TOPIC: Gen Con's letter to the IN governor re SB101

Choosing not to sell him the belt is not necessarily discrimination.

You might not be denying him based on prejudice of a category of people. I guess it depends on if you would say child beaters are a group or social category. I would say they are not but willing to hear arguments that they are.

cdsmith wrote: That's a very good analogy Brad. Let's take it one step further. For the Christian baker that sees same sex marriage as a sin, forcing them to bake a cake for such a celebration would be like forcing them to participate in beating the child in your example.

Even supporting what they believe to be a sin is the same as committing the sin in the eyes of many Christians.

You are both right! It really is an excellent analogy. And if we take things one step even further, we get the type of logic and reasoning that pro-life extremists use to justify the bombing of abortion clinics and the murder of abortion providers.

Doing anything less would be sinful, so their legitimate religious belief motivates them to take such righteous actions!

Brad Mortensen wrote: I agree with Mike (again!)

Here's a scenario: imagine you work at a clothing store. A man walks in with his crying daughter.

He calmly says she's been bad, and threw his belt away, among other things. He needs you to help him to buy another so he can spank her with it. As far as you know, his intended use fits within your local laws as you understand them. She looks into your eyes and whispers, "please, don't."

So, what do you do?

And let's get this out of the way: wanting to marry someone is certainly not the same as wanting to beat someone. Please don't go down that path, because I'm sure I'll agree with everything you'd say on that point. That isn't the question. It's simple: Do you have a right to discriminate against him based on your differing opinions on child rearing? SHOULD you have that right? Either way, should you sell the belt? Note, these are all simple yes-or-no questions.

Do you want more info on the kid or the "bad things" she did? You don't get any, because just asking the question is admission that sometimes you would discriminate and sometimes you wouldn't, based in the degree to which you disagree. So, if you want more data or you want to say "maybe," you're really saying "yes-yes-no." Just assume the worst case where all answers you get assure you that the planned beating will be legal, but you still don't agree with it at all.

I'm unaware of any argument that people who wish to enact corporal punishment on children should be afforded protected status under discrimination laws.

Here is the framework I use to try to think clearly about these issues:

• All businesses can refuse service for a variety of reasons, this has always been, and will always be true.


• In the context of this conversation, "discriminate" means to refuse service on the basis of some characteristic. Such "discrimination" could be:
  • Legally prohibited (as in the case of race)
  
  
  • Ethically dubious (also as in the case of race)
  
  
  • Legally prohibited and ethically dubious
  
  
  • Perfectly OK, both Ethically and Legally (as in the case of not serving alcohol to an obviously intoxicated person)
  
  
  • In a gray area for either or both (which could end up in a legal challenge, resulting in some definitive resolution)

If you wish to have a business that caters to the public, you are legally obliged to not discriminate against legally protected groups. If you discriminate in cases which are ethically dubious or gray areas, you may get sued, and you may loose - or you may be the subject of publicity which may help or hurt your bottom line.

The difficulty I perceive with the Indiana approach is that it may enable a "loophole" to the above statement, which is "unless it is against the sincerely held beliefs of the proprietor." Since no one, other than the proprietor, can know what their sincerely held beliefs are, this practically amounts to a license to arbitrarily discriminate against any class which is not specifically afforded legal protections.

For an example to be a compelling case of where a RFPA type law would have beneficial effect, it would need to have all these elements:

1. Business wishes to refuse service.


2. They wish to refuse service to someone on the basis of a legally protected attribute, or in a sufficient enough gray area so as to have to defend themselves in court.


3. In court their defense would be that they had a sincerely held belief against the transaction.

I think in the example you've specified it fails to be compelling on point 2 above: anyone could reasonably refuse to sell an implement to someone which they avow they will use to beat a child with, the basis would be their belief that this may be child abuse, or more simply that they don't want an angry adult and a crying child in their store, as it is disruptive and upsetting to themselves and their other customers. No legal action seems likely to result from such a refusal with or without a RFPA type law - thus an RFPA style law is not needed to protect a shopkeeper in such a case, they are protected by existing law and precedent.

Kirk Bauer wrote: I think that was a point I was trying to make a while back. Everybody has their own definition of morality but somebody has to decide which morals need to become law and which ones don't. One could argue that if murder and rape was legal then we wouldn't even have a society,

Well, "murder" and "rape" often are legal:

1. Plenty of "murder" happens in wars (some of which may be "unjust wars")
2. Capital punishment
3. Police officers regularly getting away with what would be considered "murders" if it was done by non-police officers
4. Abuse of stand-your-ground and defending one's home laws, where individuals use them as excuses to kill people

5. Marital rape (legal historically, and still legal in some countries)
6. Misconceptions on whether men can be raped often leading to rape being overlooked or permitted (if a drunk man and a drunk woman have sex, the more likely narrative is that the man raped the woman. But one could argue that each raped the other, since neither was capable of giving consent).

An additional communication from GenCon today:

files.gencon.com/Gen_Con_Anti-Discrimination.30_Mar_2015.pdf

Just to complicate the belt example, this customer claims it to be based on Proverbs, so it is rooted in religious belief. Now it's a protected class. The question wasn't whether you would refuse; it was whether you should have the legal option to do so.

It's frustrating to watch people use tortured logic. Is it your position that any right that can be abused should be voided? I can play too. Let's start with:

"It's too easy for a woman to lie about being raped. Because of this loophole, we should eliminate all rape and sexual harassment laws."

Which I obviously don't really believe. I'm just pointing out how illogical some people are being.

This whole slippery slope argument is a canard. We draw lines all the time. Some just use it to justify taking an extremist position without having to compromise.

And creating ridiculous examples doesn't prove anything. For instance, murder and rape are NEVER legal, by definition. If you kill an enemy combatant in battle, it isn't murder. And getting away with a murder doesn't make it legal.

Brad Mortensen wrote:
And creating ridiculous examples doesn't prove anything.

It's called Reductio ad absurdum (reduction to absurdity) A Straw Man tactic is very similar. Meaningless in the realm of debate.

Brad Mortensen wrote: Just to complicate the belt example, this customer claims it to be based on Proverbs, so it is rooted in religious belief. Now it's a protected class.

The beliefs of the parent in this scenario are not relevant to the legality of whether the shopkeep can refuse service.

What matters in the law is why the vendor is refusing service. For your example to qualify as a protected class, you would have to first establish that only members of a particular protected class would use corporal punishment on their children, which is obviously absurd.

H

Matthew Hayward wrote:

Brad Mortensen wrote: Just to complicate the belt example, this customer claims it to be based on Proverbs, so it is rooted in religious belief. Now it's a protected class.

The beliefs of the parent in this scenario are not relevant to the legality of whether the shopkeep can refuse service.

What matters in the law is why the vendor is refusing service. For your example to qualify as a protected class, you would have to first establish that only members of a particular protected class would use corporal punishment on their children, which is obviously absurd.

I think your legal analysis is flawed, but totally beside the point. You keep answering the wrong question. I specifically said I don't care if you WOULD or COULD (legally) refuse. I asked if you believed you should have the choice, if your morals conflict with those of your customer in a pertinent way.

Many will say no, they don't want a choice, maybe they are content to live in a fascist state that imposes all our moral decisions upon us, perhaps so they can avoid responsibility for their actions. Many will say yes, that as moral beings they should have the liberty to make ethical decisions on their own, and their rights will be balanced against others, not voided as a condition of being self-employed. Most are probably somewhere inbetween.

Brad Mortensen wrote: I asked if you believed you should have the choice, if your morals conflict with those of your customer in a pertinent way.

I see, well, I misunderstood your question. I'm mostly concerned here with the law and it's practical applications. I think text based message forums are a reasonable medium for such discussion. I think discussions about morals and ethics tend to contain a level a nuance such that text based, asynchronous communication is very difficult to have productively.

I'll do my best to answer your question: I believe broadly if you are in a business of public accommodation, you are ethically obliged to serve the public regardless of their beliefs, your beliefs, your beliefs about their beliefs, etc.

I believe if you want, in general, to decide who you do business with based on the basis of your assessment of their moral attributes, then you should not operate a business of public accommodation.

I believe that it is reasonable for society, in the form of government, to regulate economic activity. I also believe that as businesses of public accommodation receive the benefits from society such as police forces, road maintenance, the courts to enforce contracts, etc. - all of which are funded by all citizens who pay taxes, that it is a reasonable regulation to insist that such businesses serve everyone unless a high bar is met. I do not believe a shopkeeper's sincerely held moral beliefs necessarily rise to the level of this bar.

Brad Mortensen wrote: I think your legal analysis is flawed

How so? Here are two clarifying examples that demonstrate that the beliefs of the customer are not relevant when considering if a protected class has been denied service, and that even the fact that the customer is member of a protected class is not necessarily relevant.

Example 1:

• A customer comes into a shop.


• The proprietor believes that the customer is religion X - however they are mistaken, the customer is not of religion X.


• The proprietor says: get out, we don't server members of religion X.

Clearly here the proprietor would be in violation of the Federal Civil Rights Act of 1964. Equally clearly the beliefs of the customer are irrelevant. All that matters is that a customer has been denied service on the basis of religion (although in this scenario it is a mistaken belief about religion.)

Example 2:

• A person of gender Y comes into a bookstore. They sit down and begin reading magazines off the shelf. After 6 hours of this the proprietor comes over and says: "You're going to need to buy something or leave."


• The person says: "You're just doing this because I'm of gender Y - a federally protected class, I'll see you in court!"

Clearly here even though gender is a federally protected class, and a member of a gender has been denied service, this is irrelevant to the case in question - the proprietor has denied them service on the basis of their demonstrated failure to engage in business while taking up space in the store and handling inventory that other customers can't simultaneously look at.

Matthew Hayward wrote:

Brad Mortensen wrote: I think your legal analysis is flawed

How so? Here are two clarifying examples that demonstrate that the beliefs of the customer are not relevant when considering if a protected class has been denied service, and that even the fact that the customer is member of a protected class is not necessarily relevant.

Example 1:

• A customer comes into a shop.


• The proprietor believes that the customer is religion X - however they are mistaken, the customer is not of religion X.


• The proprietor says: get out, we don't server members of religion X.

Clearly here the proprietor would be in violation of the Federal Civil Rights Act of 1964. Equally clearly the beliefs of the customer are irrelevant. All that matters is that a customer has been denied service on the basis of religion (although in this scenario it is a mistaken belief about religion.)

Example 2:

• A person of gender Y comes into a bookstore. They sit down and begin reading magazines off the shelf. After 6 hours of this the proprietor comes over and says: "You're going to need to buy something or leave."


• The person says: "You're just doing this because I'm of gender Y - a federally protected class, I'll see you in court!"

Clearly here even though gender is a federally protected class, and a member of a gender has been denied service, this is irrelevant to the case in question - the proprietor has denied them service on the basis of their demonstrated failure to engage in business while taking up space in the store and handling inventory that other customers can't simultaneously look at.

Yup, I agree, those would be bogus.
What I don't agree should be legal is for a business owner to give up 100% of their religion (a protected class) as a condition of self-employment. You apparently do. Agree to disagree.

I was bullied in school because some people thought I was gay. I don't see bullying of business owners for trying to exercise some small part of their allegedly-protected First Amandment rights as an improvement of the situation. I'd rather just keep the school bullies. At least I grew out of them.