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

[Luis Gonzalez]

Businesses are owned and operated by people who DO NOT give up their Constitutional rights just because the choose to own or operate a business!

Employment Division v. Smith, SCOTUS 1990, Antonin Scalia writing for the majority:

Conscientious scruples have not, in the course of the long struggle for religious toleration, relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs. The mere possession of religious convictions which contradict the relevant concerns of a political society does not relieve the citizen from the discharge of political responsibilities.

We first had occasion to assert that principle in Reynolds v. United States, 98 U.S. 145 (1879), where we rejected the claim that criminal laws against polygamy could not be constitutionally applied to those whose religion commanded the practice. "Laws," we said, are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. . . . Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to 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.

[Jazzhead]

Businesses are owned and operated by people who DO NOT give up their Constitutional rights just because the choose to own or operate a business!

They don't.  But the principle is that one cannot cry religion to avoid the generally applicable rules of the community.   

[TomSea]

I won't be voting for genocide supporters, it be Johnson or Clinton.

[SirLinksALot]

You're parsing words.

There is a refusal to convey a service based on the sexual orientation of the individuals seeking the service because the service provider wants to discriminate against their sexual preference.

Under Oregon law, that is illegal.

I am making a DIFFERENTIATION between participating in CONVEYING A MESSAGE and the person itself. BECAUSE such a differentiation EXISTS and HAS TO BE MADE.

You can cite State law all you want, I will always cite the First Amendment because when the two clash, the primacy has to be given to the latter.

The service provider is NOT discriminating against sexual preference, he is discriminating against having to participate in a CEREMONY ( whether church or civil  ) he considers a sin.

THAT is an issue of conscience which is PROTECTED by the Constitution.

THAT is the issue. If the First Amendment means anything, it means that his conscience has to be protected from having to participate in it.

[SirLinksALot]

They don't.  But the principle is that one cannot cry religion to avoid the generally applicable rules of the community.

The First Amendment existed long before this so called "rule of the community" was put in place.

And what is that Bill of Right for? Why was it the FIRST before all the others?

It was there for a REASON.

The reason is rules of community CANNOT override a person's religious conscience. And BTW, this conscience was not grabbed wily nily out of thin air.

The sacrament of marriage existed LONG before the United States of America. So this is not an arbitrary exercise of conscience.

There is a reason why we are a Constitutional Republic and not a pure Democracy.

It is to protect individuals and their conscience from the tyranny of the majority.

[SirLinksALot]

No one has a Constitutional right to own and operate a business.

Governments do not have the right to FORCE people who operate businesses to act against their conscience.

Their powers are LIMITED by the First Amendment.

[SirLinksALot]

Employment Division v. Smith, SCOTUS 1990, Antonin Scalia writing for the majority:

As I said before, Scalia is a great Justice and I wish all Justices were like him. But Scalia is MORTAL and not immune from making mistakes.

Sadly, this is one of those.

[EC]

Insurance is against Muslim law, as it's a form of gambling.

Muslim run businesses are forced to have insurance.

You were saying?

[SirLinksALot]

Insurance is against Muslim law, as it's a form of gambling.

Muslim run businesses are forced to have insurance.

You were saying?

I Spoke to a Muslim friend. He told me IT IS NOT TRUE. It is an AREA OF DEBATE that reasonable Muslims can disagree with.

Do you really believe that banks in Muslim countries like Malaysia, Qatar or Indonesia don't insure their property?

So I am saying that there is "conscience" that one grabs out of thin air in order to spite reasonable business rules, and there is conscience
that EXISTS as INHERENT in a religion.

The sacrament of marriage was not invented recently and made for the sake of spite against gays. It existed LONG before this country was born.

The First Amendment ( drafted mostly by Christian men by the way ) was written PRECISELY to protect the free expression of such conscience.

[EC]

And gay marriage is an area of debate, with Christian denominations both supporting it and opposing it.

You are special pleading.

[Luis Gonzalez]

As I said before, Scalia is a great Justice and I wish all Justices were like him. But Scalia is MORTAL and not immune from making mistakes.

Sadly, this is one of those.

No, he's right, and you don't have a clue.

Here's Scalia again on the Emplyment Division v. Smith case:

The "compelling government interest" requirement seems benign, because it is familiar from other fields. But using it as the standard that must be met before the government may accord different treatment on the basis of race, see, e.g., Palmore v. Sidoti, or before the government may regulate the content of speech, see, e.g., Sable Communications of California v. FCC, is not remotely comparable to using it for the purpose asserted here. What it produces in those other fields -- equality of treatment, and an unrestricted flow of contending speech -- are constitutional norms; what it would produce here -- a private right to ignore generally applicable laws -- is a constitutional anomaly.

....The rule respondents favor would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind -- ranging from compulsory military service to the payment of taxes to health and safety regulation such as manslaughter and child neglect laws, compulsory vaccination laws, drug laws, and traffic laws; to social welfare legislation such as minimum wage laws, child labor laws, animal cruelty laws, environmental protection laws, and laws providing for equality of opportunity for the races.

Smith held that the state could deny unemployment benefits to a person fired for violating a state prohibition on the use of peyote, even though the use of the drug was part of a religious ritual. Although states have the power to accommodate otherwise illegal acts performed in pursuit of religious beliefs, they are not required to do so.

Denying service based on the sexual orientation of individuals in Oregon, whatever the reasoning may be, is illegal.

Scalia's majority opinion on Smith again:

We first had occasion to assert that principle in Reynolds v. United States, 98 U.S. 145 (1879), where we rejected the claim that criminal laws against polygamy could not be constitutionally applied to those whose religion commanded the practice.

Mormons were denied the ability to enter into polygamous marriages, irrespective of the fact that it was a tenet of their religion and as such, allegedly protected by the First Amendment.

What is the reasoning?

"Laws," we said, are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. . . . Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to 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.


Some religious practices may be at odds with current common law (plural marriage) and while the government is prohibited from obstructing the beliefs and opinions, individuals cannot be given the ability to circumvent or break the law in the name of religious freedom.

In Oregon, the applicable law is § 659A.403, which states that for no reason, people will be allowed to deny services offered to others based on the sexual orientation of those being denied the service.

Scalia was not wrong.

[mountaineer]

Gary Johnson Is Still Terrible On Religious Liberty
The anti-libertarian libertarian.
July 29, 2016 By David Harsanyi
The Federalist

At the Democratic National Committee, Tim Carney of the Washington Examiner caught up with Libertarian Party nominee Gary Johnson and asked him a few questions about religious liberty.

You may remember: earlier this year during a Fox News debate, Johnson offered a rambling justification for why the state should police thought crimes. Since many Republicans dealing with Trump Nomination Trauma are considering his candidacy, surely the former New Mexico governor must have cobbled together some kind of intelligible position on this issue, right?

No. Read it.

There are a number of possible explanations for Johnson’s obtuseness. The first is that he just doesn’t understand the issue. At all. He seems to have no idea, for example, what “discrimination” means. Johnson is still arguing that no business owner should ever be able to say “no” to a customer for any reason. This is well beyond even what liberals contend. He seems to believe, for instance, that Nazis are a protected class and that the federal government should compel a Jewish baker to whip up a Führergeburtstag cake on demand.

Johnson also doesn’t seem to comprehend the distinction between public and private actions. He claims, “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 [sic] discrimination of all forms …”

But religious freedom laws are narrowly focused, and they don’t permit people to “discriminate” on the “basis of religion.”  They protect business owners of all faiths from the obligation to participate in activities that violate their conscience — a slippery slope that doesn’t seem to bother Johnson one bit. Denying a Muslim American service (something Johnson, who once supported banning burkas, seems most concerned about) would still be against the law.

Many liberals and journalists distort the intent and scope of religious freedom laws, but a libertarian should know better. You don’t have to agree with the religious liberty proponents, of course. You can view religious freedom as ugly prejudice — something state-run justice commissions should monitor and forcefully expunged from American life. Plenty of people do. What I’m not sure of, though, is which libertarian idea justifies government policing thought crimes and undermining property rights? Johnson has yet to explain.

Mostly, though, I suspect that Johnson believes dismissing religious liberty and property rights in this case will endear him to the Left and expand his voting base. Many libertarians feel culturally in sync with liberals, and this is just the manifestation of that impulse. It’s a lost opportunity for Johnson to be both a principled libertarian and gain new conservative voters.

David Harsanyi is a Senior Editor at The Federalist.

[jmyrlefuller]

You sign an agreement to run the business within all applicable laws and regulations which gives you the license to run the business.

There is no First Amendment right which allows you to run a for-profit business in violation of all applicable laws and regulations.

The First Amendment is a part of the Constitution under which all laws operate.

[Luis Gonzalez]

The First Amendment is a part of the Constitution under which all laws operate.

It's a bakery, not a religious organization.

There is no constitutionally-protected free exercises of business practices.

Why can't Mormons marry multiple wives?

Why do Rastafarians get arrested for possessing or smoking weed as part of their religious beliefs?

[HonestJohn]

The First Amendment is a part of the Constitution under which all laws operate.

Businesses do not have any speech or religion to protect.  Only people can have a voice or religious beliefs.

[Luis Gonzalez]

The First Amendment is a part of the Constitution under which all laws operate.

That very same Constitution grants the power to regulate interstate commerce to the Federal government and does not prohibit the States from regulating intrastate commerce.

In Oregon, one of those regulations are clauses making discrimination and denial of services to citizens based on a number of things, one of them being sexual orientation, illegal.

First Amendment protections have never been absolute.

[Machiavelli]

Top libertarian legal scholars: Johnson and Weld are moderates, not libertarians

southernconstitutionalist
RedState
July 29, 2016

Even if you only occasionally frequent law commentary online, you have probably heard of Ilya Shapiro of the CATO Institute, as he is one of the most prominent voices on libertarian perspectives on the law today.

Shapiro took it upon himself to respond ... to recent comments made by Libertarian Party presidential nominee Gary Johnson and his running mate, Bill Weld.

More


Is Johnson-Weld a Libertarian Ticket?

Ilya Shapiro
Cato Institute
July 29, 2016

Plenty of libertarians were wary of seeing former Massachusetts governor Bill Weld as the Libertarian Party’s nominee for vice president. Even those of us who haven’t had anything to do with the LP would like to see the party represented by, you know, libertarians. Weld, who seems like a nice man and was apparently a decent governor, is the living expositor of the difference between a libertarian and someone who’s “socially liberal and fiscally conservative.”

More


Gary Johnson and William Weld on Hillary, Trump, and Why You Should Vote Libertarian (video and transcript)

[SirLinksALot]

No, he's right, and you don't have a clue.

That of course remains to be argued. It could be that the above description applies to you and not me.

In Oregon, the applicable law is § 659A.403, which states that for no reason, people will be allowed to deny services offered to others based on the sexual orientation of those being denied the service.

Scalia was not wrong.

THAT was the part where Scalia FAILED to DIFFERENTIATE between denial of services offered to others based on sexual orientation ( his words as you quote) and denial of services based on the requirement to PARTICIPATE in conveying a message contrary to one's religious belief.

Had the Klein's said --- "we are not selling you a cake because you are gay" THAT would be denial of services offered to others based on the sexual orientation. But that was NOT the case. The Klein refused to participate in conveying a message that REDEFINES marriage to be other than one man and one woman. THAT was their issue. It was not denial of services based on the person's identity, it was denial of services based on the none desire to convey a message.

Sorry, Scalia was wrong because he failed to make this differentiation.

[SirLinksALot]

That very same Constitution grants the power to regulate interstate commerce to the Federal government and does not prohibit the States from regulating intrastate commerce.

The regulation of interstate commerce does not SUPERCEDE our First Amendment rights.

In Oregon, one of those regulations are clauses making discrimination and denial of services to citizens based on a number of things, one of them being sexual orientation, illegal.

Once again you failed to differentiate between sexual orientation and REDEFINITION of marriage. I have to insist that we emphasize this difference.

The gay couple were not denied services because they were gay, they were denied services because the Christian bakers did not want to participate in conveying a message
that celebrates the redefinition of what they consider by their conscience --- a sacrament.

Any law that coerces any individual, businessman or otherwise into participating in conveying a message that is against their conscience VIOLATES the individual's First Amendment rights.

In this case, the First Amendment if it means anything, applies.

[SirLinksALot]

Businesses do not have any speech or religion to protect.  Only people can have a voice or religious beliefs.

And what are the owners of the businesses? Aren't they people?

[SirLinksALot]

And gay marriage is an area of debate, with Christian denominations both supporting it and opposing it.

You are special pleading.

Hobby Lobby—a corporation owned by a devout Christian family—could assert religious-liberty rights as an extension of its Christian owners, and that Obamacare's regulation requiring Hobby Lobby to provide abortion-related healthcare violated the federal RFRA, because the regulation substantially burdened the family's religious beliefs and was not the least restrictive means to achieve any compelling public interest.

So, what is the least restrictive means in the case of the Christian Bakers? Obviously, there was no reason why the gay couple could not take their patronage elsewhere as there are other bakers that would gladly make their cake and message for them. The least restrictive means then would be to tell the gay couple to go to another baker.

What compelling public interest is there in forcing Christian Bakers to go against their conscience and bake this cake with this message? I can't think of any.

Regarding a Muslim driver refusing to take insurance because it would be gambling -- is there a compelling public interest? ABSOLUTELY. If and when he gets into an accident which is his fault, will he pay the full price himself? Or will they have to put him to debtor's prison if he refuses to pay? What about the poor guy whose car was totaled because of the Muslim's accident? I would argue that taking insurance on it IS (unlike that of the Christian Bakers ) a compelling public interest.

Same is true of Muslim women who insists of driving while having their face covered when they are photographed for a driver's license.

[HonestJohn]

And what are the owners of the businesses? Aren't they people?

The owners are people... but they are not the business.  Any more than a homeowner can be a home.

For a business is a form of property.

[Luis Gonzalez]

Hobby Lobby—a corporation owned by a devout Christian family—could assert religious-liberty rights as an extension of its Christian owners, and that Obamacare's regulation requiring Hobby Lobby to provide abortion-related healthcare violated the federal RFRA, because the regulation substantially burdened the family's religious beliefs and was not the least restrictive means to achieve any compelling public interest.

The baker's case has not reached the SCOTUS level, and while I am well aware of the Hobby Lobby case, and you are correct in that the court reached the verdict based on what would be the fact that the same outcome (obtaining free contraceptives) could be achieved by a means that would not infringe on the religious beliefs of the owners of Hobby Lobby, this case is not the same.

This case is about a lawfully enacted State anti-discrimination law (there is no Federal statutory protection for sexual orientation in place) where the State can easily argue that the compelling cause tor the law to be upheld is the right of citizens to NOT be discriminated against based on the list of traits or behaviors listed in that law, and that that not upholding it would (as Scalia observed in Employment Division v. Smith) would effectively nullify any and all anti-discrimination laws (and beyond) for anyone who wanted to claim exemptions to laws based on their religious beliefs. I expect that if Sweet Cakes makes it to the SCOTUS, Scalia will be quoted in the majority opinion.
 

So, what is the least restrictive means in the case of the Christian Bakers? Obviously, there was no reason why the gay couple could not take their patronage elsewhere as there are other bakers that would gladly make their cake and message for them. The least restrictive means then would be to tell the gay couple to go to another baker.

Why des the baker's right to conscience nullify the customer's right to not be discriminated against?

The bakers can also go set up a bakery in a State where sexual orientation is not a protected class.

So, the least restrictive means would be to preserve both the couple's right tpo not be discriminated against, and to allow the bakers to go set up shop elsewhere where the statutes allow them to deny business based on sexual orientation. 

What compelling public interest is there in forcing Christian Bakers to go against their conscience and bake this cake with this message? I can't think of any.

You don't think anti-discrimination laws are enacted in the name of the best public interest?

That's odd.

Regarding a Muslim driver refusing to take insurance because it would be gambling -- is there a compelling public interest? ABSOLUTELY. If and when he gets into an accident which is his fault, will he pay the full price himself? Or will they have to put him to debtor's prison if he refuses to pay? What about the poor guy whose car was totaled because of the Muslim's accident? I would argue that taking insurance on it IS (unlike that of the Christian Bakers ) a compelling public interest.

Same is true of Muslim women who insists of driving while having their face covered when they are photographed for a driver's license.

Then you turn around and take away the same rights you've been arguing in favor of because they're Muslims.

[Luis Gonzalez]

Businesses aren't people, they don't have Constitutional rights.

What's amazing here is that the Kleins set up a corporate entity to shield them against debts, etc incurred by the business, but now, somehow, this business they created to avoid personal liability is a person with protectable First Amendment rights.

[kidd]

Regarding a Muslim driver refusing to take insurance because it would be gambling -- is there a compelling public interest? ABSOLUTELY.

You are making total sense.

Two neo-nazis go to a Jewish baker and ask for a cake with an oven on it that says "They deserved it". The baker refuses. The neo-nazis claim to be of German heritage. Is the baker refusing service to people based on their national origin? Of course not. He is refusing the message. But according to a misinterpretation of Oregon 659A.403, anyone who walks into your place of business now becomes your Master and you must obey all wishes that are within some perceived charter of your business.

It is no coincidence that religious freedom and the freedom of speech are found in the same Amendment - and it trumps Oregon law, especially a loose interpretation of Oregon law.

Previous poster have questioned why Mormons cannot practice polygamy, or why Rastafarians cannot smoke pot. In both cases there is a compelling public interest.

= = =

Regarding the Oregon law:
Except as provided in subsection (2) of this section, all persons within the jurisdiction of this state are entitled to the full and equal accommodations, advantages, facilities and privileges of any place of public accommodation, without any distinction, discrimination or restriction on account of race, color, religion, sex, sexual orientation, national origin, marital status or age if the individual is of age, as described in this section, or older.

I would have argued that political orientation is NOT protected by Oregon law. The fact that the homosexual couple focused on this ONE bakery betrays a political attack. The baker's lawyer should have made their political activism the focal point, not their sexual orientation. Such an approach would also work against the neo-Nazis in the example above.