Freedom to Discriminate

[lvstephanie]

With all of the focus on the new Indiana Religious Freedom Restoration Act (RFRA), I thought it would be a good topic for Debate & Discussion... Now I know there are laws on the books already that prohibit discrimination on certain characteristics of a person, but I'm more interested in hearing your philosophic views on the topic and not on what the current laws already say.

On the one hand, some view that our country prides itself in being a society open to all people and all ideas. As such, there should be no impediments in conducting business, meaning that a company shouldn't have the right to discriminate at all on their customers as discrimination puts up obstacles that impede commerce. Basically a person that wants to start a business has a choice whether or not to open their business to the general public. If they choose to open to the general public, then all of the goods and/or services has to be provided to any customer that wants to purchase said good and/or service regardless of any feelings that the business owner may towards the customer and/or their request. Under this theory, ShopRite would have been in the wrong when a NJ store decided not to decorate a birthday cake for an American child with Neo-*bleep* parents who happened to have given the kid the unfortunate name of Adolf Hitler Campbell (see here).

On the other hand, a truly Libertarian view would be more in line with the SNL skit from the end of March which stated that companies that wished to use the new RFRA law to discriminate against homosexuals would be easy to spot due to them having a certain sign at which point SNL showed a picture of a shop with a "Going Out of Business" sign. Essentially, this view is that discrimination is just another freedom that the individuals should be able to have.Thus Racist Bob who is head of his chapter's KKK should be allowed to discriminate against non-Caucasian customers at his rib shack. But this freedom to discriminate is a two-way street. So while Racist Bob should be allowed to have and express his racist ideas, society also has the right to discriminate against him as well by not supporting his restaurant (even if they happen to be Caucasian and thus could eat at his joint), and perhaps even trying to get others to boycott the establishment as well. And if his views were vastly different from his customer base, eventually he'll go out of business. Thus the Libertarian view would be that as long as the government itself was not the entity discriminating people, we should allow discrimination. And those businesses that don't espouse the same values as their customers will go out of business thereby having self-policing via the free market.

Now I can see that there seems to be different types of discrimination, and some we as a society seem to want to protect while others we don't deem as important. As I've been thinking about this for the last few weeks, I've began to categorize these characteristics in 2 different ways... There are what I'd call native or a priori characteristics: those aspects of a person that they were born with including gender, race, and national origin. Then there are other characteristics that you learn or develop through education and/or life experiences; some of these include political party affiliation, religion, even mundane things like clothing style.

So while the Libertarian view may eventually lead to a society that is open to all customers thru pressures in the marketplace, some view that this route would take too long and hurt too many in the process. Or they fear that while the country may have an open marketplace on average, there'd be pockets of the population that would have regional discrimination (eg some of the former confederate states may allow places like Racist Bob's Rib Shack to exist). Hence they feel that government should make some laws that prevent discrimination on what we as a country feel are too important to allow the marketplace to dictate as an unethical forms of discrimination. This is basically what we have under our current laws. For the most part, we feel that characteristics that are beyond a person's control should not be a valid reason to discriminate against a person. As a result, while Racist Bob's restaurant wouldn't be able to discriminate against a person on the basis of their race, a fancy restaurant should still be able discriminate against those customers that don't follow their dress code like requiring men to wear a sport/suit coat.

There still is a bit of a gray area, however, with this partial protection of civil rights. One issue is that there are also some characteristics that although are not truly a priori, we still feel are too important and should be protected by government. For example, a person's religion isn't necessarily an innate characteristic in that a person can freely choose whether to believe in the religion of their family or choose to believe in a different religion completely. Yet we tend to believe that discriminating against a person based on their religion is also wrong. Another gray area is that some characteristics are in question as to whether they are in fact innate or learned traits. Some people feel that homosexuality is a personal choice and therefore shouldn't be protected, while others feel that people's sexual orientation is just something that they are born with and therefore should be an aspect of the individual that should be protected. Finally some traits that we think should be protected lead to other ideals of the individual that perhaps should not be protected. For example, we may feel that religion should be protected against discrimination but a not person's attire. Under this scenario, while a Muslim business may not be able to specifically discriminate against non-Muslims, they'd still be able to require male customers to be bearded and female customers to wear a headdress that covers their face thereby using other forms of allowed discrimination in order to essentially ensure that the majority of their customers are in fact Muslim.

[hitch0403]

Looks like no one wants to touch this.Id like to add to it.

First off,Gods stance on gay marriage will NEVER change.The bakeshop owner refused to bake the cake out of conscience.I think if you would have remained neutral in the baking of the cake,not inscribing anything on it and just selling it as is and explaining that to the gay couple it would have been ok.Afterall,he wasnt marrying them as a priest or a justice.

Whats the matter with this country?It is sooo full of it."In God we trust".What a joke!!Gay marriage legal in 37 states now,Pot being legalized!!

The whole world lies in power of wicked one.Who can deny that?

The bible also doesnt promote prejudice.

[sfreeman8]

Funny...I posted my opinion on this but it's gone...unless it's under another heading.

The media did an injustice to the pizza shop. They asked a loaded question to the daughter of the owner who gave her OPINION ONLY. She was not the owner of the place. They never discriminated against anyone, served everyone in their place, but didn't want to CATER a gay wedding. Anyway, who in their right mind would want to have a wedding reception based on pizza?

It's my understanding that this law that was passed had nothing discriminatory about it. It was basically stating that a state or local government action may not substantially burden a person's right to the exercise of religion; in other words, if someone wanted to refuse to bake a cake with words on it or not cater a wedding that would compromise their belief,  the shop or owner could not be sued because it would be their right.

I still don't see what is so wrong with some groups that they have to hassle everyone. In fact, I believe the brouhaha over the pizza shop was a setup by a gay rights group. They could have easily gone to another business that would cater their pizza wedding but they had to cause a lot of harm to this shop. Not right. That's discrimination in reverse.

I watched a video a couple weeks ago where a straight guy tried to order a cake for a pro-traditional event and all the places he called (that he knew were gay) refused. They had the right to refuse the guy's request and so did the pizza shop. But a gay rights group didn't see it that way. They felt they had the right to refuse the pro-traditional event but the pizza shop didn't have the right to refuse the gay wedding.

So silly. Slam me, bash me if you want, but that's my opinion.

[lvstephanie]

Although I agree that the story about the pizza shop seemed more like a hit piece (esp. since it was just a hypothetical question that the owner's daughter was asked), at the same time I think that that the girl's opinion was in the wrong and not what the law was addressing. You are correct in stating that the law was to prevent the government from putting a burden on a person's own religious expression. It was more in response to the federal RFRA signed by then President Clinton as well as the Hobby Lobby SCOTUS decision, the most recent challenge to that federal law. However, SCOTUS also decided in a 1997 decision that the federal RFRA held only to the federal government, so individual states had to enact their own RFRA in order to protect against religious burdens at the state and/or local level, hence the reason why Indiana along with some 20 other states have enacted their own version of the federal law.

The federal law essentially reinstated what is known as the Sherbert Test which applied a strict scrutiny to the apparent burden on religion. This means that the government is found to go against the Free Exercise clause of the 1st Amendment if 1) it directly places a burden against a particular religion (eg specifically targets a religion or religious practice), 2) the government's law has no compelling interest (eg the government must have a prime motive for the law in protecting the general public's interest), or 3) if that law (even with compelling interest) has not been narrowly tailored to ensure it continues the state's compelling interest while using the least restrictive means to do so. Thus, were Iowa to enact a law that doesn't allow a Wiccan priestess from giving an invocation prayer to the state's legislature (while allowing clergy of other faiths to do so) would violate the 1st condition of the strict scrutiny of the law. Likewise a law that makes beards illegal -- even if applied to everyone regardless of religion -- would violate the 2nd prong of the Sherbert Test since there is no compelling reason for the state to enact such a law. Finally, laws that prohibit drug use, including peyote in religious ceremonies, would violate the 3rd since even though the state has a compelling interest in protecting the public's health and safety, a blanket proscription against drugs doesn't account for the possibility of using the drug in a controlled religious ceremony that still is in line with the underlying compelling interest (ie using the drug in a controlled environment of the ceremony still prevents the abuse of the drug, and the person's health and safety is ensured by the strict religious standards of its use).

In the case of the pizza restaurant, the only law that could be considered to be the burden to this business is the Civil Rights Act (CRA) in which Title 2 states that a business open to the general public cannot discriminate against a person's race, sex, religion, or national origin. Now even though it doesn't specifically prevent discrimination based on sexual orientation, the Equal Employment Opportunity Commission ruled that Title 7 of the CRA protects against sexual orientation and gender identity discrimination in employment as this is covered under the protections based on a person's sex, so it's possible that a similar argument could be made when serving a customer as well. So assuming that the legal contention would be on Title 2 of the CRA, I think that the pizza parlor would lose on the basis that catering a pizza party (regardless of what it is for) isn't based on any religious beliefs; in other words, the pizza restaurant wasn't being asked to officiate the wedding nor is the making and delivering of pizzas to an event somehow religious in nature. Thus the CRA in this instance isn't burdening the owner of the pizza place's religious beliefs.

However I know I'm basing my arguments on a supposition that refusing to cater an event for a homosexual customer is in violation of the CRA. As I mentioned, the actual law does not stipulate that sexual orientation is a protected trait. This is in part why I was looking for a more philosophical discussion vs. a legalistic one. Legally a business has great latitude in what they may discriminate against including sexual orientation (provided that there are no state laws prohibiting it), political affiliation, or even a person's name. But the question is, is this right? Should businesses be allowed such a wide ability to discriminate? Or should there be more protections in place to prevent discrimination esp. in a business setting?

[hitch0403]

I think the owner said and did the right thing when he re-opened on 4/1.

Not to cater party because in Gods eyes he would be celebrating something in Gods eyes that was a sin.

On the other hand he had no problem if they ate in his place.

The apostles said,we must obey God as ruler rather than man"when Gods rule and mans rule collided.

Kudos to the owner.

As many of you know <not to get off topic>blood is sacred to God.The eating of it is NOT supported in bible.Many have died in Gods memory to support HIS view on this.

[hitch0403]

Back in the 60s,M.Ali refused to go in the army.He said,I have nothing against the N.Vietnamese.

The government punished him taking away his championship belt.

I am sure in Gods eyes he did the right thing still.

The world is in the mess its in today because its NOT governed by our creator which initially was supposed to be.

Because the gay situation is so widely accepted today more than ever,even those that are against it are afraid to speak out because they feel like they are in a minority.

Again i applaude this owner NOT sinning in Gods eyes.

[sfreeman8]

You said, "I think that the pizza parlor would lose on the basis that catering a pizza party (regardless of what it is for) isn't based on any religious beliefs; in other words, the pizza restaurant wasn't being asked to officiate the wedding nor is the making and delivering of pizzas to an event somehow religious in nature."

Oh, but they WERE asked to CATER the wedding, not just deliver pizza. Catering a wedding means to be there from the beginning to the end of the meal or whatever function a person is hired for and this is something that would have gone against their beliefs since it was a same sex marriage ceremony and something against their religious beliefs.

They should have the right to refuse to any function, just like any gay business owner should have the right to refuse any function too, but the gay rights group in Indiana (or wherever the protesters were from) don't think anyone should have those rights except them. That's not acceptable. What they believe is that it's their right and perfectly okay to refuse to cater a traditional wedding if they don't want to do it, but no one has the right to refuse to cater a same sex wedding or any other function they feel doesn't fall in line with their life.  That's not acceptable. The RFRA law was trying to make it equal for all.

As for Ali, the government didn't take away his title. The boxing association did that plus suspended him for 3 years. The government felt he switched to Islam so he could evade being drafted and this is why the feds came down hard on him. This didn't help his popularity, either because people were still patriotic.

[hitch0403]

Sfreeman,the point i was trying to make with Ali is he was still punished for as you say....NOT being patriotic.He didnt want to take it a step furthur and have to kill someone he had nothing against.

Jesus said those that take to the sword will die by it.I am NOT referring to self-defense either.Of course yo would protect yourself and loved ones if need be.

The Vietnam war was certainly one of nonsense.I feel sorry for those killed or wounded in someway and NOT knowing why!!

[madeara]

I am opposed to gay marriage.  I also disagree with the homosexual lifestyle.  However, I can still love all people as Jesus did without supporting their lifestyle.

[sfreeman8]

Sfreeman,the point i was trying to make with Ali is he was still punished for as you say....NOT being patriotic.He didnt want to take it a step furthur and have to kill someone he had nothing against.

Jesus said those that take to the sword will die by it.I am NOT referring to self-defense either.Of course yo would protect yourself and loved ones if need be.

The Vietnam war was certainly one of nonsense.I feel sorry for those killed or wounded in someway and NOT knowing why!!

Those that served knew why they signed up and what the war was all about. That was my era. The guys from my county and town area went willingly. My cousin stepped on an IED and died, but it didn't stop anyone from signing up after that. It was a matter of freedom for a country that was asking us for help to fight off communism. If the president(s) would have allowed the military to "do their thing," it would have been over within months...but the military's hands were tied, just like they were in Iraq and are in Afghanistan.  A friend of ours was in Viet Nam and what did he have to defend himself? A rifle and RUBBER bullets. He was wounded but received NO medal.

Our armies can't fight anymore. They're not allowed to and the idiotic rules of engagement are the  problem. Each president makes it tougher to engage an enemy. They take the defense away but allow the "enemies" to do whatever they want to do while our armies are helpless.

I better get off this subject as it still upsets me.

[hitch0403]

Sorry and dont mean to upset you.

I am also from that era.I passed my army physical with flying colors.Nixon instituted a birthday lottery for draft then.My number came out right in the middle.I think it was enuff to keep me out.

While you say many signed up for it willingly,many also knew it was a bunch of BS!!

I am glad i didnt have to make a decision whether to be like Ali or go get possiblly killed or wounded.

The 6000 yrs of mans rule on earth should convince many of Eccl 8:9

Man has dominated himself to his own injury

[lvstephanie]

When I said the pizza parlor would lose on the basis of it going against their religion, the point I was trying to make is that I was making a distinction between the wedding ceremony and the wedding reception. When people request for a restaurant to cater their wedding, they are almost always referring to the reception. I don't know of any religion in which partaking in a catered meal is important to the tenants of the religion or important to the wedding ceremony. In other words, the wedding ceremony itself is act that the pizza place would have an issue with in relation to their beliefs, not the non-religious wedding reception afterwards. That was why I was saying, being asked to cater a wedding reception isn't doing something against their religion whereas officiating the wedding ceremony would be something that is against their religion. For example, I also work as a karaoke DJ as a side job. I have already decided that I'd cater any wedding reception that any customer requests. However I won't agree if they ask me to run the music for the wedding ceremony itself (regardless of religion or sexual orientation). I'd just let the customer know that I see the ceremony itself as something special / holy and I don't want to tarnish anyone's beliefs in order to appease the other party.

[linderlizzie]

In my humble opinion, all the attention given by the media to subjects such as gay rights, gay marriage, race riots, global warming, etc. ad nauseum are simply ploys to keep American's attention off the things that our big daddy government is doing.

Therefore we are doing nothing but infighting while all sorts of cover-ups, outright lies and entitlement mentalities are being perpetrated.

Am I being too simplistic? 

[hitch0403]

I think celebrating something is the same as supporting it.This isnt the same as someone coming in and ordering a slice of pizza.

Everything gets exposed sooner or later Linder.Truth eventually surfaces.

[paints]

Personally, I think it's wrong to discriminate against anyone.
If you are in business to serve the public, that's what you do.  You're not condoning someones' lifestyle by treating them as you would any other customer. 
Your customers' lifestyle is not your business.