Gary Johnson: 'Religious freedom, as a category' is 'a black hole' (Q&A With the Libertarian Candidate for President On Social Issues)

[SirLinksALot]

SOURCE: WASHINGTON EXAMINER

URL: http://www.washingtonexaminer.com/gary-johnson-religious-freedom-as-a-category-is-a-black-hole/article/2598088

by: Timothy Carney


PHILADELPHIA — At the Democratic National Committee I ran into Gary Johnson, the former New Mexico governor and Libertarian Party nominee for president. Here's a transcript of our conversation, edited for clarity, and reorganized thematically.

—-ON RELIGIOUS LIBERTY—-

Do you think New Mexico was right to fine the photographer for not photographing the gay wedding?

"Look. Here's the issue. You've narrowly defined this. But if we allow for discrimination — if we pass a law that allows for discrimination on the basis of religion — literally, we're gonna open up a can of worms when it come stop discrimination of all forms, starting with Muslims … who knows. You're narrowly looking at a situation where if you broaden that, I just tell you — on the basis of religious freedom, being able to discriminate — something that is currently not allowed — discrimination will exist in places we never dreamed of."

Can the current federal RFRA be applied to protect things like the wedding photographer and the Little Sisters of the Poor?

"The problem is I don't think you can cut out a little chunk there. I think what you're going to end up doing is open up a plethora of discrimination that you never believed could exist. And it'll start with Muslims."

In a year when conservatives are being turned off by Donald Trump, do you worry that you're turning off conservatives who might come to the Libertarian Party?

"It's the right message, and I'm sideways with the Libertarian Party on this. My crystal ball is that you are going to get discriminated against by somebody because it's against their religion. Somehow you have offended their religion because you've walked in and you're denied service. You."

You think it's the federal government's job to prevent—

"Discrimination. Yes."

In all cases?

"Yes, yes, in all cases. Yes. And you're using an example that seems to go outside the bounds of common sense. But man, now you're back to public policy. And it's kind of like the death penalty. Do I favor the death penalty. Theoretically I do, but when you realize that there's a 4 percent error rate, you end up putting guilty people to death. I think this is analogous to hate crime. Convict me on the act of throwing a rock through somebody's window. But if you're going to convict me on my motivation for doing that, now you're back to religious freedom. I mean under the guise of religious freedom, anybody can do anything. Back to Mormonism. Why shouldn't somebody be able to shoot somebody else because their freedom of religion says that God has spoken to them and that they can shoot somebody dead."

That doesn't seem like the distinction that a libertarian typically makes. Shooting is an initiation of force, versus deciding what ceremonies to participate in.

"Well, they bring out this issue, which I realize it has happened. But the objective here is to say that discrimination is not allowed for by business ..."

"I just see religious freedom, as a category, of just being a black hole."

—-ON ABORTION—-

Do you think the Constitution guarantees the right to abortion?

"The law of the land is Casey v. Planned Parenthood. I have no intention of changing the law, and Casey v. Planned Parenthood says, "you, woman, you have the right to have an abortion up to viability of the fetus." And the Supreme Court has defined viability of the fetus as being able to sustain the life of the fetus outside of the womb, even by artificial means. That is the law of the land."

Ron Paul's being pro-life and libertarian. You think he's mistaken.

"It would be like him saying I'm mistaken on religious freedom ... I'm not a social conservative. I really do believe in people being able to make choices."

Can you be a social conservative and a libertarian at the same time?

"Absolutely. I think there are plenty of libertarians that are socially conservative. Absolutely. It's just this notion of don't force it on me."

—-ON HILLARY CLINTON—-

Do you think Hillary Clinton circumvented public-records laws—

"So many others have attached themselves to this issue. I don't think there criminal intent on her part. But so many others have looked at this and will continue to look at this, and I just don't need to devote any time in it whatsoever."

Timothy P. Carney, the Washington Examiner's senior political columnist, can be contacted at tcarney@washingtonexaminer.com. His column appears Tuesday and Thursday nights on washingtonexaminer.com.

[TomSea]

One has to check his words closely, I read one article that says he uses double-talk, tries to have it both ways.

[geronl]

In other words he's a "You better bake that cake!" guy

[SirLinksALot]

One has to check his words closely, I read one article that says he uses double-talk, tries to have it both ways.

Sort of like Donald Trump and also Pope Francis.

Their "translators" have to sort of tell us that they don't mean exactly what we think we heard.

[SirLinksALot]

In other words he's a "You better bake that cake!" guy

That's what it sounds like to me. What sort of "Libertarian" is this?

I kinda wish we had a "Go to another cake shop to get your cake" guy. I know that Ted Cruz is that kind of guy.

Do any of Trump's supporters know where his stance is on this matter?

[Resp3]

I was constantly amazed at the number of libertarians at TOS. And dontcha know - there are actually some here.

Good God! Don't these people listen to themselves?

 

I guess if the Democrats have crazy Bern supporters then the Repubs get stuck with Johnson and Rand/Ron Paul types.

[TomSea]

Sort of like Donald Trump and also Pope Francis.

Or about any politician; no, I haven't seen Trump excessively pointed out for what he meant. Even if his words have been up to interpretation, it's the straight-talk that people appreciate.

Their "translators" have to sort of tell us that they don't mean exactly what we think we heard.

[geronl]

Or about any politician; no, I haven't seen Trump excessively pointed out for what he meant. Even if his words have been up to interpretation, it's the straight-talk that people appreciate.

Taking 3 stands on every issue is "straight talk"?

Today he is denying having anything to do with the Republican Convention, which is a bald-faced lie.

Trump says he will move gay rights forward, blamed Kim Davis, said the Supreme Court ruling was "law of the land", defended LGBT crap in his convention speech.

I think we can all figure out where he is on this.

[EC]

One has to check his words closely, I read one article that says he uses double-talk, tries to have it both ways.

Unfortunately, it seems the same way to me.

The Constitution Party actually seems to be the best fit for libertarians in terms of what they actually stand for and plan to do.

[geronl]

Trump will protect Merry Christmas and politics int he pulpit but nothing else.  He is a "bake that cake" "serve that homo wedding" and "sign that homo certificate" guy.

His own businesses didn't even do "Merry Christmas"

[truth_seeker]

Doesn't Gary Johnson have something better to do, besides attending the democrat convention?

When people get all giddy about him, consider he governed the state which is the MOST dependent on federal spending.

So whatever favorable "record" he has, it is should be viewed in that light. For example they say he "balanced the budget." Sure, with money from other states' taxpayers !!

http://www.businessinsider.com/the-states-the-most-and-least-dependent-on-the-federal-government-2015-7

[Luis Gonzalez]

In Employment Division v. Smith (1990), Conservative icon Antonin Scalia, argued that a person may not defy neutral laws of general applicability, such as public accommodation laws, as an expression of religious belief.

"To permit this would make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself", wrote Scalia.

The Sweet Cakes by Melissa case, the Oregon bakers who refused to bake a cake for a gay couple, is a perfect example of what Scalia was talking about.

The Oregon State Constitution makes sexual orientation-based discrimination in the State illegal. It is a duly-enacted law, existing within the powers of the State legislature to enact.

So if you run a business in Oregon, the State's laws and codes do not allow you to refuse service to anyone based on (among other reasons) their sexual orientation.

As US citizens the US Constitution, the Supreme Law of the Land, does guarantee our religious freedoms, but the case of the bakers is not truly about religious freedom, but rather about whether or not one's religious beliefs can allow a business owner to conduct a business (not a constitutionally-protected right, but a licensed and regulated activity) in direct violation of State laws and regulations.

Someone said that they wished that they had a "go to another cake shop to get your cake" guy, when in fact the real answer would seem to be to either not make the choice to run and operate a business in a State where the State laws may be in conflict with your religious beliefs, or to simply not bake wedding cakes, if you are a religious baker running a bakery in a State that (lawfully) does not allow businesses to deny services based on sexual orientation.

The general principle here is Federalism.

The State of Oregon, and the citizens of that State, are supportive of that clause in their Constitution, and the US Constitution does not prohibit the State the right to enact that law (Amendment X), so representing the Sweet Cakes by Melissa case as one of religious liberty is wrong. 

The bakers can believe, worship and live all in accordance to their religious beliefs, as protected by the First Amendment of the Constitution.

A constitutionally-protected right to run a business however, does not exist.

[SirLinksALot]

The general principle here is Federalism.

Why isn't the First Amendment applicable here?

Does it merely encompass only the belief and profession of a religion, or does it also protect conduct that stems from religious tenets or motivations?

The weight of the original understanding controverts the narrowest interpretation of the right, that belief alone is protected.

At the Founding, as today, "exercise" connoted action, not just internal belief. Thomas Jefferson, in his famous 1802 "wall of separation" letter to the Danbury Baptist Association, did draw a sharp distinction between protected belief and unprotected action: "the legislative powers of government reach actions only, and not opinions, [and] [m]an has no natural right in opposition to his social duties." But a number of statements from other leading figures support the broader view—from James Madison's statement that religion includes "the manner of discharging" duties to God, to William Penn's statement that "liberty of conscience [means] not only a meer liberty of the mind, in believing or disbelieving...but the exercise of ourselves in a visible way of worship."

So IMHO, the issue should really be this --- when State Law contradicts the INTENT of the Constitution, which one should prevail?

[Luis Gonzalez]

Why isn't the First Amendment applicable here?

Read the entire response again.

[SirLinksALot]

Read the entire response again.

I did and I responded.

[Jazzhead]

One has to check his words closely, I read one article that says he uses double-talk, tries to have it both ways.

Are you saying that's a bad thing, Mr. Trump supporter?   

[Luis Gonzalez]

Why isn't the First Amendment applicable here?

Does it merely encompass only the belief and profession of a religion, or does it also protect conduct that stems from religious tenets or motivations?

The weight of the original understanding controverts the narrowest interpretation of the right, that belief alone is protected.

At the Founding, as today, "exercise" connoted action, not just internal belief. Thomas Jefferson, in his famous 1802 "wall of separation" letter to the Danbury Baptist Association, did draw a sharp distinction between protected belief and unprotected action: "the legislative powers of government reach actions only, and not opinions, [and] [m]an has no natural right in opposition to his social duties." But a number of statements from other leading figures support the broader view—from James Madison's statement that religion includes "the manner of discharging" duties to God, to William Penn's statement that "liberty of conscience [means] not only a meer liberty of the mind, in believing or disbelieving...but the exercise of ourselves in a visible way of worship."

So IMHO, the issue should really be this --- when State Law contradicts the INTENT of the Constitution, which one should prevail?

The express written content of the Constitution grants the power to regulate interstate commerce to the Federal government, and does not prohibit the States from regulating intrastate commerce, so accepting to run a business under all laws enacted by a State legislature, including those that extend protection from discrimination to any group or groupings of people by businesses in the State is a prerequisite for any business owners looking to run a licensed business.

In essence, by accepting the license to run the business, the owner acknowledges the legal operating boundaries.

Running a business is a licensed and regulated activity, not a private conduct, and subsequent to far too many laws and regulations

[Jazzhead]

In other words he's a "You better bake that cake!" guy

No, he's saying it may not be practical to carve out an exemption to laws against discrimination based on religion.   The baker isn't in business to advance his religion, he's there to make money by selling the cakes that he advertises to the general public.   The law says he must serve the products he advertises to his customers without arbitrary discrimination.  The baker says - not to those who offend my religion.   That's absurd as a matter of law.   It's a bakery, not a mosque.   

This is an issue that needs to be worked out between reasonable people - not by carving out pernicious exceptions for "religion".     

[Jazzhead]

In Employment Division v. Smith (1990), Conservative icon Antonin Scalia, argued that a person may not defy neutral laws of general applicability, such as public accommodation laws, as an expression of religious belief.

"To permit this would make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself", wrote Scalia.

The Sweet Cakes by Melissa case, the Oregon bakers who refused to bake a cake for a gay couple, is a perfect example of what Scalia was talking about.

The Oregon State Constitution makes sexual orientation-based discrimination in the State illegal. It is a duly-enacted law, existing within the powers of the State legislature to enact.

So if you run a business in Oregon, the State's laws and codes do not allow you to refuse service to anyone based on (among other reasons) their sexual orientation.

As US citizens the US Constitution, the Supreme Law of the Land, does guarantee our religious freedoms, but the case of the bakers is not truly about religious freedom, but rather about whether or not one's religious beliefs can allow a business owner to conduct a business (not a constitutionally-protected right, but a licensed and regulated activity) in direct violation of State laws and regulations.

Someone said that they wished that they had a "go to another cake shop to get your cake" guy, when in fact the real answer would seem to be to either not make the choice to run and operate a business in a State where the State laws may be in conflict with your religious beliefs, or to simply not bake wedding cakes, if you are a religious baker running a bakery in a State that (lawfully) does not allow businesses to deny services based on sexual orientation.

The general principle here is Federalism.

The State of Oregon, and the citizens of that State, are supportive of that clause in their Constitution, and the US Constitution does not prohibit the State the right to enact that law (Amendment X), so representing the Sweet Cakes by Melissa case as one of religious liberty is wrong. 

The bakers can believe, worship and live all in accordance to their religious beliefs, as protected by the First Amendment of the Constitution.

A constitutionally-protected right to run a business however, does not exist.

Well said, Luis.   No baker is obliged to bake wedding cakes, but if that's how he chooses to conduct his business, he can't then claim "religion" as an excuse for arbitrary discrimination.   

[SirLinksALot]

The express written content of the Constitution grants the power to regulate interstate commerce to the Federal government, and does not prohibit the States from regulating intrastate commerce, so accepting to run a business under all laws enacted by a State legislature, including those that extend protection from discrimination to any group or groupings of people by businesses in the State is a prerequisite for any business owners looking to run a licensed business.

In essence, by accepting the license to run the business, the owner acknowledges the legal operating boundaries.

Running a business is a licensed and regulated activity, not a private conduct, and subsequent to far too many laws and regulations

I have to disagree with you here.

Usually missed in the commentary on this subject is that the bakers in question are not refusing service to a type of people — they are refusing to be party to a type of message.

If the gays simply asked for a cake to be baked, they would not be refused ( the bakers in question affirmed this ).

This is not debatable. When you put writing on a same-sex “wedding” cake, you’re crafting a message; if you place figurines (of two men, for instance) on that cake, you’re erecting symbols relating that message. Note here that the Supreme Court has already ruled that “Symbolic Speech” — a legal term in U.S. law — is protected under the First Amendment; examples of such rulings would be that pertaining to flag-burning and the Tinker v. Des Moines case.

Some homosexuality activists have likened the bakers’ refusal to provide faux-wedding cakes to a denial of service to blacks. This is a false analogy. A race-specific refusal is denying service based on what a person is; in the wedding-cake incidents, denial was based on what message was being requested.

In point of fact, none of the targeted bakers had erected signs stating “No shoes, no shirt, no heterosexuality, no service.” Nor did they apply a sexuality test to customers. Homosexuals could patronize their establishments and purchase cookies, bread or any products anyone else could; they could even buy wedding cakes for normal weddings — as anyone else could. And, of course, probability would dictate that homosexuals did buy from those bakers at times.

What actually is analogous to the wedding-cake controversy is a black person asking a baker for a cake expressing a racial message such as “Black Power” or “Fight the Blue-eyed Devils.” Of course, it could also be a white person with a white-power message or a neo-Nazi asking a Jewish baker to craft an anti-Semitic one.

And can we compel people to participate in the creation of a message? Forced speech is not free speech. Therefore, this is not merely an issue of commerce, this is a BASIC CONSTITUTIONAL ISSUE -- THE FIRST AMENDMENT.

[Luis Gonzalez]

I have to disagree with you here.

Usually missed in the commentary on this subject is that the bakers in question are not refusing service to a type of people — they are refusing to be party to a type of message.

If the gays simply asked for a cake to be baked, they would not be refused ( the bakers in question affirmed this ).

This is not debatable. When you put writing on a same-sex “wedding” cake, you’re crafting a message; if you place figurines (of two men, for instance) on that cake, you’re erecting symbols relating that message. Note here that the Supreme Court has already ruled that “Symbolic Speech” — a legal term in U.S. law — is protected under the First Amendment; examples of such rulings would be that pertaining to flag-burning and the Tinker v. Des Moines case.

Some homosexuality activists have likened the bakers’ refusal to provide faux-wedding cakes to a denial of service to blacks. This is a false analogy. A race-specific refusal is denying service based on what a person is; in the wedding-cake incidents, denial was based on what message was being requested.

In point of fact, none of the targeted bakers had erected signs stating “No shoes, no shirt, no heterosexuality, no service.” Nor did they apply a sexuality test to customers. Homosexuals could patronize their establishments and purchase cookies, bread or any products anyone else could; they could even buy wedding cakes for normal weddings — as anyone else could. And, of course, probability would dictate that homosexuals did buy from those bakers at times.

What actually is analogous to the wedding-cake controversy is a black person asking a baker for a cake expressing a racial message such as “Black Power” or “Fight the Blue-eyed Devils.” Of course, it could also be a white person with a white-power message or a neo-Nazi asking a Jewish baker to craft an anti-Semitic one.

And can we compel people to participate in the creation of a message? Forced speech is not free speech. Therefore, this is not merely an issue of commerce, this is a BASIC CONSTITUTIONAL ISSUE -- THE FIRST AMENDMENT.

No one compelled these bakers to be in the business of baking wedding cakes in a State that does not allow for discrimination based on sexual orientation. They knowingly applied, accepted and signed their license of their own accord.

As Scalia pointed out, to be allowed to then demand the right to conduct their business in accordance to their religious beliefs would make them a "law unto themselves."

You don't want to accept the argument?

That's fine, but it doesn't change the fact that they are wrong, and that framing this case as a First Amendment case is demonstrably wrong. 

[Luis Gonzalez]

BTW, the inherent flaw with your "message" spin is that you actually create a First Amendment case for the gay couple since the bakers are in actuality demanding the right to violate the gay couple's Freedom of Speech on the basis of sexual orientation. 

[Jazzhead]

I have to disagree with you here.

Usually missed in the commentary on this subject is that the bakers in question are not refusing service to a type of people — they are refusing to be party to a type of message.

If the gays simply asked for a cake to be baked, they would not be refused ( the bakers in question affirmed this ).

This is not debatable. When you put writing on a same-sex “wedding” cake, you’re crafting a message; if you place figurines (of two men, for instance) on that cake, you’re erecting symbols relating that message. Note here that the Supreme Court has already ruled that “Symbolic Speech” — a legal term in U.S. law — is protected under the First Amendment; examples of such rulings would be that pertaining to flag-burning and the Tinker v. Des Moines case.

Some homosexuality activists have likened the bakers’ refusal to provide faux-wedding cakes to a denial of service to blacks. This is a false analogy. A race-specific refusal is denying service based on what a person is; in the wedding-cake incidents, denial was based on what message was being requested.

In point of fact, none of the targeted bakers had erected signs stating “No shoes, no shirt, no heterosexuality, no service.” Nor did they apply a sexuality test to customers. Homosexuals could patronize their establishments and purchase cookies, bread or any products anyone else could; they could even buy wedding cakes for normal weddings — as anyone else could. And, of course, probability would dictate that homosexuals did buy from those bakers at times.

What actually is analogous to the wedding-cake controversy is a black person asking a baker for a cake expressing a racial message such as “Black Power” or “Fight the Blue-eyed Devils.” Of course, it could also be a white person with a white-power message or a neo-Nazi asking a Jewish baker to craft an anti-Semitic one.

And can we compel people to participate in the creation of a message? Forced speech is not free speech. Therefore, this is not merely an issue of commerce, this is a BASIC CONSTITUTIONAL ISSUE -- THE FIRST AMENDMENT.

I understand what you're saying, but there's no practical way to enshrine the nuance you're proposing as a statutory exception to the very important legal obligation of non-discrimination with respect to a public accommodation.   The baker presumptively has offered its services to bake wedding cakes to the general public, and it's simply an unworkable if not dangerous rule to allow a business owner to refuse service based on its arbitrary assertion of religious liberty.   There's nothing "religious" about a baking a wedding cake.  No one's forcing a baker to bake wedding cakes.  It's his choice.  But if he does so, he's obliged not to discriminate.   

This is just one of those things that needs to be worked about between reasonable people.  Perhaps it would help if the baker posted a sign reserving his discretion to refuse to print an obscene or inappropriate message.  But the enshrinement of a legal right to discriminate in commerce on the basis of something as amorphous and arbitrary (to the customer) as the business owner's "religion" is, as Gary Johnson aptly put it, a black hole.   

   

[SirLinksALot]

I understand what you're saying, but there's no practical way to enshrine the nuance you're proposing as a statutory exception to the very important legal obligation of non-discrimination with respect to a public accommodation.   The baker presumptively has offered its services to bake wedding cakes to the general public, and it's simply an unworkable if not dangerous rule to allow a business owner to refuse service based on its arbitrary assertion of religious liberty.   There's nothing "religious" about a baking a wedding cake.  No one's forcing a baker to bake wedding cakes.  It's his choice.  But if he does so, he's obliged not to discriminate.   
 

1) Holding to the doctrines of scripture, is NOT and SHOULD NOT be considered an arbitrary assertion of liberty. The first amendment was placed there PRECISELY to protect this. It is the FIRST (not the second or third  ) amendment precisely for a reason -- to protect religious people and their right to free speech ( or not to speak if they so choose ).

2) You might think that there is nothing "religious" about baking a wedding cake. True ONLY to a certain extent. But if this baking requires one to insert a message contrary to one's deeply held religious beliefs, then it becomes an issue of forcing someone to participate in a message they find offensive to what they believe in.

3) Regarding the issue of "force". The argument can cut both ways... no one is forcing the gay couple not to "marry". However, if they do want their cake -- they can always go to other businesses that has no religious objections to their doing so.

4) The practical way to enshrine this into law has already been done in places like Indiana and in fact, was signed into law by none other than the current Republican candidate for VP. Too bad, unlike the more courageous governor of North Carolina, he buckled under pressure.

[SirLinksALot]

No one compelled these bakers to be in the business of baking wedding cakes in a State that does not allow for discrimination based on sexual orientation. They knowingly applied, accepted and signed their license of their own accord.

Their business was in existence before Anthony Kennedy and his ilk decided to create a "law" ( note the quotes ) out of thin air.

What is this "law" of which you speak of? Was it passed by Congress?

So, to say that they are not compelled to do business of baking wedding case is an ex post facto argument. They would not have been in this business if they KNEW that the consequence would be something like this.

As Scalia pointed out, to be allowed to then demand the right to conduct their business in accordance to their religious beliefs would make them a "law unto themselves."

I seldom disagree with the great Scalia, but in this case, I have no choice but to make an exception.

They are NOT making a law unto themselves. They are INVOKING their rights guaranteed UNDER THE MOST FUNDAMENTAL LAW of the land --- the Constitution. The right NOT to be party to a MESSAGE ( emphasis ) their conscience is against.