Arizona SB-1062

[Conan71]

Sounds like some of the original bill's supporters are now asking Gov. Brewer to veto the bill because of far-reaching unintended effects.  I recoiled when I first heard about the bill and couldn't even believe it was a real bill. I figured it was something from The Onion or Daily Currant.

I have to confess to personal ignorance of where this bill in Arizona came from.  I had a picture in my mind of gay couples being herded out of Chic-Fil-A or department stores by homophobic managers.  I was unaware that apparently this was somewhat in response to a case from New Mexico where a photographer was sued for discrimination by a lesbian couple because the photographer refused to photograph their commitment ceremony based on her religious beliefs.  Essentially, the ruling in this case would mandate that a black-owned motel would have to provide lodging for a KKK rally, a restaurant owned by Jews could not kick out a group of Neo-Nazis, etc.  Discrimination is discrimination, right?

At what point though do you draw the line of a business owner having the right to refuse service to anyone based on their personal beliefs.  In the case of the photographer, she was being asked to contract with the couple to take photographs.  It went against her core beliefs to do so.  Should she be faced with the legal costs to defend her personal or religious beliefs?  I don't like Neo-Nazi's and I'm pretty sure most of my customers don't either.  If I refuse to hire a welder because he has a swastika tattooed on his forehead, I could be sued for discrimination even though the swastika has an historic connotation that most of society abhors.  It's certainly not an image the company I work for cares to represent or have represented on one of our employees.

Perhaps the smartest resolution of all is simply keep the reasoning behind your refusal of service as vague as possible.  Either you have a schedule conflict or someone simply didn't have all the skills necessary to qualify for the job you had to offer.  There again, there is still no protection to keep anyone from suing you based on what they perceive as discrimination.

Keep in mind this article is op-ed, but states facts surrounding the New Mexico case and draws an interesting conclusion.

Discuss.

Entrepreneurship Threatened By Ruling In New Mexico Gay Marriage Case

Whenever the law interferes with entrepreneurial activity it creates a barrier to entry and makes the practice of doing business less efficient. Some would say certain inefficiencies in an economy are good and desirable, as when bad people are prevented from doing bad things by laws and regulations that catch them before they do any harm. This realm of "positive law" includes laws against drunk driving and insider trading. These laws create criminals where there is no victim but merely the perhaps likely threat of harm, and reasonable people can debate the merits of such laws. The recent ruling wherein the high court of New Mexico ruled against Elaine Huguenin, a professional photographer who refused to photograph a gay marriage ceremony due to her religious beliefs, goes far beyond merely attempting to prevent harm. Rather, it aims to criminalize behavior that has no potential to cause physical harm, but at worst can only be considered offensive. If allowed to stand, the consequences will be negative for all entrepreneurs whether straight, gay, black, white, male, or female.

The Case At Hand

Elaine Huguenin is the co-owner of Elane Photography along with her husband. Their small business is based in New Mexico. In 2006 she refused to photograph a gay marriage ceremony for Vanessa Willock and her partner, citing religious beliefs. Elaine and her business came to national attention after the couple sued her, claiming discrimination. According to the New Mexico Human Rights Act, it is illegal for a business to refuse its services to an individual because of that person's sexual orientation. The same law also prohibits discrimination on the basis of race, religion, color, national origin, ancestry and gender.

On August 22nd, 2013, New Mexico's highest court ruled against Elaine, stating "When Elane Photography refused to photograph a same-sex commitment ceremony, it violated the NMHRA in the same way as if it had refused to photograph a wedding between people of different races."

It cannot be disputed that Elaine broke the law. What we can dispute is whether the long term consequences of having such a law in place are beneficial for society.

After the ruling, Louise Melling of the American Civil Liberties Union issued a statement saying "When you open a business, you are opening your doors to all people in your community, not just the select few who share your personal beliefs."

Were this reasoning to be applied equally to all cases, as blind justice demands, then a business owned by a gay individual must provide services to the Westboro Baptist Church, if asked to. A Jewish entrepreneur must provide services to a neo-Nazi. MoveOn.org must sell ad space to Glenn Beck (ok, MoveOn.org doesn't sell ad space, but you get the idea).

According to a recent Rasmussen poll, 85% of Americans believe Elaine had the right to refuse service to the gay couple. I suspect the percentage would be even higher if respondents had been asked not if a Christian woman could refuse to photograph a gay marriage ceremony, but if a business owned by an African-American woman must provide services to the KKK.

It is important to reiterate that no harm was done to the gay couple other than to offend their sensibilities. Thomas Jefferson recognized that in the absence of physical harm or true aggression, a person's opinion "neither picks my pocket nor breaks my leg." Likewise, the refusal of service has not caused anyone's pocket to be picked nor anyone's leg to be broken.

The Effect On Entrepreneurs

If you are a Christian woman who a week ago was thinking of starting a wedding photography business in New Mexico, might you be thinking twice today? If the Court's ruling is allowed to stand, this sends a chilling message to entrepreneurs—if someone, anyone, doesn't like you, your business, or what you stand for, then all they need to do is claim discrimination, and they can sue you. It does not matter whether the entrepreneur is black or white, gay or straight, liberal or conservative, male or female. Anyone can be targeted. It's only a matter of time before alleged inferior service, rather than outright refusal of service, is all that is necessary to claim discrimination and bring suit. To those who claim this is unrealistic and will never happen, I would point out this is exactly what I was told about the type of lawsuit Elaine Huguenin just lost.

Entrepreneurs already face enough hurdles. They must deal with the IRS, The Patient Protection and Affordable Health Care Act (otherwise known as Obamacare), and other city, county, state, and federal regulations. Add to this the threat of an expensive lawsuit based on your beliefs, even if you pick no one's pocket nor break anyone's leg, and for some it will be the difference between starting a business that brings us an innovative product or service that improves our lives, and getting a safe job working for someone else.

A Better Way

If we want a level playing field with fairness and justice for all, let the law focus on crimes of violence, and let individuals use persuasion in all other matters. This means letting people get away with doing wrong, as long as they commit no act of outright aggression. Even if it is wrong for Elaine to discriminate, we must be tolerant of such behavior if we want to live in a free society with a thriving entrepreneurial base. Those who take joy in this case because the law has ruled in their favor may come to regret a future day when that precedent is used to rule against them. The better way is to not give government such power in the first place.

http://www.forbes.com/sites/joshsteimle/2013/08/28/entrepreneurship-threatened-by-ruling-in-new-mexico-gay-marriage-case/

[AquaMan]

Tempest in a teapot.

Where would this end? If you're a commercial photographer, you take pictures. Otherwise you have a hobby that you charge for. IRS looks at the two differently. Only those who do so for their own hobby have the luxury of determining what races, religions, sexual preference etc that they want to exercise their skills upon.

I choose not to eat at restaurants that are overtly political. No Dominoes Pizza for me. However, I don't envision ever pushing for legislation to stop them from doing so. I just shake my head as a businessman and move on.

So big a can of worms....so unnecessary.

[Conan71]

Tempest in a teapot.

Where would this end? If you're a commercial photographer, you take pictures. Otherwise you have a hobby that you charge for. IRS looks at the two differently. Only those who do so for their own hobby have the luxury of determining what races, religions, sexual preference etc that they want to exercise their skills upon.

I choose not to eat at restaurants that are overtly political. No Dominoes Pizza for me. However, I don't envision ever pushing for legislation to stop them from doing so. I just shake my head as a businessman and move on.

So big a can of worms....so unnecessary.

It's not a tempest in a tea pot if you are forced, by law, to perform a service that goes against your personal or religious beliefs or you end up sued over that refusal.

I don't ever see myself suing someone for refusing service to me.  Yet some of these smaller businesses claim they were singled out and sued by gay rights activists on purpose.  Suits have been filed against bakeries, florists, and photographers in different states for refusing to contract their services for gay nuptials.

I'm of the belief that discrimination is wrong, regardless who it is aimed at.  I'm also of the view that government should make and uphold laws that protect individuals from physical harm.  I don't believe though that government should be getting involved with hurt feelings nor be used as a tool to inflict financial harm on someone who has a different set of beliefs than I do.  It can just as easily be said that the potential customers who feel they were discriminated against were intolerant of the business owners religious beliefs.

Where do you draw the line on what "equal protection" means? 

I agree with you on one thing.  If I don't care for the attitude or beliefs of a shopkeeper or a company, I don't patronize them.  It's that simple.  Would I ever suggest someone file a suit on the owner of a local coffee house for his well-known openly homophobic rantings (hint, it's not far from your house)?  Absolutely not.  But that's one reason I've never and will never give him a penny of my business.  I just vote with my wallet and move on.

[dbacksfan 2.0]

Last year there was a case in Oregon where a bakery refused to make a wedding cake for a same sex couple and were sued under an Oregon law that prevents discrimination of same sex couples. The owners of the bakery had served the people before, but when it came to a wedding cake, the owner cited Religious beliefs as their US Constitutional Right to refuse service.

The Kleins have contended they weren't discriminating against the couple, who were customers in the past. Instead, they say they were practicing their Constitutional right to religious freedom. They have said baking a cake for a same-sex wedding would violate their Christian beliefs.

http://www.oregonlive.com/business/index.ssf/2014/01/sweet_cakes_by_melissa_investigation_wraps_up_as_state_finds_evidence_that_bakery_violated_civil_rights_for_refusing_to_make_same-sex_wedding_cake.html

http://www.huffingtonpost.com/2013/09/02/sweet-cakes-by-melissa-closed-_n_3856184.html

[rebound]

There was a great discussion on this topic yesterday on the the Michael Smerconish show on the POTUS channel of Satellite Radio.  I agree with AquaMan regarding the Teapot analogy, but the nuances of the discussion are very interesting.   I think there is general agreement that a person or business cannot deny service to a specific group based on religious (or racial, or gender, etc...) preferences.  But can that person or business choose not to a provide/sell a certain product?   I.e. can a Jewish deli refuse to sell ham sandwiches, even if requested by a non-Jewish patron?  (Maybe a trite example, but it did come up in the discussion.)  There was a lengthy discussion around a baker who refused to make a wedding cake for a gay couple.  However, the baker said he was happy to provide other products such as cookies, brownies, and even an engagement cake to them, but not a wedding cake.  The baker's position was two-fold.  First, he did not approve of gay marriage, and second, gay marriage was not legal in the state at the time.  So while he was being very specific with regard to the wedding cake, he was also willing to provide general service to the gay couple.  There was no consensus reached during the show on that example, and I'm still not sure where I come down on it.   The general question is settled (to the majority), but the discussion around specific services is, at least to me, pretty interesting.

As an aside, I really like Smerconish, or at least I like his POTUS radio show.  He's a smart guy who goes out of his way to try to provide a very balanced discussion of the issues at hand.   He's starting a Saturday morning show on CNN as well, and it will be interesting to see what his style is in the new outlet:

http://smerconish.com/
http://www.washingtonpost.com/blogs/erik-wemple/wp/2014/02/10/talk-radio-host-michael-smerconish-joins-cnn/

(update:  I see where dbacks beat me to the bakery example, but I'm still posting...)

[Townsend]

A gay couple is different than a hate group.

That being said, If someone with a preference for blonde hair is against my faith, I guess I should be able to come up with a reason to not give them a cake.  I prob would say "I'm busy that day." instead of saying "You're going to burn for your blonde perversions and I refuse to help you."

As far as a marriage license, I think Sally Howe should be voted out next time.

[BKDotCom]

My religion forbids dealings with the IRS

[dbacksfan 2.0]

Conan made a comment in his post that reminded me of something I remember from when I was a kid, and I think some of it ties to the Civil Rights issues of the 50's and 60's.

A business could post a sign in the window and inside that said "The owner reserves the right to refuse service to anyone".

[dbacksfan 2.0]

A gay couple is different than a hate group.

Really? If you look at the attitude of people in religious groups, they tend to take the same view on both, that they both should burn in hell.

[rebound]

I agree with you on one thing.  If I don't care for the attitude or beliefs of a shopkeeper or a company, I don't patronize them.  It's that simple.  Would I ever suggest someone file a suit on the owner of a local coffee house for his well-known openly homophobic rantings (hint, it's not far from your house)?  Absolutely not.  But that's one reason I've never and will never give him a penny of my business.  I just vote with my wallet and move on.

You may have to PM on the coffee house owner.  I'm out of the loop on that, but would be very interested in knowing who that is, as I am with you in that I may want to make sure I am not spending money there.

But back to the "providing service" aspect of this topic, what if all the service providers in an area or town all decided to deny service to a specific group?  I know race is an over-used example here, but what if all the coffee shops in Tulsa decided not to sell coffee to Asians?  Obviously, this would not be acceptable, and the logic holds for other services.  If you offer professional services, it is not reasonable to allow discrimination of those services due to personal beliefs.   A better local example might possibly be Chick-fil-A.  It is well-known that the owners are very religious, and probably contribute money and time to causes that I personally do not agree with.  And I can make a personal decision to frequent (or not) that establishment.  But they, as the provider of the service, cannot deny me service based on my individual beliefs should they become aware that I disagree with them.  

[Townsend]

Really? If you look at the attitude of people in religious groups, they tend to take the same view on both, that they both should burn in hell.

The two referenced hate groups tend to associate themselves with religious groups.

[Conan71]

A gay couple is different than a hate group.

It's still discrimination whether a refusal stems from sexual orientation, religious belief, social belief, racial make-up, etc.  Hate groups have their right to be intolerant and not have service refused to them for said beliefs even if the rest of us think they are all a bunch of jackasses.

[TheArtist]

 Say a politician that I don't like walks into my shop, can I tell them to leave and or not sell anything to them?  How about if some scumbag that I know who is against pedestrian friendly development (just as an example lol) walks into my shop, can I give them the evil eye and refuse to sell anything to them?

[dbacksfan 2.0]

My thinking, and I could be wrong, is that if you own a business, and it is not publicly funded in anyway, it's a private business, and I can operate it as I see fit, and serve who I want. If I choose to not serve a segment of the public, I would do that at my own risk as the owner. It may alienate that segment but it might increase business from another segment, but it could also kill my business.

[rebound]

My thinking, and I could be wrong, is that if you own a business, and it is not publicly funded in anyway, it's a private business, and I can operate it as I see fit, and serve who I want. If I choose to not serve a segment of the public, I would do that at my own risk as the owner. It may alienate that segment but it might increase business from another segment, but it could also kill my business.

You understand that logic was exactly what was attempted by segregationists, right?  It has already been decided that discrimination based on a general segment of the populace is illegal.