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

[HonestJohn]

And what is the law? The basic law of the land? Answer -- the Constitution, which gave us the FIRST AMENDMENT ( Yep THE FIRST, not the second, not the third, THE FIRST ).

So, those laws that violate a person's FIRST AMENDMENT rights are inferior, or made INVALID.

That's already been discussed in this thread and @Luis Gonzalez pointed out the fallacy of it.  Basically, we're now back to first page of this thread.

[DiogenesLamp]

Yes.  And when one is open for business, one is stating they they wish to trade goods/services within the confines of the law.

No it does not.   If they say guns are illegal,   the law is wrong and I will defy it at every opportunity.   


The "law" used to require discrimination.   





Are you alleging that we should obey laws that compel us to discriminate?    If you say no,  then the converse is also true.    If you say "yes",   then you are a fool that doesn't know the difference between what is right and what is the law. 


The law should be informed by morals,  but morals shouldn't be informed by law. 

If they do not wish this, they are not compelled to stay in business.

You have it backwards.   If the law wishes to compel people to act against their conscience,   it is the law that will be compelled to go out of business.   

[DiogenesLamp]

That's already been discussed in this thread and @Luis Gonzalez pointed out the fallacy of it.  Basically, we're now back to first page of this thread.

Well if you and he would stop arguing in a circle,  perhaps we could get somewhere? 


"Natural Law"  is the only sort of law which lasts.   If something conflicts with natural law,  it will not long endure. 

[HonestJohn]

No it does not.   If they say guns are illegal,   the law is wrong and I will defy it at every opportunity.   


The "law" used to require discrimination.   





Are you alleging that we should obey laws that compel us to discriminate?    If you say no,  then the converse is also true.    If you say "yes",   then you are a fool that doesn't know the difference between what is right and what is the law. 


The law should be informed by morals,  but morals shouldn't be informed by law. 







You have it backwards.   If the law wishes to compel people to act against their conscience,   it is the law that will be compelled to go out of business.   

Those that seek to discriminate do *NOT* get to claim victimhood.  You are the one, in so many words, seeking to keep the the segregated drinking fountains.

[Luis Gonzalez]

And what is the law? The basic law of the land? Answer -- the Constitution, which gave us the FIRST AMENDMENT ( Yep THE FIRST, not the second, not the third, THE FIRST ).

So, those laws that violate a person's FIRST AMENDMENT rights are inferior, or made INVALID.

Again, it is not a First Amendment case.

That you don't agree with the outcome of Employment Division v Smith doesn't change the fact that your argument has reached the highest Court in the land, and the man considered the anchor of the originalist and textualist wing of the Court said that you are wrong.

You are free to rebel against a law that you consider unjust, and you are free (as these bakers did) to engage in acts of civil disobedience, but so long as the law is in place, there will be repercussions to the free exercise of your constitutionally-protected rights.

 

[Luis Gonzalez]

Uh,  yes it is.   People have a right to voluntarily trade goods or services.   No one has the right to compel them to do so.   


That is tyranny.

Free of government regulations?

[Luis Gonzalez]

So in order to have free exercise of religion, one must live in poverty with no viable way to make a living?

Binary choices are always wrong. Specially extreme ones.

One could be a bakery owned by people who object to the fact that same-sex weddings are legal and that there are State-level laws which ban discrimination based on someone's sexual orientation that does not bake wedding cakes at all.

[DiogenesLamp]

Those that seek to discriminate do *NOT* get to claim victimhood.  You are the one, in so many words, seeking to keep the the segregated drinking fountains.

*YOU*   do not get to impose *YOUR*   morals on me.   If I want to discriminate,   it is *MY*   right to do so.   You have a right to refuse to do business with me,   but you are entering into tyranny territory if you think you can compel me to like who you say I must like under threat of force.     


In a free society,   a free market deals with discrimination to the extent that it needs to be dealt with.   


The government should not compel discrimination,   nor should it forbid it.   Discrimination is only the government's business so far as the government insures that it doesn't do it.    It has no business telling private citizens what they may or may not do.   

[Luis Gonzalez]

*YOU*   do not get to impose *YOUR*   morals on me.   If I want to discriminate,   it is *MY*   right to do so.   You have a right to refuse to do business with me,   but you are entering into tyranny territory if you think you can compel me to like who you say I must like under threat of force.

You're absolutely right that you have that right.

What you don't have a right to is freedom from the consequences of your actions.     

In a free society,   a free market deals with discrimination to the extent that it needs to be dealt with.   

The government should not compel discrimination,   nor should it forbid it.   Discrimination is only the government's business so far as the government insures that it doesn't do it.    It has no business telling private citizens what they may or may not do.

But it does.

[kidd]

The plaintiffs attended a Bridal Show where Sweet Cakes had a booth. They liked what they saw and went to buy a cake.

Unless Sweet Cakes was the ONLY baker at the bridal show, my point stands.

[kidd]

So what you're saying is that two atheist heterosexuals can go to the Court house and enter into a civil union officiated by a pantheist magistrate and call their a marriage, but the sexual orientation of another couple somehow takes away their First Amendment right to call their union whatever they want to call it, just as that heterosexual atheist couple did because in the case of the homosexuals the union has a religious connotation but in the case of the atheists it does not?

I said nothing of the sort. Don't put words in my mouth.

And answer my question.

You stated "There are no religious connotations to a same-sex wedding. "
I asked why it was so important to attach a religious label to what you claim is a non-religious arrangement?

[Luis Gonzalez]

Unless Sweet Cakes was the ONLY baker at the bridal show, my point stands.

Unless Sweet Cakes had a sign saying "Christian Bakers" you have no point.

[Luis Gonzalez]

I asked why it was so important to attach a religious label to what you claim is a non-religious arrangement?

Why don't you ask the millions and millions of heterosexuals who have been doing just that for decades, if not centuries?

Heterosexuals of any or no known religious beliefs have a civil ceremony, officiated by someone that's not a member of the clergy of often unknown religious beliefs, conducted outside the Church, and we recognize the result as a "marriage". It isn't. It's a civil union.

Homosexuals do the same thing and now religious people are up in arms because they use the term "marriage"?

So your entire argument is that homosexuals should be forbidden from using that word to describe their civil union?

OK, fine.

But then everyone who does not enter into a marriage in a house of God with the ceremony officiated by a member of the clergy, regardless of their sexual orientation, should not be allowed to call theirs a marriage either.

Then, we do have a number of recognized Churches conducting same-sex unions in the world.

What are those to be called?

[SirLinksALot]

Homosexuals do the same thing and now religious people are up in arms because they use the term "marriage"?

So your entire argument is that homosexuals should be forbidden from using that word to describe their civil union?

I cannot speak for anyone else you are discussing this issue with, only for myself. My argument  has been this, gay couples can call their union "marriage" all they like, that is their right.

If the first amendment protects anything, it includes the right to call anything immoral, moral. If gays want to "marry" go ahead.

However, they do NOT have the right to coerce, using the force of government and under the threat of the destruction of their livelihood, religious individuals who view marriage as a holy sacrament, into participating in their "ceremony" or "union".

That right NOT to participate is also protected by the First Amendment.

[Luis Gonzalez]

I cannot speak for anyone else you are discussing this issue with, only for myself. My argument  has been this, gay couples can call their union "marriage" all they like, that is their right.

If the first amendment protects anything, it includes the right to call anything immoral, moral. If gays want to "marry" go ahead.

However, they do NOT have the right to coerce, using the force of government and under the threat of the destruction of their livelihood, religious individuals who view marriage as a holy sacrament, into participating in their "ceremony" or "union".

That right NOT to participate is also protected by the First Amendment.

Who coerced the Kleins into applying and securing a license to do business in accordance to all existing laws and regulations in an industry that's so closely related to the business of marriage in a State where those laws specifically deny business owners the ability to discriminate against anyone based on their sexual orientation?

[SirLinksALot]

Who coerced the Kleins into applying and securing a license to do business in accordance to all existing laws

And why is that question relevant? Same-sex marriage was not the law in Oregon when the Klein's started their business.

And the Kleins applied for the license UNDERSTANDING that their First Amendment Rights would be protected as they should. Citizens should be free to go about doing their businesses KNOWING that this constitutional guarantee works
for them regardless of where they are in the USA.

and regulations in an industry that's so closely related to the business of marriage in a State where those laws specifically deny business owners the ability to discriminate against anyone based on their sexual orientation?

Again you keep harping on sexual orientation. The Kleins are NOT denying this service based on the couple's sexual orientation. Had the couple simply asked for a cake to be baked, they would not be denied at all. They were asking that the Klein's include a message that they refused to write.

They are ASSERTING their right NOT to participate in CONVEYING A MESSAGE that is against their deeply held beliefs. This is and SHOULD be protected by the First Amendment.

[Luis Gonzalez]

And why is that question relevant?

The Kleins applied for the license UNDERSTANDING that their First Amendment Rights would be protected as they should. Citizens should be free to go about doing their businesses KNOWING that this constitutional guarantee works
for them regardless of where they are in the USA.

Already answered ad nauseam. This is not a First Amendment case, no matter how much you want to think that it is. The Kleins accepted a State license with the full knowledge that the license permitted them to operate a business in compliance with all existing (and future) laws an regulations, not according to which laws and regulations they wished to follow.

Even if it were a First Amendment case, as you keep claiming that it is, the matter was settled by the Courts sometime ago.

From Employment Division v Smith, Antonin Scalia writing the majority opinion:

It is a permissible reading of the [free exercise clause]...to say that if prohibiting the exercise of religion is not the object of the [law] but merely the incidental effect of a generally applicable and otherwise valid provision, the First Amendment has not been offended.... To make an individual's obligation to obey such a law contingent upon the law's coincidence with his religious beliefs, except where the State's interest is "compelling"–permitting him, by virtue of his beliefs, "to become a law unto himself,"–contradicts both constitutional tradition and common sense. To adopt a true "compelling interest" requirement for laws that affect religious practice would lead towards anarchy.

Again you keep harping on sexual orientation. The Kleins are NOT denying this service based on the couple's sexual orientation. Had the couple simply asked for a cake to be baked, they would not be denied at all. They were asking that the Klein's include a message that they refused to write.

They are ASSERTING their right NOT to participate in CONVEYING A MESSAGE that is against their deeply held beliefs. This is and SHOULD be protected by the First Amendment.

The Kleins, in their deposition, said that they did not bake cakes for gay weddings.

There is no Constitutionally-protected right to not convey a message.

Try blocking traffic on a major expressway because you want to convey a message about something you're not happy about.

Try refusing to pay your Federal taxes because as a Quaker you feel that by paying them, you CONVEY THE MESSAGE that you approve of the way your taxes are being used to wage war.

[SirLinksALot]

Already answered ad nauseam.

If you give the wrong answer, ad nauseum it will be.

This is not a First Amendment case, no matter how much you want to think that it is. The Kleins accepted a State license with the full knowledge that the license permitted them to operate a business in compliance with all existing (and future) laws an regulations, not according to which laws and regulations they wished to follow.

It IS a First Amendment case because accepting a State license does not mean that one's right to live and work according to the dictates of one's conscience disappears. The First Amendment ALWAYS applies to any citizen of the United States of America.

If the regulations of a state clashes with the constitution, the Constitution should prevail as it should in this case.

Even if it were a First Amendment case, as you keep claiming that it is, the matter was settled by the Courts sometime ago.

The fact that some court "settled" it does not make the decision right. Was not Dredd Scott a "settled" decision?

The Kleins, in their deposition, said that they did not bake cakes for gay weddings.

There is no Constitutionally-protected right to not convey a message.

Oh yes there is -- It's called the guarantee of Freedom of religion and the Freedom of Speech. Conveying or not conveying a message is an issue of BOTH speech and religion. Both of which are protected by the First Amendment.

Try blocking traffic on a major expressway because you want to convey a message about something you're not happy about.

Uh huh, and how is that a matter of conscience? There are other ways to convey that message without causing accidents or inconveniencing thousands of commuters.

There are hundreds of cake shops in Oregon, why can't the gay couple go to one that will bake their cake for them?

[Luis Gonzalez]

It IS a First Amendment case because accepting a State license does not mean that one's right to live and work according to the dictates of one's conscience disappears.

Scalia again, from Smith:

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.

The "political responsibilities here being adherence to State anti-discrimination laws.

Scalia continues:

Subsequent decisions have consistently held that the right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).

[thackney]

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.

Well said

[SirLinksALot]

Scalia again, from Smith:

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.

Sorry Justice Scalia, I have to disagree with you here, you missed a key proviso.

 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 PROVIDED SUCH LAWS DO NOT COERCE the individual into participating in and conveying speech that are against their conscience. 

Scalia continues:

Subsequent decisions have consistently held that the right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).

The key word is "valid" and "neutral" law. A law that forces an individual to convey a message against his conscience is NEITHER VALID NOR NEUTRAL because it is against his first amendment rights.

In New York State where I live, we now have liberal council members together with Mayor Bill De Blasio considering passing a regulating law OUTLAWING business owners from owning guns or firearms in their premises (even when they hold them to protect their property from potential criminals ).

Say it were to pass, Is that VALID law? Yeah, valid according to New York City, but is it CONSTITUTIONAL? Herein lies the rub. Between City law and the Constitution, which one should prevail? I side with the latter.

You can cite Scalia all you want. This is one of those instances I disagree with him ( as I disagreed with John Roberts, Anthony Kennedy in their other decisions ).

[Free Vulcan]

The problem that arises when you say that businesses can't operate according to their religious beliefs is that it doesn't make the problem go away. All it does is shift the moral decision to the govt, and de facto makes them operate like a church - a violation of separation of church and state - while it also doesn't eliminate the inconsistencies and inequality, despite claiming otherwise.

For example - why do gays get to marry and not polygamists? Where's the equality? The govt says one is legal and the other not, yet the very base principle of allowing gays to marry and not just heterosexuals is 'equality'. Yet that equality is very selective to what the govt considers as protected groups, which doesn't apply to all. In other words, the govt plays moral arbiter and religious institution.

Now throw in the 'identity' movement. If you can identify for example what 'gender' you are, why can't the principle of 'identity' be equally applied? Why can't I identify as a cat, and demand litter boxes in all public restrooms? Or why can't I identify as 'transgenerational' and have sexual relationships with minors? Or transracial? Or transpecies, and declare myself a separate species superior to other humans? Or simply not human at all, and not beholden to any laws?

Of course these won't happen, because the govt will pick and choose. It denies these rights to citizens according to religious belief, but yet feels free to play moral arbiter based on 'equality.' Yet they apply it wholly unequally and in a completely hypocritical manner while actually merging church and state, while claiming to separate it.

It's nothing but a total scam and simply gives the govt more power (as a religious institution no less) in the name of 'equality.'

[Luis Gonzalez]

Sorry Justice Scalia, I have to disagree with you here, you missed a key proviso.

 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 PROVIDED SUCH LAWS DO NOT COERCE the individual into participating in and conveying speech that are against their conscience. 

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.

The key word is "valid" and "neutral" law. A law that forces an individual to convey a message against his conscience is NEITHER VALID NOR NEUTRAL because it is against his first amendment rights.

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

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

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

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.

Scalia wrong?

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.

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

You can cite Scalia all you want. This is one of those instances I disagree with him ( as I disagreed with John Roberts, Anthony Kennedy in their other decisions ).

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.

[Weird Tolkienish Figure]

It's amazing how many fools, idiots, and retards at this very forum are waiting for the perfect candidate who simply doesn't exist.

[Jazzhead]

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.

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.   

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.   

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.