Supreme Court Sides with baker who turned away gay couple

[jdmee]

I think this is a great post. Personally, I would take it kind of a different direction. This case, and similar cases, are really about the baker's free speech rights and the baker's religious rights. In terms of the religious rights, I think a religious organization should have the most leniency here. Obviously, Catholics should be allowed to discriminate based on sex for certain hiring decisions (not that we're anywhere close to that even really being in question). Churches shouldn't have to perform weddings for same-sex couples. If there were a church that believed interracial marriages were sinful, they would not be required to perform that wedding (so long as they can show it is their sincerely held religious belief).

Once you get into for-profit businesses, I think you start to get in trouble. But ultimately that's similar to the Hobby Lobby stuff I have a problem with. I don't know why our businesses have to have the right to freedom of religion. The employee of that business (e.g., a baker at a bakery) obviously has huge protections for his free exercise of religion, but I don't know why the business has to.

As for the general free speech stuff, I generally agree with the idea that a person should be allowed to pick and choose the works they do as an artist. I have two broad thoughts on this. First, if a baker is an "artist," I think it's really hard to define what isn't an artist. One of the briefs pointed out that Subway calls their employees "sandwich artists." Can any chain restaurant deny service on freedom of speech grounds so long as the employees are called an artist? Is a dress designer an artist? What about a tailor? Is the flower arranger? Second, it seems to me that there's probably something to the idea about the content vs the clientele, but I haven't considered enough about it to offer much nuance here. Hypothetically, let's say the same-sex couple wanted the artist to paint a portrait of two men engaged in sex with the caption "all gay men go to Heaven!" Maybe forcing an artist to do that is a violation of a free speech right. But if the content would be the same--as in the baker would've made an identical cake for a straight couple, with a different cake topper--then it comes down to the client rather than the content. I'm pretty sure I do not think a business should have the free speech rights to discriminate against clients just because they are a member of any class that is protected by an applicable law.

I do have a hard time with the Hobby Lobby stuff. The issue there is it is a large company run by a corporation. But as for the baker, I still feel that as the owner of a small bakery you are the company, you are the business. You might have a few employees helping out, but ultimately the baker is running everything. In this case I find it hard to separate the business and the individual.


For example, what if I ran a wedding photography business on the side. I am the only employee, I take the pictures, I develop them, I do everything. How do I separate my freedom of religion from that of the business?

[im4wsu]

Once you get into for-profit businesses, I think you start to get in trouble. But ultimately that's similar to the Hobby Lobby stuff I have a problem with. I don't know why our businesses have to have the right to freedom of religion. The employee of that business (e.g., a baker at a bakery) obviously has huge protections for his free exercise of religion, but I don't know why the business has to.

So the baker whose business card reads "Mr. B. Baker, designer" can decline to bake the same-sex wedding cake, but if hios business card reads "B. Baker Cakes" ir "B. Baker Cakes, Inc." must be required to provide the cake because it is a business and not an individual endeavor?

[jdshock]

So the baker whose business card reads "Mr. B. Baker, designer" can decline to bake the same-sex wedding cake, but if hios business card reads "B. Baker Cakes" ir "B. Baker Cakes, Inc." must be required to provide the cake because it is a business and not an individual endeavor?

I'm not sure I understand. Wouldn't option A still be a for-profit business? I guess if you want to make a distinction at that level you're really getting into the weeds about sole proprietorships vs LLCs and stuff. (Though, ultimately, this is the kind of question the Supreme Court has to decide. I definitely think there is something to be said for having the business give up certain rights to take advantage of our tax system's for-profit business entities).

When I say the employee has huge protections, I mean that an employee as a person, as a US citizen, etc. I don't mean really as an employee of Hobby Lobby. That was unclear. I just meant I don't think for-profit businesses really need to have the same rights as individuals.

[jdmee]

I'm not sure I understand. Are you saying that if Mr. B. Baker operates Mr. B. Baker's cakes a non-profit organization for making wedding cakes for under privileged couples he should be allowed to be treated as an individual? Is it just a for vs a not for profit. Does that mean that Mr. B. Baker can now deny making the gay couples cake?

Would that extend to AARP vs Hobby Lobby?

I can understand the he is running a business mentality, I don't agree with it, but I do understand it. I personally feel how the business is structured plays a large part in my reasoning.

[jdshock]

jdmee I think this is getting a lot more into the weeds than I intended. No. I'm saying broadly businesses shouldn't get to have religious rights unless they're a religious institution. I was trying to avoid getting into the really technical aspects of that. That said, I think the test should really be whether it's a separate entity legally. A sole proprietor is not a separate entity. LLCs, C-corps, etc. are separate legal entities. Those legal entities don't get the religious rights unless they are a religious organization (so yes, even a non-profit would not get the right unless it were a religious organization).

[jdshock]

For example, what if I ran a wedding photography business on the side. I am the only employee, I take the pictures, I develop them, I do everything. How do I separate my freedom of religion from that of the business?

But that's the same thing as the Hobby Lobby stuff. What's the dollar amount of revenue or the number of employees before you think it's separate? Your photography business doesn't have the right to vote even though you do. You've created a separate entity for the business specifically because it's separate from you. That separate entity shouldn't get your same rights. If it's a religious enterprise that you've created, I absolutely agree that we need to have protections for the organization, but I think you need to go the route of becoming a religious organization under the tax code.

That's one of the most hypocritical things about the whole enterprise. You're telling me that if someone trips on a curb headed into Hobby Lobby, the family is still saying "yep, that's just an extension of us!" No, they're out there using it to shield their personal assets.

[jdmee]

But that's the same thing as the Hobby Lobby stuff. What's the dollar amount of revenue or the number of employees before you think it's separate? Your photography business doesn't have the right to vote even though you do. You've created a separate entity for the business specifically because it's separate from you. That separate entity shouldn't get your same rights. If it's a religious enterprise that you've created, I absolutely agree that we need to have protections for the organization, but I think you need to go the route of becoming a religious organization under the tax code.

That's one of the most hypocritical things about the whole enterprise. You're telling me that if someone trips on a curb headed into Hobby Lobby, the family is still saying "yep, that's just an extension of us!" No, they're out there using it to shield their personal assets.

But it is not necessarily separate from the owner. How about an owner as a Sole Proprietorship? (https://www.entrepreneur.com/encyclo...proprietorship) There are legal differences in different business models.

[jdshock]

Check out post #48

[RoyalShock]

Where does the individual employee's rights come into play? Should an employee of a corporation (if not extended individual rights) have to violate his religious beliefs or face being fired, simply because the business is not a sole proprietorship?

[jdshock]

https://www.eeoc.gov/laws/types/religion.cfm

As a general matter, an employee needs to be reasonably accommodated if possible. But if they can't because it would unduly burden the business, they can be fired. For example, maybe a Jehovah's Witness who is a surgeon can't just perform no surgeries on the basis that it violates their religious beliefs.

[MoValley John]

LLC's and C corps are not entirely separate entities from the individual. The government can, and does, cross from the corporation to the individual to collect taxes, liens and unenployment. While these organization structures do insulate the individual, they are not treated as totally separate.

[jdshock]

LLC's and C corps are not entirely separate entities from the individual. The government can, and does, cross from the corporation to the individual to collect taxes, liens and unenployment. While these organization structures do insulate the individual, they are not treated as totally separate.

An LLC and c-corp are both, without a doubt, unequivocally, separate legal entities from the individual that started the business.

Now, an LLC may have pass-through taxation, but it is definitely a separate legal entity.

[MoValley John]

An LLC and c-corp are both, without a doubt, unequivocally, separate legal entities from the individual that started the business.

Now, an LLC may have pass-through taxation, but it is definitely a separate legal entity.

Alter ego rulings? Hmmmmm.

[jdshock]

Alter ego rulings? Hmmmmm.

Yeah... there are certain instances where a court can say "actually, that wasn't a separate entity at all! It's a sham!" It doesn't change the fact that LLC's and C-Corps are, without a doubt, unequivocally, separate legal entities. Take you and me for example. We're separate entities. If you commit identity theft and starting doing stuff as me, the court is going to say "yeah... sure, it was jdshock's name spreading the propaganda, but MVJ was really behind it, so MVJ is liable." It's not that we're not separate entities, it's just that the court has recognized you were pulling a fast one on everyone.

This is honestly just crazy, though. I was just pointing out that I think the test for religious rights should be whether it is a separate legal entity. If the business owner is using a separate legal entity, they wouldn't get religious rights under my test. So, there's literally no reason why what you're talking about could ever, ever be relevant to what I'm talking about. No one would ever create a sham LLC for the purposes of getting extra religious freedom specifically because my test means that the LLC does not get those religious freedoms.

[jdmee]

I can see where you are drawing the line. It is still difficult for me to separate a person's religious rights from the business just because he added the LLC behind the business' name. Given two business, each being run exactly the same, one an LLC one a sole proprietorships ... one gets rights the other doesn't. I see the point, but personally don't separate the two.

That is why I think the religious rights test should be about the business structure. Who is in charge, who pays the bills, who writes the checks ... I know that opens a big cluster of a definition, But I see the opposite, where your definition would cause a person to have to violate their religious rights because of the diefinition.


I guess this is why the decision wouldn't be a 9-0 decision. Both points have valid ideas behind them.

[MoValley John]

It's a very difficult distinction.

I guess, based on jdshock's opinion, if you own a business, you shouldn't be able to turn down business for religious beliefs, so if you want to live by religious principles, you can't own a business. And if you work for an employer, they can force you to do things outside of your religious beliefs.

The only solution, don't work and you won't get fired or sued.

[jdshock]

MoValley John that's just so dishonest. That's not even close to what I've proposed 99.9% of us will never be asked to act against our religious beliefs by our employers.

But yeah, if you have strong religious beliefs, maybe don't join a profession where those beliefs can't be reasonably accommodated. A Catholic just might get fired at Planned Parenthood if they aren't willing to hand out condoms.

[jdmee]

Agree. It is also one thing that always turns me from political discussions. It is not about understanding the others position. It is about making the other side sound as "evil" as possible. The only thing comments like that do is shut down honest discussions.

And if you really need clarification. He said if you own a fast food resturaunt and someone can't work sundays due to religious reasons. Don't scheduling them on sunday. Also, if you believe pig is an unholy animal, don't get a job as a butcher at a pork processing plant.

[wufan]

I’m actually 100% okay with one individual or business discriminating against another individual or business based on religious beliefs, provided that the discrimination isn’t against an immutable characteristic. If you’re Catholic, and I don’t serve Catholics, then too bad for you! This opens entrepreneurial opportunities for the catholic loving folks to serve whomever they want and run the hate-mongers out of business. Same goes for employees...if you aren’t on board with the company culture, then they should be able to fire you.

[jdmee]

But I could see a situation where an immutable characteristic could be used. If a follower of the muslim religion who believes that it is sinful for a man and a woman to work alone together. Should that person be forced to hire a woman, even though it would against their beliefs. I could see myself being on the side of the muslim man. Now if they continued that practice with further hirings in a perversion of their actual teachings. That would be different.


Another example, Hooters/Gentlemens clubs can hire all female servers/dancers.

[Shockm]

MoValley John that's just so dishonest. That's not even close to what I've proposed 99.9% of us will never be asked to act against our religious beliefs by our employers.

But yeah, if you have strong religious beliefs, maybe don't join a profession where those beliefs can't be reasonably accommodated. A Catholic just might get fired at Planned Parenthood if they aren't willing to hand out condoms.

I don’t think he’s being dishonest. You side with the rights of one group over another group. I already pay taxes that are given to Planned Parenthood under the sham that my money only goes to non abortion activities when PP makes lots of money on abortions and all of the profits both taxes and abortion activities go toward the bottom line to fund PP, their salaries, etc.

[jdmee]

I am not sure what this has to do with the discussion.

[Shockm]

MoValley John brought up us having to act against our religious beliefs. jd brought up a catholic getting fired at PP for his religious beliefs. I brought up that I already pay taxes against mine.

[MoValley John]

I’m actually 100% okay with one individual or business discriminating against another individual or business based on religious beliefs, provided that the discrimination isn’t against an immutable characteristic. If you’re Catholic, and I don’t serve Catholics, then too bad for you! This opens entrepreneurial opportunities for the catholic loving folks to serve whomever they want and run the hate-mongers out of business. Same goes for employees...if you aren’t on board with the company culture, then they should be able to fire you.

I do have a problem with religious based discrimination. If you serve one, you need to serve all. That said, specialized, artistic services, which I believe creating a wedding cake should fall under, should have leeway. Even though the baker shouldn't be forced to create a one of a kind cake to celebrate a marriage that he personally views as sinful, he should be required to sell the gay couple any baked goods readily available in the display case.