MeanGreenStompa wrote:
Lots of folks keep getting stuck on the premise of 'choice' for a business owner. The business owner does, of course, retain choice, it's the choice whether to be in a business where they may find themselves exposed to people and beliefs, presented as customers, that they might find offensive and if so, can they swallow their prejudice or make the choice to get out of that business.

You are free to serve customers equally and attend to your own morals in your own house and church, or leave the business if you simply cannot separate the two. You have that choice.

 jasper76 wrote:
I'm not inclined to use the baker example...wedding cakes in my mind trivialize the gravity of these kind of laws. A lack of a wedding cake does not impact your survival.

Landlords, then.

A landlord turns down a qualified homosexual couple because his religion says he can't contribute to homosexuality.

But people need places to live. Shelter is a basic human necessity. So the rights of the homosexual couple IMO should trump the religious freedoms of the landlord, because if one landlord can do this, all landlords can do this, leaving homosexuals potentially homeless.

Probably not a problem in Indianapolis or Bloomington, but I assume Indiana has some backwater counties and towns where religious and social attitudes are more homogenous.

 Frazzled wrote:
Its disturbing that I agree with Brooks and the NYT on this:
http://www.nytimes.com/2015/03/31/opinion/david-brooks-religious-liberty-and-equality.html

Over the past few decades the United States has engaged in a great struggle to balance civil rights and religious liberty.

On the one hand, there is a growing consensus that straight, gay and lesbian people deserve full equality with each other. We are to be judged by how we love, not by whom we love. If denying gays and lesbians their full civil rights and dignity is not wrong, then nothing is wrong. Gays and lesbians should not only be permitted to marry and live as they want, but be honored for doing so.

On the other hand, this was a nation founded on religious tolerance. The ways of the Lord are mysterious and are understood differently by different traditions. At their best, Americans have always believed that people should have the widest possible latitude to exercise their faith as they see fit or not exercise any faith. While there are many bigots, there are also many wise and deeply humane people whose most deeply held religious beliefs contain heterosexual definitions of marriage. These people are worthy of tolerance, respect and gentle persuasion.

At its best, the gay rights movement has promoted its cause while carefully respecting religious liberty and the traditional pillars of American society. The cause has focused on marriage and military service. It has not staged a frontal assault on the exercise of faith.

The 1993 Religious Freedom Restoration Act, which was supported by Senator Ted Kennedy and a wide posse of progressives, sidestepped the abstract and polarizing theological argument. It focused on the concrete facts of specific cases. The act basically holds that government sometimes has to infringe on religious freedom in order to pursue equality and other goods, but, when it does, it should have a compelling reason and should infringe in the least intrusive way possible.

This moderate, grounded, incremental strategy has produced amazing results. Fewer people have to face the horror of bigotry, isolation, marginalization and prejudice.

Yet I wonder if this phenomenal achievement is going off the rails. Indiana has passed a state law like the 1993 federal act, and sparked an incredible firestorm.

If the opponents of that law were arguing that the Indiana statute tightens the federal standards a notch too far, that would be compelling. But that’s not the argument the opponents are making.

Instead, the argument seems to be that the federal act’s concrete case-by-case approach is wrong. The opponents seem to be saying there is no valid tension between religious pluralism and equality. Claims of religious liberty are covers for anti-gay bigotry.

This deviation seems unwise both as a matter of pragmatics and as a matter of principle. In the first place, if there is no attempt to balance religious liberty and civil rights, the cause of gay rights will be associated with coercion, not liberation. Some people have lost their jobs for expressing opposition to gay marriage. There are too many stories like the Oregon bakery that may have to pay a $150,000 fine because it preferred not to bake a wedding cake for a same-sex ceremony. A movement that stands for tolerance does not want to be on the side of a government that compels a photographer who is an evangelical Christian to shoot a same-sex wedding that he would rather avoid.

Furthermore, the evangelical movement is evolving. Many young evangelicals understand that their faith should not be defined by this issue. If orthodox Christians are suddenly written out of polite society as modern-day Bull Connors, this would only halt progress, polarize the debate and lead to a bloody war of all against all.

As a matter of principle, it is simply the case that religious liberty is a value deserving our deepest respect, even in cases where it leads to disagreements as fundamental as the definition of marriage.

Morality is a politeness of the soul. Deep politeness means we make accommodations. Certain basic truths are inalienable. Discrimination is always wrong. In cases of actual bigotry, the hammer comes down. But as neighbors in a pluralistic society we try to turn philosophic clashes (about right and wrong) into neighborly problems in which different people are given space to have different lanes to lead lives. In cases where people with different values disagree, we seek a creative accommodation.

In the Jewish community, conservative Jews are generally polite toward Orthodox Jews who wouldn’t use their cutlery. Men are generally polite to Orthodox women who would prefer not to shake their hands. In the larger community, this respectful politeness works best.

The movement to champion gay rights is now in a position where it can afford to offer this respect, at a point where steady pressure works better than compulsion.

It’s always easier to take an absolutist position. But, in a clash of values like the one between religious pluralism and equality, that absolutism is neither pragmatic, virtuous nor true.

 Dreadclaw69 wrote:

 Frazzled wrote:
Its disturbing that I agree with Brooks and the NYT on this:
http://www.nytimes.com/2015/03/31/opinion/david-brooks-religious-liberty-and-equality.html

For the work blocked

 cincydooley wrote:
I have to admit that the notion of someone having access to Dakka at work, but not the NYT, made me chuckle.

 jasper76 wrote:
Why renting an apartment by a conservative Christian to a homosexual couple could be construed as a substantial burden on the exercise of his religion shouldn't take too much imagination.

(a) Except as provided in subsection (b), a governmental entity may not substantially burden a person's exercise of religion, even if the burden results from a rule of general applicability.
(b) A governmental entity may substantially burden a person's exercise of religion only if the governmental entity demonstrates that application of the burden to the person:
(1) is in furtherance of a compelling governmental interest;
and
(2) is the least restrictive means of furthering that compelling governmental interest

 Dreadclaw69 wrote:

1. How is allowing a homosexual couple interfering with the exercise of religion?
2. If there is interference is this a "substantial burden"?
3. Is providing housing a "compelling government interest"?
4. If so is there a "least restrictive means" of providing housing?

 jasper76 wrote:
1. There are religions that espouse that allowing a "sin" (here defined as an action that offends a divine authority) to occur, or looking the other way, or enabling the sin constitutes complicity in the sin itself. Sin = damnation, etc. Part of the problem here is, religion is basically an ever-evolving game of "make up your own rules", so the easiest way for me (and probably a judge) to determine this is to ask the question "Does the religious person say that an activity interferes with the exercise of religion, and are they telling the truth?"

2. I don't understand this question.

3. I don't know. I'd have to have "compelling government interest" defined for me.

4. Tents? I don;'t know. I suppose the least restrictive means in this scenario would be the government permit the landlord to discriminate according to his religious beliefs, and then the government takes full responsibility for housing our hypothetical couple, and if they cannot find an alternative willing landlord, then directly provide housing to the couple.

 skyth wrote:
Yep...according to the Supreme Court, the government could just provide the housing. That was the argument with the Hobby Lobby case.

 Dreadclaw69 wrote:

 jasper76 wrote:
1. There are religions that espouse that allowing a "sin" (here defined as an action that offends a divine authority) to occur, or looking the other way, or enabling the sin constitutes complicity in the sin itself. Sin = damnation, etc. Part of the problem here is, religion is basically an ever-evolving game of "make up your own rules", so the easiest way for me (and probably a judge) to determine this is to ask the question "Does the religious person say that an activity interferes with the exercise of religion, and are they telling the truth?"

2. I don't understand this question.

3. I don't know. I'd have to have "compelling government interest" defined for me.

4. Tents? I don;'t know. I suppose the least restrictive means in this scenario would be the government permit the landlord to discriminate according to his religious beliefs, and then the government takes full responsibility for housing our hypothetical couple, and if they cannot find an alternative willing landlord, then directly provide housing to the couple.

Those questions are all a part of the legislation to determine whether the legislation may be used as a shield. Another "least restrictive" means may be for the government to rent, and then sub-lease to the couple in question.

 Crablezworth wrote:
http://www.rawstory.com/rs/2015/04/backlash-is-swift-and-furious-after-indiana-pizza-restaurant-owner-brags-about-no-gays-policy/


This strikes me as less fear of going to hell and more pridefully being an donkey-cave.

 Crablezworth wrote:
http://www.rawstory.com/rs/2015/04/backlash-is-swift-and-furious-after-indiana-pizza-restaurant-owner-brags-about-no-gays-policy/


This strikes me as less fear of going to hell and more pridefully being a donkey-cave.

 jasper76 wrote:
Understood. To my non-lawyer mind, these phrases seem like intentional vagueries. I don't know whether "compelling government interest" and "least restrictive means" have more precise legal definitions than what these combinations of words suggest at face-value.

Without that information, it seems like we are putting a whole lot of room for interpretation for judges, which does not sit well with me.

Strict Scrutiny
A standard of Judicial Review for a challenged policy in which the court presumes the policy to be invalid unless the government can demonstrate a compelling interest to justify the policy.
The strict scrutiny standard of judicial review is based on the equal protection clause of the Fourteenth Amendment. Federal courts use strict scrutiny to determine whether certain types of government policies are constitutional. The U.S. Supreme Court has applied this standard to laws or policies that impinge on a right explicitly protected by the U.S. Constitution, such as the right to vote. The Court has also identified certain rights that it deems to be fundamental rights, even though they are not enumerated in the Constitution.
The strict scrutiny standard is one of three employed by the courts in reviewing laws and government policies. The rational basis test is the lowest form of judicial scrutiny. It is used in cases where a plaintiff alleges that the legislature has made an Arbitrary or irrational decision. When employed, the Rational Basis Test usually results in a court upholding the constitutionality of the law, because the test gives great deference to the legislative branch. The heightened scrutiny test is used in cases involving matters of discrimination based on sex. As articulated in Craig v. Boren, 429 U.S. 190, 97 S. Ct. 451, 50 L. Ed. 2d 397 (1976), "classifications by gender must serve important governmental objectives and must be substantially related to the achievement of those objectives."
Strict scrutiny is the most rigorous form of judicial review. The Supreme Court has identified the right to vote, the right to travel, and the right to privacy as fundamental rights worthy of protection by strict scrutiny. In addition, laws and policies that discriminate on the basis of race are categorized as suspect classifications that are presumptively impermissible and subject to strict scrutiny.
Once a court determines that strict scrutiny must be applied, it is presumed that the law or policy is unconstitutional. The government has the burden of proving that its challenged policy is constitutional. To withstand strict scrutiny, the government must show that its policy is necessary to achieve a compelling state interest. If this is proved, the state must then demonstrate that the legislation is narrowly tailored to achieve the intended result.
The case of roe v. wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973), which invalidated state laws that prohibited Abortion, illustrates the application of strict scrutiny. The Court held that the right to privacy is a fundamental right and that this right "is broad enough to encompass a woman's decision whether or not to terminate her pregnancy." Based on these grounds, the Court applied strict scrutiny. The state of Texas sought to proscribe all abortions and claimed a compelling State Interest in protecting unborn human life. Though the Court acknowledged that this was a legitimate interest, it held that the interest does not become compelling until that point in pregnancy when the fetus becomes "viable" (capable of "meaningful life outside the mother's womb"). The Court held that a state may prohibit abortion after the point of viability, except in cases where abortion is necessary to preserve the life or health of the mother, but the Texas law was not narrowly tailored to achieve this objective. Therefore, the state did not meet its Burden of Proof and the law was held unconstitutional.

 Crablezworth wrote:
http://www.rawstory.com/rs/2015/04/backlash-is-swift-and-furious-after-indiana-pizza-restaurant-owner-brags-about-no-gays-policy/


This strikes me as less fear of going to hell and more pridefully being a donkey-cave.

 Manchu wrote:
Surely the burden would be having to provide the pizza.

 whembly wrote:

 skyth wrote:
Yep...according to the Supreme Court, the government could just provide the housing. That was the argument with the Hobby Lobby case.

Incorrect.

The SC ruled in favor of Hobby Lobby because the government couldn't prove that the burden is necessary to advance a compelling government interest. The government must also prove that its pursuit of that compelling interest is being undertaken by using the “least restrictive means.”

Hobby Lobby's objection were over four of 18 methods required to be provided to female employees under the HHS' Obamacare contraception mandate.

You're trying to compare to four relatively cheap medications to housing.

 Dreadclaw69 wrote:

 Manchu wrote:
Surely the burden would be having to provide the pizza.

And how having to provide pizza a "substantial burden", or likely to be a substantial burden, on the exercise of religious beliefs?

 jasper76 wrote:
@Prestor John: the Fair Housing Act prohibits housing -related discrimination on the basis of race, religion, national, origin, and parenthood status, IIRC, but does not protesct sexual orientation. In my hypothetical, the landlord doesn't want to rent on the sole basis of the applicants being homosexual. It is precisely because they are not protected that makes this scenario important IMO.

Why renting an apartment by a conservative Christian to a homosexual couple could be construed as a substantial burden on the exercise of his religion shouldn't take too much imagination.

 skyth wrote:

 whembly wrote:

 skyth wrote:
Yep...according to the Supreme Court, the government could just provide the housing. That was the argument with the Hobby Lobby case.

Incorrect.

The SC ruled in favor of Hobby Lobby because the government couldn't prove that the burden is necessary to advance a compelling government interest. The government must also prove that its pursuit of that compelling interest is being undertaken by using the “least restrictive means.”

Hobby Lobby's objection were over four of 18 methods required to be provided to female employees under the HHS' Obamacare contraception mandate.

You're trying to compare to four relatively cheap medications to housing.

The price of the object isn't meantioned, only that it must be the least restrictive. The arguments are the same.

And the judgment of the hobby lobby case did indeed mention that the government could provide the drugs, thus it was not the least restrictive.

Personally, I do not see how my religious rights can be burdened at all by someone else not following the principles of my religion. Especially if I provide public accomodation. What the people do with what I sell is really none of my business.

 Manchu wrote:
I imagine they would use a "cooperation with evil" argument, which is the basis of a lot of religious objections of this kind.

 d-usa wrote:
All it takes for a substantial burden to exist is someone saying "this goes against my religion". There is no magical test, there is no legal proof, the burden is whatever someone decided it is.

"Homosexuality is a sin and being forced to make pizza forces me to act like I condone that lifestyle and God will look down and judge me for my same-sex stuffed crust pie".

 d-usa wrote:
Honest question: was Hobby Lobby ever required to actually prove that their religion prohibits them from providing anything?