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

[SirLinksALot]

No one coerced the Kleins into being in the wedding business at a time when same-sex weddings are legal and in a State where laws prohibit deniail of serviced based on sexual orientation.

Again, they went in to this business with the ABSOLUTELY RIGHT assumption that their First Amendment rights would be protected. THAT should be enough for them to do their business in peace.

According to the Daily Signal:

http://dailysignal.com/2015/07/02/state-silences-bakers-who-refused-to-make-cake-for-lesbian-couple-fines-them-135k/

At the time of the refusal, same-sex marriage had not yet been legalized in Oregon.

It is a law that prohibits the denial of housing to a gay couple based on the fact that they are a gay couple.

Again, for the nth time, the service was not denied because they were gay. It was denied because it required the owners to write messages of affirmation of a form of marriage their deeply held beliefs consider sinful.

It prohibits companies from denying family health benefits to same-sex couples based on the fact that they are a same-sex couple.   

I don't know why you are bringing this up. Health benefits are not the issue here.

It prohibits hotels from denying accommodations to a same-sex couple based on the fact that they are a same sex couple.

Again, why are you bringing this up? The issue is CONVEYING A MESSAGE.

All these examples could also arguably be construed as sending a message of approval of same-sex unions, yet they are prohibited, because the First Amendment does not give businesses a right to communicate to the public that they will unlawfully discriminate.

Yes, and if these local laws conflict with the First Amendment, the first amendment should be supreme over these local laws.

Scalia wrong?

Sadly, yes.

Well, it seems odd that today, a year after the Kleins paid their fine to the government and vowed to fight on, they have yet to challenge the State in Court.

The problem is this -- they are fighting the government. They do not have unlimited resources. This is the problem with allowing the government ( the entity that has the power to destroy you ) to favor one message over another. Why do you say it is odd? They're not multi-billionaires, it is NOT odd at all. They don't have the money and power to continue spending their time going to court.

And I support their right to fight on, MORALLY if they so choose. If they did, They are not simply fighting for themselves but all other Christian/Muslim/Jewish or any other religious business owners of America.

My guess is that their lawyers understand that they won't win that fight.

Not winning a fight does not make the law right. I am arguing a principle, I am not arguing how the political winds blow.

One could say that it would be futile to fight the Roe vs Wade decision or the Obergefell v. Hodges decision, but this is a forum to argue whether a decision made was constitutional or not. So I argue that these are not, and neither is the Oregaon decision.

Whether you disagree with the majority opnion of the SCOTUS on a case does not make that case less of a legal precedent to be used in future cases.

Hmmmm.... the above argument sounds like --- MIGHT MAKES RIGHT, to me. It might be legal, but so was the Dredd Scott Decision. Doesn't make it right.

I can also turn the situation around, let's say the Christian bakers WON their case against the gay couple, what then? Would the issue of "was the decision that was made in court, right?" go away? No it won't. I would argue that the decision that was made was RIGHT, just as I would argue that the decision made today was WRONG.

This is what we are discussing, not merely the fact that the court made its decision.

I would not argue that because the Christian bakers won the case, the court decision was therefore, right. That would be a "might makes right" argument. I want to argue whether or not the decision made was right ON PRINCIPLE whether the Klein's won the case or not.

[SirLinksALot]

That's correct - they want have their cake and eat it too.   They want to make money by selling wedding cakes to the general public, which subjects them to state non-discrimination laws.  Yet they also want to be laws unto themselves and refuse to provide a cake for a civil marriage ceremony without religious implications.   That's unlawful discrimination, and claiming "religious" justification for violating the law just doesn't cut it.   

They should NOT have been subjected to non-discrimination laws because they did not discriminate against the customers because they were gay. They were simply asserting their right NOT to participate in conveying a message that is against their conscience.

They are not a law unto themselves, they are asserting a more basic and fundamental law --- THE FIRST AMENDMENT.

I am one of millions of Americans who was married - coming up on 40 years ago now - in a civil ceremony with no clergy present.   The reason - Mrs. Jazz and I are of different faiths.   But darn it all,  I don't want my marriage denigrated as a "civil union" just because it didn't take place in a church.  And neither should any gay couple.   

You and Mrs. Jazz are ONE MAN and ONE WOMAN.

I am sure the Klein's would also decline participating in providing cakes to a polygamous wedding.

If you want your cake, don't go to someone like the Klein's. And if you don't like them, don't patronize their business. It's a free country ( or at least I thought it was ).

As I noted before,  one reasonable solution may be for the baker to post a sign indicating that he may decline to inscribe a cake with a message he deems obscene or inappropriate.   

Yes, I agree with you. But apparently Mr. Gonzalez thinks that even doing that is a violation of the law and should subject these bakers to a fine of $135,000.

If we followed your solution, then the law should advise every single business of this particular right to place this sign in order to protect themselves. I think that would be a good compromise solution.

[Jazzhead]

Yes, I agree with you. But apparently Mr. Gonzalez thinks that even doing that is a violation of the law and should subject these bakers to a fine of $135,000.

What's your basis for that?  What message did this couple want inscribed on the cake that was so religiously offensive?   If it was just the cake toppers, then that's simply ridiculous.  (Just tell the couple that cake toppers are sold as a set and they will need to buy two.)  But there's an important public policy at stake here - the right of a customer to not be denied an advertised service without experiencing arbitrary discrimination.  In this context, it trumps the baker's religious freedom,  because religion has no place in a bake shop - but one's expectation to not be denied service because of the baker's arbitrary offense does.     

SLAL - I do not mean to denigrate the sincerity of this baker's faith.   But if his conscience goes so far as to prevent him from merely "participating" in a civil marriage ceremony,  then the law, at least in Colorado,  requires that he stop advertising that he bakes wedding cakes.  If he's willing to bake wedding cakes for all comers and merely wants to be able to exercise his discretion not to inscribe a cake with words he deems offensive,  then the sign approach I suggested ought to work.   

[SirLinksALot]

What's your basis for that?  What message did this couple want inscribed on the cake that was so religiously offensive?   If it was just the cake toppers, then that's simply ridiculous.  But if the couple actually wanted the baker to inscribe offensive words on the cake, then I'd think a sign along the lines I describe would give the baker cover to decline to inscribe the message (although not to refuse to bake the cake itself.)

I was informed by Oregonian friends that it required the couple to put the figurines of two women in wedding gowns together. This is what they found offensive to their faith. A message, whether written or symbolic is a message nonetheless.

SLAL - I do not mean to denigrate the sincerity of this baker's faith.   But if his conscience goes so far as to prevent him from merely "participating" in a civil marriage ceremony,  then the law requires that he stop advertising that he bakes wedding cakes.  If he's willing to bake wedding cakes for all comers and merely wants to be able to exercise his discretion not to inscribe a cake with words he deems offensive,  then the sign approach ought to work.   

Why should he stop advertising wedding cakes? The solution would be as you previously propose -- they reserve the right NOT to provide a product that requires them to convey a message that is against their deeply held beliefs.

It's a simple problem with a simple solution made complicated by government ( as usual ). Instead, the government chooses to destroy a business and the livelihood of honest working people in order to favor one message over another.

[Jazzhead]

It's a simple problem with a simple solution made complicated by government ( as usual ).

I agree that there's a simple solution - a little empathy and give and take on the part of all concerned.   

  Instead, the government chooses to destroy a business and the livelihood of honest working people in order to favor one message over another.

No, the baker destroyed his own business by being too darn stubborn to sell the couple two sets of cake toppers and be done with it.   I have little sympathy if the brouhaha was over cake toppers (rather than an obscene or objectionable message)   It was the baker that advertised he sold wedding cakes, and it was the baker who willingly chose to make his livelihood in a jurisdiction that required he adhere to nondiscrimination laws.   Scalia's right -  he can't claim religion as the justification for being a law unto himself.     

[SirLinksALot]

No, the baker destroyed his own business by being too darn stubborn to sell the couple two sets of cake toppers and be done with it.   I have little sympathy if the brouhaha was over cake toppers (rather than an obscene or objectionable message)   It was the baker that advertised he sold wedding cakes, and it was the baker who willingly accepted that his business was subject to nondiscrimination laws.   

If it was simply a matter of cake toppers and not writing the message or putting figurines on top of the cake, I would agree with you.

The gay couple could hire someone else to inscribe the message for them or decorate it with the figurines for them, or if they could do it themselves, they should.

But was that the case? What news tell us that?

Here's one:

http://dailysignal.com/2015/07/02/state-silences-bakers-who-refused-to-make-cake-for-lesbian-couple-fines-them-135k/

At the time of the refusal, same-sex marriage had not yet been legalized in Oregon.

Here's another:

http://www.theblaze.com/stories/2015/02/04/christian-bakers-who-lost-their-shop-after-refusing-to-make-a-wedding-cake-for-a-lesbian-couple-could-be-forced-to-pay-150000-after-being-found-guilty-of-discrimination/

“To be told they’re going to force me to convey a message other than what I want to convey — it flies in the face of the Constitution,” said Aaron Klein, according to the Oregonian. ”It’s a violation of my conscience. It’s a violation of my religious freedom. It’s horrible to see your own government doing this to you.”

Here's another:

http://www.theblaze.com/stories/2016/04/26/christian-bakers-fight-back-after-being-forced-to-pay-nearly-137000-for-refusing-gay-wedding-cake-now-theyre-lawyer-reveals-his-5-major-arguments-against-the-govt/

The first two arguments that the Kleins will advance deal with First Amendment issues, with Klukowski explaining that customized designs convey a specific message — an act of artistic expression that he believes is protected by the First Amendment.

“When she’s doing a wedding cake [Melissa Klein] sits down with the couple to have a long conversation with them, gets to know the couple, how they met … and then she tries to bake a cake that conveys exactly the message that the couple would want,” he said.

Klukowski continued, ”In this case, Melissa and Aaron — having traditional Christian beliefs … would be forced by the government … to have to convey a message celebrating marriage between two same-sex individuals that violates their faith.”


So, it was not simply a matter of toppers if the above reports are right. It is CUSTOMIZED DESIGN THAT CONVEYS A MESSAGE.

But lets' say you were right, that the issue is simply not providing a non-message-bearing topper, the MAIN issue or principle still needs to be addressed --- would it be constitutional to force a business to convey a message they do not want to convey?

For instance, if you are a Christian lodge and you say so in your brochures and ads, would it be constitutional to force this lodge which has a chapel to host a gay wedding?

It's the principle I want to argue. I don't want to argue who won the case because winning a case is often subject to politics. The fact that OJ Simpson won his case does not make the decision right.

[Luis Gonzalez]

Again, they went in to this business with the ABSOLUTELY RIGHT assumption that their First Amendment rights would be protected. THAT should be enough for them to do their business in peace.

Now you're making s#it up out of thin air. The Kleins, in their deposition admitted to having discussed what they would do if ever faced with this situation well in advance of the actual encounter.

So if they expected to be allowed to violate the law then they were wrong since ignorantia legis neminem excusat, a person who is unaware of a law may not escape liability for violating that law merely because he or she was unaware of its content.

Again, for the nth time, the service was not denied because they were gay. It was denied because it required the owners to write messages of affirmation of a form of marriage their deeply held beliefs consider sinful.

Once they were served with papers pursuant to the issue, the Kleins posted the compliant on Facebook with the following comment: "This is what happens when you tell gay people you won't do their wedding cake."

I don't know why you are bringing this up. Health benefits are not the issue here.

Again, why are you bringing this up? The issue is CONVEYING A MESSAGE.

Yes, and if these local laws conflict with the First Amendment, the first amendment should be supreme over these local laws.

Nope.

The Rules of General Applicability apply here. In the context of constitutional adjudication, the concept of general applicability is commonly used to distinguish general laws being applied to regulate speech or religious activities from laws aimed specifically at those activities. The Supreme Court has held that, despite their restrictive effect upon speech or religion, rules of general applicability are exempt from oversight under the First Amendment

The problem is this -- they are fighting the government. They do not have unlimited resources. This is the problem with allowing the government ( the entity that has the power to destroy you ) to favor one message over another. Why do you say it is odd? They're not multi-billionaires, it is NOT odd at all. They don't have the money and power to continue spending their time going to court.

And I support their right to fight on, MORALLY if they so choose. If they did, They are not simply fighting for themselves but all other Christian/Muslim/Jewish or any other religious business owners of America.

Not winning a fight does not make the law right. I am arguing a principle, I am not arguing how the political winds blow.

One could say that it would be futile to fight the Rowe vs Wade decision or the Obergefell v. Hodges decision, but this is a forum to argue whether a decision made was constitutional or not. So I argue that these are not, and neither is the Oregaon decision.

The point is that the fight over situations like this have been fought many times and every time the Court has agreed on the principles of the Rules of General applicability.

It's a done deal.

Hmmmm.... the above argument sounds like --- MIGHT MAKES RIGHT, to me. It might be legal, but so was the Dredd Scott Decision. Doesn't make it right.

Unlike Dredd Scott when the constitutionality of laws like the anti-discrimination statute in Oregon have been challenged in Superior Courts, they have been upheld as constitutional.

[Luis Gonzalez]

What's your basis for that?  What message did this couple want inscribed on the cake that was so religiously offensive?   If it was just the cake toppers, then that's simply ridiculous.  (Just tell the couple that cake toppers are sold as a set and they will need to buy two.)  But there's an important public policy at stake here - the right of a customer to not be denied an advertised service without experiencing arbitrary discrimination.  In this context, it trumps the baker's religious freedom,  because religion has no place in a bake shop - but one's expectation to not be denied service because of the baker's arbitrary offense does.     

SLAL - I do not mean to denigrate the sincerity of this baker's faith.   But if his conscience goes so far as to prevent him from merely "participating" in a civil marriage ceremony,  then the law, at least in Colorado,  requires that he stop advertising that he bakes wedding cakes.  If he's willing to bake wedding cakes for all comers and merely wants to be able to exercise his discretion not to inscribe a cake with words he deems offensive,  then the sign approach I suggested ought to work.   

When discussing the cake, the Kleins asked the mother of one of the two brides for the bride and groom's name, and she told then that there would be two brides, at which time the Kleins informed them that they would not bake cakes for same-sex weddings.

Note that there was no discussion of message or decorations, it ended the moment that they learned that it was a same-sex wedding.

[Luis Gonzalez]

At the time of the refusal, same-sex marriage had not yet been legalized in Oregon.

So then your entire "message" argument is worthless since there was no marriage involved, which leaves the Kleins exposed as simply not wanting to bake a cake for a homosexual couple because they were a homosexual couple.

[SirLinksALot]

So then your entire "message" argument is worthless since there was no marriage involved, which leaves the Kleins exposed as simply not wanting to bake a cake for a homosexual couple because they were a homosexual couple.

Nope, what should have been useless was the DECISION concerning the lawsuit because there was no law that was violated then.

And even if there were such a law at the time, it was not as you keep repeating "not wanting to bake a cake for a homosexual couple because they were a homosexual couple." It was not wanting to CONVEY A MESSAGE celebrating a "marriage" that their conscience do not accept in the cake.

[SirLinksALot]

Now you're making s#it up out of thin air. The Kleins, in their deposition admitted to having discussed what they would do if ever faced with this situation well in advance of the actual encounter.

So if they expected to be allowed to violate the law then they were wrong since ignorantia legis neminem excusat, a person who is unaware of a law may not escape liability for violating that law merely because he or she was unaware of its content.

Actually no. They had one fallback --- THE FIRST AMENDMENT. They were aware that the First Amendment protected their rights to decline in conveying a message they disagreed with.

Whether they were aware or unaware of the local business law, the First Amendment would protect them from having to convey a message that was against their conscience.

Once they were served with papers pursuant to the issue, the Kleins posted the compliant on Facebook with the following comment: "This is what happens when you tell gay people you won't do their wedding cake."

According to their lawyer, there was a message they had to put in the cake.

Nope.

The Rules of General Applicability apply here. In the context of constitutional adjudication, the concept of general applicability is commonly used to distinguish general laws being applied to regulate speech or religious activities from laws aimed specifically at those activities. The Supreme Court has held that, despite their restrictive effect upon speech or religion, rules of general applicability are exempt from oversight under the First Amendment

Under the “no favoring of secular exemptions” interpretation of “general applicability,” followed by several circuits, and exemplified by Fraternal
Order of Police v. City of Newark, 170 F.3d 359 (3d Cir. 1999) (Alito, J.), a law that burdens free exercise is not generally applicable and must meet
strict scrutiny if it treats a substantial category of nonreligious conduct more favorably than similar religious conduct.

What rules of general applicability is there that says that a person is required under the First Amendment to participate in conveying a message against their religious beliefs?
This local law BURDENS FREE EXERCISE OF RELIGIOUS CONDUCT and treated the conduct required by the gay couple more favorably than the conscience of the Bakers.

The point is that the fight over situations like this have been fought many times and every time the Court has agreed on the principles of the Rules of General applicability.

It's a done deal.

Your "it's done deal" argument does not wash.

Roe vs. Wade is a done deal, so is the gay marriage case decided by Kennedy and the liberal wing of the SCOTUS.

The FBI and DOJ decision not to prosecute Hillary is also a "done deal", what of it?

As I said before, I am not interested in done deals, I am interested in whether a decision made was right or not. In this case, IT WAS NOT.

Had the Christian Bakers won the case, I would never argue that they won and now "It's a done deal", therefore it's the right decision. I would argue based on principle.

Unlike Dredd Scott when the constitutionality of laws like the anti-discrimination statute in Oregon have been challenged in Superior Courts, they have been upheld as constitutional.

Why is it not like the Dredd Scott decision or Roe vs Wade or even Obergfell vs Hodges? All of these atrocities were upheld as constitutional as well.

it is LIKE these cases because the decision made is NOT constitutional at all.

[Luis Gonzalez]

Nope, what should have been useless was the DECISION concerning the lawsuit because there was no law that was violated then.

You don 't know this case at all, do you?

The Kleins violated ORS 659A.409. Denial of public accommodations services based on sexual orientation. Since there was no marriage at stake, there were no religious overtones to that cake at all, so this message thing you've been blathering about for days now has been a red herring.

[SirLinksALot]

You don 't know this case at all, do you?

The Kleins violated ORS 659A.409. Denial of public accommodations services based on sexual orientation. Since there was no marriage at stake, there were no religious overtones to that cake at all, so this message thing you've been blathering about for days now has been a red herring.

I DO know the case. They did NOT deny service because of sexual orientation. They denied service because they had to PARTICIPATE in CONVEYING A MESSAGE Regardless of religious overtones. Regardless of whether or not it was a civil or church "marriage", their conscience believe that marriage, civil or church, is an institution that they hold sacred.

 It is NOT a red herring. IT IS THE POINT.

[Luis Gonzalez]

I DO know the case. They did NOT deny service because of sexual orientation. They denied service because they had to PARTICIPATE in CONVEYING A MESSAGE. It is NOT a red herring. IT IS THE POINT.

There was to be no wedding, since (as you said) there were no legal same-sex weddings in Oregon at the time, so what message were they seeking to refrain from conveying?

[SirLinksALot]

There was to be no wedding, since (as you said) there were no legal same-sex weddings in Oregon at the time, so what message were they seeking to refrain from conveying?

Then what was the case all about? Wasn't it because the gay couple wanted wedding cake?

Even if it was not legal, they insisted on calling it a wedding.

Suppose, in a state, there was no gay marriage laws, but a couple decides to go to a liberal church and "marry" and then wants a wedding cake made by a Christian, should he be required to do it?

Heck even conveying that message whether the ceremony was legal or not, is against the Christian's conscience.

Here's what their lawyer said:

“When she’s doing a wedding cake [Melissa Klein] sits down with the couple to have a long conversation with them, gets to know the couple, how they met … and then she tries to bake a cake that conveys exactly the message that the couple would want,”

THAT is what she objects to doing.

[Luis Gonzalez]

Then what was the case all about? Wasn't it a wedding cake?

Here's what their lawyer said:

“When she’s doing a wedding cake [Melissa Klein] sits down with the couple to have a long conversation with them, gets to know the couple, how they met … and then she tries to bake a cake that conveys exactly the message that the couple would want,”

THAT is what she objects to doing.

There was no wedding to take place, because same-sex weddings weren't legal at the time, so what message was it that the Kleins objected to conveying?

[SirLinksALot]

There was no wedding to take place, because same-sex weddings weren't legal at the time, so what message was it that the Kleins objected to conveying?

The message that they would call it a wedding.

It would be like insisting that a couple who are not legally married be called husband and wife just because they had sex.

Both are against Christian beliefs.

[EC]

It would be like insisting that a couple who are not legally married be called husband and wife just because they had sex.

Um, common law spouses?

[Luis Gonzalez]

The message that they would call it a wedding.

It would be like insisting that a couple who are not legally married be called husband and wife just because they had sex.

Both are against Christian beliefs.

So do they apply their Christian beliefs to everyone, or just to gay people?

Since there was no wedding to be performed, they just objected to a gay couple wanting a cake to celebrate their being a couple.

Their "message" then was disapproval of gay people... sexual orientation-based discrimination.

[jmyrlefuller]

So then your entire "message" argument is worthless since there was no marriage involved, which leaves the Kleins exposed as simply not wanting to bake a cake for a homosexual couple because they were a homosexual couple.

Or they were refusing to bake a wedding cake for an event that was not, for any intent or purpose, an actual wedding.

[jmyrlefuller]

So do they apply their Christian beliefs to everyone, or just to gay people?

Since there was no wedding to be performed, they just objected to a gay couple wanting a cake to celebrate their being a couple.

Their "message" then was disapproval of gay people... sexual orientation-based discrimination.

Like it or not, we still have the right to disapprove of homosexuality; such disapproval is rooted in centuries of doctrine and the basic biological underpinning of how sexual intercourse works. Man-on-woman sex leads to the continuance of the species, man-on-man to disease and death. Sexual orientation-based discrimination laws, because they violate free exercise of religion, are not allowed to be passed in Oregon. I've looked at Oregon's constitution, and the free exercise clause in their constitution, if I recall right, uses the same verbiage, that their legislature "shall make no law" that violates that.

The only thing we Christians ask is to abstain from it. We're not actively trying to stop it from happening, only to wash our hands clean of it while still finding a way to actually pay the expenses of living.

[Luis Gonzalez]

Or they were refusing to bake a wedding cake for an event that was not, for any intent or purpose, an actual wedding.

Based on what grounds?

[SirLinksALot]

So do they apply their Christian beliefs to everyone, or just to gay people?

Based on my understanding of devout Christians ( having been raised in a family that consists of such people ), Yes to ALL people, IF the actions are against Biblical morality.

It depends on what they are required to participate in.

If a Mormon "married" more than one woman and required them to bake a cake for them celebrating this polygamous marriage, yes, they would object too.

Since there was no wedding to be performed, they just objected to a gay couple wanting a cake to celebrate their being a couple.

Nope, it was celebrating their "wedding" as a gay couple. You can call it a wedding regardless of it being legalized or not, it would still be something that they would not participate in.

Their "message" then was disapproval of gay people... sexual orientation-based discrimination.

Nope, it's disapproval of their calling it a wedding. Discrimination based on lifestyle, which is and should be LEGAL under the law.

[SirLinksALot]

Um, common law spouses?

They can be common law spouses, devout Christians would not recognize it as "marriage". Just ask any priest in town.

[Luis Gonzalez]

Like it or not, we still have the right to disapprove of homosexuality; such disapproval is rooted in centuries of doctrine and the basic biological underpinning of how sexual intercourse works.

You absolutely have that right.

You can make a sign and go join the Westboro Baptists at their next anti-gay rally, and you will be protected by the police as you spew out you disapproval of homosexuality.

What you DON'T have a right to do, is to turn your disapproval of homosexuals, Catholics, Peruvians, interracial marriages, etc. and turn them into an operating policy for your business, since your business is licensed by the State to operate in accordance to all current laws an regulations.

Man-on-woman sex leads to the continuance of the species, man-on-man to disease and death.

 :nometalk:

Sexual orientation-based discrimination laws, because they violate free exercise of religion, are not allowed to be passed in Oregon.

They are.

They have been passed and they have been upheld as Constitutional.

The rights protected by the First Amendment have never been absolute.

I've looked at Oregon's constitution, and the free exercise clause in their constitution, if I recall right, uses the same verbiage, that their legislature "shall make no law" that violates that.

The only thing we Christians ask is to abstain from it. We're not actively trying to stop it from happening, only to wash our hands clean of it while still finding a way to actually pay the expenses of living.

The First Amendment protections apply to people, not to businesses.

The First Amendment does not protect the right of a business owner to communicate to the public, by way of their State-licensed enterprise, that they will unlawfully discriminate as a result of their personal belief system.