Wednesday, November 23, 2016

PoliSci Professor doesn't understand how nondiscrimination laws work

 Caleb A. Verbois
According to Prof. Caleb A. Verbois, designers who choose not to create garments for Melania Trump because of her husband are equivalent to a florist refusing service to a gay couple. He rhetorically asks; If the florist is sued why shouldn't Trump sue the designers?

Verbois is an assistant professor of political science at Christian-centered Grove City College. He is also a pre-law advisor. Presumably Verbois is a smart guy ⸺ he has a PhD and MA from University of Virginia. Why is it so difficult for him to understand what a protected class is?
[Those designers] conclude, if you design and make clothes for Melania Trump, especially the outfit she will wear to the inauguration, you are, in some small way, endorsing Donald Trump and all he stands for. So designers like Sophie Theallet have decided that because they “stand against all discrimination and prejudice,” they cannot work for Melania.

This all seems rather ironic. How can progressive fashion designers like Sophie Theallet refuse to serve anyone? In recent years it’s become first unreasonable, then politically incorrect, and lately illegal for some people to refuse service. Not fashion designers of course. They are above that. No, I’m thinking about bakers and photographers, who, because of their religious beliefs, have politely but firmly declined to provide service for gay weddings. Note that they have not declined service to homosexuals. They have just made it clear that they cannot morally provide a wedding cake or floral arrangements for a homosexual wedding, because it goes against their religious principles.
You are correct, professor. Melania Trump is being discriminated against because she is married to a blowhard. However being one of Donald Trump's current or former wives does not constitute a protected class recognized by any nondiscrimination law that I am aware of. Where, precisely, is the irony in that?

The second part of the argument is that religious beliefs deserve a pass. Justice Scalia, writing for the majority in Employment Division v. Smith, made it abundantly clear that there are no religious exemptions to otherwise valid laws. Scalia asserted that the existence of those exemptions would make those laws entirely unenforceable. The ruling in Hobby Lobby v. Burwell does nothing to alter that because of the enormous economic burden faced by the retailer.

The third part of the argument is that declining service to a same sex wedding is not based on sexual orientation. ADF keeps trotting that out and no court (and there have been many) has agreed. The argument is obviously untrue on its face. Underlying disapproval of same-sex marriage is disapproval of gay people. If a Christian declined service to a Christian-Jewish wedding it would not be reasonable to argue that is was due to disapproval of interfaith marriage. The logical assumption is that the refusal is based on anti-Semitism.

And for that, they have been pilloried in the press, sued, and threatened with a loss of their businesses and personal savings. Consider Barronelle Stutzman, a florist in Washington who has served and employed people of all backgrounds, including homosexuals, for her entire career. However, after she declined to provide flowers for a homosexual wedding, in accordance with her faith, both the ACLU and Washington state attorney general have sued not just her business, but her personally. That mirrors the situation of Oregon bakers Aaron and Melissa Klein. They baked a cake for a woman who was so happy with their work that she and her partner asked Melissa to bake their wedding cake. The Kleins politely explained that due to their faith, they could not endorse a wedding that violated their beliefs. In response, the state sued them, put a legal order on them banning them from talking about their desire to work according to their faith, and said they “needed rehabilitation.” The fine the state assessed and the subsequent hate mail and threats forced the Klein’s to close their business and led Aaron Klein to go to work as a sanitation worker to pay their bills.
There is no “polite” means of refusing service to a minority. Employment of gay people and prior service to gay people is entirely irrelevant. “I serve Jews all the time. I have a Jewish employee. However, based on my religious beliefs, I cannot serve a Christian-Jewish marriage.” The laws that these people defied are valid and unambiguous. Moreover, they did not become law in a vacuum. They were enacted by the elected representatives of the people.
Does anyone think Sophie Theallet will be sued and driven out of business for refusing to endorse Trump’s inauguration? Maybe Trump should sue for discriminatory practices. …
Theallet has broken no law that I am aware of. Nor has she incurred any civil liability.
But it is the wrong approach. The problem is not that some designers have refused to work with Melania. Let’s be honest, the world does not have a shortage of overpriced dress designers. Melania can find someone else. That is also true for homosexual couples that have sued and persecuted religious florists and bakers. …
The existence of similar services being available elsewhere is irrelevant to charges of discrimination. In reality this argument suggests that the nondiscrimination law should not exist in the first place. Presumably these vendors are free to organize a ballot initiative but the laws exist. “I'm sorry. We do not serve Jews here. I suggest that you try Abe down the street.” Denying service is offensive per se.
No, the issue has never been a lack of service providers. It has been an unwillingness to accept that other people may not endorse your behavior. …
Right. You disapprove of gay people. These laws do not allow people to pass judgment in public accommodations. Among many other shared costs, police and fire departments protect that business and they are paid for by all taxpayers, including the gays. In return the owner is expected to serve everyone without discrimination. It is pretty simple really.
America has always given a very high precedence to conscientious objections, but increasingly, rights of conscience are being marginalized. Religious liberty is much more than merely having the freedom to attend church, synagogue, or mosque. It is the freedom to actually live out your religious beliefs—even ones that may not be politically correct or agreeable to high fashion designers—every day of the week. To deny that is to lose something important. Something that is not just essential to America, but essential to living in an America worth having.
Conscientious objections are invalid when they are at the expense of a minority group. Not providing flowers to folks one disapproves of (all nicely cloaked in scripture) is not comparable to a Quaker seeking a noncombatant role in war. The issue of religious liberty in conflict with applicable law has been settled by the Supreme Court. The right to discriminate is not “essential to living in an America worth having.” Essential would be an America free of discrimination where no minority is marginalized by: “We don't serve your kind here.”

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