TOPIC: Gen Con's letter to the IN governor re SB101

Druegar wrote:

Incognito wrote: if you hire a prostitute (legal in parts of Nevada) or an escort, most people probably would discriminate based on color of skin and/or sexual orientation (due to their personal attraction preferences).

Congratulations! You found a ridiculously minor exception to my overall point. Thank you for enriching this conversation with that corner case.

I have to admit I find corner cases the most interesting. For example, I feel it is easy to say you support free speech until you dig into causing panic and child porn. I don't think Incognito was trying to invalidate your statement but instead to expore the murky waters around these issues.

It seems we all agree that discrimination happens, in fact we may all agree that it is necessary and moral in some cases. But is there (or should there be) some sort of universal line where it becomes not ok? Who gets to decide where that line is given that different people clearly have different personal opinions? And if such a line exists, should it be one of the many moralities that become law, or one of the many moralities that don't?

I did not think that causing panic has ever been covered in the doctrine of free speech. That's why you can't yell "Fire!" in a crowded theater with immunity.

Kirk Bauer wrote: I find corner cases the most interesting.

Cool. Please contact your elected officials and ask them to pass a law making it illegal to discriminate on the basis of race when engaging the services of a sex-worker.

Kirk Bauer wrote: is there (or should there be) some sort of universal line where it becomes not ok?

I doubt there could ever be a universal rule to determine such a thing. It's just too nuanced. However, I think a decent baseline (not the only determining factor) is when the thing you're discriminating against is an innate trait. Some of these things include gender, race, ethnicity, and sexual orientation. (not intended to be an exhaustive list)

Are there exceptions to those things? Sure. That's why I said baseline. For example:

• If you're casting the role of MLK for a movie, I think it's okay to not hire an Asian lesbian to portray him.
• If you're hiring someone to carry 300 pound rocks (without mechanical aid), it's okay not to hire an 80-pound gay Black man because he is not physically capable of performing the job.
• However, if you're hiring a fry cook at Denny's, neither the applicant's sexual orientation nor race should be considered because they're unrelated to the performance of the job.

Check out this audio recording of an Indiana restaurant owner who called a radio station to say he not only will refuse to serve LGBTs, he's done so in the past . (Warning: the recording auto-plays when the page loads and it's kind of loud.)

Kim Lindgren wrote: Here's the question though, when you are operating a business that is open to the public where do you draw the line on who you can choose to serve and who you can refuse to serve?

Having watched this topic for a while and with the risk of making a clear statement (a danger for a lawyer) Kim's post really puts the problem of SB101 in perspective: This law permits people to actively discriminate in their public businesses against anyone they do not like by simply claiming it violates their religious beliefs.

The Supreme Court has constantly held that allowing people to evade laws due to "religious beliefs" is not permissible United States v. Lee,455 U.S. 252, 261 (1982)

When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity. Granting an exemption from social security taxes to an employer operates to impose the employer's religious faith on the employees.

This principal survived even the Hobby Lobby decision as Justice Kennedy (the 5th vote for ruling the closely held corps can have the religious beliefs of their owners) ruled in that case. See Burwell v. Hobby Lobby Inc., 134. U.S. 2751, 2781 n.37.(2014)


What does this mean in this discussion?

First, any law that actively allows parties to use religion to discriminate, is simply bad. If someone wants to discriminate on "religious grounds" they can keep their beliefs by not engaging in commercial activity. (where I live many strict sects only do business with other more "worldly" sect members so the do not have to compromise their beliefs). If that is "inconvenient", then perhaps their religion is not all that important to them.

Second, This is not a question of whether people choose, discriminate, randomize decisions in expressing their preferences. This is a government allowing people to actively hide from the consequences of their actions.

Therefore, lets keep in perspective who is the problem here: POLITICIANS!!!!
not fellow TDers.

Chip,
If you don't mind can you share another legal opinion on this subject. I believe that Indiana is the 20th state to have a law like this on the books. Why have these laws survived court challenges? I'd be surprised if they haven't been challenged before.

Kim

Chip Bowles wrote: lets keep in perspective who is the problem here: POLITICIANS!!!!
not fellow TDers.

Hear hear!

Druegar wrote: Check out this audio recording of an Indiana restaurant owner who called a radio station to say he not only will refuse to serve LGBTs, he's done so in the past . (Warning: the recording auto-plays when the page loads and it's kind of loud.)

Given that the person refused to identify his restaurant, he either lacked the courage of his convictions or was simply trolling the audience.

Incognito wrote: Well, if you hire a prostitute (legal in parts of Nevada) or an escort, most people probably would discriminate based on color of skin and/or sexual orientation (due to their personal attraction preferences).

Momentarily leaving aside the morality of prostitution, the morality of selecting a prostitute that you find attractive is neither morally nor legally difficult - non-controversial precedent existing in cases such as actors, models, or other performers where their physical appearance is germane to the job.

Also - a private consumer's choice to do or not do business with any service provider is logically, legally, and ethically distinct from a public business choice on who to provide service to. What is at issue with the Indiana law is how businesses can treat prospective customers.

No one is proposing that it be illegal for a private citizen to use whatever reasoning they want to select a vendor (even if their reasons may have a morally objectionable basis, such as racism).

Kim Lindgren wrote: Chip,
If you don't mind can you share another legal opinion on this subject. I believe that Indiana is the 20th state to have a law like this on the books. Why have these laws survived court challenges? I'd be surprised if they haven't been challenged before.

Kim

Here is my humble explanation of why these laws have survived challenges:

First, while there have been challenges to other acts which are designed to protect religious expression (most commonly challenges to Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C.S. § 2000cc et seq. see Holt v. Hobbs, 135 S. Ct. 853, 856 (U.S. 2015)), these statutes were very different from SB101. So there is little to compare in this prior litigation.

Second, In the case of the LGBT community, until very recently it was constitutionally permissible to discriminate against members of these communities, including the infamous first sodomy case Bowers v. Hardwick, 478 U.S. 186 (U.S. 1986) which was thankfully overturned by the Supreme Court in Lawrence v. Texas, 539 U.S. 558 (U.S. 2003). Therefore it has taken some time for laws like this one to be enacted by certain political factions in an attempt to appearently "roll back" at least some of the laws which prevent discrimination against the LGBT community.

Third this law is a direct reaction to the "bakery case". Given the Supreme Court decisions in my prior post, this is a purely political and recent trend in these types of laws to prevent anti discrimination laws from taking effect.

Finally as I noted in a earlier post this law is so broad that every TDer and almost every non historical gamer at Gencon could be discriminated against as our games would violate their religious beliefs related to magic and consorting with Devils.

As a side note I would like to know those who wish to express their "religious rights" in order to discriminate against LGBT and others.

As aside #2, there are cases of clear discrimination which are OK such as a local resturant which Kicked out OJ Simpson as they liked discriminating against murderers. They didn't need a stinking law to protect them

Harlax wrote:

Druegar wrote: Check out this audio recording of an Indiana restaurant owner who called a radio station to say he not only will refuse to serve LGBTs, he's done so in the past . (Warning: the recording auto-plays when the page loads and it's kind of loud.)

Given that the person refused to identify his restaurant, he either lacked the courage of his convictions or was simply trolling the audience.

Huzzah! Well said I would like them to proudly display their beliefs, so I cannot contaminate them with my dirty tolerant money