When constitutional rights duel, which one wins?
A gay couple walks into a Christian deli/bakery in Texas wanting to order a wedding cake and associated catering services, and the owners refuse on the basis that their strongly held religious beliefs consider homosexuality an abomination and thus forbid their participation. What’s likely to happen next? We all know that the local media, tipped off by gay activists who were just waiting for the expected response, will immediately pick up on the story and present it as another example of homophobia and discrimination against members of the gay community. The local lead will be grabbed by the national liberal media and whipped into a froth of indignation, setting the scene for a federal discrimination lawsuit based on violations of the gay couple’s constitutional right to equal treatment as American citizens.
At the same time as that gay couple walks into the bakery, just a couple of doors down the street, a medically retired sergeant first class, an Army infantryman with a Purple Heart earned for the loss of his lower right leg during the last of his multiple combat tours in the Middle East, walks into a national coffee chain with his son and orders two large black coffees, no cream, no sugar, no nothing but coffee. The barista notices the .45-caliber semi-automatic pistol holstered on the sergeant’s hip and tells him he must leave, as no firearms are permitted on the premises, as a sign by the entrance clearly explains. The sergeant apologizes for failing to notice the sign, and he limps out quietly, followed by his bewildered young son. No gun rights protesters are waiting outside to begin a loud demonstration, no local TV station has been alerted, and there most certainly will be no high-publicity lawsuits filed.
The bakery owner feels that the freedom to practice his religion without government interference allows him the freedom to deny his services to the gay couple who feel they are being deprived of their right to equal treatment under the law. The retired soldier is exercising his clearly stated constitutional right to keep and bear arms. The coffee corporation is enforcing a corporate policy allowed under Texas law, but less constitutionally certain, to ban the presence of firearms on its premises, a right fortified by a long tradition of property rights.
Conflicting rights in both cases – yet in only one will one side be taken by the media and used to portray the other as a shameless bigot and denier of constitutionally guaranteed protections, bringing the obvious question:
If not for the determined gay activists and a complicit media, is there any real difference in terms of our constitutional rights? Does the biblically inspired local baker have a lesser right to conduct his business as he sees fit than the corporate coffee sellers who impose their policies based on a liberal corporate culture reflective of the CEO’s personal bias against firearms? What would be the result if the baker put a sign in his window politely explaining that his religious beliefs prevent him from participating in gay marriage ceremonies? Is that at all different from the corporate coffee shop saying that you must suspend your constitutional right to keep and bear arms to enter these premises because our owner dislikes guns?
You tell me…
Crossposted at American Thinker
Category: Politics
What about putting a sign up that simply says : “we reserve the right to refuse service”. Seems to me that those were posted in quite a few places.
Doesn’t matter. There was a case in Washington state about the florist who refused to provide flowers for a gay couples wedding. The state sued and won after the attorney general successfully argued that those consumer protection laws prohibit discrimination based on sexual orientation. And that’s not the only one, places in Oregon and Colorado have been sued and lost their cases. So that sign is pretty much worthless when it comes to LGBT community.
The way I see it, it all depends. That’s the classic legal reply to nearly every legal question. The first question I ask in any ‘competing rights’ question is whether the rights are on equal footing. Competing rights issues are not new. In any event, the key for me is to ask whether the Sup Ct would use strict scrutiny or a lesser standard in weighing the two or more competing rights. If the answer is no, that only one of the rights at issue will be subject to strict scrutiny, the outcome is predictable. On the other hand, if none is or all are, we have ourselves one helluva mess.
The problem is, the Supreme Court is just as political. How many votes are 4-5 or 5-4 on an issue? That’s because they are basing their votes on their political ideology, NOT on what the Constitution says.
There “shouldn’t” be a concern about how liberal or conservative a judge is who’s nominated, but it always is an issue. Why? Because they’re going to essentially be democrats or republicans even after getting confirmed to the Supreme Court.
Most Supreme Court cases are usually decided by a much wider margin than 5-4. True, the socially newsworthy cases are often a lot closer.
It’s the ‘hyphenated American’ syndrome, writ large. I/me/my has taken first place in our language and our lives. “It’s my RIGHT!” we howl. We have forgotten how to care about each other. We flaunt what we are or believe, daring anyone to pit their rights against ours. We don’t try to talk to each other, understand each other, or work with each other. Instead, we’ve turned this country into a nation of lawyers and lawsuits. It’s sickening.
Free association matters-if the coffee shop doesn’t want you to come in armed, that is their business, likewise the baker should be able to refuse business for whatever reason based on his or her deeply held beliefs. Anything else is using the coercive power of the state to compel behavior-that moves us farther from the free society envisioned by the founders.
I’m a bit conflicted on this one. On the one hand, I believe in the right of a business to choose how to go about running itself. Theoretically the market should decide how it plays out and who is rewarded by the consumer. No guns allowed at McDonald’s? That’s fine, I guess Chick-Fil-A will be getting more of its business instead. But where does it end? Should a business be allowed to deny service to a muslim, because it violates their beliefs? How about a black or handicapped person? Racism and eugenics is a belief, after all. I would like to say yes, and let the market run its course, as such a business would likely keep many customers away and thus go under fairly quickly. But I don’t think that this would be good for society overall. IMO there needs to be some kind of balance between the rights of businesses and citizens. I’m just unsure on where to strike it.
If a discriminatory business goes under quickly, how is that bad for “society”? Likewise, if it flourishes, who cares? Those who it discriminates against will have alternatives and the state will have kept its big coercive beak out of the matter. I constantly see people try to square this circle-apparently we have to know what is or is not “settled law” before with proceed with what are entirely private interactions (I guess we all need to keep an attorney on speed dial). Nope, just do business with those who are willing to do business with you and to hell with those who don’t-there’s really no need to make it more complicated than that.
A sane and reasoned response but I can hear it coming, the rumble of Jim Crow-style retorts. Why should I have to choose? The government should make them do what I want, just as the other protected classes were delivered from having to choose from among businesses who would accomodate them.
Let’s not forget what Jim Crow was though-Jim Crow was the state (states-or sometimes localities) telling businesses who they could not do business with. Maybe those business owners did not love black people, but they were probably willing to take their money and provide them services in exchange, except that they were prevented by law from doing so (it was more than that, but with regards to business interactions this description will suffice). The law is generally a blunt instrument, it usually can’t take into account individual circumstances and it can be used as a club by the politically motivated when they see fit.
I’ll put it very simply. The GOVERNMENT should not discriminate because they are there to represent all the people.
Private business are just that and no laws should tell them who they are required to serve. Yes, there will be assholes who will tell people that their business will not server gays, blacks, whites, nerds, Bernath, whatever. That is their RIGHT.
If they go out of business, that is also their right.
There’s no dueling constitutional right in your example. A bakery operates in the sphere of public commerce and as such the bakery, which is a corporate entity established as an identity separate and apart from the owners in order to protect the owners personal lives from the liabilities of the bakery, is subject to public accommodation law. The Hobby Lobby case was a very poor decision on the part of SCOTUS in my opinion and my opinion only, and I suspect it will be changed the next time this issue comes before SCOTUS. If you are allowed to legally separate yourself from your business to keep your personal life and finances safe from the liability of the business how can you later claim your business has your own personal values when you’ve legally declared it a separate entity? That’s the entire point of a corporation, to separate the owners/operators/shareholders personal lives and finances from the liabilities incurred by their corporation. A bakery offers a product, cake, to the public. Most states have determined these types of businesses must adhere to specific law in that they can’t refuse to serve a black man, a jew, a woman or someone disabled. Some states add other protected classes that add gay people and some don’t. Those that don’t are free to discriminate against gays all day long….not that I’m aware that any do, but I guess it happens often enough to make some people uncomfortable. The second example is one where we are discussing private property rights versus 2nd amendment rights and I’m not as certain that law is settled either. The sergeant is perfectly within his rights to challenge that corporate policy legally by taking his concerns to a lawyer and funding his challenge to the corporation. He could make the case his right as existing both under federal and state law is being restricted by a company operating in the public accommodation sphere and that company should be forced to comply with appropriate public accommodations of federal and state law exceptions. Maybe he wins, maybe he doesn’t…kind of like Hobby Lobby… Read more »
I might’ve missed something, but I didn’t see anywhere that the bakery in Oregon was a corporation or an LLC.
And if he’s bringing a firearm into the coffee shop and they can see it, I wouldn’t consider that “concealed” which would imply he was carrying it openly.
Granted the extremists on each side of the issues don’t help their side at all. Though the MSM sure does love to spout the liberal agenda and anything considered “conservative” is evil.
“Were I a baker I would open across the street from the bakery that doesn’t want to serve gays and put a big sign out front that said we bake cakes for everyone and will gladly work with gay clients to provide a wonderful cake buying experience for everyone who enters our store.”
And the gay activists would still go across the street to the competing bakery that doesn’t want their business; for their goal is not truly to get their wedding cake made and their wedding catered, it is to compel the Christian bakers to publicly conform to their lifestyle or face a destructive legal battle accompanied by a hugely negative publicity campaign aided and abetted by the liberal media.
There are plenty of gay-friendly bakeries, VOV, but the in-your-face gay movement won’t be satisfied until they ALL are, with the exception of the Muslim bakeries that is. Like you, I’m not a religious man, but I can readily understand the anger and fear in the Christian community that they are being increasingly targeted by the radical left in a determined campaign to destroy their belief system.
One of the slippery slopes you can start down with this stuff is that businesses fire clients on a somewhat regular basis. Sometimes it can be for something as vague as violation of a loose unwritten 90-10 rule which states that 10 percent of clients are 90 percent of the pain in the ass. Anyone in business not familiar with the “Client From Hell” concept hasn’t been paying attention.
What’s also true is that anyone who has spent time in San Francisco can probably tell you the gay community may be homosexual but is not homogeneous. Some members of the gay community, in the closet or not, present no conflict with the non-homosexual portion of society because, at least it seems to me, they don’t see their sexual orientation as being the defining characteristic of their existence.
On the other hand, there’s a faction of the gay community which sees itself very much at war with the “breeders” who they view as being to blame for what’s wrong with things. These are the kind of people who don’t want tolerance, they want an endorsement. They want you to applaud when they march in a gay pride parade wearing a leather jock-strap and waving a rainbow flag, and are unhappy when you don’t.
Part of the back-story in the Longview, Texas cake incident is that the two gay guys had gone into the bakery to get a competitive bid after having already gotten one somewhere else; apparently, there are at least a dozen places in Longview where you can get a wedding cake. When the bakery owner turned them down on religious grounds, it didn’t exhaust the alternatives for getting a cake, it presented an opportunity to play the victim card.
By way of amusing irony, both of the gay guys were overweight. If the bakery owner had said she refused to bake a cake for a couple of disgusting fat bodies because she didn’t want to contribute to their unhealthy lifestyle, that probably would have been the end of it.
The Civil Rights Act of 1964 defines public accommodation and prohibits discrimination in a place of public accommodation based upon ground of race, color, religion, or national origin. Enter the Supremes and the discovery by one, with the agreement of four, that all along a fundamental right of marriage has been deeply hidden in the Constitution, and we have a complete package. The right to carry possess a firearm is constitutionally protected. The right to carry a concealed firearm is not. That’s a function of state law but the landscape is changing with some states extending their own state constitution’s right to own and possess a firearm to include, by statute not court decision, the right to carry a concealed firearm. In this arena, there are sky boxes and crappy seats in the end zone. It all makes for interesting discussion but, usually, the discussion goes sideways from lack of knowledge about how these rights work on the state level, the Federal level, and the interplay of statute and asinine judicial pronouncements that truly undercut our constitutional representative democracy. That said, the debates are nearly always entertaining at TAH.
I am tired of hearing about the rights of others over my rights. I believe that part of the problem is with how I am identified. I haf no “Socially Correct” term to describe who I am until now. So after some thought I have decided that I will now be identified as “HAPPI” (pronounced “Happy”).
Now you might ask what a “HAPPI” is. It is like being “Gay” just with a slight twist.
HAPPI stands for: Heterosexual And Proud of my Penis Idealist.
As “HAPPI” I have rights just like others.
I have the Right to urinate with only other “HAPPI”s.
I have the Right to act as a “HAPPI”
.
Others do not have the Right to suppress my Rights.
Others do not have the Right to call me names because I am a “HAPPI”.
Being a “HAPPI” does not make me: homophobic, racist, sexist or any other “ist”. It makes me a Happy person; so do not discriminate against me because I am “HAPPI” and I will not discriminate against you.
Do not force your ideas of sex on me and let me practice my “HAPPI”ness without being forced to practice your “Gayness”.
HAPPIs Unite
Where do I sign…
Do you sell t-shirts?
Here’s a thought: Next time a homosexual couple want a wedding cake or pictures taken at queer wedding, accommodate them and do a poor job. The cake taste like crap and the pictures aren’t viewable.
The message will then go to the queer community that the jig is up on their extortion racket and businesses will have figured out how to provide the service w/o hurting the feeling of the fairies.
Try going into a muslim owned food service business and have them make you a pastry in the shape of Mohammad or a cake with a picture of mohammad as the frosting. See how quickly you get called an islamaphobic racist for trying to interfere with his religious beliefs.
Equality. They keep using this word. I do not think it means what they think it means.
I’m going to steal this argument for the next time one of my liberal friends brings this up.
It happened with gay marriage and the video went viral. Someone was wondering what would happen if, instead of a Christian baker declining a gay wedding cake, a Muslim baker did. Well, multiple Muslim bakers said No! and know what happened? Nothing, that’s what. all the Christain
Stephen Crowder is the guy who did that video, by the way. He’s also done videos trolling Bernie supporters- that one is hilarious.
“But if we argue with Muslims, they’ll kill us!”
Lefties use any word like Humpty Dumpty does-it means only what they want it to mean, nothing more and nothing less.
All of this is just garbage. If someone wants to open a business and cater only to green eyed red heads, while I may doubt that being a good business model, they have to live with the results of their investment. I don’t, so it’s none of my business.
Calling everything you want a right doesn’t make it so. Want to be offended? Guess what – if that’s what you are looking for you will probably find it.
Your rights end when you enter my space. Get over it.
That’s the biggest issue we have today. There are groups and organizations just looking to find reasons to be offended or point out why everyone else should be offended.
The Be Offended concept is big business, just like “green energy” is big business.
My right to refuse a wedding cake is not the same as refusing service to a homosexual couple. If I’m selling scones, bagels, cupcakes, or even a cake to a homosexual couple, it should be no big deal. When it becomes a wedding cake with all the trappings that entails such as the two guys or two women on top, now you’re pushing me to make something I’m not comfortable with and forcing me to make something that goes against everything I believe in. The courts are being highly political when they force a person to go against their first amendment right to freedom of religion. If anyone feels differently, please explain to me the right of a muzzie to not be forced to sell me a bottle of liquor.
Bingo!
In many ways this is an issue of contracts. When someone sells a cookie in a case, they have made the offer to sell the cookie. They should not be able to retract the offer for any number or reasons.
A wedding cake is different in that it is created and designed specifically to customer’s wishes. There is no contractual offer until a contract is negotiated. It is a created work of art which the Supreme Court has ruled is speech.
When it comes to the specialty cakes, created t-shirts, ect. the government is demanding a person speak in a certain manner.
The government has no basis for doing that.
Compelled speech is not free speech.
Every single cultural and constitutional conservative needs to go into a gay bakery this year and order a cake with writing on it celebrating traditional marriage.
Sue the first and any subsequent gay genius who refuses.
Ditto with florists etc.
I’d like to explore that a bit, gitarcarver. If a seller of goods or services could rely on contract law to bypass nondiscrimination laws (state and Federal statute, as well as controlling court decisions) then nondiscrimination laws would be just so many words on paper. Where such laws do not apply, there’s no problem. So, if one goes to a printer and requests 500 pamphlets that advocate for a cause that the printer strongly opposes, the printer is under no obligation to produce the pamphlets. Although he offers printing services and printed products to the general public, he is not obligated to print the pamphlets absent a contract to do so. Why? Because public accommodation laws do not apply. But let’s make him a motel owner. Two gays walk in and request a room and he says, “Sorry. I don’t want to do business with you.” Is that okay? Maybe. It depends on whether state law prohibits discrimination on account of sexual preference.
Now, on to the baker. His business offers pre-made and made-to-order cakes. Must he enter into a contract to sell a cake if someone orders one? Generally speaking, no, but baking cakes is his livelihood and he’s not likely to turn customers away. One day a gay couple walks in and orders a pre-made wedding cake. They tell him it’s for their wedding. He tells them he’s sorry and recommends another baker. They ask why and tells them he wants no part of their sin. Is that okay? There is no message on the cake. It’s just a fancy cake. What result if the couple sue him for discrimination?
The seller is not relying on contract law to bypass anything. The seller and the buyer rely on a contract law to complete a deal which the seller has offered to sell. That is why the argument of “blacks at lunch counters” doesn’t apply. Does this apply to pre-made wedding cakes? Yes. If you have a cake sitting out in a case or on a counter with a sign that says “buy me,” there is no reason to not accept the offer of someone who wants to buy the cake at the stated price. The “flourished” cake is a different matter as it requires the artistry (speech) of the cake decorator. He should not be forced to speak in support of issues and causes with which he disagrees. (Notice that we don’t have laws that force the Pledge of Allegiance.or even a specific pledge to tell the truth in court.) Some tribunals and courts have said that because the speech (decorations) are not tied to a specific bakery, there is no issue which is hogwash. It doesn’t matter whether someone knows who said what. What matters is that the courts are compelling speech. The idea that the speech can be compelled if no one knows who the speaker is makes no sense whatsoever. There is also this argument: Couple comes into a bakery and says “I want a cake for my gay marriage.” The bakery now has to accept the cake for some unknown right of the couple. The order goes back to the bakers / decorators who all say, “we are not going to make this cake because of religious objections.” Courts have said that is acceptable as well. The only person to make the cake – to be FORCED to make the cake is the owner of the bakery. It is his speech that is compelled under the strange argument that once a person enters the public sphere, they have to give up rights. (Think about that for a moment – in order to make a living, you have to give up rights.) So the only person whose… Read more »
Discrimination is pretty straightforward stuff. We all discriminate whenever we make a choice, selecting something or someone to the exclusion of all others. It doesn’t matter whether the choice is a prom date or a flavor of ice cream. We discriminate constantly and the reasons for our choices often go unnoticed and unquestioned by anyone. Illegal discrimination is another thing entirely. Something is illegal when the government (federal, state, or local) prohibits it. These aren’t recommendations but laws carrying penalties for failure to obey government’s choices to the exclusion of your own. My favorite example of this is Virginia’s Racial Integrity Act of 1924 which restricted a white person’s selection of marriage partner to another white person in furtherance of white purity of race (The law did not prohibit persons of other races from marrying, by the way, and it was legal for a black to marry an Asian.) The Act was erased by court decision more than 50 years after its passage. My point here is that illegal discrimination has cut both ways in this country but always with the same effect: legally nullifying personal choice. The Civil Rights Act of 1964 outlawed discrimination on specific grounds in the public-accommodation arena. It, too, took away personal choice. Those who ran or operated certain types of businesses lost their personal choice to deny service to people by category. When it comes to gay wedding cakes, as gitarcarver’s points illustrate, the road is not so clear. Where laws exist prohibiting discrimination on account of sexual preference, a proprietor who denies service to gays because they are gay does so at his own legal peril. That’s true whether the business is a bakery or something else, provided there exists laws prohibiting the discriminating behavior. But what if the business is not discriminating against gays because they are gay but for another reason, say, a message on a cake that the baker does not agree with, one that goes against his beliefs, his conscience? The distinction is absolutely critical to understanding what is going on with this gay wedding cake stuff. The government—long… Read more »