yelp with poison reviews who’ve never even been there?

                    • You’re mentioning animus and contempt, and this may be the motive force behind some, but not necessarily all cases of vendors denying service.

                      I think it is the force in all or virtually all cases, like the pharmacist cases.

                      However, there are most certainly “Rainbow Warriors” that have intentionally targeted businesses run by evangelicals and others in an attempt to force them to react in this way.

                      Stipulated, as in the case I wrote about where the couple tried to force a minister to perform a gay marriage.

                      To me, this is just as bad, if not worse, because there is only one party being denied the right of association.

                      A business open to the public does not have freedom of association.

                      You might be able to make the case that serving a certain group doesn’t violate the tenets of their faith, but isn’t that entirely a matter of subjective interpretation?

                      No! Unless the faith has “untouchables,” and even that religious requirement would have to fall to a legitimate government need. Where in Christianity does it say that Christians should shun anyone and treat them as not deserving of love and good treatment? We don’t let Muslims harass non-Muslims, even though the Koran tells them to.

                      Should the state really be empowered to make this interpretation for them?

                      Sure. It’s not hard, either.

                      Maybe this is a false equivalency, and this might have already been covered, but couldn’t a case also be made that an OB/GYN can’t deny a patient an abortion if the abortion in question is legal? After all, in the eyes of abortion advocates, this choice only affects the mother, as the fetus is only a “clump of tissue”.

                      I’d make that case. T

                    • Steve-O-in-NJ

                      I am not sure that the assertion that businesses open to the public don’t have freedom of association rights is legally correct, corporations, after all, are persons with freedom of speech rights. A private business can refuse service to anyone who misbehaves, stinks, or is otherwise going to be a problem. Perhaps they can’t just turn someone away out of hand due to a protected characteristic, but, Federally and in a number of states, orientation isn’t a protected characteristic. So there is a right of freedom of association, it’s just a bit more limited. In PA a diner owner can still turn away a gay couple if he likes, and he just might do it if his clientele is Penn State fans or hunters, to whom the presence of same would be objectionable.

                    • charlesgreen

                      Similarly, the bus company was fully legally compliant in telling Rosa Parks she had to give up her seat to a white man. Some laws aren’t right, by the evolving terms of a civilized society. A good case in point would be your example, which manages to slander Penn State fans along the way to defending homophobic behavior by a tavern owner. Same as Rosa Parks situation.

                    • Enforcing rules of conduct in a business isn’t a freedom of association issue. You have a right to impose reasonable rules of conduct as a condition of service.

                    • Steve-O-in-NJ

                      So those rules of conduct can’t include “no gay activity?”

                    • You do know that law not-withstanding, you are defending the righteous conduct of assholes. right? True: you can be rude as you like, until it becomes abusive and in effect denies service based on specious standards.

                      The issue is legitimate business reasons. “We don’t cater to your kind” isn’t one. Here’s a brief summary from an old Legal Zoom article, but it’s still valid…

                      Is it a violation of your civil rights for a business to refuse to serve you because of the way you look, the way you smell, or the way you act? The answer is…it depends.

                      The Federal Civil Rights Act guarantees all people the right to “full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, without discrimination or segregation on the ground of race, color, religion, or national origin.”

                      The right of public accommodation is also guaranteed to disabled citizens under the Americans with Disabilities Act, which precludes discrimination by businesses on the basis of disability.

                      In addition to the protections against discrimination provided under federal law, many states have passed their own Civil Rights Acts that provide broader protections than the Federal Civil Rights Act. For example, California’s Unruh Civil Rights Act makes it illegal to discriminate against individuals based on unconventional dress or sexual preference.

                      In the 1960s, the Unruh Civil Rights Act was interpreted to provide broad protection from arbitrary discrimination by business owners. Cases decided during that era held that business owners could not discriminate, for example, against hippies, police officers, homosexuals, or Republicans, solely because of who they were.

                      In cases in which the patron is not a member of a federally protected class, the question generally turns on whether the business’s refusal of service was arbitrary, or whether the business had a specific interest in refusing service. For example, in a recent case, a California court decided that a motorcycle club had no discrimination claim against a sports bar that had denied members admission to the bar because they refused to remove their “colors,” or patches, which signified club membership. The court held that the refusal of service was not based on the club members’ unconventional dress, but was to protect a legitimate business interest in preventing fights between rival club members.

                      On the other hand, a California court decided that a restaurant owner could not refuse to seat a gay couple in a semi-private booth where the restaurant policy was to only seat two people of opposite sexes in such booths. There was no legitimate business reason for the refusal of service, and so the discrimination was arbitrary and unlawful.

                      In one more complicated case, a court held that a cemetery could exclude “punk rockers” from a private funeral service. A mother requested that the funeral service for her 17-year-old daughter be private and that admission to the service be limited to family and invited guests only. The cemetery failed to exclude punk rockers from the service. The punk rockers arrived in unconventional dress, wearing makeup and sporting various hair colors. One was wearing a dress decorated with live rats. Others wore leather and chains, some were twirling baton-like weapons, drinking, and using cocaine. The punk rockers made rude comments to family members and were generally disruptive of the service.

                      Ironically, the funeral business had attempted to rely on the Unruh Civil Rights Act, claiming that if they had denied access to the punk rockers, they would have been in violation of the Act. But the court held that the punk rockers’ presence had deprived the deceased person’s family of the services of the business establishment, which were meant to provide comfort to grieving family members. On that basis, the court stated that the funeral business could have legitimately denied access to the punk rockers.

                      It’s interesting to note that while it is unlawful to refuse service to certain classes of people, it is not unlawful to provide discounts on the basis of characteristics such as age. Business establishments can lawfully provide discounts to groups such as senior citizens, children, local residents, or members of the clergy in order to attract their business.

                      Like many issues involving constitutional law, the law against discrimination in public accommodations is in a constant state of change. Some argue that anti-discrimination laws in matters of public accommodations create a conflict between the ideal of equality and individual rights. Does the guaranteed right to public access mean the business owner’s private right to exclude is violated? For the most part, courts have decided that the constitutional interest in providing equal access to public accommodations outweighs the individual liberties involved.

  8. charlesgreen

    This whole thread has been a great tutorial in the law, thanks Jack. Better analysis than anything else I’ve read or heard.

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