Friday, June 8, 2018

Don't Get Carried Away: "Smiling Tennessee hardware store owner puts ‘No Gays Allowed’ sign back up outside shop after Supreme Court ruling…"

        The article can be found here, at The Daily Mail It reports:
        The Baptist minister banned homosexuals because he said he hated their ‘sin’ and claimed it was his legal right to refuse their entry. 
        He installed the sign to express his Christian beliefs, as he believes that gay and lesbian couples are against his religion. 
        After an intense backlash and public scrutiny, he backed down, and removed the homophobic [sic] sign.
While I sympathize with his stance that the freedom of association also includes the the right to not associate, he seems to have misunderstood the SCOTUS decision in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm'n. The ruling in that case was based on the Colorado Civil Rights Commission having and expressing an anti-Christian bias, thus violating the First Amendment, which requires religious neutrality from the government. It probably helped that the baker in that case didn't just make a cake (contrary to the dissenting opinions), but met with clients and got to know them in order to create a truly unique cake that represented the couple. Thus, his baking services walked the line (or even crossed over the line) between merely producing a cake and producing art. I'm sure that the majority did not want to get sucked into a quagmire of trying to explain what was "artistic expression" versus merely "baking a cake," and so latched onto an alternative ground to support their decision.

       However, the Court did not hold that a business generally open to the public could simply refuse service because of the proprietor's religious belief. In fact, the Court waxes on about how "[o]ur society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth." (Of course, it wasn't our society, but our government that has decided that homosexuals are a protected class). And, even recognizing that a person can have a valid religious objection to gay marriage, the Court's opinion continues:
Nevertheless, while those religious and philosophical objections are protected, it is a general rule that such objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.
 In short, the Masterpiece Cakeshop decision does not really change the law. I don't know if Tennessee generally, or the minister's particular locale, prohibit discrimination based on sexual orientation. However, if it does prohibit such conduct, I don't see any circumstances where this shop owner gets legal protection. It would be hard to argue that reselling mass produced hardware to the public constitutes any form of protected speech, or could be considered as a public endorsement of gay marriage. Also, I would note that even where a state does not expressly forbid discrimination against homosexuals, the various civil rights commissions or agencies are increasingly extending prohibitions against sex discrimination to include homosexuality.

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