Does the 1st Amendment protect a right to discriminate?

[Yo_Mama_Been_Loggin]

On Monday, the Supreme Court will hear oral arguments in a case that threatens to open the door widely to businesses being allowed to violate anti-discrimination laws. If the court rules that the 1st Amendment protects the right of business owners to discriminate — based on claims of freedom of speech or free exercise of religion — civil rights laws banning discrimination on the basis of race, sex, religion or sexual orientation will be severely weakened everywhere in this country.

The case before the court, 303 Creative LLC vs. Elenis, involves Lorie Smith, a graphic artist and a web designer. She wants to design websites for weddings, but she refuses to do so for same-sex weddings because of her religious beliefs.

Colorado law prohibits businesses that sell or offer services to the public from discriminating based on “disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry.” The law also prohibits businesses from displaying a “notice” that “indicates that the full and equal enjoyment of the goods [or] services ... will be refused” based on a protected characteristic.

Smith filed a lawsuit in federal district court to have the law declared unconstitutional as applied to her and for an injunction to keep it from being enforced against her.

https://www.yahoo.com/news/op-ed-does-1st-amendment-111055701.html

[jimfields33]

1. Never understood this. A business is about making money.

I run a very small business and I could care less what people do. I never talk politics, religion, or anything personal. it’s not my place. The thing about businesses is word-of-mouth. as soon as they find out you’re this or that, they will spread it like wildfire, so why give them any information. I’m there to do a service and that’s it.

[Abolishinist]

6. And if your business happens to be a bakery, one of many in town,

and on top of that you are Jewish, should you be required to decorate a cake with a Swastika and a derogatory statement about Jews for customer Nick Fuentes? Knowing, as well, that he chose your shop on purpose, so he could go on Twitter and brag about the cake he bought from YOUR business?

[jimfields33]

10. I don't do cakes.

But I’m not sure which side of this you are on.

[LakeVermilion]

2. She's asked to create a web site, not endorse the marriage.

Maybe she should create the site and the customer can fill the site with text, photo's and graphics. Data is data.

No doubt, some right wing group is behind this.

[kelly1mm]

13. So if she created general (not wedding specific) websites would she be required to

create a website for neo-nazis? If not why not?

[Effete Snob]

15. Because being a Nazi is not an inherent aspect of personhood

Certain categories are recognized in law as being aspects of personhood which are inherent to the person. Sexual identity is one of those things. Political ideology is not.

[kelly1mm]

18. Lets change it slightly to a deeply held conviction that interracial marriage is a sin, thus falling

under the USSC's freedom of religion protections. Should the web designer be able to refuse to make a website for the client espousing those views?

[CrispyQ]

3. Back when we had the bakery/wedding cake lawsuit going on,

an acquaintance of mine, who identifies as republican, asked me, "Why shouldn't a business have the right to refuse business to those they disapprove of?" I asked her, "Is that really the kind of community you want? A community where you walk down Main Street & see signs in the windows of various businesses, Blacks not welcome, Jews not served here, Women stay out." To her credit, she thought for a moment & then said, "No."

[kelly1mm]

14. So a business should not be able to turn away racists/neo-nazis if it offers services

to the general public? Say a t-shirt printer. Should they have a right to refuse to print 'The Jews Will Not Replace US" t-shirts?

[Effete Snob]

17. Again, sexual identity is not a political belief

Yes, you can in fact discriminate on the basis of many things.

How do you think “adult 55+” communities are possible?

You can refuse service to anyone for any reason, unless it is a specifically prohibited reason based on laws which our society has enacted in relation to inherent aspects of personhood.

[kelly1mm]

20. Religion is a protected class so lets say I wanted a cake that says 'God Hates Gays'. Should a

bakery be able to refuse to produce such a cake?

[CrispyQ]

25. You're confusing discriminating against someone because of their religion

with using your religion to discriminate against someone.

[kelly1mm]

26. As the USSC is taking this case up on free speech grounds it is really about compelled speech.

Last edited Mon Dec 5, 2022, 01:34 PM - Edit history (1)

The right here that is in question before the Court is not (in my hypothetical) that of the customer but rather of the business owner. That is why I am framing the question the way I am. It is not that hard of a question.

Should a t-shirt printer open to the public be able to legally refuse to produce t-shirts saying 'Gay Pride'?
Should a t-shirt printer open to the public be able to legally refuse to produce t-shirts saying 'Allah Hates Gays'?

Both religion and sexual orientation are protected categories.

[Uncle Joe]

28. Yes but they're not absolute as in In Reynolds v. United States, 98 U.S. 145 (1879),

Court said government could regulate actions that violated "police powers"

(snip)

Although the Court agreed with Reynolds that the free exercise of religion underlay the founding of the United States, it also held that government officials have a right to regulate behavior as part of religious practices that are considered odious and violate basic notions of morality. Until the inception of the Mormon Church, the Court noted, the northern and western nations of Europe and every state had criminalized polygamy.

More important, the Court created a belief-action dichotomy for free exercise clause cases. It held that the federal government cannot interfere with a person’s religious beliefs, except when a religious practice violates certain notions of health, safety, and morality — commonly called police powers. Reynolds, therefore, had the freedom to believe in polygamy, but he could not practice it, because the action violated national police powers.

If the federal government could not regulate certain religious actions, the Court concluded, religious doctrines would become the superior law of the land. Indeed, in oft-cited language, Chief Justice Morrison Waite wrote: “To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances.”

(snip)

https://www.mtsu.edu/first-amendment/article/493/reynolds-v-united-states

[kelly1mm]

29. After listening to oral arguments it looks like the USSC is going to carve out a narrow

exception for businesses owners which produce 'speech' as their business product and who disagree with the position of the customer, at least as it comes to same sex marriage (perhaps other LGBT issues?). Although it will be difficult to craft such a narrow test that is also understandable to provide guidance going forward.

Should be very interesting reading the decision and the dissents.

[50 Shades Of Blue]

4. Bracing myself.

[marble falls]

5. In the same sense that yelling "fire" is free speech. It's certainly freely made speech ...

... and without any prior restraint. It's just not protected speech.

Next, corporations will insist on their right to vote. SCOTUS certainly screwed up by ruling corporations have rights specifically to "free speech".

It reminds me of something I read once about how all are equal, it's just that some are more equal than others. But I also read somewhere: piggies get fed and hogs get slaughtered.

[Abolishinist]

7. Actually, yelling fire, even in a crowded theater, IS protected speech.

[marble falls]

9. Actually it isn't. Even if it were, if a kid gets crushed in the panic, there's definately civil ...

... courts for redress.

Yelling "fire" in mistake has its charges, too. But most certainly purposely causing panic, terror by using any sort of method, including only yelling "fire", will get you arrested anywhere.

[Igel]

11. Yes, yes it is.

It's protected from government regulations and censorship.

You yell "fire" in a crowded there, there's no DA who's going to prosecute you for the speech. For the consequences, sure. But if people look at you and yawn, there's no crime committed.

That's the usual meaning of "protected speech"--protected from government censure for the simple act of speaking.

[Abolishinist]

12. This OP is about the 1st Amendment, under which it IS protected speech.

That one could be prosecuted after the fact for disturbing the peace or sued for damages is a totally separate, state issue.

This Atlantic article is pretty good on the subject.

https://www.theatlantic.com/national/archive/2012/11/its-time-to-stop-using-the-fire-in-a-crowded-theater-quote/264449/

[Skittles]

32. it's FALSELY yelling fire in a crowded theater

yes indeed

[Abolishinist]

33. I'm not sure what you mean by this, are you saying

that 'falsely' yelling fire in a crowded theater IS NOT protected speech under the 1st Amendment?

[LuvLoogie]

8. Their doing business in the public way.

Business is secular not religious. Would they sell a religious icon to someone of a different faith or no faith? They get to promote their religious bigotry in the public way?

If I pay taxes that support the infrastructure you use for commerce, how do you get to deny me business based on who I am in body and soul?

They want to do business as a citizen, then you gotta keep your piety personal.

[kelly1mm]

16. Should a business that is open to the public be able to refuse service to racists/neo-nazis? Lets

say a person has a deeply held conviction that interracial marriage is a sin (thus falling into freedom of religion, as set forth in USSC precedent), should a t-shirt maker that is open to the public be able to refuse to print a t-shirt saying 'Interracial Marriage Is a Sin!"

[Effete Snob]

19. This is not the puzzler you think it is

What it demonstrates, however, is an underlying belief that sexual identity is a choice, like membership in a political organization.

Because in order to think you’ve made a valid comparison here, one has to believe that political beliefs are in the same category as skin color, disability, ethnic background or sexual identity

[kelly1mm]

21. Religion is a protected class, just like skin color, national origin, ethnic background or

sexual identity. Thus, if I have deeply held religious conviction that homosexuality is a sin should I be able to force a baker who is open to the public to make a cake saying "God Hates Gays"?

[kelly1mm]

22. So I will assume from your lack of comment that changing the underlying

offensive position from being based on political thought to deeply held religious conviction (thus a protected status) is a puzzler? So, if I understand your objection correctly, a business open to the public could refuse to print a t-shirt saying 'Jews will not replace us' but not 'God hates gays', as one is political and the other is religious. Am I getting this right?

[LuvLoogie]

23. Are you equating being gay to being racist?

Are you equating being a person of color with being a Nazi?

[kelly1mm]

24. No, I am equating one protected class (religion) to another protected class (race, sexual

orientation, national origin, etc.) If one can force a business making t-shirts that is open to the public to print a t-shirt with the text 'Gay Pride' based on the protected class of sexual orientation could one with deeply held religious convictions (another protected class based on religion) that homosexuality is a sin force a business making t-shirts that is open to the public to print shirts saying 'God Hates Gays'?

[Wonder Why]

27. We have two conflicting constiutional amendments

Freedom of religion

Equal Rights

This can only be decided by the Supreme Court.

Unfortunately, we have a decidedly political Supreme Court, some of whose members have already pre-decided their rulings and who have lied when telling congress what they will do or not do and who may have lied about their past.

We need a Court that would make its decision based on the facts, the Constitution and an honest interpretation of the meaning of the Amendments not on their personal prejudices and a loyalty to the President and Congress that voted them into their positions. The present court does not qualify. Where is Solomon when you need him?

[Skittles]

30. they should be required to post that they discriminate

so all of us who are against that kind of bigotry can refuse to shop there