October 2, 2014

Arizona Passes One of the First Segregation Laws In 50+ Years

It’s like people never learned anything from the Oklahoma Satanist case last year.  Unintended consequences matter.  Yet, it seems like people don’t build them into their behavioral models.  If you open that door, you’re not the only one that gets to walk through.  It’s so simple.  It’s so basic, yet people forget it time and time again.

New York Satanists Building a Shrine to the Devil in Oklahoma

If you weren’t aware of it, a few years ago, some folks in the state were so obsessed with getting a 10 Commandments monument at the state house as way of stopping “liberal judges” from oppressing their religious freedom that they aggressively worked to pass laws that made such displays legal if the monuments were paid for with private money.

You can guess what happened.

A Satanic Temple in New York raised money to install a 7-foot high idol to the devil in Oklahoma, represented as the demonic goat Baphomet, who sits on a throne enshrined around a pentagram, as two worshiping children stand adoringly at his feet.  There’s a decent chance it will be built as half the money has already been raised.  Meanwhile, according to Bloomberg News, “Other organizations have since followed suit. PETA now wants to hang a banner that encourages people to stop eating meat, the Universal Society of Hinduism wants to donate a statue of the Hindu deity Hanuman, and the Church of the Flying Spaghetti Monster has asked to donate some sort of pasta-related memorial. ”

Oklahoma Satanist Statue

This is the monument that Satanists are planning on building at an Oklahoma Court House following the state’s stupid expansion of its religious liberty laws.  Now, a community that will largely find the belief abhorrent will have to pass in front of children adoringly looking upon Baphomet.

Louisiana Christians Inadvertently Pass Laws Resulting In Them Using Their Own Tax Dollars to Fund Muslim Schools

Consider Louisiana.  Some individuals in that state pushed for a bill called the Minimum Foundations Program, which was passed into law.  It allowed the secular schools to be bypassed, and parents to send their children to religious schools that indoctrinate according to their particular preferred creed.  Yet, now, the state is scrambling because it never occurred to them what should have been obvious: Muslims sought to take advantage of the program, having taxpayer money used to teach the Koran alongside reading and arithmetic.  One Representative said, “It’ll be the Church of Scientology next year.”  

The door had been opened and now a lot of people in the state are apoplectic at the notion their tax dollars might be used to pay for lessons on Allah and Sharia law.

Arizona Winds Up Making Almost Any Form of Discrimination Legal for Almost Every Type of Entity

Arizona now adds itself to the list of states making such idiotically short-sighted moves.  Today, the state legislature passed one of the only segregation bills in generations to amend the law under the guise of “religious freedom”.   In a twist of supreme irony, it could end up doing exactly the opposite and be used to attack Christians, the rich, or anyone else who someone doesn’t like.  This came on the heels the Kansas legislature killing their own version of the statute after realizing what a terrible idea it is.

Arizona Segregation Bill

The Arizona legislature has essentially just passed a sweeping segregation bill that allows anyone to do anything for any reason, as long as they say it was “God”.Image Licsend Under Creative Commons Attribution-Share Alike 3.0 Unported by Wars 22:24, 17 August 2006 (UTC) from Wikimedia.

It’s called SB 1062 (here is the PDF).  It was intended to give everyone in the state the right to refuse service to gays. To allow people to:

  • Kick them out of hotels if they didn’t like the fact they were married,
  • Throw them out of restaurants if they didn’t want to see a couple eating together with their children,
  • Ban them from swimming pools,
  • Refuse to fix their cars,
  • Drag them out of movie theaters if the owner decided he didn’t want them watching a film in his facility,
  • Forbid them from playing golf on a certain golf course.

The list goes on and on but to add icing on the cake, it granted a defense from civil claims in court for the bigot in question.  It’s a law that would have caused a pre-reformed George Wallace himself to gloat with glee.

Of course, writing this in a narrowly tailored way, in light of the Supreme Court’s Romer v. Evans decision was sure to get it struck down by the court system, so what did the legislators do?  So intent were they on legalizing a new form of segregation that they lost their minds and went nuclear.  They used some of the stupidest, most open-ended language imaginable, going so far as to grant corporations the right to do almost anything to anybody as long as it (the corporation) declared it was doing so on religious grounds, even if the corporation otherwise had no religious beliefs.  That is because now, the word “person” refers to:

ANY INDIVIDUAL, ASSOCIATION, PARTNERSHIP, CORPORATION, CHURCH, RELIGIOUS ASSEMBLY  OR INSTITUTION, ESTATE, TRUST, FOUNDATION OR OTHER LEGAL ENTITY.

Yes, even trust funds and dairy co-ops can now declare an act “religious” – without having any other religious beliefs, or even consistently applying them – and discriminate against anyone for practically any reason.

Hear that restaurant franchisee?  You might just be able to refuse to service customers unless they agree to swear eternal loyalty to Lucifer.

Hear that financial institutions?  You might be able to get around those pesky rules requiring you to treat white and black customers the same way, and continue your practice of “red lining” certain districts to avoid underwriting loans to minorities.  After all, Ikenga is leading your spirit to increase profits.  The Federal regulators might want to have a word with you, though, so you should probably still try to hide it.

How about you, apartment owner?  If you really believe that children born out of wedlock are an affront to God (Deuteronomy 23:2), you can try to argue against the Federal fair housing rules that forbid you from making decisions based on family status and instead, say that you are deeply, religiously offended by having to rent to a non-married mother or single father and are thus exempt under State laws.  (I doubt the Feds will let you get away with it, but it certainly adds an interesting argument.)

Tired and driving through a rainstorm in the middle of the night?  Hope you aren’t Christian, because the owner of that Bed and Breakfast might just require you to pray for Allah’s blessing before getting a room for the night.

Flip that around, too.  What if you are a devout Muslim, who just wants to mind his or her own business?  You pay your taxes, you’re a good member of society, and yet one day you go into a hardware store where now, the manager can throw you out simply because he hates Muslims!  All he has to do is say his sincerely held religious beliefs would be violated if he had to sell anything that might be used to glorify Allah or improve the lives of His followers.

This whole thing is crazy.  Hate blacks?  God.  Don’t like Jews?  God.  Can’t stand straight folks?  God.  Don’t want a Buddhist child in your preschool?  God.  Believe Republicans are evil so you don’t want them to shop in your store?  God.  You can get away with almost anything.  You can do almost anything.

Only, Arizona Reserves the Right to Strip You of Your Religious Freedoms If It Doesn’t Like Them

Except, you kind of can’t.  To make it even more confusing, the state gave itself the right to decide if a person can sue to strip someone of this protection on a case-by-case basis if the person who experiences discrimination can prove the state has a “compelling interest” in preventing such discrimination, and that it is being done in the most focused way possible.  Thus, in a sense, it leaves up the courts and government to decide whether your religious belief is rational enough – or rather, popular enough – to take advantage of this newly bestowed right!  It is a law that is both expansive and narrow, overly broad and finely tailored.  It takes a level of stupidity so great to accomplish such a Byzantine knot that it creates a paradox in that only a genius could craft such self-referential complexity.

I don’t understand people sometimes.  They vote against their own best interest, and pass laws that are only going to come back to hurt them.  George Soros could decide that he was going to buy up every gas station in the state and refuse to sell gas to anyone who refused to swear under oath they were an atheist, disavowing any belief in God.

Is this really the kind of civilization people want?  Are people so irrationally motivated by animus that they will destroy their own stable market for the sake of being able to express to some random person or couple they don’t like them?

I sometimes feel like a stranger living in a strange land.  Most – not all, but most – of life’s problems are self-inflicted and this is another example of people of creating a weapon that they intend for their perceived enemies, but will inevitably end up piercing their own heart.

Should I just prepare for the day I find myself denied a coffee by a radical feminist social justice warrior because I am a white, rich, married, cisgendered, able-bodied male who, by nature of my very existence, supports the perceived patriarchy?  Should I make peace with the fact my dry cleaner might throw me out of his store because I advocated for lower corporate taxes to make the United States more competitive with certain European nations?  Is that where these myopic lummox want to take us all?

This is what I get for reading the news at 2 a.m.

To feel better about the world, here is some science: Hydrogel beads put in colored water.

Update: February 26th, 2014 at 7:14 p.m., CST – Arizona Governor Jan Brewer has announced she will veto the law after major Republican leaders and corporate sponsors decried the economic damage it would do.  The law in Indiana and Georgia have been shelved, as well; at least temporarily.  One representative is attempting to get it passed into law in Missouri but it has very little chance due to Governor Nixon.  Moments ago, the bill in Ohio was shelved, as well, in light of the backlash in Arizona.

Brewer vetoing Arizona's segregation bill in her office ...

Arizona Governor Jan Brewer tweeted a photo of her vetoing Arizona’s segregation bill in her office …

Brewer offered these prepared remarks:

Good evening, and thank you for joining me here today.

I am here to announce my decision on Senate Bill 1062.

As with every proposal that reaches my desk, I gave Senate Bill 1062 careful evaluation and deliberate consideration. I call them like I see them, despite the cheers or boos from the crowd.

I took the time necessary to make the RIGHT decision. I met or spoke with my attorneys, lawmakers and citizens supporting and opposing this legislation. I listened and asked questions. As Governor, I have protected religious freedoms when there is a specific and present concern that exists in OUR state. And I have the record to prove it. My agenda is to sign into law legislation that advances Arizona.

When I addressed the Legislature earlier this year, I made my priorities for this session abundantly clear… Among them are passing a responsible budget that continues Arizona’s economic Comeback.

From CEOs — to entrepreneurs — to business surveys — Arizona ranks as one the best states to grow or start a business. Additionally, our IMMEDIATE challenge is fixing a broken Child Protection system. Instead, this is the first policy bill to cross my desk.

Senate Bill 1062 does not address a specific and present concern related to religious liberty in Arizona. I have not heard of one example in Arizona where a business owner’s religious liberty has been violated. The bill is broadly worded and could result in unintended and negative consequences.

After weighing all of the arguments, I vetoed Senate Bill 1062 moments ago. To the supporters of the legislation, I want you to know that I understand that long-held norms about marriage and family are being challenged as never before.

Our society is undergoing many dramatic changes. However, I sincerely believe that Senate Bill 1062 has the potential to create more problems than it purports to solve. It could divide Arizona in ways we cannot even imagine and no one would ever want.

Religious liberty is a core American and Arizona value, so is non-discrimination. Going forward, let’s turn the ugliness of the debate over Senate Bill 1062 into a renewed search for greater respect and understanding among ALL Arizonans and Americans. Thank you.

  • Gilvus

    So if this bill is passed, it would technically be legal for a Muslim zealot or his organization to execute schoolchildren for drawing Muhammad.

    You can call it SB 1062 if you want, but I’m calling it the Religion Without Borders™ bill.

    • Scott McCarthy

      Allowing a business (other than hospitals) to refuse service on religious grounds is not the same as legalizing murder.

      • Gilvus

        “STATE ACTION may substantially burden a person’s exercise of religion only if THE OPPOSING PARTY demonstrates that application of the burden to the PERSON’S EXERCISE OF RELIGION IN THIS PARTICULAR INSTANCE [fulfills two criteria]”

        The problem is that you can do it first, and you cannot be restricted from continuing to do so unless someone can fulfill those criteria. In other words, you can murder someone on religious grounds, rape someone on religious grounds, kick puppies into traffic on religious grounds…and the burden is on the other party to show that you shouldn’t be doing it in the first place. Until then, you have a right to until it’s taken away from you

        • Scott McCarthy

          I’m not exactly an expert in the area, but I would assume that “prohibition of ritual human sacrifice” should meet the compelling state interest test fairly easily…

          Murderer wants to try and assert otherwise in his defense, fine – he has that right. But I severely doubt that a jury would buy it.

        • Gilvus

          Not saying that it’s ultimately defensible in court – even if the murderer is somehow acquitted by invoking the second criteria (the “burden” must be the least restrictive possible while still furthering the compelling state interest), vigilante justice will probably finish what the law couldn’t.

          I’m calling the law Religion Without Borders™ because of the way it’s worded.

  • innerscorecard

    Joshua, I am definitely as outraged as you are, but do you think there might be a low information diet mental model (especially for those us not as financially independent or with as much leisure time as you)? Obviously, you being aware of such things may be helpful, as you could donate money through your foundations to fighting such stupidity, but for us working stiffs (or struggling entrepreneurs), isn’t thinking about such outrages a waste of mental energy?

    • http://www.joshuakennon.com/ Joshua Kennon

      It’s a good question. Personally, I don’t think the two are mutually exclusive. I don’t set out in the morning looking for this information, I acquire it in the process of studying to make my businesses and life better.

      Let’s imagine I ran a tire shop. I’d be reading every 10-K and 20-F I could for the big tire, rubber, and chemical companies. I’d be reading trade magazines like Rubber News. I’d be looking at the various metro data statics for average car age on the road to try to best predict which markets might be prime for profitable growth if I wanted to expand. I’d be reading tax documents for my home state. All in all, it would only take 1-2 hours a day, and if your time is structured right, it isn’t any hardship at all. In fact, the best ideas often come from these connections you make. You get one brilliant insight and suddenly you are earning a ton more money per year because you were able to take advantage of some situation before others. (Sometimes that comes in unexpected forms – e.g., you might own the tire company, and be reading the rubber trade magazines, only to suddenly realize shares of the major rubber companies were dirt cheap so you buy them with your surplus savings. A few years later, you’re sitting on a big pile of wealth that otherwise wouldn’t have been there that you can then plow back into your chain of tire stores. Suddenly, you’re bigger than all your local competitors because you had an infusion of equity capital that came from your secondary investing activity that was right in your “circle of competence” to borrow a phrase from Watson, the legendary IBM executive who made the concept famous.)

      In a case like this, if I ran a store in an area that was being harmed by the new bill, I would put up some sign like, “We don’t discriminate about anyone. Christian, Muslim, Jewish, Gay, Straight, Rich, Poor, White, Black – We Just Want to Sell You Tires!” and I’d make it a thing. I’d make people, in their minds, associate me, and only me, with tires. They’d think I slept on tires, paid my taxes in tires, and gave tires to family members for Christmas. There’d even be Christmas trees built out of tires in my showroom.

      So waste of mental energy? I’d say no because I think paying attention to what seem like non-connected events can lead to some fairly significant competitive advantages. Whenever something like this happens, you have to be (as horrible as it sounds) ready to behave in an opportunistic manner. How can you take advantage of it? How can you turn something good, bad, or indifferent, into a strategic edge? That process leads to a lot of ancillary data accumulation simply through osmosis. You’ll be shocked how much you pick up about the world around you.

      If it gets to the point you’re spending more time on this sort of activity than you are actually operating your business, then, yeah, I’d say it’s problematic. But it doesn’t have to be that way; at least not in my experience (whenever things start to encroach on my time, I figure out a way to automate or outsource more – I like keeping an open calendar).

      • David

        Thanks for clarifying that Joshua. Do you think you might be able to post sometime on how you manage the businesses you have and maybe the incentive systems you have setup, since it appears that you manage from afar (or maybe even somewhat absentee). I have a fantasy of being able to simply call up the ceo’s like buffett, but unfortunately, in businesses with reasonable private market cap under 10 mil, a near hands off approach is pretty much impossible due to the limited bench strength of management – i.e. hiring a coo would eat up >30% of the profits. Thanks again

  • bodegha

    Joshua, I haven’t had a chance to read through the bill-too early- but just on your interpretation. My initial reaction is that people, those everyday people that make the world work, feel like all their values and traditions are being trampled and spit upon. I believe they think the government at all levels keeps imposing its will on them, and they have no recourse but to pass a law telling the government to get out of my life. Ironic, since the law can be used against the very things they don’t believe in.

    • http://www.joshuakennon.com/ Joshua Kennon

      Well said. I think that’s probably exactly the subconscious fear and motivation. The evidence seems to support it is as there is such a clear demographic trend behind the folks pushing for this sort of misguided response.

  • Bill Larson

    Not that I disagree, but great investing advice. Would read again. ;-)

  • Scott McCarthy

    Specifically with regards to the Louisiana … I see nothing bad about that, at all. Let it be open to everyone! A group of people want to use it to educate little Satanists and Scientologists? Fine by me! I think those people may need some saving, but the flying spaghetti monster gave us free will – it’s not my place to try and restrain that.

    More broadly, every single law you mentioned seems like a victory for capitalism. If I ran a hotel, I’d sure hope that my competition refused to allow gays, jews and blacks to vacation or get married at their facilities. More business for me! Capitalism works. Let it work. Let the bigots go bankrupt, and learn their lessons the hard way. Let Satanists build their statue, let it be built and maintained by tithing Christians. Let George Soros buy up all of the gas stations, and let me open a competing shop right across the street from every one of them!

    • http://www.joshuakennon.com/ Joshua Kennon

      Did you ever see – I can’t recall exactly where they are off the top of my head – the slot machine gas pumps? It’s genius; capitalism in action. I read about it a few years ago but the details are fuzzy. Some service station owner had his gas pumps retrofitted to look like giant slots and after you’ve pumped your gas, it spins around and if you hit the jackpot, whatever your final total came to before the spin was wiped to $0 so you pay nothing. You could get people to pay slightly higher prices per gallon of gasoline for the attached lottery ticket / excitement, and probably take quite a bit of market share, too.

      There’s another model in Southern Missouri that uses slot machine gas pumps to randomly determine the price of your gas. Gas can be as low as $0.50 per gallon or as high as $5.00 per gallon.

      I’d bet in the right community, you could grab enormous market share if you were to tweak the payout ratio right, and trigger enough close calls on how the machine appeared before it stopped spinning. Even if you were just giving up a free bottle of Coca-Cola every x number of gallons sold, a decent spreadsheet and a psychology textbook and I’d bet you could make life miserable for your competitors.

      • Scott McCarthy

        If I was a member of Congress, and I could only jam a single piece of pork into a bill, it would be to fund a massive study to try and understand the psychology of the behavioral economics of gambling versus investing. Why are seemingly rational people eager to accept a negative expected return from gambling, but unwilling to pursue a positive expected return from investing? If someone can solve that question, and manipulate the psychology behind it to increase the savings and investing rate in this country, I honestly think a lot of social problems could be improved significantly.

        • Gilvus

          I thought we already knew why people do this; there are peer-reviewed journals devoted to the study of gambling psychology. The idea of creating a think tank devoted to coming up with recommendations to change spending habits is interesting, though.

          Responsible saving and investing would cause macroeconomic shifts. Wouldn’t increased savings in private hands decrease the velocity of money and crimp tax revenues?

        • Scott McCarthy

          Who cares if it would reduce revenues, if it would also reduce reliance on entitlement programs (read: spending)?

        • Gilvus

          Yup. The question is, would revenue or spending fall more? That’s what the think tank is for: to provide projections that can guide future policymaking.

          So…Scott McCarthy for Congress? Let me know when you run so I can send you campaign contributions, hookers, etc.

        • Scott McCarthy

          I understand waiting until I at least launch an exploratory committee to send the cash, but [insert joke about the time vale of hookers].

        • Gilvus

          Something something maturity date. Something something depreciating asset. Not brave enough to elaborate O_o

    • Le Petit Prince

      At the end of the day, we can have a great deal of intelligent conversation about this. But nothing will cut to the issue so much as to simple recognize that the people who passed this law were bigots. I have never been so disappointed in people.

      Bigots. Say it with me.

      • Scott McCarthy

        Whether or not they’re a bigot doesn’t make them any less useful. And supporting some of these measures doesn’t necessarily make someone a bigot.

      • TheLonelyHumanist

        Hmm… So maybe we should band together and discriminate against bigots? Maybe even lynch a few.
        I don’t know what to make of people on either side of this issue; if someone disapproves of someone who disapproves of someone who is gay–what has been accomplished? If someone hates someone who hates other races–what? It’s all foolishness. 200 years ago African slavery was God’s will. 30 years ago homosexuality was sexual deviance. Now racism is considered evil and soon homophobia will be. How can any intelligent person take these arbitrary, parochial stances seriously? If righteousness is consensus, then slavery WAS right 200 years ago, if it is not a question of consensus, then what is it??

        • http://www.joshuakennon.com/ Joshua Kennon

          It’s all foolishness.

          I call this the Curse of Solomon. Although he was reflecting on mortality, the parallel strikes me. The more you read, the more you learn, the more you seek wisdom, the more you tend to feel in your heart, despite all your optimism, the words of Ecclesiastes 1 & 2. Since I’m normally so upbeat, it only happens once or twice a year to me, but sometimes, I can’t help but echo those words about the human condition – vanity of vanities, all is vanity.

          This morning I was thinking about the news in Uganda. The world watched the Nazis in World War II and yet, the exact same playbook is being followed again as a desperate leader scapegoats a group of people to try and distract from his political failures. Despite threats from the United States, Canada, and many European powers, the government passed a law sentencing all gay people who are discovered to life in prison. Friends and family who try to hide them, or who don’t immediately turn them in after becoming aware, are arrested for 10-14 year sentences as “conspirators”. Today, one of the nation’s tabloids is running a front page story identifying 200 citizens who are the “the top suspected gays” in the country so the population can presumably hunt them down for prosecution or (more likely) murder.

          This is happening right now on the other side of the world, as I sit here, on a MacBook, looking at the snow falling on the forest behind my house, drinking a bottle of Coca-Cola and deciding whether I want to go to work today or play either Final Fantasy or the new Castlevania, which was dropped off by UPS less than half an hour ago. It’s almost hard for me to believe it’s real. That something this horrible could still occur in 2014.

          It’s the same plot from time immemorial, playing out with slightly different variations. Whether its Nero hunting down and executing Christians during the height of Rome’s power or the people of Salem in a panic over “witchcraft” and hanging their neighbors, it’s all vanity. Still, even if it is uneven, for the sake of generations yet unborn, we have to fight even when that’s the last thing you want to do.

        • Joshua

          I actually have that quote from Ecclesiastes as a tattoo. It’s a reminder to take things in stride and place my beliefs in context. People get confused when they learn that I’m an atheist with bible verses in permanent ink on my body, but that book really makes me question the nature of humanity and what it is that I’m doing here.

          As for this law I don’t have a concrete opinion yet. I think that it will have unintended consequences that will make its current supporters regret it and I wouldn’t want to live in a state where I had to wonder if I was going to be refused service because I don’t pray to the right entity or have sex with the “right” person in the “right” way. On the other hand I don’t think that anybody is obligated to engage in a transaction with me if they don’t want to. I’ll have to think about this one for a while…..

        • TheLonelyHumanist

          It may help that Solomon didn’t actually right Ecclesiastes as it was not written until centuries later. Also, it is an atheistic work with just one very obvious “ecclesiastical” addendum in the last verse. I love Ecclesiastes and I consider it the first great work of Existentialism two millenia ahead of its time.

        • Le Petit Prince

          I don’t like this approach to the Christian tradition. The media and many modern day Christians tend to have extremely shallow understandings of their own religious traditions. There is almost no substantive exegesis in churches and only hortatory sermons that confirm people’s superficial instincts about what is right or wrong. They also have almost no historical context of their faith.

          Take the statement that “200 years ago African slavery was God’s will.” Would it surprise you to find out that long before the United States debated its own policies toward slavery that Catholic missionaries like Bartholome de las Casas were writing angry letters to the Spanish Crown protesting their sorry treatment of the Amerindians in the New World? What makes you think that Catholics believed that slavery was right 200 years ago when they didn’t think it was right 400 years ago? A great deal of modern day theories of natural law were actually devised from Christian struggles to reconcile their assumptions (that the Amerindians were somehow inferior by birth and through their choices and could thus be treated as second-class citizens of the empire) with their pastoral instincts (that one ought to treat the Amerindians kindly.) Not too different from the gay rights debate today, eh? You’d be surprised what a gold mine of examples there exists.So few of the blabbering far right demagogues who profess to be Christians actually know the Bible or their own history.

          There is, in other words, a lot in the European and Christian encounter in the New World that mirrors what is happening today. And I think Christians should be outraged to see their faith being perverted by unintelligent demagogues. Historically, the evangelical push by Christianity into frontier lands (both physically and metaphorically) may have been marked by great violence, but also tempered by an equally formidable push toward accommodation, kindness, and protection of minorities who did not then enjoy the same privileged status as Christians. This is the part of that spiritual history that has been lost. The Church needs a PR makeover. To its credit, many denominations have spoken out against Arizona’s anti gay law. They don’t think it’s about religious expression. They don’t think it’s about freedom of association. They just think it’s downright crappy.

          Insofar as there are “sides to this issue,” as you put it, this is not a contest between the secular left and the Christian right. I think it would be a mistake to think about the issue purely in terms of a side that wants gay rights and another side that doesn’t. This is also a conversation (a national one) about the way in which we should approach the discussion.

          I agree, moreover, with Joshua that you don’t have to feel rage or anger to be bigoted, and I think that deciding whether someone is bigoted isn’t just a decision about whether to insult them. I think it is crucial to deciding if genuine intellectual conversation is even possible. I don’t know how to engage prejudice and I don’t wish to try. But I don’t mind engaging with someone who disagrees with me if their disagreement doesn’t emanate from a place of deep-seated disgust or hatred.

          I find some of the comments here tasteless, if not offensive, and I find myself wondering if it were a face-to-face conversation if some of these tasteless comments would ever be made, even as supposedly innocent thought-experiments. Congratulating oneself about how “elegant” it would be to label gay people as psychologically inferior in order to accomplish political goals (Gee, I wonder why our brilliant politicians didn’t think of that before?) shouldn’t be dignified with a response, and it just shows how out of touch with the world some people can become.

          In short, deciding whether someone is a bigot shouldn’t come at the beginning but at the end of a conversation, and it is useful because it determines whether you want to continue the conversation or simply avoid their company altogether. I think it would be a mistake to think about the term “bigot” as primarily an insult. I would think of it as a personal decision about someone’s thought processes. That is what has been accomplished.

          I think these judgments do have some merit in civil society as well. Not all opinions have substance and are capable of being debated in a secular democracy, and attempting to dress them up in the rhetoric of rights doesn’t change anything. I suppose what I’m saying is that I think it’s OK to disagree, but there are some positions with which the disagreement is both the beginning and the end, because when there is no intermediate step between the assumption and the conclusion, what kind of discussion can one have? It is all one can do to call them a bigot and walk away.

        • Scott McCarthy

          The difference between you and me, I’m realizing, is that you care much more about the process than I do. You care about people’s motivations much more than I do. Your perception of the end is colored by the means, much more so than is true of me.

          That’s not a bad thing, necessarily – I just tend to take more of a mercenary approach, sometimes.

          Whereas you continue to focus on the means I took to achieve an end (that you agree with) in a thought experiment, I was focusing on what would be the quickest way possible to achieve the end. The means that I explored (not advocated, not even suggested) would have achieved an instant victory for the side of the debate that you agree with. And you, it seems, would have forgone an agreeable end because the PR would look bad. Me? I care less about the PR angle.

        • TheLonelyHumanist

          I never said anything about Catholics. But to answer your question, no I’m not surprised. That’s really not a big deal. The Catholic Church banned circumcision in the Middle Ages and today embraces natural selection, common descent, and naturalistic cosmology. But I live in a Christian region where Catholicism has been an insignificant cultural mover since Protestant British eradicated it through war and genocide a few centuries ago. It was in much prayer and study that people like Robert E Lee and my ancestors embarked on their crusade against “Northern Aggression.” I know a good number of older people who still invoke the Curse of Ham, the writing of Paul, etc. to justify slavery. Same Bible Dr. King read… very different beliefs. But assessing the validity of American Christian fundamentalism is a separate issue. (Honestly, the whole idea that the authority of the Bible should supersede the Church when the Church actually created the Canon in the first place is downright absurd.)

          I’ll buy your definition of “bigot” as someone who is unreachable or unchangeable by informed dialogue. It’s the social parallel to “denialist” which describes someone is unreachable or unchangeable by evidence or reason. I DO think that is useful. And I thank you for the way your reasoned dialogue has reached and changed me.

    • http://www.joshuakennon.com/ Joshua Kennon

      My natural inclination is to end up on the wild individual freedom side but then when I do case studies of history, there seems to be “arresting” phenomenon that arise that make the free market of ideas break down, just like the free market does in economics once certain monopoly conditions arise naturally and then lead to the disproportionate power of the monopoly being able to take actions that preserve its existence even when it is no longer serving consumers.

      Look at the South during the Jim Crow era. If it hadn’t been for the reset mechanism of the North outright banning segregation of restaurants, it seems highly probable you’d still, today, have restaurants that refused to serve people on the basis of race. How do you handle such an outcome if you believe in fundamental human rights that flow either from the virtue of being human (if you’re a humanist like a Christopher Hitchens) or God (if you are religious, like a John Locke)?

      Is that just acceptable collateral damage? I can’t arrive at a satisfactory answer, yet, personally so it’s still on my “too hard” pile. Human nature tends to devolve into tribalism and, combined with tipping points, sometimes a correction mechanism in the law seems to be the only thing that works but that goes against my natural inclination towards maximum liberty. I find myself turning into a bit of a utilitarian in the John Stuart Mill school of pragmatism. If a slight reduction of 0.1x of freedom of association leads to an increase of 2.0x of individual liberty in other areas, isn’t the cost worth the societal expense?

      I don’t have an answer. Partly, I think, because I realize that in most situations, I wouldn’t have to suffer the downside of getting it wrong given the enormous privilege I enjoy in almost every area of my life. It’s been a couple centuries since people said, “Look! It’s a rich, white guy! We shouldn’t let him access our golf course!”.

      Edit: I just realized I responded to this message, yesterday. I guess it’s a twofer? It’s interesting that 24 hours apart, my brain was thinking about completely different things reading the same words.

      • Scott McCarthy

        I really don’t think this would be as much of a problem as you expect it to be. Assuming the “free association of trade” could remain limited in monopoly and emergency services industries, and that any refusal to do business with people of a certain class had to be displayed prominently at all entrances, I don’t expect there would be many businesses who actually availed themselves of the option.

        No national chains would, obviously. No franchisors would allow their franchisees to do it, either. It would mostly be small businesses whose employees are probably already hostile towards these groups, anyway. Where’s the marginal harm?

        It could also result in boycotts from their legacy customers. Would you shop in a store that said “NO NEGROS WILL BE SERVED”? I doubt many people would like walking past that sign! It would compel racists to “out” themselves if they desired protection under the statute.

        Then again, this already happens to a lot of gun owners. In just about every state, it is perfectly legal for a business to post a “no-guns” sign. If someone legally carries a gun on their person as part of their every-day life, this can be frustrating, as violating the sign typically carries hefty legal penalties, including imprisonment. Google “starbucks open carry” if you’d like a sense of the protests people put on against businesses that DON’T post these signs.

        tl;dr – this all is already happening, to some extent; the world is still spinning, and people making an informed decision about who they do business with is not a bad thing, in my opinion.

      • Scott McCarthy

        “Look at the South during the Jim Crow era. If it hadn’t been for the
        reset mechanism of the North outright banning segregation of
        restaurants, it seems highly probable you’d still, today, have
        restaurants that refused to serve people on the basis of race.”

        If the Union had lost the War of Northern Aggression (winners do get the benefit of choosing the names), do you believe that there would still be slavery in the South today? Do you believe that the Confederacy would have ultimately had its own Abolitionist and Civil Rights Movements?

        Why do you (seem to, and correct me if I’ve misinterpreted you) believe that segregation in the Confederacy would have outlived apartheid in South Africa?

        • http://www.joshuakennon.com/ Joshua Kennon

          Now that’s a good question! I’ve been thinking about it for a few days and I have to conclude that slavery probably would have eventually ended in Dixie, even if due to nothing more than the economic boycotts working on the South by the rest of the world or the productivity gain caused by machinery and computers.

          But isn’t that inconsequential? If freedom is a basic human right granted by God or by virtue of being man depending on your world view (which I believe it to be), why should someone who was unjustly enslaved have to wait to be free?

          By what moral authority does someone who doesn’t have to suffer discrimination say to someone who is, “Wait just a little longer …”? It rings a bit hallow to me.

        • Scott McCarthy

          Fair enough, but it’s the inevitable extrapolation that I find worrying.

          If you carry that line of reasoning far enough, then you’d have to advocate global regime change in dozens of countries to stay intellectually consistent. You’d have to overthrow every theocracy on the planet (technically including the UK, incidentally).

          The tl;dr version is you’re proclaiming that other people’s right to your vision of “freedom” is superior to their right to self-determination, and you’re okay with waging war to enforce it.

        • http://www.joshuakennon.com/ Joshua Kennon

          We aren’t talking, though, about foreign governments, so the international problems of sovereignty and self-determination you raise aren’t on the table (I’m going to sidestep them entirely under the “too hard” pile at the moment because I just got back from Burger King for breakfast and am about to start The Last Story, which is one of the few titles released by the legendary producer behind the old Final Fantasy titles now that he went off and started his own studio).

          We’re talking about American citizens, inside the United States, resolving its own problems as a people; e.g., for the other states of the union, through the Federal Government, to force Alabama to integrate its schools instead of waiting until its people are ready.

        • Scott McCarthy

          To the extent that my original question here went to the Civil War, it is still a self-determination issue, since the Confederacy no longer consented to being labeled as “American citizens.” Upon voting to secede, the people of the Confederate States of America considered the United States to be a foreign country. The military was still used to achieve the desired end in the Civil War.

          If your response was qualified to “domestic” issues, I suppose you could try to treat the two differently. But the Spanish Inquisition was a domestic issue. And the National Guard was federalized and used to integrate Little Rock – so you’re still okay with using military force to enforce the supremacy of people’s right to your idea of “freedom” over their right to self-determination.

        • http://www.joshuakennon.com/ Joshua Kennon

          so you’re still okay with using military force to enforce the supremacy of people’s right to your idea of “freedom” over their right to self-determination.

          To a certain degree, the question on a national scale is no different than the question on an individual scale. When you see a guy hitting his wife in a parking lot, do you stop it? Would I be fine with you, the bystander, using violence (military force) to protect her right not to be beaten over his right to self-determination? Yeah, I would.

          What was that saying that either Scalia or Kennedy had – the thing about legislatures and military leadership is, unlike courts of law, they don’t have to carry things to their logical extremes? Stepping in and stopping mass genocide in Rowanda, if we decided to do so as a country, is very different than digging up the bones of Jews and putting them on trial to repossess their wealth. It’s one of the areas of life we don’t have to follow the philosophy to its logical extreme or take on a cult-like furor, we can decide to help on a case-by-case basis.

          Sometimes, that leads to the appearance of hypocrisy because the trade-off is too high. As horrible as it sounds, I think it’s a case-by-case basis of not only what is right, but what is practical. At this exact moment on the other side of the globe, by all accounts, the North Korean government is running concentration camps that would give Adolf Hitler a run for his money, yet no one has stepped in and tried to stop it. Why? Thousands of people held hostage are less important than tens of millions in South Korea who could be incinerated in a nuclear blast. Just as we don’t intervene there, it doesn’t mean we’ve somehow lost all moral authority, just as I wouldn’t think less of you if you determined you couldn’t intervene with the wife beater because you were alone, at night, with no witnesses, and he might have a weapon whereas you are disarmed at the point of confrontation putting you at a disadvantage.

          I’d argue that over the past 100-200 years, the world has moved more toward the idea that national sovereignty and self-determination is forfeited when the government in question violates the human rights of the people being ruled are violated. The foundation is the Universal Declaration of Human Rights, which is what the civilized world agrees upon as basic things that even the government doesn’t have the right to take away from its citizens.

          What we’re really discussing here is nearly 20th century isolationist doctrine. My current view on it is, avoiding getting involved in the rest of the world’s mess is a good thing, but I don’t think there is anything fundamentally wrong with a majority of the world’s nations coming together and stepping in to intervene on behalf of a brutalized people who have had their human rights stripped away from them by some totalitarian regime.

          (As for things like Arkansas, I’d say the issue is entirely different. You had the executive of a state disregard the lawful ruling of a court and then call up the military to attempt to thwart the court’s action like some sort of third-world petty dictator. In response, the President used his authority to nationalize the guard and met the threat of force with the threat of force, which is, unfortunately, the only thing those prone to violence tend to understand. You can’t have a rational conversation with someone who’s immediate response to something they don’t like is to reach for the weapons and threaten bloodshed. What was the President supposed to do? Send a sternly worded letter and say, “We’re sorry you are breaking the law and using the state military to do whatever you want. We just want you to know we don’t like it. Sure, it’s unconstitutional, but we’re not going to do anything about it.” What other choice did he have? Send him a box of chocolates and a valentine asking him to please reconsider? The issue had been solved by civilized people according to the rule of law, and the governor reached for the guns. A proportionate response was necessary.)

        • Scott McCarthy

          But it’s not about “right” vs. “wrong” (i.e. “do you have the moral authority to intervene?”) – it’s about “how do you have the moral authority not to intervene?”

          I think that’s a very important distinction. I’m not talking about isolationism. The first question doesn’t scare me. The second one scares the crap out of me.

  • Paarthurnax

    Just imagine if George Soros were to buy all the gas stations in the state, start his own church that requires monthly tributes from it’s members, and than demands every person wanting fuel to become a member. It’ll be interesting to see how this plays out. Thanks for the post, Joshua.

    • http://www.joshuakennon.com/ Joshua Kennon

      The idea reminds me of what George Pullman did in Pullman, Illinois. He created a private town, then required everyone who lived there to give up most of their rights. Only certain Church denominations were allowed, and since they wouldn’t pay rent, there was no Church. He forbid any non-profits. The worker’s homes were subject to inspection to see if they were living up to his standards. It was a nutty place that the court system eventually set free from his well-intentioned but tyrannical grasp.

  • Rob

    Looks as though you were correct, companies are already starting to refuse service to customers under the guise of religious freedom. First up, a local pizzeria is refusing to serve…legislators. Sounds about right.

  • Zack

    What is wrong with someone not wanting to provide a cake for a gay wedding? That was more than likely a big reason for this as I believe the issue arose last year in Arizona and the giant stink that resulted. The bakery had nothing against the gay couple, but it went against what the owner themselves believed as for what a union is in their personal beliefs. They didn’t slander, bash, or otherwise show aggression towards the couple, merely weren’t comfortable providing one of their cakes for a union they were uncomfortable with. Aren’t people allowed to deny service to an individual if they so choose not to? Isn’t that their right?
    Are publicly owned entities allowed to deny service, now that is another debateable matter and personally I would say no (everyone still needs hospital care, to be able to grocery shop, etc.), but privately.. no one should impose their will on another individual. Its the individual’s right to make their own decision as to whom to provide their service to.
    Is the bill poorly written.. possibly, but it wouldn’t have ever occurred if the big deal hadn’t been made that all started over being denied a cake at one bakery. So who in this is to blame? The people who stood by their beliefs and respectfully declined, or the people who made a big deal about it and brought national attention in an attempt to bash someone for their own beliefs because it went against someone else?

    • http://www.joshuakennon.com/ Joshua Kennon

      I don’t have anything new to add on the topic since last April when I wrote about the competing freedoms and public accommodation laws. You’d have to read that post to get my thoughts. I also mentioned a few of my reservations about both sides elsewhere in the comments on this page, which are relevant.

      I will say this, though, which is unrelated to the broader question you pose (again, I can’t expand anymore on the words I’ve written in the past, so feel free to ask me a specific question or open a dialogue once you’ve gone through that older post – I’m certainly open to any counter evidence you can provide): I believe, wholeheartedly, in knowing what your own motivations are and being able to weigh your own behaviors objectively.

      Let’s take an unrelated detour so I can explain what I mean.

      I have several young family members who are of mixed race. Most of them are half black and half white. On multiple occasions over the past few years, they have been denied beverages at sporting events because one of the parents didn’t want the interracial kid drinking with everybody else, told to leave church because “their kind” didn’t belong there, etc. It’s like something out of a 5th grade Social Studies textbook – one would think these things didn’t happen anymore – but they do. I don’t understand it. I almost can’t process it. But there is a very real vitriol, almost always delivered with a smile, in a kind tone. It is insidious, showing up in unexpected places, with a gradual, cumulative effect on the kids.

      In almost all cases, these same people say things like, “I don’t have anything against blacks, but …”, or “I’m not racist, but …” And what’s worse, they actually believe it. They actually believe, as they discourage their children from associating with, express their disapproval of, and pray to God their children don’t up in a relationship with blacks that they are not racist. It is (thankfully) a minority behavior these days – I don’t know very many folks in my own age bracket that talks like this, even in private – but there are still some older folks hanging around who do. (Nearly 2 out of 3 people 65 and older would not be fine if their family ended up in a mixed race relationship according to Pew’s polling data.)

      Any objective observer can see these people are, on some level, racist. They are prejudiced. They don’t want to see themselves that way, though, so they are convinced there is some greater reason for their behavior. They will swear up and down they aren’t a bigot. The cognitive dissonance is just astounding.

      I say if you have a belief, you should own it. Be proud of it. Accept it. If you can’t be honest with yourself, it’s hard for me to have intellectual respect for you. I may vehemently disagree with someone, but can at least respect the fact they are honest about it. While I find neo-nazis, for example, disgusting, I can at least acknowledge they have the integrity to say what they believe, as opposed to the racist suburban housewife smiling, yet feeling disappointment that her new neighbors are Hispanic. Put it all out there in the open.

      Why does this matter? You say:

      The bakery had nothing against the gay couple, but

      and

      They didn’t slander, bash, or otherwise show aggression towards the couple,

      I think – if you’ll forgive me – this is delusional. It requires extraordinary mental gymnastics. You don’t have to feel rage or anger to be bigoted against someone or something. The words you use immediately triggered what has played out in my own family with race. You cannot say you don’t want to serve someone in your food establishment, even for religious reasons, then maintain you don’t have something against the person. You absolutely do. Otherwise, you’d be baking the cake. This is axiomatic. It’s a simple case of the evidence directly contradicting the assertion.

      This has nothing to do with the moral argument on either side, or even the Constitutional question (there very well might be a superior argument that free-for-all discrimination under the Jeffersonian model of individual freedom is the superior cultural value). This is about basic integrity. I can’t stand denial and self-delusion. If I were going to refuse to serve pizza to a communist who wanted me to work for the same salary as everyone else, I’m going to damn well put up a sign and say, “I’m not serving that commie bastard.” I’m not going to tip toe around and say, “You know, I have nothing against communists, but …”

      It’s weak and dishonest. I’m a big fan of being a man and owning your decisions, and their consequences, for good or bad. If you don’t want to work with someone, you don’t want them in your home, you don’t want them in your business, you wouldn’t want your child dating someone like them, you don’t (insert whatever objective here), stop pretending otherwise.

      Then again, I’m a rationalist. I don’t think action can be taken until all relevant facts are acknowledged and on the table so I strive to be brutally honest even with my own internal opinions. The moment a critical thought goes through my head, I’ve trained myself to stop and ask, 1.) Why did I just think that, 2.) Is that thought justified, 3.) What are the ramifications for having this thought, 4.) Should I attempt to change this behavior or break this habit?

      If you (not you, the big, royal “You” as in everyone) don’t like gays, don’t like gays. Don’t serve them. Don’t bake the cake for their wedding. But the moment you say, “I don’t have a problem with them”, it’s hard to have any respect for your position. Own it. Be a man and own it.

      I know this doesn’t have anything to do with the topic at hand, but you’ve stumbled onto one of those areas that gets me passionate. I cannot stand how many people go through life hemming and hawing, apologizing for everything they say or evading giving a solid opinion because they are too scared to take any stand on anything. I may hate a person’s opinion, and think it stupid, but I at least respect self-awareness and integrity.

      • Commie Bastard

        I don’t have anything against Joshua Kennon…but he discriminates against women because he uses the sexist phrase “be a man” which implies that having a vagina makes one incapable of personal integrity and owning one’s views. And I didn’t want his bourgeois pizza anyway!

        (I’m sure you’re using the phase with no intentional gender-bias, but I couldn’t help myself :p)

        • http://www.joshuakennon.com/ Joshua Kennon

          Hand to God, when I wrote that phrase I thought someone might catch it because I’ve been spending too much time on Tumblr in Action reading the posts the community there collects from off-their-rockers social justice warriors across the Internet. (Given that they are screen caps of some fairly insane writing on some crazy blogs, it can be NSFW at times.)

          I hope – no, I desperately pray – some of it is sarcasm but you can never tell with the Tumblr blogs they find. My favorite one is the Les Miserables. A blog called “This is Thin Privilege” on Tumblr, which is dedicated to how thin people shame fat people all the time, wrote:

          Thin privilege is being able to see people of your own body type in Les Miserables. Like, really. It’s my favorite musical, but there was not one single even remotely overweight person in thew hole movie.

          The response was priceless. It makes me giggle like a little kid every time I read it. “ur so f*cking dumb i want to punch u”. I don’t think I’ve ever seen more eloquent, germane words in text speak.

        • Jeb

          Oh, that was a hilarious way to spend an hour! I read most of it as being sarcastic because otherwise it would have been a downer knowing such people exist. Positive attitudes are so much better for your health and sanity. The sun is shining!

        • Gilvus

          You knew it was me before checking the admin panel? It’s because I’m Chinese and I took up the pseudonym “Commie Bastard”, isn’t it? THAT’S RACIST!

          I visited that linked subreddit. Brought back bad memories of when I hung out on Asian-American forums as a teen. The victim mentality and reverse discrimination (Asians hating on the Caucasian overlord oppressors, etc.) was just as bad back then as it is on Tumblr :(

      • Le Petit Prince

        A business is not a church. No one is saying that churches need to start gay-marrying people. They can if they want to, but they don’t have to. The Supreme Court justice – Anthony Kennedy – that ruled in favor of many gay rights decisions also ruled in Dale v. Boy Scouts of America that the Boy Scouts, being a private organization, was free to exclude gay people from membership. Clarence Thomas, who wrote that the stipulation was uncommonly silly, acquiesced.

        I think it is important to ask why these Christian bakers and photographers singled out gay people and only gay people. Does not the Bible equally proscribe, and in even harsher terms, all other manner of sin? I have never heard of people refusing to provide services to men and women who cheat on their spouses, or people who steal from the government by underpaying taxes. But when it comes to gay people, suddenly it becomes a rallying point for some Christians. I think we need to understand the source of why homosexual behavior becomes elevated in Christian discourse to understand what is so homophobic about some Christian behavior.

        Here’s what I think. These 21st century Christians who support anti-gay bills like this should strive hard to understand the roots of their own tradition. Go back to Augustine and Aquinas, read the hermeneutical methods espoused by medieval scholastic theologians who attempted to grapple with ambiguity in biblical passages, and read moreover for the spirit (and spirituality) of the Bible rather than merely its letter, seeking to uncover not only the Bible’s literal meaning, but its symbolic, moral, and anagogical senses. They will discover in their own journey back in time a very different form of Christianity.

        And we need to be careful about slippery slopes here. If it is OK for Christian bakers not to bake cakes for gay weddings, and OK for Christian art galleries not to sell art to gay couples … at some point, the distinction (made by some Christians themselves) between status and conduct disappears. At some point, it is not about supporting un-Christian activities (gay marriage) but about doing business with gay people, period.

        Zack, I mean this in the nicest possible way, but I think that this is a simple case of lacking empathy. It is like the straight men in the military feeling afraid of gay men in the shower room when it should have been the gay men being afraid of getting beaten up by a heterosexual majority. If you live in a world where people regularly debate whether to serve Christians cake, and you deal with this kind of behavior and assumptions on a daily basis (to a smaller or larger extent), I suspect your worldview will change quickly.

        My suggestion? Go gay for a day.

    • Le Petit Prince

      A business is not a church. No one is saying that churches need to start gay-marrying people. They can if they want to, but they don’t have to. The Supreme Court justice – Anthony Kennedy – that ruled in favor of many gay rights decisions also ruled in Dale v. Boy Scouts of America that the Boy Scouts, being a private organization, was free to exclude gay people from membership. Clarence Thomas, who wrote that the stipulation was uncommonly silly, acquiesced.

      I think it is important to ask why these Christian bakers and photographers singled out gay people and only gay people. Does not the Bible equally proscribe, and in even harsher terms, all other manner of sin? I have never heard of people refusing to provide services to men and women who cheat on their spouses, or people who steal from the government by underpaying taxes. But when it comes to gay people, suddenly it becomes a rallying point for some Christians. I think we need to understand the source of why homosexual behavior becomes elevated in Christian discourse to understand what is so homophobic about some Christian behavior.

      Here’s what I think. These 21st century Christians who support anti-gay bills like this should strive hard to understand the roots of their own tradition. Go back to Augustine and Aquinas, read the hermeneutical methods espoused by medieval scholastic theologians who attempted to grapple with ambiguity in biblical passages, and read moreover for the spirit (and spirituality) of the Bible rather than merely its letter, seeking to uncover not only the Bible’s literal meaning, but its symbolic, moral, and anagogical senses. They will discover in their own journey back in time a very different form of Christianity.

      And we need to be careful about slippery slopes here. If it is OK for Christian bakers not to bake cakes for gay weddings, and OK for Christian art galleries not to sell art to gay couples … at some point, the distinction (made by some Christians themselves) between status and conduct disappears. At some point, it is not about supporting un-Christian activities (gay marriage) but about doing business with gay people, period.

      Zack, I mean this in the nicest possible way, but I think that this is a simple case of lacking empathy. It is like the straight men in the military feeling afraid of gay men in the shower room when it should have been the gay men being afraid of getting beaten up by a heterosexual majority. If you live in a world where people regularly debate whether to serve Christians cake, and you deal with this kind of behavior and assumptions on a daily basis (to a smaller or larger extent), I suspect your worldview will change quickly.

      My suggestion? Go gay for a day.

      • http://www.joshuakennon.com/ Joshua Kennon

        Hey, Le Petit Prince, for some reason your comment was posted as a response to me instead of Zack, who you were addressing. I used the moderator panel to repost it directly under his message so he’d be sure to see it / get a Disqus notification if he’s signed into his account. It might take a few minutes for the original message you submitted to show up as deleted and the exact same identical message reposted under his, but if you have any problems or it doesn’t appear, let me know.

      • Le Petit Prince

        Thanks, Joshua. I just clicked on the last “reply” on the sub-thread upon finishing reading it. I’ll be more careful next time!

  • Scott McCarthy

    ” In an earlier comment, you suggested that people who supported these laws were not necessarily homophobic. Why not?”

    Because you could also just believe in an absolute right to free association.

    I happen to think it’s not the place of the government to tell people how to think – I oppose, on principle, all hate crimes legislation, for instance. Now there’s a slight difference between opposing hate crimes laws and supporting or advocating genocide.

    I don’t believe that government should have any preference among its citizens. I don’t believe that your right to buy a cake is more dear than the bigot’s right to free association. I don’t think that a Jewish

    baker should have to cater a KKK party.

    Now we know that the government (thinks it) has the power to compel people to engage in commerce against their will (see NFIB v. Sebelius). I believe government should not have this power, and to the extent that there is a legislature that is willing to limit this power, I support it.

    • Le Petit Prince

      Can you explain exactly how one’s freedom of association is violated by entering into a business with the design of selling cakes? Sure, the Boy Scouts of America shouldn’t have to accept gay scoutmembers. We might think it’s silly and antiquated, but we accept that private organizations should have the right to stipulate their own rules of membership, and more broadly, the messages they intend to promulgate.

      But we are talking about businesses in the public sphere here. The expressive purpose of a business is not to communicate a substantive message about religion in the same manner that the formation of a church is designed to do. If one wanted to agitate against same-sex marriage, one would form the National Organization of Marriage, not Sweet Treats. No one disagrees that people should be allowed to form the National Organization of Marriage. But it’s a stretch to suggest that freedom of association extends to business operations.

      Surely no one thinks that a bakery is expressing an opinion – any opinion – about gay marriage simply by providing cakes. When I go to weddings, I don’t think that just because a florist provided flowers, or the hotel their rooms, or the band their musical talents, that they are expressing any kind of message. Does anyone actually think that? Isn’t that just a slightly bit, well, daft? If the baker had sold the cake to another merchant, who then resold the cake in the secondary market to gay couples, what would have changed in this case? Is there any enduring ideational content embedded in the cake that has survived the initial transaction? Do we really think that the baker who has baked the cake is now in support of gay marriage? Would any of Elaine Huguenin’s Christian friends have thought that she now supported gay marriage because she took photos of a same-sex commitment ceremony?

      Contrast this to when a company actually enters the expressive marketplace. When Google,or Chevrolet runs ads during the Winter Olympics designed to communicate their support of gay rights, they ARE perfectly entitled to this form of corporate branding, just as when Chick-fil-A spoke out against gay marriage. But in none of these instances did companies undertake to decide which clients were or were not deserving of service. And a baker can most certainly run ads in the paper against gay marriage while still serving gay couples. The government isn’t telling you what to think. One can think whatever they want, no matter how medieval the content. But companies ought not to be given the right to arbitrate between deserving and deserving customers. What if a company decides not to serve fat people, or foreigners, or Republicans, or Caucasian men between the ages of 18 – 25 with no less than one but no more than three tattoos unless accompanied by black hair not exceeding 10 inches in length? Who wants to get in line?

      The freedom of exercise of religion has never been trampled upon simply because minorities are served. And it is intellectually disingenuous to suggest otherwise. A Christian baker or photographer does not lend any endorsement nor any explicit approval or disapproval to a consumer of its products or services simply by opening its doors. Customers do not look to businesses for such personal endorsements, nor does society at large interpret the message as such, unless the company enters the expressive marketplace beyond the scope of its normal operational transactions. None of the cases discussed have anything to do with expression in the way we customarily understand it. Rather, they are motivated by a significant amount of animus designed to single out one segment of the population as different and hated.

      A government that chooses not to act isn’t taking no stance regarding its preferences; staying neutral IS a stance, because it allows businesses to discriminate in a capricious fashion. So, instead of begging the question, I think we need to decide what kind of organizations possess untrammeled rights to expressive association, and which organizations do not. We need to interrogate the bases on which businesses discriminate among customers, and ask if they are motivated by animus, and if those beliefs are consistent even by the internal standards of the group in question.

      The truly tough question isn’t a legal one but the spiritual one that Christians grapple with. And it really doesn’t have anything to do with cake. If providing a cake at a gay wedding is problematic, what about teaching kids with gay parents? Does this constitute supporting non biblically-sanctioned alternative families? What about extending inheritance protections and other spousal rights to gay couples?

      • Scott McCarthy

        You’re running into an equal protection issue without realizing it: how is a bakery substantially different from the Boy Scouts? They’re both providing a product (cakes) or a service (wilderness training) for a fee. And that ignores the problem of entity formation: should an entrepreneur be compelled to operate as a sole proprietorship to appease your distinction? Corporations are merely groups of real people who have joined together to further their shared interests.

        Re: “Who wants to get in line?” – that’s kind of why I say I doubt that proposals like these would cause much of an issue. That’s how capitalism works. If nobody wants to get in line, then the shop will go out of business, and be replaced by someone who is willing to cater to the market.

        And as I’ve previously said here, motivation is irrelevant to the consideration of utility. What do I care if the lawmakers happen to agree with me because they’re bigots? So long as they still agree with me, they have utility to me.

        Personally, I think the argument could be made that compelling an Ethiopian Jew to cater a KKK picnic constitutes intentional infliction of emotional distress under common law. If a wedding photographer isn’t comfortable taking pictures of two grooms, why should she be compelled to? Freedom of association doesn’t just protect the right to assemble – it should also protect the right not to, as well. Otherwise, what good is it?

        • Le Petit Prince

          I’m sorry but I’m having trouble understanding the flow of the argument … this is an equal protection argument now??? The Boy Scouts is a membership association. The bakery is not. The former is a Title 36 corporation formed with the express purpose of joining together to promote the installation of particular values in boys. The latter, well, makes cakes to turn a profit. I think I described distinctions between forms of corporate expressive association in an earlier post and that operational transactions do not embed inherent ideational content. No one thinks that you approve of gay marriage just because you bake a cake.

          Regarding your second paragraph, I have nothing more to add. I suspect someone who has actually personally experienced gay discrimination first-hand would not feel quite as naturally optimistic that “proposals like these wouldn’t cause much of an issue.” I can’t help but feel that your arguments have a very theoretical bent and are uninformed by the real-life struggles of people who do suffer slurs and denial of services. Just a few months ago in Omaha, Ryan Langenegger had to defend two of his friends in an eatery after a group of men randomly attacked them because they were gay. What do you think would be the effect in places like these if businesses acquired the ability to officially deny services to gay people? Do you honestly think it would have absolutely no legitimating effect? Do you see it as establishing truly neutral social preferences on a town-wide or city-wide scale?

          Discomfort is not a defense. Surely there must have been many people in the past who were uncomfortable serving African-Americans or other racial minorities, no? When the military considered abolishing DADT, scores of men suggested they would be uncomfortable showering with gay soldiers, as they might have with racial minorities in the past. I think it’s important to pierce the rhetorical veil and ask if the discomfort is based on anything sound.

          Anyway, I do realize that at the end of the day, part of the reason we come to such different conclusions is that perhaps you and I have experienced the world very differently. In your world, discriminatory laws don’t matter because happily enough, such evil businesses don’t survive for long anyway and all’s well that ends well. In this world, all forms of discomfort are subsumed under the general rubric of “discomfort” and “emotional distress,” because serving gay men could conceivably be as legitimately distressing as serving KKK members (no distinction between either.) And in this world, the people who are being bullied aren’t actually the gays or the interracial couples. Rather, the people who are being bullied are those who refuse to buy into this new “liberal” orthodoxy.

          The more I encounter arguments like these, the more I realize what Sotomayor meant when she says that people’s experiences shape their assumptions of what happens in the everyday practice of law.

          Anyway, I do appreciate the civility with which this emotionally-charged issue has been discussed. Thanks.

        • Scott McCarthy

          It all boils down to equal protection. Under your distinction, small businesses could just restructure as membership organizations, with $0.01 of every order serving as a one-day membership pass to buy a cake, and the “club” entering into an employment agreement with the founders whereby they’re entitled to 100% of the “surplus” as an incentive bonus. I don’t think it makes sense to encourage this sort of legal fiction. Why not call a spade a spade, and legalize spades?

          It’s also an equal protection issue inasmuch as government is granting legal preference to the rights of one group over the rights of another group, which as I mentioned above, I think is inappropriate. Structuring the law in the way as these states are considering balances the right to refuse to buy from someone you disagree with against the right to refuse to sell to someone you disagree with. I believe that this is a level balance.

          I don’t believe that anyone has a right to force another person or entity to do something that they don’t consent to. I don’t believe that a person should have the right to force a bigot to bake a cake against his will. I don’t believe that a transaction should take place without mutual consent from both the buyer and the seller. I don’t think that putting a gun to the seller’s head is a proper way to run an economy.

  • Scott McCarthy

    Firstly, no, I am not a lawyer (practicing or otherwise); a lot of this isn’t so much debating law as it is policy. Secondly, the “membership” thing to some extent depends on where you are: it’s a popular way of serving alcohol legally in numerous dry counties across the country. I’m not in the alcohol industry, but I work closely with the ATF on a regular basis – if the DOJ (or IRS, as you posit) disagreed with this particular legal fiction, they could put thousands of liquor stores and bars out of business overnight. Not to mention that it’s the same way virtually every marijuana dispensary is structured, and the laws and regulations governing such structures are currently being loosened, not tightened.

    As for your pharmacy hypothetical, I’ve already conceded that there should be exceptions for “emergency services industries,” and monopolies. There are already laws that bar collusion. Outside of that, if a group of consumers weren’t being served in a particular market, and the barriers to entry were fairly low, presumably that situation would be rectified by an entrepreneur.

    As to your consent argument – I’m sorry to say that it seems you’re the naive one, here (nothing personal). Consent to terms is inherent in any transaction: the buyer and seller come to mutual agreement on price, quantity, delivery, etc. to consummate any transaction. The buyer has a de facto ability to choose his supplier (except in monopoly or emergency medical services instances, which I have already addressed). Under public accommodation laws, however, sellers have a de jure obligation not to exercise choice of counter-party. Personally, I don’t think that’s a fair division of power – the government enumerates certain protected classes, and effectively transfers marginal rights to them in their role as consumers, by taking marginal rights from businesses. Whenever possible, I think transferring rights from one group to another group should be avoided.

    • Le Petit Prince

      These are all interesting points. The policy consequences of what you are suggesting just seem a little daunting.

      “Outside of that, if a group of consumers weren’t being served in a
      particular market, and the barriers to entry were fairly low, presumably
      that situation would be rectified by an entrepreneur.”

      But what if the group of people in a small town that are being discriminated against don’t have any form of market power? Or don’t constitute a significant enough class of persons that would entice other companies to enter? What if barriers to entry were not low? What if, in fact, the ability to discriminate actually increased producer surplus? You have mentioned elsewhere in your posts that the costs required to change the infrastructural landscape for gay marriage may not pass an NPV (!) test because the number of gay couples are limited to begin with. If so, how does one then believe that there are now sufficient gay couples to prompt economic re-capture of deadweight losses?

      Yes, of course there must be consent to price and quantity. But from a legal perspective, this definition of consent is not particularly meaningful. And this is, moreover, not the meaning of “consent” that is relevant for the purposes of expressive association. The point here is whether buyers and sellers convey messages during the course of a transaction. This is important because it determines whether compelled speech issues are actually controlling. The New Mexico Court unanimously rejected that argument, and with good reason.

      I suppose what I’m having trouble understanding is what exactly is at stake on the other side of the table. What exactly are you/others trying to protect as far as sellers’ rights are concerned? The Arizona legislature has been remarkably honest. They make no pretense that this is really a defense of religious expression. They have, in Joshua’s terms, “manned up” to the intention behind the law’s construction. I suspect that this is not really about a “choice of counter-party” but about the violation of the freedom of conscience for small business owners. Arizona has said as much.

      The difficult question is not whether buyers have rights or sellers have rights. And your point about sellers not being able to exercise whom they can sell to is well taken, but is relevant ultimately within the broader question of adjudicating competing claims. We still have to answer the harder question of what we want to do when the rights of various parties come into conflict. It isn’t that rights are being “transferred” in some sort of rights marketplace. Courts (and society at large) have to decide on the ordering of rights every single day. So, I would say, one has got to make a choice about which claims take precedence and why.

      As for the equal protection argument from a legal perspective, your hypothetical respondents are not even similarly situated to begin with. Equal protection comes into play when two or more classes of persons, otherwise similarly situated for the purposes of conduct relevant to legislative oversight, are treated differently. Here, the law that governs the intersection of liberty issues hinges on whether expressive/speech issues are entailed, and their putative conflict with public accommodation laws. You may be interested in Elane Photography v. Willock. We are going to have an interesting Supreme Court season coming up!

      • Scott McCarthy

        The buyer and seller are similarly situated inasmuch as they are both parties to a contemplated transaction. The government has bestowed certain rights on buyers by depriving sellers of a corresponding right, hence the scales are not level.

        As to what’s at stake on the other side of the table, it’s merely a re-balancing of those scales – stripping privileges that should never have accrued to buyers in the first place, and restoring choice for sellers.

        You’re reference to “NPV” I assume relates to a comment made some 8 months ago on here (I had to google it to find it! lol). That’s slightly off topic, as I was discussing the Hand Rule and discounting a perpetuity in a low interest rate environment, and it was a preemptive strike against a devil’s advocate position in support of gay marriage, that was to counter a theoretical defense of DOMA in Windsor. And it specifically relied on gay marriage being banned in a significant majority of states – and considering that the list of legal states is growing rapidly in response to Windsor, that’s largely become moot.

        Just because Arizona (and others, probably) are justifying measures like these on Speech and Religion grounds doesn’t mean I am. I’ve been consistent here in justifying the measures on Free Association grounds (with a splash of laissez-faire, admittedly). As to what happens if a minority is too small to justify catering to? So long as it’s not a life-saving or -sustaining product or service…Amazon? I mean not specifically, but to the extent that there is a large enough constituency of Satanists who want to build an idol in Oklahoma, I’m not sure there are going to be many groups that can’t get some sort of product (in a market free of collusion, as I’ve previously addressed).

        • Le Petit Prince

          Let me take a stab at what I think would be a stronger case against the type of public accommodations that you so detest. The reason I kept raising Elane Photography v. Willock was actually because I was trying to play devil’s advocate and approach the issue from your side.

          Unlike cake-baking, photography may rise to the level of protected speech. I don’t think there’s informational content in a cake. But compelling a Christian photographer to take pictures of same-sex commitment ceremonies presents a different set of issues. Here, all the factors that Scott McCarthy desires are present, happily enough. There were sufficient alternatives in the marketplace. It wasn’t like there was only one photographer, and it wasn’t like she was the best. So your free-market conditions are satisfied. Elaine was quite happy to serve gay people in any other way. She would have, for instance, taken pictures of them in any other context apart from a wedding ceremony, so it’s really hard to argue that her business decisions were motivated by animus against gay people. Moreover, she would have been equally troubled shooting a film involving straight actors in a gay love scene, so one could possibly argue that sexual orientation was not the controlling factor.

          In short, Elane Photography presents a very strong test case for the kind of world that exists in Scott McCarthy’s previous hypotheticals. Given the presence of abundant photographers who were willing to photograph the commitment ceremony, and that all the couple had to do was hop into a car to find another business seven streets away, and that Elaine was pretty much a decent person about the entire business, why raise a fuss about this? It doesn’t get better than this. These were all decent human beings trying to live out their deeply-held convictions. It’s hard not to respect everyone involved.

          I think this is a genuinely tough question. And I’m not sure how I feel about it. But I think that when we (the courts and society at large) adjudicate competing claims in the marketplace, we should be very careful about the reasons we can use to differentiate among customers. Not a single person in any of these cases would have accepted the kind of unrestricted and absolute right to freedom of association that you have espoused here. Rather, what they have tried to do, is point out that photographers and other providers of artistic content provide services that are distinct from bars, bowling alleys, or cake shops. In other words, whether the transaction contains informational content determines whether sellers can discriminate among customers. The argument is that if providers of artistic content cannot do this, they would be engaging in coerced speech. Many liberal law scholars who are strongly supportive of gay marriage and gay rights in general have actually embraced this position.

          But your absolute right to freedom of association goes even further than even Elaine Photography or perhaps Arizona intends to, because they make a distinction between types of businesses that may or may not discriminate, and they accept that businesses that are purely transactional do not have good-faith reasons for denying customers the same products and services. Put another way, a bar-owner cannot deny services to gay or transgendered people just because he feels like it. No one has contested this in these cases. In Scott McCarthy’s world, though, bar-owners can do this because of the seller’s “choice of counterparty.” The affected clients should, according to you, just suck it up and try to buy a bar or bowling alley from Amazon, failing which they should just accept their fate.

          You may have out-Arizonaed Arizona!

        • TheLonelyHumanist

          Le Petit Prince, it appears that you believe that a person is innately entitled to the right to buy from a business but a business in not innately entitled to withhold from selling to a person. Scott believes the very opposite. How do you defend the “right” of a person to be able to buy from businesses? Perhaps you believe that the role of the state is to protect equality. Scott will probably say the role of the state is to protect freedom. Freedom and equality are opposites. You two can go around and around for ages but the core question is how do you give to the consumer the right to buy without taking away the freedom of the firm to not sell? Or how do you protect the freedom of the firm to not sell without giving them the freedom to discriminate against its consumers?

        • Le Petit Prince

          Thanks, TheLonelyHumanist. Did you have a chance to read some of my earlier posts? I mentioned that I agree that this is about competing claims, and that we cannot simply wish the problem away by pretending that no adjudication is necessary. This is why I pressed Scott to explain what was at stake – in concrete terms – for businesses who decided not to sell to particular persons, since we agree as to what is at stake for minorities who are denied services. If we know what the competing claims are, we can attempt to see what burdens both parties would face in their respective situations if an adverse judgment were rendered against them. This idea of the right to sellers to arbitrarily discriminate on any basis has not been accepted for a very long time. And I don’t think this is what we are really talking about in this discussion anyway.

          Let me invert the question: Could you give me some examples of some of the concrete burdens that a firm would face if it were unable to distinguish between groups of consumers. I actually helped Scott think of one such example. Do you think there are others? Or is this an abstract defense of the admittedly glorious free market?

          Would your answer to what a state was entitled to do change if we were talking about another country (say, gays in Russia) rather than the United States? In other words, do your cultural assumptions about what economic free agents would do if left to their own devices influence your inclination toward the Elane Photographers of the world or toward minorities?

          Finally, just a point in response to your other post. I think it’s irresponsible to arbitrarily assign the rhetorical space of the “bullied” to everyone without thinking about moral intuitions and preferences in a rational way. Joshua wrote about this in his post (“How one politically incorrect slip up can ….” and I agree with just about everything he said there.) No one is saying that we need to band against bigots. Those words were put into my mouth. But think about this: how does allowing gay people to marry affect the rights of other couples to marry? You see some people making the argument that gay marriage “bullies” straight couples. It’s so easy to occupy this space. Anyone can be a bully. Anyone can be bullied. But rhetoric aside, who is concretely suffering burdens? Let’s look at the concrete burdens, not the rhetoric. Who is giving up something tangible?

          Do you think it’s the best argument to make to point the spotlight on the idea that homophobic people are actually the ones being discriminated against? Is this really what you mean to say? When was the last time a homophobic person was killed, like Matthew Shepard? When was the last time it was suggested that homophobic people should be classified as a group of persons suffering from disabilities or psychological disorders, as Scott McCarthy did with gay people (albeit as what he considered an inoffensive thought experiment?) When was the last time homophobic people were refused services at cake shops, florists and studios?

          What you are perceiving in terms of anti-homophobia is actually an evolving national conversation that is turning to a rational discussion of whether it is consistent to deny rights and protections to one group of people while extending it to others. If you had read my posts, you would have noticed that strong suppoters of gay rights have actually gotten together to support Elane Photography’s right to refuse her services to a gay couple (only in the limited instance of a commitment ceremony.) This should not be surprising. It’s not like people on the Left go foaming at the mouth at the mere mention that a Christian photographer doesn’t want to engage gay people in a specific, delimited manner.

          I rely on the military locker-room test. Consider this. A young gay man, who is not out yet, comes out in the military and tells his colleagues. You will have one group of people who choose to focus on the fact that straight men are now uncomfortable with gay people and maybe this will affect team morale. They start talking about what will happen in the showers. It doesn’t matter that there are 30 straight men and one gay man. The single gay dude is more of a discomfort and threat. Another group of people will point out that this gay man has more to fear, perhaps because his buddies have been yelling “faggot” to each other every other day, and because they will now treat him differently, or has actually happened in the military, gay men have been beaten or sexually assaulted. This is the locker-room test. Two people, presented with this situation, will respond empathetically in different ways that betray their life experiences. Are you in Group A or Group B? (I mean this question rhetorically.)

          This is what Sonia Sotomayor was talking about. When jurists are presented with just the facts, it is impossible that their life experiences not inform their reading of the law.

          Anyway, one of the reasons I think discussions like these are important is because I think conversation helps to bring assumptions to the surface. I would not have spent my one day off on this blog otherwise. I hadn’t meant to. I wanted to get through a book. (I know, I’m sad! I am also a huge fan of Joshua Kennon and although he is perfectly capable of defending himself, I have too many gay friends not to recognize how unjust the current regime is.) And I don’t apologize for this, but something just pisses me off when people make arguments that assume that Josh or Aaron, or many of my gay friends are second class citizens. The fact that I am pissed off doesn’t affect the intellectual components of my arguments. You can judge for yourself. But I am honest that this is emotionally what I feel.

          Conversations with gay people and Christian friends alike have changed my mind about many issues. Talking is good. Engaging each other politely instead of hiding from our true opinions is good. We don’t have to agree, at the end of the day, but I think there’s a reason why the more American society talks, the more we move towards gay equality.

          I don’t want to give away too much about my personal beliefs, because I think that faith is a private matter between God and Man, but I do wish more Christians would speak up about how they feel about gay rights, just so that the world can see that not all Christians embrace the intellectually-destitute brand of spirituality some of the far right currently embraces. The kind of religious expression Arizona is trying to protect does not matter to many Christians.

          It is as if the patristic Fathers had never written anything of monumental beauty, or that Aquinas had not composed the Catena Aurea. It is like centuries of exegetical history, where Christian intellectuals grapple with TOUGH questions has disappeared, only to be replaced by easy judgments ABOUT OTHER PEOPLE. There is so much complexity and beauty in the Christian faith – so much resources to draw on to respond in a nuanced fashion to the challenge of gay equality. And all we get are these one-dimensional bigots spouting hate. I think Christians have a stake in this too and what it is they want their legacy to be. You don’t have to be a far-left, Ivy-League educated hippie to find a lot of what is being proposed to be uncommonly silly.

          Be well.

        • Scott McCarthy

          Strictly regarding the mental illness thought experiment: that was an exercise in how easy would it be for gays to become a protected class lacking legislative action. If Clinton had used the ADA in the manner I explored, gay marriage would have been legal 20 years ago. It’s not that I thought the proposal was inoffensive, I thought it was mercenary, effective, and (if I do say so myself) elegant.

        • TheLonelyHumanist

          I think you may have me in the wrong box. I am STRONGLY against the law in question and I think the familiar antigay sentiments ARE “uncommonly silly.” Homosexual behavior has been considered normal in numerous societies and I think of its taboo as a parochial thing akin to the New World stigma against women who do not depilate their bodies. But the opposite is true too… Equalitists run around promoting their parochial stigma against people thinking some people are better than others, often while foaming at the mouth. There’s no grounds for that. That’s a position that can’t be rationally maintained in the presence of evidence. Is this not the bigotry that you speak of?

          Yes, I would approach things differently in a different culture. I don’t think there is any supreme perspective and the First Amendment is somewhat unique in its absoluteness.

          Here a thought experiment: You’re a filmmaker looking for work who is approached by someone who wants to make a film that convinces people that what he believes is right. He then introduces you to his pastor at the Westboro Baptist Church and they began animatedly explaining the project they would like you to work on… do you have the right to turn them down because you don’t want to promote their beliefs?

        • Le Petit Prince

          Thanks, LonelyHumanist.

          With the filmmaker thought-experiment you posed, the question was exactly that which was posed in Elane Photography v. Willock, because here, the First Amendment protects photography/film, and it could be argued that producing a film about the Westboro Baptist Church does, in fact, constitute protected speech. So the question is, do public accommodation laws take precedence, or do First Amendment issues, assuming we accept that the film is protected speech?

          This is an evolving area of constitutional law, and I suspect that over the next few years, balancing tests will be engineered to adjudicate the competing claims.

          But I think it’s important to observe that this already happens everyday in our professional lives, and that part of what it means to be a professional is precisely to separate what it is that we do as a service from what it is that we believe (in distinction from the corporate mission.) When a lawyer defends a rapist, is he promoting rape, or indicating rather that he believes in a system of law in which all opinions deserve an airing? When a PR agency takes up work for the Westboro Baptist Church, are the individuals promoting the message of the church, or are they professionals who have been hired by a client to do a job? How is this distinction different from what you and I already experience daily in our lives?

          The irony is that the people who are yelling that business rights have been violated are actually not thinking about businesses qua businesses in the first place; instead, they are conceiving of businesses as some sort of personal extension of the individual ego, with some sort of value system independent from the corporate mission. The “conservative” description of a business resembles a person, and the “liberal” description resembles an actual corporate entity …

          John Roberts defended gay rights as a lawyer – does it mean he endorses it personally? The greatest champion of gay rights on the current Supreme Court – Anthony Kennedy – is a Catholic. Surely his rulings cannot be consistent with his personal beliefs? I suppose what I’m advocating is a broader sense of what it means to be a professional, and to understand that from an inter-subjective perspective, society at large already distinguishes between professional work and personally-held beliefs. So in what sense is it even fair to say that a message is being compelled?

          I think the First Amendment cuts both ways. Instead of saying that the
          First Amendment protects creative work as protected speech, I think we
          should go one step further and look at the deeper value behind the First Amendment, which is
          that all speech, regardless of its value content, may be aired. The PR
          agency is adhering to the spirit of the First Amendment by TAKING the
          assignment rather than rejecting it. It is Westboro Baptist Church that determines the content, and supervises the making of the message. You don’t have to believe in the message of the Westboro Church, but do you believe in their right to represent their beliefs in the free marketplace of ideas? Can the PR agency get behind that?

          Finally, let me try to engage Christians using their own traditions. Does not the Bible say that Christians ought to render to Caesar the things that are Caesar’s? The Lutheran Reformation would not, in fact, have succeeded in the early sixteenth century had it not quickly embraced a natural deference to the electoral power of the German princes, who in turn protected these “heretics” from the wrath of the Catholic Church. Calvinism was for a long time in its early history inseparable from a theocratic experiment. Christians – and the Protestant thinkers in particular – long ago accepted that to exist in a temporal realm was to render obedience to the norms and expectations of temporal rulers.

          This turn toward the idea that being a Christian means you shouldn’t bake cakes or take photos of gay people is actually a profoundly non-Christian idea. Moreover, it is also inconsistent. Christians encourage each other in sin every single day. When one hears another person gossip and does nothing to stop him, is that not encouraging someone else’s sin? If someone lies, and a Christian lets it pass, does he not become complicit? How are any of these mundane, but spiritually significant moments in which Christians intentionally or inadvertently encourage others to sin differ from taking photos at a same-sex wedding ceremony? The fact that gay people and homosexual sex always makes it to the top of contemporary Christian discussions of sins is what makes it suspect. Is there a reason for this constant preoccupation with the fact that gay people have sex, want to get married, and adopt children?

          (Last quick point: I don’t believe in the equality of moral preferences, so I don’t think that anti-bigotry is also bigotry. I don’t think it’s possible for a person to think that racism is wrong, and that murder is wrong, and that discrimination is wrong, and attempt to hold a philosophical theory of neutral moral preferences that would equally encompass the idea that discriminating against the idea that some preferences are better than others is also wrong. If you were to truly hew to the idea that anti-bigotry is also bigotry, that position would not hold any substance unless you were also simultaneously willing to embrace that being racist and not being racist are morally neutral positions. If you do believe that, then I think your position is internally consistent. In this absolutely relativistic moral universe, this discussion would be pointless in the first place :))

  • pHuzz

    Seems that this would be a supreme economic opportunity to create businesses that offer services and products to any and all.

    Let the people vote with their money! Let the ignorant foot the bill.

  • Rob

    NBC is reporting that Arizona Governor Jan Brewer will veto the bill as she ‘does not want to jeopardize the economic momentum in Arizona.’ Looks like pressure from Marriott and Apple helped a bit.

    • http://www.joshuakennon.com/ Joshua Kennon

      I hope so. I find it surprising that they are surprised that the Super Bowl is reportedly considering moving from the state, Apple subtly threatened its new 700-worker domestic factory they are building in the state, and giants like American Airlines and Marriott are decrying the bill as an assault on business.

      Unfortunately, it looks like a few committees in Georgia and Indiana are trying to pick up versions of the bill, too. Georgia probably won’t be a problem because Coca-Cola will crush it, but you never know. I’m less confident about Indiana.

      • Rob

        Slippery slope. The Super Bowl threat is not an idle one either, in the late 70s/early 80s (i’ll have to check) the NFL changed the venue of the Super Bowl out of Arizona after the state rescinded MLK day as a state holiday.

        • http://www.joshuakennon.com/ Joshua Kennon

          The efficiency of free market capitalism in directing resources, including political power, amazes me sometimes. Did you see the news since our exchange? It’s been announced that Intel, which employs more than 11,000 in Arizona, is putting pressure on the government to kill the bill as a direct affront to its values, while Internet giant Yelp, which has 600+ employees in Arizona and expanding, talks about how fundamentally offensive denying service is and they want no part of a state that would advocate such a right.

  • Mike Arienti

    This is not a segregation law. It’s a tweak to a law which is already enforced in Arizona and many other states. It protects the right of a business owner to provide or deny services to whomever they choose.

    Look up the Supreme Court Case of Romer vs. Evans. It was a case argued against an amendment to Colorado’s constitution. That amendment precluded all legislative, executive, or judicial action at any level of state or local government designed to protect the status of persons based on their ‘‘homosexual, lesbian or bisexual orientation, conduct, practices or relationships.” It was a gays vs. state government issue. Arizona’s SB 1062 is not.

    Arizona SB 1062 is a gays vs. private enterprise issue. Romer vs. Evans doesn’t apply when private enterprise is involved as businesses have the right to make their own policies. Romer vs. Evans would apply if a state were to attempt to pass a law banning gays from registering to vote or obtain a concealed carry permit. The government does not have absolute jurisdiction over a business which they don’t own.

    • http://www.joshuakennon.com/ Joshua Kennon

      With all due respect, if you think this is a minor thing, you are either 1.) naive, or 2.) gullible. Perhaps both. This law is a weapon intended to target gays that will be used, instead, to persecute the very people who passed it. To make it pass court muster, the word “gay” isn’t mentioned anywhere, meaning it had to be expanded to apply to everyone.

      Not only is a basic reading of the source legislation itself all it takes to see that (there is a link to the legislation itself in the post above), but some of the best legal experts in the country have weighed in on it, which is exactly why some of the biggest conservative groups are lobbying Arizona’s governor, a member of their own party, to veto the bill. (Business, too. The NFL is rumored to be considering moving the Super Bowl, and Apple has reportedly issued a subtle threat to halt plans to build a huge new American-based factory in the state that hires 700 workers. Nobody with money or intelligence wants to go near this thing because it opens up a pandora’s box by radically altering 60-70+ years of well-understood public accommodation laws.)

      The reason is that the “tweak” to the law in Arizona expands the definition of the person so vastly it changes the fundamental nature of the protection and no longer makes it compatible with the Federal version of the same bill. It goes from allowing a mosque, for example, to refuse to hire a Christian as a full-time employee (an understandable position necessary to fulfill the religious purpose of the institution), to permitting everyone in the state to discriminate without exception, in all walks of life. It opens a door to police officers, firefighters, paramedics, librarians, waitresses, and every other imaginable profession deciding they don’t like the person in front of them, refusing service.

      There is no government or public safety worker exception. Imagine you have a heart attack and call for an ambulance. They arrive and are about to save your life when they suddenly realize you are, say, a free market capitalist. They are radical communists. They have deeply held convictions and believe that helping you is going to further economic exploitation. It may be a stupid belief. But now, they can sit and watch you die without any consequences as their actions are shielded by the government. The only reason someone wouldn’t be bothered by such a potential outcome is because they think they aren’t a member of a group that will be targeted which is, itself, a further demonstration of the animus in the bill.

      This law creates a world in which a Christian can find themselves turned away from the inn in the middle of the night because the inn keeper hates religion or a heterosexual white man can find himself refused service at a restaurant because he is seen as an “oppressor”.

      While I can respect the argument, and those who advocate, that this is perfectly fine under a Jeffersonian interpretation of Constitutional governance – a valid, intellectually consistent framework with its own moral foundations that are well-reasoned – anyone who thinks this is nothing more than a small change in the existing regulations doesn’t understand the law or human nature. People who think they were being persecuted for having to serve cake to gays are going to find out, very quickly, what real persecution is and they’ll have designed, forged, and sharpened the weapon they hand to their enemies.

      • Mike Arienti

        Back up a few words and realize there is no Constitutional right to be provided services by a business. Since that “right” does not exist, it cannot be taken away.

        • http://www.joshuakennon.com/ Joshua Kennon

          Again, I mean this respectfully: You are the type of citizen that struck fear in the heart of founder James Madison, who argued we should never have authorized a Bill of Rights because someday, people would advocate that only those enumerated rights found explicitly in the constitution would be considered constitutional rights. The other founders never thought Americans would be so daft as to say something that stupid after having fought a bloody war, but to appease him, they inserted Article IX, which reads:

          The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

          So the constitution itself says that not all constitutional rights are listed in the constitution, leaving it up to society, and (in a practical sense), the court system to determine what those are. It’s right there, crystal clear, in black and white, listed alongside the freedom of the press and the right to a trial by jury. How much more brazen could they have been?

          In the two centuries since, through long bodies of case law, we have a long list of unenumerated constitutionally recognized rights that are every bit as powerful.

          For example, Griswold v. Connecticut established the constitutional right to “Marital Privacy”, saying your neighbors can’t interfere with the decision of a husband and wife to use birth control simply because they found it morally offensive.

          Likewise, Pierce v. Society of Sisters a century ago established the constitutional rights for parents to send their children to private school to direct their education so as not to give the government total control over the indoctrination process.

          There is now a well-recognized right to equal protection that covers all sorts of publicly offered goods and services which does, in fact, entitle certain people, under certain circumstances, to the “right” to be provided services on identical grounds as other members of the community. Your assertion otherwise is simply factually wrong. Try it. Open a restaurant and see if you can get away with it.

          Thus, your argument is a fiction. It bears no resemblance to the country in which we’ve been living for 200 years and embodies the very fears one of the wisest founders knew would someday be the undoing of the republic. Your advocation for limiting constitutional protections to specific enumerations is a recipe for tyranny in an ever-changing world where the government can simply evolve beyond the letter of the law.

          The proper question, were one to push for a bill like this, would be supremacy of two competing constitutional rights in a given context. One could make an argument on those grounds and still not shred the constitution to toilet paper.

        • Mike Arienti

          The Constitution is a contract between We the People and those who govern, not We the People and We the People. The power of the governing body is limited by it. The power of private enterprise is not.

          Based on what you have posted, it seems you hold a belief that contradicts this. Therefore, your whole premise for argument is flawed.

          Since a decision by a business to refuse service to a customer has nothing to do with the government, the business is well within their rights to do so.

        • http://www.joshuakennon.com/ Joshua Kennon

          The Constitution is a contract between We the People and those who govern, not We the People and We the People

          That’s a nice talking point, though it is historically, factually, and legally wrong. It’s not a question of nuance, it’s just outright ignorance. It ignores centuries of laws, the culture and regulations in place at the time of the founding, as well as the writings and votes of the founders themselves, many of whom had long political lives.

          Even if you were too lazy to study them on your own, you could effectively cheat by glancing at current Supreme Court Justice Antonin Scalia’s writings. His books and essays are replete with case studies of restrictions on individual liberties that we would consider offensive and unconstitutional today (he doesn’t under Originalism) but with which the founding fathers had no problem.

          They, for example, found it perfectly constitutional for the government to ban consensual cohabitation between a man and woman, even though the government was not involved at all and whatever they may or may not be doing was entirely on private property between two individuals acting of their own free will.

          Hell, the entire dissent in the Lawrence case was Scalia screaming that for 200+ years, the government had been granted the constitutional authority to limit individual freedom in conduct to which it was not a party solely based on moral disapproval alone, even if that moral disapproval was irrational. And he was right, historically. The founders would have had no problem banning private interactions between people because they did it all the time. If the founders’ vision of the constitution was as you say it was, they never would have tolerated such a thing, let alone been the person to draft the legislation in some cases!

          Since a decision by a business to refuse service to a customer has nothing to do with the government, the business is well within their rights to do so.

          Do you just pretend that laws banning assisted suicide don’t exist? Those have been upheld as perfectly constitutional. They are regulating private conduct between two parties by restricting individual freedom among members of society.

          Do you just ignore usury laws in private financial transactions between two people in which the government isn’t a party, which have been upheld as constitutional? They are regulating private conduct between two parties by restricting individual freedom among members of society.

          I’d love to watch you take an early American law course. The country you think you live in is not the country you actually live in, nor has it ever been that way. At any time. Throughout all of history. The restriction on governmental actions has largely been accomplished by two centuries of the court system expanding unenumerated rights to give individuals greater liberty than the founders intended (with a few unfortunate exceptions – I’m enough of a Jeffersonian to believe Wickard v. Filburn was one of the three most evil Supreme Court decisions ever passed even though it is absolutely permissible under Article 1, Section 8 of the Constitution once one understands pricing models in economics).

          In other words, even if I were a Supreme Court Justice and happened to agree with your base position that economic activity shouldn’t be compelled for any reason, and that I should further expand the scope of freedom of association in the case law, your logic trying to convince me why that is the right course of action is severely flawed, your arguments are entirely historically inaccurate, and your framework lacks any sort of intellectual consistency.

        • Rob

          I wonder if the government will ever get the chance to cite Wickard v. Filburn as it pertains interstate marijuana commerce…be interesting to see the case go from home-grown wheat in order to feed chickens to college students getting high.

  • TheSplash

    It’s always interesting to come in here and read all the arguments, particularly because they’re so intelligent without all the vitriol that usually accompanies such Conservative vs Liberal discussions.

    As a thought experiment, is it possible in this day and age to open a business that would not specifically sell to a certain demographic? Like in the case of the unfortunate cupcake woman, could she set up her business in such a way where she didn’t have to sell to gay people anymore? I don’t believe there is a way. Perhaps she could reorganize into a NonProfit like the Boy Scouts or perhaps associate with a church. Could a church open a business, or are they limited to just a NonProfit?

    Here’s another one; there’s a group of people who thought up this bill and got it passed, only to have it vetoed by the governor. I’m sure they’re trying to figure out what to do now. So is there any sort of law that can be passed in the future that would protect someone like the cupcake lady that both sides could agree on? I really don’t think there is. I think if you want to set up a business, you have to agree that you will sell to *anyone* who walks in the door, as long as they conform to proper decency (although who knows that may be challenged next – No Shirt No Shoes, service required by law!)

    This reminds me of the “Adult Only” apartments that used to be around back when I was a kid…

    • jeb

      You can market and create a reputation for your business that will target a certain clientele over another. Taking your example, and “Seinfeld”, you could advertise your apartment complex as a “senior retirement community” that would not have as many activities and events designed for a 30-year old single guy as for a 75-year old couple. You couldn’t stop Kramer from moving in but if he was craving social activities, he would probably get bored of the bland food, limited physical activities, no night life and neighbors who don’t share his same life experiences.

    • http://www.joshuakennon.com/ Joshua Kennon

      It’s always interesting to come in here and read all the arguments, particularly because they’re so intelligent without all the vitriol that usually accompanies such Conservative vs Liberal discussions.

      That’s my favorite thing about this community and one of the reasons I keep writing. The problems or issues get put on the examination table and everyone takes a crack at them based on logic, without a lot of emotion. There seems to be a higher reverence for finding the truth, or at least the intellectually plausible, than adhering to some sort of dogma for the sake of consistency. (And the willingness of so many of us to throw issues on the, “Too hard – revisit in future” pile.) I know, speaking for myself at least, if someone can prove something with facts, or make a persuasive argument, I’m happy to have my mind changed; it means my view of the world is improved so I can make better decisions.

      I’ve been thinking about your question – “is it possible in this day and age to open a business that would not specifically sell to a certain demographic” – and the answer is: Probably not. But if I were going to try the only strategy I can think of that might, maybe, possibly have a chance of success would be a membership model like the Augusta National Golf Club, which was so racist they prohibited black members, yet required all caddies to be black, up until the 1990′s! (Let that sink in – this was going on in my lifetime, which just boggles my mind.) Yet, they got away with it. In some cities, the smoking bans have been sidestepped by using the model for bar patrons who buy a membership to be admitted to the facility and then smoke freely in these cigar clubs. For awhile, it even staved off the FDA during the AIDs crisis as people imported drugs under the “Dallas Buyers Club” model so it might not work, but you’d have a fair chance.

      Set up a business, “Colorado Cake Club” and sell annual memberships entitling the person to 1 cake per membership term. Require all members to adhere to some sort of standards code or give the existing members the right to reject anyone on a whim. Then have the cake club sign an exclusive bakery manufacturing agreement with the former cake business that now operates with no other customers.

      A reasonable judge might conclude you were simply attempting to by-pass the public accommodation laws and discriminate, and he or she would be right, but you might buy yourself another 10 years of business.

      An even more successful strategy would probably be to put a sign in the window that advertised you were donating a portion of each cake purchase to some group that opposed whichever group you were attempting to drive away. The disincentive alone would cause a lot of people to not want to patronize your business, even if they were trying to prove a point.

      • TheSplash

        That sign idea is something I never thought of. It would probably pass the discrimination test too.

  • gridsleep

    Wait a minute. There’s a Church of the Flying Spaghetti Monster? Where do I sign up? Is it affiliated with the Church of the SubGenius?

    • http://www.joshuakennon.com/ Joshua Kennon

      Yes, it exists. He appeared to the great prophet Ragu. Followers of the Church are trying to get a new television show aired called “Touched By an Angelhair” and end their prayers by bowing their heads and saying, “R’amen”.