As you know, bakers who would not bake a wedding cake for a gay couple ran afoul of the legal system. Now, we find that Muslims who would not deliver alcohol were protected by the legal system.
I am trying to avoid the conclusion that the legal system is here to protect people with whom the judge is sympathetic and to punish people with whom the judge is not. So here is my best shot:
1. The trucking company that fired the Muslim workers had many alternatives. They could have easily accommodated the wishes of the Muslim workers and still delivered the beer. Firing the Muslim workers for not delivering beer was equivalent to firing an observant Jew for not working on Saturday.
2. For the gay couple, however, there was close to no alternative but to go to this particular bakery for a wedding cake. By refusing to bake for this couple, this bakery was forcing the couple to either forego a cake, pay a high price to a different baker, or travel far to obtain a cake.
So if your religious beliefs to do not severely constrain the alternatives of the other party, then your religious beliefs take precedence. If they do severely constrain the alternatives of the other party, then the other party’s needs take precedence.
Does that work? If not, can you come up a better way to rationalize these two decisions?
How far do the bakers have to travel to bot bake a cake for homosexuals?
My best reconciliation would be that the majority have more options than a minority. So, mandates are a next best to some form of compensating redistribution. This is similar if not identical to what Arnold said (although not about firm size which i think is irrelevant). Although it has nothing to do with what the state is actually doing, which is about the favored classes that aren’t too big and aren’t too small, but just right.
The “State” is not trying to DO anything. People are using the power delegated to create the body of authority called the “State” to establish the conditions of relationships in the society to more closely conform to their sense of the “ought.”
This gives a window into one element of what has been transforming our legal system.
OK, I’ll try to give it a charitable spin.
The bakers bake cakes as part of their ordinary business. They were asked to bake a cake by the gay couple. The bakers refused, not because the product was something they don’t make, but because of the use it would be put to by the client. The bakery’s objection was to the client, not the product.
The Muslim truckers do not deliver alcohol as part of their ordinary business. The policy decision not to haul alcohol was made independent of their clients’ moral/religious affiliations. The trucker’s objection was to the product, not the client.
It seems like a significant difference to me. (Although I suspect there is an element of “protecting people with whom the judge is sympathetic and punishing people with whom the judge is not” at play here too.)
That’s pretty good.
My guess is that religious observers (the Muslim driver) are part of a protected class, as are homosexuals.
Businesses can’t discriminate against protected classes.
The bakery is not similarly protected, because it is not a person. The fact that its owners are people is not relevant. Furthermore, they’re not even the targets of discrimination.
But I’m skeptical whether that gets beyond Arnold’s bar of just “protecting people for whom legislators have sympathy”.
The gay couples were not prevented from buying cookies, bread, or any kind of good made for general sale. Thus I don’t you can say that the bakers were simply objecting to the client. Rather, the objection is either that the baker is being asked to participate in an event with religious ramifications.
If I tried to contract a Muslim catering company to serve food at pig farmers convention and they refused, it would be overstepping my bounds to try and force them through legal means.
If I am looking to sacrifice a chicken for some religious ritual, then a vegetarian, animal-rights advocating commune that sells organic, free-range chickens only for egg-farming purposes is probably within its ethical rights to refuse me the chicken (though they might still sell me an omelet).
If I am a Christian painter, I would probably sell my prints to a Satanist, but I would like the option not to paint murals to decorate their place of worship.
I feel like all of these cases are quite distinct from refusing to sell anything to someone merely because they are black.
*Rather, the objection is that* (first paragraph edit)
Easily tested. Have a couple women, arm in arm and addressing each other as “snookums” or somesuch, order a non-wedding cake for a friend of theirs.
Your comparing two entirely different sets of laws
1. Public accommodation laws have (or arguably have) limited exceptions for litigants arguing for a religious exemption.
2. Employment discrimination laws, on the other hand, require reasonable accommodations to religious belief.
So, for example, if a Muslim refused to sell a wedding cake to a Jew on account of his Jewishness, that’s not going to fly. It’s not that in one case we have an administrative judge unsympathetic to Christians and the other one sympathetic towards Muslims, it’s that one case was about religious people refusing to serve a (in Colorado) protected class and the other was about religious people asking for a work accomadation.
That’s true but it just punts the question up a level. Can we reconcile the legislative motivations, beyond just “we have sympathy for some people and not others”.
Oddly, the Wikipedia entry on “Protected Class” does not specify why protected classes exist.
Is there an agreed-upon rationale for this?
The policy justification is that our goal is to avoid discrimination based on rarely meaningful but historically fraught distinctions (i.e., race, religion). Though, obviously, people disagree about who should be on the list.
The policy supports the distinction Arnold is asking about. We’ve got two asks
1. We just need a small religious accommodation to your anti-discrimination statute: let us discriminate.
Vs
2. Our employer fired us even though a minor accommodation to our religious beliefs would have sorted everything out. We think it was discriminatory.
If the policy purpose is to avoid discrimination, it’s pretty obvious why the second one is more likely to succeed.
Legislative motivations can be hard to reconcile when the legislators change, the legislators lack omniscience, and legislation is often hashed out and created without thought to overall coherence as hypothesized in ivory towers.
This is particularly true when we are talking about judicial decisions btw two different lines of thought where the legislature has no influence (separate branches) and likely didn’t consider when designing legislation (particularly relevant here, i doubt the law which applies in bakery sales was formulated with EEOC tactics in mind, since it is a legally irrelevant question)
Keep in mind that “punting the question up a level” comes with assumptions that may not be shared between communicating parties. Here for example, the US legal system has developed separate lines of precedence that provides alternate methods of analysis when faced with a question about (1) work place discrimination and (2) discriminating against consumers. This is why the EEOC is involved in work place discrimination and has nothing to do with a discrimination law suit.
Following this line of thought, would it mean that the bakery owner would have to accept the commission to make the cake, but she could not force her employees to make the cake if they objected?
Could you turn that around and talk about boycotts of those who bake cakes for, or trade with, a particular class?
The baker is an owner but the delivery driver is an employee. “Reasonable accommodation” for an employee is vague and can be interpreted broadly.
See above. Is the baker a person or a business?
This is all hand waving.
The common features are (1) freedom of association is ruled out in both cases — neither the bakers nor the trucking company gets to choose who it works for or financially supports, the government does; thus government power is enhanced; and (2) Christians are persecuted, denied their preferred relationships, and anti-Christians — politically left gays and Muslims — are rewarded financially for assisting the government in persecuting Christians.
As Solzhenitsyn pointed out, the essential feature of government power under Communism is that it must be exercised arbitrarily, otherwise people will think they don’t always have to submit to it. If you do find any “principle” which would seem to rationalize the government’s actions, then the government will soon be sure to find a counter-example to invalidate that principle. It can’t allow principles to govern the law.
In both cases, the owners of capital are liable. Because they are oppressors.
That is the commonality. The business owner is at fault…regardless, seems to be the basic bias of judges.
The law specifically protects protected classes, of which Muslims are one and cis-gendered, straight, white, married bakers are not.
It’s not the judges, the legal system (and Congress) have specifically selected certain groups that they explicitly favor.
These laws have been around for quite some time.
Foseti, you are mistaken. The bakers are acting out of religious conviction just like the drivers, and Christians are a protected class.
Foseti has the right idea, but he’s applying it to the wrong side of the transaction in the case of the baker. The baker’s would-be customers, as a gay couple, are part of a protected class who cannot be denied service by a vendor based on that status (under state and local “human rights” laws; I don’t think under any federal statute, yet). The baker, as an independent business, is not “protected” from having to serve customers who are part of a protected class. In the case of the Muslim truck drivers, they, as employees, are protected (within limits) from being required by their employers to do something violating their religion (i.e., the employer has to make “reasonable accommodations” to the employees’ religious restrictions). The employer’s alcoholic-beverage customer (who the employer presumably can service using non-Muslim employees) is not within a protected class.
I think that you are seeking aa pattern in randomness. Individual court cases rarely have deterministic outcomes. Even in non-political realms such as contract law we get opposite decisions for similar cases.
I wonder why the law has to be involved in these sorts of things at all.
And I wonder why someone would even want a baker to make a cake for them if that baker emphatically does not want to make the cake. Even if the baker does not intentionally sabotage such a cake, it is bound to not be their best work. Just find someone else to make a cake for you, make it yourself, or have another dessert than cake. What is the big deal?
“I wonder why the law has to be involved in these sorts of things at all.”
So that it can get involved in even more things.
It’s not about weddings or love. It’s about dominance. It is a trivial matter for these people to get the cake elsewhere, but it’s not about the cake. It’s about showing these normals whose boss. About the exercise of power of the powerless. Didn’t O’Brian summarize this motivation well in 1984.
The difference is this is an administrative decision, one I doubt courts will sustain. Come back after appeal.
These seem to be pretty unrelated situations to me.
Denying a service based on unrelated qualities of the customer is useless and mean. Boo to bakers who do this, but at least they didn’t expect to be paid for the non-work.
Choosing not to perform a service uniformly for all customers is a completely different kind of useless, and not mean at all. Cheers to drivers for making that choice. The boo is that they then expected to have a job that included tasks they don’t perform. That’s just wrong.
I’d leave the government out of both, but I recognize that the wrongs under consideration are so different as to be nearly unrelated. There’s no consistency problem here, just a busybody problem.
Are we really talking about “protected” classes (yes, I Know that’s the label)?
The business of the distributor includes trucks to distribute beer.
Is a religious objector to distribution of beer “protected” to seek and be granted employment there, in that particular firm?
Take an abattoir. It’s business includes pork slaughter and packing.
Muslim applies for work there, demands termination of pork activities as an environment hostile to his faith. Demands change in slaughter methods to halal.
Quo Vadis?
The needs for Public Accommodation and Open Employment are quite different from cake baking and capacity to make deliveries. If your faith limits you from performing either that limitation should have equal weight in social consideration. You don’t go to work where your faith limits your work.
In the case of baking, occupation permits may prescribe the work.
“Protected class” is a concept explicitly banned by the 14th amendment which guarantees every person equal protection under the law. “Freedom of Association” is a right explicitly stated in the 1st amendment and would presumably grant great latitude to proprietors the freedom to choose with whom they do business.
Any argument that accepts the existence of a protected class and restricts the freedom of association is not based on Constitutional law but on the distortion of it. Yet that is where we are. It is quite amazing to consider how American justice evolved to where the meaning of the written text is not only ignored but it has been interpreted to mean the opposite of what it says!
I sympathize with the bakers and believe that they should be left alone but If you put out an ad or sign that says we sell wedding cakes and you refuse to sell one to a customer that could be considered fraud.
No, because (1) the sign doesn’t say “we sell cakes to everyone”; (2) fraud requires reliance; (3) fraud requires damage or injury. Even if it was an intentional lie intended to deceive, there is no legal claim without (2) and (3).
Good points, and one would not even assume that a random baker would be willing to bake a cake for same sex wedding.
Employees have different rights in relation to their employers than businesses do in relation to their customers.
It does bring up many inconsistencies though…not the least of which is that all of their employees may exert their rights to not write on the cake, in which case they may have to contract out the final assembly to a gay friendly cake decorator?
I wonder if they would have received the same treatment if the cake were to have said “Hail Satan” to be delivered to a group of Satanists? Or perhaps a “God is Dead” cake to be delivered to a symposium on Nietzsche? Will we see a series of test cakes wind their way through the system to determine more precisely what one can be forced to write in edible icing by a customer?
” why someone would even want a baker to make a cake for them if that baker emphatically does not want to make the cake. ”
I don’t think they care about the cake. It would be much easier to go to another baker instead going to court to get a wedding cake.
The point is to punish people who don’t like homosexual marriage and have the law declare anyone not embracing gay marriage to be unacceptable.
Exactly. Bakers, photographers, etc., happy to service same-sex weddings are not exactly hard to find. The complaining couples in these cases specifically seek out traditionalist vendors for the purpose of punishing them when they decline the job. Like the reporter who, a few months ago, called a small-town Indiana pizza parlor to ask if they would cater a gay wedding, for the purpose of demonizing them. Has any gay wedding reception ever featured pizza as the main entre?
Thus raises a problem for Arnold’s explanation. If there is a scarcity of options, closing businesses doesn’t help.
Is there any reason to believe that there is a scarcity of wedding vendors (bakers, photographers, florists) willing to serve same-sex weddings? In areas where there are likely to be significant numbers of same sex weddings, I very much doubt any such scarcity exists.
About photographers, I wonder about a photographer who has no problem with same sex marriage but does not want to do the job because he finds it displeasing to watch.
The photographer issue proves that, when push comes to shove, nothing less than total acceptance of gay marriage will be demanded and punished by law if not delivered.
While a florist gets orders and builds arrangements, and where they go really doesn’t matter that much, and bakers bake cakes that they normally would anyway, but spend the last 15 minutes decorating them with some blasphemous language, a photographer has to spend an entire Saturday taking photos of your gay wedding, often with a helper. At the end of the day, he’s got to spend a few more hours back at the office (i.e. home) on Photoshop to make your gay ass look pretty.
So anyone who tells you that “photographers aren’t part of the wedding” is ignorant, evil or both. If he gives less than 100% performance, he can be sued for discrimination. “The photographer who did our gay wedding under duress did a less than spectacular job, so justice demands a bankrupting six-figure judgement!”