nate33 wrote:As I understand it, the pizza shop in Indiana was trying to walk a more nuanced line. They were perfectly willing to serve homosexuals pizza, but they didn't want to cater to a same sex marriage. It wasn't that they were trying to discriminate against homosexual individuals, it's that they didn't want to be part of a ceremony that was in contradiction to their religious beliefs.
I'm not sure where I fall on the debate, but I do think their position is more nuanced the perception that they are simply denying service to all homosexuals because it's against their religion.
Would it be okay for a Jewish caterer to deny service to a neo-Nazi rally?
Should an African-American baker be forced to create a cake for KKK members depicting a tree with a noose?
Should a Muslim publisher be forced to print the Mohammed cartoons?
Should a Feminist videographer be forced to film a Fraternity bachelor party?
Should a homosexual florist be forced to create an arrangement spelling out Leviticus 20:13 for the Westboro Baptist "Church"?
At what point can an individual (or, yes, "closely-held corporation") decline to provide a particular contracted service based on a personal (not necessarily religious) conviction?
What I have read on the Indiana law leads me to believe that the issue at hand is not the law itself, but the lack of a public accommodation law. It seems to me that any reasonable person will distinguish between Jim Crow era discrimination and the examples above. The former was a refusal to provide identical services to people or groups based on the skin color or religion of the customer. The latter is declining to provide individualized services based on the conviction of the vendor.
Why Is Everyone So Mad about Indiana’s RFRA, Then?
The fear is that it could be used to deny service to gay people in places of public accommodation like businesses and restaurants. But, as discussed above, no RFRA has ever been used that way before. Also, Indiana does not have a public accommodation law that protects against anti-gay discrimination, meaning there’s no state law in Indiana preventing anti-gay discrimination in businesses even before the state RFRA was enacted. Notably, despite the lack of such a law, nobody can point to any Indiana businesses that were discriminating against gays.
That’s what makes this an informed attribute. Gay marriage is on many people’s minds lately, for obvious reasons. In truth, though, Indiana is merely catching-up to states that have had RFRAs for decades—like Illinois, for example, which got its RFRA with the help of a young state senator named Barack Obama. Unfortunately, Indiana is now caught in the cultural cross-fire.
http://thefederalist.com/2015/03/30/you ... -answered/
So, to answer jim's Question #1, the answer is No - for public accommodations and services (though I would not make an absolute equation of "commercial enterprise" and "public accommodations and services"). It would in no circumstance be acceptable for a store owner to open the doors to one person or class of people and refuse service to another person or class of people on the basis of sexual orientation.
However, as soon as you get into individually contracted services, that area becomes much grayer. An artist, florist, caterer, etc. has to take on each contracted job individually. And by virtue of taking part in the ceremony/event, the contractor is giving an implicit endorsement. Is there any limit to this line of thinking? Would an Evangelical Pastor be subject to a lawsuit for declining to marry a homosexual couple? My Pastor would certainly decline - but then he will also decline to marry heterosexual couples who are non-Christians, or people who have been previously married and not legitimately divorced, or people who are living together with no sense of repentance. [Please - I am not trying to stir up trouble, these are examples that may offend some here on this board, but they are long-held Christian beliefs and practices. I only bring them up to show that it is not an anti-homosexual discrimination issue, it is a freedom of conscience issue.] is there any protection for a church or clergy in such a situation?
Or an artist - would the artist be free to turn down business based on the subject matter they are being asked to paint/draw/photograph? What if a faithful/observant Muslim female photographer was asked to shoot a wet T-shirt contest? On what basis could she say no?
There are many more examples one could use. And to turn jim's other response back around - what gay couple would want to have their wedding catered by someone they know disapproves? Which brings up my last point for now - there could be reasons beyond discrimination for turning down business. Back to the Mohammed cartoons - should that printer who is "open for business to the public" have to "take all comers", even if it means risking his life and business?
Or, what if you are a wedding photographer who is asked to shoot a wedding that you know the couple is aware of your beliefs? In any other wedding, a missed shot at the perfect moment, or a blurry exposure, or whatever other problem occurs, might have been ascribed to incompetence and would be treated as a failure to deliver the contracted service at the expected quality. Might have meant the loss of the income for that event, in the form of a partial or full rebate to the customer.
But now, it could be viewed as an intentional slight based on discrimination, and could mean lawsuits and the end of the photographer's business. Do you want to take that risk? And again, why would the couple make the hire, unless they were looking to stir up trouble (like in the Jewish/KKK example)?
There can be any number of reasons why one independent contractor declines to take a job. Simply declining business is not pro forma proof of discrimination. (Which is the point of that article, and the Indiana law - that it is not a carte blanche defense for discrimination, but a requirement that the courts must take personal conviction into consideration when weighing whether to declare said refusal of service as actionable discrimination.)
"A society that puts equality - in the sense of equality of outcome - ahead of freedom will end up with neither equality nor freedom. The use of force to achieve equality will destroy freedom" Milton Friedman, Free to Choose
