The Gay Legal Rulings Thread

[dps]

Even if the Wiki article is correct, it doesn't say what he claims it says.

Associating the Mark of Cain with black people as to justify slavery was never done in the US?

If that was never the case, why wait until 1995 to officially renounce the doctrine?

Because after 1865 in the US, having a stance one way or the other on slavery was pointless, so there was no reason to waste time on the issue.

And what the Wiki article said was that in 1995, the Southern Baptists officially renounced their past use of the doctrine to defend slavery.  Past as in, say, before the 13th Amendment.

[grumbler]

Even if the Wiki article is correct, it doesn't say what he claims it says.

Associating the Mark of Cain with black people as to justify slavery was never done in the US?

If that was never the case, why wait until 1995 to officially renounce the doctrine?

Because after 1865 in the US, having a stance one way or the other on slavery was pointless, so there was no reason to waste time on the issue.

And what the Wiki article said was that in 1995, the Southern Baptists officially renounced their past use of the doctrine to defend slavery.  Past as in, say, before the 13th Amendment.

You know, I just realized that viper could be arguing that "in 1993, it was still ok to defend slavery as part of your religion" as in it was okay with him or his religion.  Clearly, the Wikipedia article doesn't say anything about anyone defending slavery in 1993, so it must refer to something else.  I don't know viper's religion, and so I sure don't know whether it supported slavery in 1993, but he could be okaying that stance as an individual.  Him being okay with the defense of slavery makes a whole lot more sense than the idea that he actually thinks he can convince people like us, who were alive in the US in 1993, that we thought it was okay to defend slavery on religious grounds.

[stjaba]

As far as I can tell, the Arkansas and Indiana laws do not change the status quo as far as potential discrimination against gay people. That is because private discrimination against gay people was legal in those states BEFORE these laws were enacted. Consequently, a provision in a law expressly allowing discrimination is pretty meaningless since discrimination against gays was already legal.

In Arkansas and Indiana, there was no law expressly or implicitly permitting discrimination against gay people for religious reasons (or other reasons). However, just as important, there was no law forbidding private discrimination against gay people. Since there was no law forbidding private discrimination against gay people, businesses in those states would have been free to discriminate against gays.

You have to keep in mind that the original RFRA law was designed to protect religions from federal government regulations in response to a Supreme Court decision which effectively limited the scope of protection available under the First Amendment. So it was a statutory response to a constitutional issue and did not involve discrimination by private businesses whatsoever.

Now, as a general matter, most or all states have statutes forbidding discrimination. Each state's statute is a little bit different, but they typically forbid discrimination against "protected classes" of people, i.e. racial minorities, women, disabled, etc. Not every state statute out there includes gay people as a protected class.

At some point, a court in the state of New Mexico interpreted its anti-discrimination statute to include protection for gays. So to fix that "problem," the legislature passed its version of RFRA included language effectively permitting private businesses to discriminate for religious reasons.

Arkansas and Indiana presumably borrowed the New Mexico language, even though to my knowledge there have not been any judicial decisions interpreting Arkansas or Indiana anti-discrimination statutes to protect gays against discrimination. So as a result, even if the Arkansas and Indiana private discrimination provisions are eventually taken out, it will still be legal to discriminate against gay people in those states for any reason under the sun, unless (1) the legislatures pass an affirmative statute protecting gay people, or (2) the courts in those states begin to interpret their anti-discrimination statutes to protect gay people.

[grumbler]

Actually, stjaba, the New mexico Religious Freedom restoration blah blah act was passed BEFORE the NM Supreme Court ruling, not after it (the ruling was in 2013, the act passed in 2000), and it did not allow private businesses to discriminate for religious reasons.  So, again, these laws have had no detrimental effects on gay rights.  As you note, other laws may have, but these laws have not.

Ultimately, gays will either be a protected class in a state or they won't, but that won't be determined on religious grounds nor is discrimination against a protected class different on religious grounds than on any other grounds.

[stjaba]

Actually, stjaba, the New mexico Religious Freedom restoration blah blah act was passed BEFORE the NM Supreme Court ruling, not after it (the ruling was in 2013, the act passed in 2000), and it did not allow private businesses to discriminate for religious reasons.  So, again, these laws have had no detrimental effects on gay rights.  As you note, other laws may have, but these laws have not.

Ultimately, gays will either be a protected class in a state or they won't, but that won't be determined on religious grounds nor is discrimination against a protected class different on religious grounds than on any other grounds.

Ah ok, I must have mis-read an article about the timeline of the New Mexico law. In any event,  so long as a state's anti-discrimination law is interpreted to not forbid discrimination against gays, it is of no consequence if a state subsequently passes a law condoning private discrimination against gays since it is already lawful.

[Martinus]

Actually, stjaba, the New mexico Religious Freedom restoration blah blah act was passed BEFORE the NM Supreme Court ruling, not after it (the ruling was in 2013, the act passed in 2000), and it did not allow private businesses to discriminate for religious reasons.  So, again, these laws have had no detrimental effects on gay rights.  As you note, other laws may have, but these laws have not.

Ultimately, gays will either be a protected class in a state or they won't, but that won't be determined on religious grounds nor is discrimination against a protected class different on religious grounds than on any other grounds.

Ah ok, I must have mis-read an article about the timeline of the New Mexico law. In any event,  so long as a state's anti-discrimination law is interpreted to not forbid discrimination against gays, it is of no consequence if a state subsequently passes a law condoning private discrimination against gays since it is already lawful.

This may be true in the ivory tower of lawyer logic, but in practice, there is a sociological difference between law that expressly allows something and one that only does not forbid it.

[stjaba]

Actually, stjaba, the New mexico Religious Freedom restoration blah blah act was passed BEFORE the NM Supreme Court ruling, not after it (the ruling was in 2013, the act passed in 2000), and it did not allow private businesses to discriminate for religious reasons.  So, again, these laws have had no detrimental effects on gay rights.  As you note, other laws may have, but these laws have not.

Ultimately, gays will either be a protected class in a state or they won't, but that won't be determined on religious grounds nor is discrimination against a protected class different on religious grounds than on any other grounds.

Ah ok, I must have mis-read an article about the timeline of the New Mexico law. In any event,  so long as a state's anti-discrimination law is interpreted to not forbid discrimination against gays, it is of no consequence if a state subsequently passes a law condoning private discrimination against gays since it is already lawful.

This may be true in the ivory tower of lawyer logic, but in practice, there is a sociological difference between law that expressly allows something and one that only does not forbid it.

What do you mean by "sociological difference."  There is certainly case law out there that expressly states that gays are not afforded protection under state anti-discrimination statutes. It's an issue that has actually come up and is not just a theoretical ivory tower issue. If people are legitimately concerned about discrimination against gays, they need to lobby for laws that protect gays.

I agree there it is bad from a public relations standpoint to expressly allow discrimination against gays as opposed to implicitly. But if the goal is to provide actual protection to gay people, a state has to pass a statute protecting them.

[Valmy]

Was the Southern Baptist Church unpopular in 1993?  Did they renounced their racist past at that point?

They did not so much renounce it as just ignored it after awhile. Which is why that little 'doctrine' remained on the books anachronistically for a few decades before they changed it. Sort of like that town in Spain which was at war with Sweden for a few centuries without anybody noticing. We have things like that all over the place. Did you see when Mississippi finally ratified the Constitutional Amendment that ended slavery? Pretty sure even in Mississippi they were not hoping to restore slavery.

When did all southern churches authorized black ministers to receive confessions from white parishioners?

Confessions? I don't think Baptists do that.

[Martinus]

What do you mean by "sociological difference."  There is certainly case law out there that expressly states that gays are not afforded protection under state anti-discrimination statutes. It's an issue that has actually come up and is not just a theoretical ivory tower issue. If people are legitimately concerned about discrimination against gays, they need to lobby for laws that protect gays.

I agree there it is bad from a public relations standpoint to expressly allow discrimination against gays as opposed to implicitly. But if the goal is to provide actual protection to gay people, a state has to pass a statute protecting them.

Well, if the law does not expressly state something, then this has often chilling effect on some activity (in this case anti-gay discrimination) even if lawyers are clear about it, because ordinary people are often unclear and prefer not to go too far (especially if there are legal differences between states). On the other hand, an express license to discriminate enshrined in law encourages people to be dicks.

[Martinus]

Now it looks like the planned amendment to the Indiana law will actually put LGBT people in a better position than the one before the law was originally adopted. 

[derspiess]

This culture war crap is getting old.  Both sides needs to chillax.

http://cleveland.cbslocal.com/2015/04/02/were-in-hiding-pizzeria-owner-doesnt-know-if-they-will-re-open-following-backlash-over-gay-weddings-comment/

[Valmy]

The persecution of heretics can never be allowed to stop, lest the forces of darkness make progress. Be vigilant!

[derspiess]

This morning I literally had back-to-back Facebook posts in my feed from different friends who are on differing sides of the issue, talking about un-friending people over the Indiana thing.  They don't know each other-- it was just a coincidence. 

Going back a couple years, my friend's brother un-friended her a while back when she checked in to Chick-fil-A and would not speak to her for the better part of the year.  I guess you can't simply disagree these days.

[Valmy]

Yeah it is pretty ridiculous. Social media takes petty self-righteousness to new levels.

[garbon]

Yeah crazed internet backlash needs to die down. Quite a bit of nonsense got posted on their business's yelp page (though I did like the one referencing AbFab).  Though at the same time, I don't mind a little, if done fairly politely, calling out of people with bigoted opinions when they are giving an interview to support bigoted laws. If you don't want attention, don't seek out a camera.