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'Right To Discriminate' Bills

Upchurch

Papa Funkosophy
Upchurch
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May 10, 2002
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Location
St. Louis, MO
I'm not familiar with either the term or the article source.

Two More States Introduce 'Right to Discriminate' Bills
In Kansas, House Bill 2453 would allow both people and private businesses to deny a long list of services to LGBT couples, just as long as the person or business is "operating consistently with its sincerely held religious beliefs." (Funny, I wasn't aware that businesses had religious beliefs...)

The list includes "accommodations, advantages, facilities, goods, or privileges... counseling, adoption, foster care and other social services... [and] employment or employment benefits, related to, or related to the celebration of, any marriage, domestic partnership, civil union or similar arrangement."
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and
his bill is even crazier than its Kansas counterpart -- note that nowhere in the text above does it refer specifically to same-sex marriages. It's written so broadly that, if the bill passes with the above language intact, individuals and businesses would be free to discriminate against any marriage they find objectionable (again, as long as they justify that discrimination on religious grounds).

So an innkeeper could refuse to rent a room to an interracial couple, as long as they cloaked their bigotry in the mantle of religion. And a baker could theoretically refuse to bake a cake for an interfaith wedding if, for example, they didn't believe Protestants should marry Catholics.
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Has anyone heard of this kind of bill? Some of the article's sources seem reputable but I haven't done my homework yet.

On the surface, these doesn't seem like it would pass constitutional muster in court, but if they phrased it in such a way that the language doesn't specifically mention same-sex marriages, maybe it could. I dunno.
 
Upchurch said:
I'm not familiar with either the term or the article source.

Two More States Introduce 'Right to Discriminate' Bills

and


Has anyone heard of this kind of bill? Some of the article's sources seem reputable but I haven't done my homework yet.

On the surface, these doesn't seem like it would pass constitutional muster in court, but if they phrased it in such a way that the language doesn't specifically mention same-sex marriages, maybe it could. I dunno.
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Well... "Constitutional Muster" has not shown to be an important consideration for Kansas house bills, unfortunately.

And it may not actually be a problem: the US Constitution does not list discrimination for sexual orientation as illegal. The Civil Rights Act only lists: "race, color, religion or national origin" - so the bill appears to be clarifying that this is already legal, to prevent unnecessary civil suits in future.

It could be a response to the Jack Phillips case in Colorado. The court decided Phillips had broken Colorado state law. Kansas is probably establishing their state law with this bill.



ETA: I've changed my mind... the bill seems to be phrasing that religious grounds is a universal override, which could violate the Civil Rights Act in certain circumstances, as described above ("race, color, religion or national origin").
 
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Funny, I thought Kansas was one the States terrified of "Sharia law", but this bill sounds like it would make it much easier.
 
I don't think the Kansas bill will pass constitutional muster on grounds that it sets up unequal protection under the law and will be difficult to defend even with rational basis. It does not just protect discrimination against LGBT individuals, but any religious beliefs on sex and gender. This would in theory open up the door to discriminating against women or men in a much broader way than is currently allowed under federal law. Explicit rights of discrimination on a specific basis are difficult to defend in the prevailing US legal environment.

The South Dakota bill, however, probably fails against federal anti-discrimination laws rather than the constitution directly, at least in terms of the discrimination. Constitutionally, it appears to step on the toes of federal taxation and federal preemption even without considering the discrimination and likely would be rendered without effect on those grounds.
 
No brainer if this becomes law.

Even a half competent civil rights attorney will beat the ugly right out of that law in court.
 
Glad to know that the party of small government has no problems passing laws that are obviously outside the scope what the government is allowed to do by the constitution.
 
pgwenthold said:
Glad to know that the party of small government has no problems passing laws that are obviously outside the scope what the government is allowed to do by the constitution.
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Not that I approve of the bill, but I do think it's having the opposite effect and is consistent with a smaller government approach: it is effectively neutralizing the federal Civil Rights Act, removing an element of government oversight.

The hypothetical shopowner has more legal freedom in their scenario.
 
plague311 said:
If it's their business why can't they feel free to refuse service to whoever they want?
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Society has determined the negative effects of discrimination based on certain traits (race, religion, ect) outweighs the freedom in those instances. Basically it is a cost-benefit analysis weighing absolute freedoms against practical freedoms.
 
Upchurch said:
Which, of course, doesn't include LGBTs, does it?
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No, but that's why this proposed bill is going to have problems.

The way it's worded, it's saying that religious beliefs can override the CRA. Refusing service based on "race, color, religion or national origin" OR LGBT - any demogrphic that comes into the citizen's head - would not be illegal in Kansas.
 
plague311 said:
If it's their business why can't they feel free to refuse service to whoever they want?
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The Civil Rights Act restricted businesses from discriminating against people for race (and other) reasons. The constitutional authority came the Interstate Commerce Clause. And since restaurants and hotels, one of the principal targets of the law, were denying black people the right to stay, and thus made it very difficult for black people to conduct business in those areas, the Interstate Commerce Clause is perfectly relevant.

The same logic can be applied to LGBT folks. By preventing certain classes of people from doing lawful business, trans-State trade suffers.
 
The Fallen Serpent said:
Society has determined the negative effects of discrimination based on certain traits (race, religion, ect) outweighs the freedom in those instances. Basically it is a cost-benefit analysis weighing absolute freedoms against practical freedoms.
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Surely in a free market though, if Society demands that everyone be treated equally, and a Business doesn't, then Society would respond by ceasing trading with said business, and it would go out of business. Seems to be that allowing people to display their bigotry with flying colours and allowing Society to shut them down by refusing them custom is far better than forcing them to hide. After all, would you really want to do business with someone that hated you so much that if allowed they'd refuse to serve you? Is that the sort of person you want to spend your money with? Wouldn't you rather know about it and be able to choose to go elsewhere instead rather than being kept ignorant because of the law?
 
PhantomWolf said:
Surely in a free market though, if Society demands that everyone be treated equally, and a Business doesn't, then Society would respond by ceasing trading with said business, and it would go out of business. Seems to be that allowing people to display their bigotry with flying colours and allowing Society to shut them down by refusing them custom is far better than forcing them to hide. After all, would you really want to do business with someone that hated you so much that if allowed they'd refuse to serve you? Is that the sort of person you want to spend your money with? Wouldn't you rather know about it and be able to choose to go elsewhere instead rather than being kept ignorant because of the law?
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You seem to think people will act rationally and responsibly.
 
Gawdzilla said:
Yeah, let's bring back "White's only" lunch counters.
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Do you seriously believe that this would happen again on a large scale?

Businesses were protected during the US apartheid era because it was the law and the so everyone had to do it. Do you really believe that the only thing that is preventing mass scale racism in the US is the thin veneer of the Law and without it no businesses would be willing to serve all races? Don't you think that in a free market those businesses that showed signs of racism would quickly lose business and fold leaving only those that stood for anti-discrimination? Or do you really believe that the people of the US are that full of hate for their fellow Americans?
 
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