America’s Top Law Firms Have Declined To Defend Bans On Same-Sex Marriage

Many of America's top law firms have declined to accept cases defending bans on same-sex marriage, and that's okay.

Gavel And Scales Of Justice

As we head toward oral arguments in the Supreme Court in the four cases that will likely decide the fate of same-sex marriage bans in the remaining fifteen or so states where they have not already been struck down, The New York Times notes that the legal community has largely already chosen sides:

WASHINGTON — The stacks of Supreme Court briefs filed on both sides of the same-sex marriage cases to be heard this month are roughly the same height. But they are nonetheless lopsided: There are no major law firms urging the justices to rule against gay marriage.

Leading law firms are willing to represent tobacco companies accused of lying about their deadly products, factories that spew pollution, and corporations said to be complicit in torture and murder abroad. But standing up for traditional marriage has turned out to be too much for the elite bar. The arguments have been left to members of lower-profile firms.

In dozens of interviews, lawyers and law professors said the imbalance in legal firepower in the same-sex marriage cases resulted from a conviction among many lawyers that opposition to such unions is bigotry akin to racism. But there were economic calculations, too. Law firms that defend traditional marriage may lose clients and find themselves at a disadvantage in hiring new lawyers.

“Firms are trying to recruit the best talent from the best law schools,” said Dale Carpenter, a law professor at the University of Minnesota, “and the overwhelming majority of them want to work in a community of respect and diversity.”

But some conservatives say lawyers and scholars who support religious liberty and oppose a constitutional right to same-sex marriage have been bullied into silence. “The level of sheer desire to crush dissent is pretty unprecedented,” said Michael W. McConnell, a former federal appeals court judge who teaches law at Stanford.

Representing unpopular clients has a long and proud tradition in American justice, one that experts in legal ethics say is central to the adversarial system. John Adams, the future president, agreed to represent British soldiers accused of murder in the 1770 Boston Massacre. Clarence Darrow defended two union activists who dynamited the Los Angeles Times building in 1910, killing 21 workers. Leading law firms today have lined up to defend detainees at Guantánamo Bay, Cuba, some accused of ties to Al Qaeda.

The Supreme Court has said criminal defendants are entitled to a lawyer. There is no right to counsel in civil cases, but most lawyers do not lightly turn away paying clients. Some lawyers, though, have been forced out of their firms for agreeing to take on clients opposed to same-sex marriage.

Whatever the reason, there is a yawning gap between the uniformity of views among legal elites and the more mixed opinions of the American public and the members of the Supreme Court. Polls indicate that while a slim majority of Americans support same-sex marriage, many remain skeptical, and the court’s decision, expected in June, is likely to be closely divided.

Perhaps predictably, Rod Dreher sees this as yet another example of the cultural ‘oppression’ of Christians that he has been writing about for some time now:

This matters. When lawyers believe that even terrorists deserve a fair hearing in court, but do not believe that people who believe that what has been a near-universal standard of marriage for centuries, even millennia (at least in the West) is worthy of advocacy in court — well, it tells us how the religious liberty of orthodox Christians is likely to fare in the coming decades.

When a corporation believed to be complicit in torture is considered worthy of a fair hearing and defense in court, but people who believe what Pope Francis believes are not, we are in uncharted waters.

As usual, Dreher’s rhetoric is hyperbolic in the extreme here.

Rather than evidence of some vast cultural war against conservatives, what we’re witnessing here among many of the nation’s top law firms boils down to nothing more than a simple business decision. For these firms, the bottom line depends quite substantially on high-profile clients and large companies that are very conscious of their own public images and the causes that they are deemed to be lending support to. When a law firm that they are paying hundreds of thousands of dollars a year, if not more, suddenly takes up a case defending a law that is likely offensive to their employees, consumers, and shareholders, their likely reaction is going to be to look for another law firm that can provide the same services without the taint of being an advocate for a socially unpopular cause. Additionally, these firms also compete with each other for the graduates from the nation’s top law schools and, to a large degree, it’s likely that law school graduates are going to be turned off by a firm that represents clients they find distasteful. Given all of this, foregoing whatever marginal revenue that could have been generated by taking on the defense of a ban on same-sex marriage is far less of a burden to the firm’s bottom line than the risk of losing a major client or losing top legal talent to competing firms. In the end, the law firms have simply been responding to the marketplace, and Dreher’s vision of some vast conspiracy against orthodox Christians come across as something akin to a paranoid delusion.

All of that being said, a world where attorneys are easily pressured into declining to represent unpopular clients is not necessarily a good one. Whether it’s a matter of criminal or civil law, our legal system only works at its best when both sides are represented by competent and zealous advocates who make the best possible arguments for their clients positions. Furthermore, people outside the legal profession often mistake an attorney representing a client as meaning that the attorney is in personal agreement with the client’s position, but that’s not always the case. For one thing, many lawyers don’t have the luxury of picking and choosing clients to the point where they only represent the one’s they believe to be morally correct, quite often they take the case because the guy needs a lawyer and the lawyer needs to make money. Even when they do have that luxury, though, some attorneys choose to represent unpopular clients precisely because they believe they are entitled to representation. Perhaps the best example of this from American history is John Adams, who defended the British soldiers accused in the Boston Massacre notwithstanding the fact that many of his fellow colonists condemned him for it. On some level, social ostracism directed at attorneys that is designed to get them to refrain from representing unpopular clients is something that ought to be avoided if we want to have a legal system that performs the way it’s supposed to.

Even without these large firms, though, the laws against same-sex marriage are still being defended by able counsel, just as the Defense of Marriage Act was defended by Paul Clement at the Supreme Court even after his law firm decided to withdraw from the case, something that earned him praise from Justice Elena Kagan, who ultimately was in the majority striking down the law. These attorneys may not  have the name recognition of the high profile litigators that will be arguing in favor of marriage equality in the Supreme Court later this month, but that doesn’t mean they’re any less capable. So, Dreher’s panicked rhetoric notwithstanding, there really isn’t a crisis here. Large law firms made a perfectly legitimate business decision not to get involved in defending these controversial laws, and other attorneys stepped in to take their case. Regardless of how the cases currently before the Justices turn out when the decision is handed down in June, that’s how the system is supposed to work, unless, of course, Dreher is suggesting that those large firms should have been forced to represent his side.

FILED UNDER: *FEATURED, Law and the Courts
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. Rod Dreher pissed that lawyers are choosing not to work on cases defending the right to choose not to work on things.




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  2. You noticed the irony there too, eh?




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  3. grumpy realist says:

    @Doug Mataconis: Yes, and his retort when this contradiction is pointed out to him is “stop confusing what is legal with what is moral!”

    Which of course begs the question: who is to decide what is moral in a pluralistic society? Him?

    (Ol’ Rod doesn’t understand how capitalism works, does he? One of the very first rules is Thou Shalt Not Piss Off Thine Customers.)




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  4. M. Bouffant says:

    “The level of sheer desire to crush dissent is pretty unprecedented,” said Michael W. McConnell, a former federal appeals court judge who teaches law at Stanford.

    No matter how unprecedented the “level of sheer desire” (Is that precise legal terminology of some sort, or meaningless qualifiers?) unless you are being hauled off to secret police headquarters in the middle of the night your “dissent” is not being “crushed”.

    I really don’t know what he means; dissent, dissension to dissent, & then whining & self-victimization because someone pointed out your dissension is full of it are about all that goes on in today’s discourse.




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  5. C. Clavin says:

    What kind of law firm refuses to defend a Christians right to impose their religious freedom on another??? I don’t know what this world is coming to when intolerance in the name Christ isn’t permitted.




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  6. An Interested Party says:

    …a conviction…that opposition to such unions is bigotry akin to racism.

    This is what it all boils down to…despite what many conservatives (particularly religiously conservative people) may believe, being gay is probably something that is innate, therefore, being opposed to SSM is about the same thing as being opposed to interracial marriage…and while homophobia is enshrined in the laws of places like China, Iran, Saudi Arabia, and Iraq (among many others), it shouldn’t be enshrined in our laws…




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  7. James Pearce says:

    well, it tells us how the religious liberty of orthodox Christians is likely to fare in the coming decades.

    I’ve seen enough from Dreher not to be too curious about this, but I’m guessing that he’s using small-o “orthodox Christians” not to refer to, you know, “Orthodox Christians,” but to refer to the Christians who share his political views. Cute trick. Too bad if everyone did it, words would have no meaning.




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  8. Crusty Dem says:

    I would argue there is a second reason unstated here: fighting SSM is a sure-fire high profile loss. Unpopular is very bad. Unpopular+losing? Much worse.




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  9. stonetools says:

    IN the end , law firms have their reputation to maintain. Continuing to push arguments that everyone now knows are bogus would detract from such reputations. Just that simple.You won’t find big law firms arguing that the sun revolves around the earth, either.




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  10. michael reynolds says:

    The firms certainly have the right to refuse clients, but I’m with Doug in being a bit concerned that unpopular causes not be starved of representation. Even a Nazi deserves a lawyer.




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  11. C. Clavin says:

    Leading law firms are willing to represent tobacco companies accused of lying about their deadly products, factories that spew pollution, and corporations said to be complicit in torture and murder abroad. But standing up for traditional marriage has turned out to be too much for the elite bar. The arguments have been left to members of lower-profile firms.

    It’s good Dreher realizes that discriminating against people based on who they love is worse than tobacco, pollution, or torture. Now if only he could convince the rest of the bigots in the Party of Stupid.




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  12. C. Clavin says:

    @michael reynolds:
    OK…but who was the last attorney to defend laws against interracial marriage?




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  13. Lenoxus says:

    Assorted thoughts…

    It was my understanding that lawyers in particular are having trouble finding jobs these days, implying a glut of them and a “buyer’s market” for their talent. So it’s surprising to read about firms making decisions with that as a key factor. But that’s obviously a minor point here.

    Leading law firms are willing to represent tobacco companies accused of lying about their deadly products, factories that spew pollution, and corporations said to be complicit in torture and murder abroad.

    Interesting that the “badness” of each of these, like support for same-sex marriage is a liberal-ish concern (I mean, ostensibly torture/murder are bad across the spectrum, but who do you picture as likelier to protest or boycott a company for said complicity? I mentally connect that with suspicion of US foreign policy, suspicion of violence to solve problems, general suspicion of gigantic corporations, and so on.) I’m also reminded of the thoughts raised in this Star Slate Codex piece.

    One big difference between a law firm representing an accused terrorist and one representing the baker who wouldn’t bake for a same-sex couple is that in the former case, the defense will probably amount to a denial of the accusation (or, failing that, a plea bargain), whereas in the latter, the defense will almost certainly amount to, well, a defense of the accused action.

    You don’t hear “It’s true that my client blew up that building, but you would do the same in his position.” Nor, in the case of a pollution trial, “Yes, this company poisoned the water, and it did so not by accident or as an incidental externality, but because by God, telling it not to poison the water would infringe on its sincerely-held beliefs.” In general, accusations of bad company behavior often hide behind tangled webs rather than clear-cut philosophical arguments of right and wrong, while extreme accusations hide behind situation-specific denials or excuses, not “Well, why is murder illegal, anyway?”

    Additionally, there’s a big difference between defending a client and defending a law (if that’s what we’re talking about; the article seems to conflate that and cases where a business has been sued for discrimination). The latter implies endorsement more than the former does.

    In any case, I acknowledge the civic problem here. But given that law firms didn’t exactly spend the twentieth century championing gay rights, I’m not crying — the other side has already had its day in the sun and then some. Conservatives who feel unfairly forced to contribute to a gay wedding could (say, twenty years ago) have recognized the far-more-significant civil-rights issues faced by gays themselves, and headed the whole thing off at the pass by acknowledging their rights and supporting them at the ballot in exchange for immunity.

    Though I suppose the sort of person desiring a right to avoid gay weddings would be unlikely to ever support same-sex marriage under any circumstances. Which makes me wish they would drop the civil-rights language and make the more honest argument-from-homophobia — ie, my bakery has the right to refuse this because all bakeries have the obligation to do so, because homosexuality is sinful.

    You can say over and over that all you want is to be tolerated just like gay people (see, isn’t that a clever parallel, liberals?) — but just what would happen to same-sex marriage if you were made king? (The answer is known, thanks to history.)




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  14. Modulo Myself says:

    @michael reynolds:

    Nazis get lawyers for First Amendment cases, not prescriptive laws trying to improve racial purity.




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  15. michael reynolds says:

    @Modulo Myself:
    How about for civil rights cases in the 60’s?




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  16. michael reynolds says:

    Off-topic, but the Russian decision to sell anti-aircraft systems to Iran obliterates the GOP/Likud stand on Iran negotiations. The sanctions regime is already coming apart, which means the “better negotiation” baloney is dead and buried. Now we’re left hoping the Iranians stick to the framework, because pretty quickly we’re going to lose our capacity to bomb it out of existence.




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  17. Modulo Myself says:

    @michael reynolds:

    The civil rights movement had a pretty committed roster of lawyers, as far as I know. So to the various hippies who were busted. Jerry Rubin was a funny man: he would have thought it a joke to suggest that one of Richard Daley or John Mitchell’s lawyer buddies represent the Chicago 7 in court.

    Dreher is pretty dull: his complaint seems to be that the gay partners of Skaden Arps aren’t defending a case that might end up nullifying their marriage.




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  18. HarvardLaw92 says:

    If we expect to continue to do business with the Apples and Disneys and Goldmans of the world, which we absolutely do because it’s highly profitable, we can’t act in ways that render us an embarrassment for our clients.

    Like it or not, these anti-SSM folks are an embarrassment, and they are not profitable to boot. None of us are going to alienate a Goldman, because at the end of the day we’re in business to make a profit. We’re not Clarence Darrow – nor do we aspire to be. These people should call up the crusaders at Liberty or Becket. They’re shopping for clients. The fact that they’re second rate lawyers is what it is. It’s a business decision. One would think these people who genuflect to the free market would support that.




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  19. Jenos Idanian #13 says:

    For years and years, lawyers have told us that they don’t necessarily endorse their clients actions or beliefs, but simply carrying out their professional obligation to make certain everyone has the vigorous legal representation to which they are Constitutionally entitled.

    Now we have a whole bunch of big law firms who have said that they do actually consider their clients’ beliefs and positions when they take cases. These law firms have now forfeited the right to make that claim.

    It could be quite entertaining to go through those firms’ client and case lists and see just who they do not find too morally repugnant to represent. I’m reminded of Hillary Clinton defending (pro bono) an accused child rapist, for example.

    It was a nice myth while it lasted, wasn’t it?




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  20. C. Clavin says:

    @Jenos Idanian #13:

    I’m reminded of Hillary Clinton defending (pro bono) an accused child rapist, for example.

    You mean when she was court appointed and the judge refused to remove her from the case as she requested.
    Go away, you lying troll.




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  21. humanoid.panda says:

    @Jenos Idanian #13:

    For years and years, lawyers have told us that they don’t necessarily endorse their clients actions or beliefs, but simply carrying out their professional obligation to make certain everyone has the vigorous legal representation to which they are Constitutionally entitled.

    And I am certain that if and when a baker/florist case comes to the Supreme Court, it will find a top litigator willing to go to court over it. However, defending a law is quite different than defending a client, for the simple reason that while everyone deserves defense, not every law is constitutional. In other words, I’d expect Thurgood Marshall to defend the right of the KKK to hold marches, but would you expect him to defend anti-miscegenation laws?




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  22. HarvardLaw92 says:

    @C. Clavin:

    It’s best not to acknowledge his axe grinding, especially when it’s late and he’s had a few.




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  23. Modulo Myself says:

    For the lawyers present, I’m reading through the new collection of Renata Adler’s nonfiction. Adler went through Yale Law as well as the New Yorker. There’s also a great novel, Pitch Dark.

    Anyway, this is Robert Bork:

    He does not acknowledge, or appear to perceive, a difference in the order of “freedom” embodied by choosing to do or not to do something and “freedom” to prevent anyone else, even in private, from doing or not doing whatever it is. In fact, Bork routinely uses the vocabulary of coercion to describe the choices of the private citizen, and the language of “loss of liberty” or “loss of freedom” to describe the position of the majority whose intrusion the private citizen is trying to resist.

    The rest of the book, from her articles on the civil rights marches to the insider’s destruction of Pauline Kael to the close reading of the Starr Report, is worth it as well.




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  24. James P says:

    Well, fortunately we have the ACLJ and the Sekulows.

    I’d rather they be defending these cases regardless.

    The Sekulows do this out of principle as opposed to a paycheck.

    Their life work is to protect Christians from persecution and I’d rather they do it than any corporate firm.




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  25. James P says:

    @HarvardLaw92: We? My, you are full of yourself today. I wouldn’t hire you for even the most basic legal matter. Heck, I’m not even convinced you are an attorney.

    Even if you are an attorney, I’d take Jay or Jordan Sekulow or anyone at Landmark Legal Foundation ahead of you any day of the week and twice on Sunday!




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  26. HarvardLaw92 says:

    @Modulo Myself:

    Bork has always struck me as a prime example of the tortured libertarian who is drawn to originalism because it best serves his libertarian leanings. He’s his own worst enemy.




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  27. mike shupp says:

    @C. Clavin: @C. Clavin:

    Don’t happen to know his name, but I suspect the very last “last attorney to defend laws against interracial marriage” was the Attorney General for the State of Virginia, back when the Supreme Court heard arguments on “Loving vs Virginia” back in 1961.

    At least the last one to argue about it in a court. There are probably bigots with law degrees running around in stale legislatures and Kiwanis Club meetings and family get-togethers who are happy to harp on the topic even today — but they don’t get a pay check for it.




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  28. anjin-san says:

    and Dreher’s vision of some vast conspiracy against orthodox Christians come across as something akin to a paranoid delusion.

    In other words, mainstream conservative thinking in the year 2015.




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  29. gVOR08 says:

    @James P:

    …and twice on Sunday!

    Are they allowed to work on Sunday?




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  30. OzarkHillbilly says:

    @Jenos Idanian #13: Obviously enough you are a fountain of ignorance on the law. There is an obvious difference between a civil law issue and a criminal law issue which I guess is beyond your intellect to grasp.




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  31. KM says:

    There is always someone out there who’s willing to be the notorious one and take the case. Always. This is America and there is no such thing as a land void of someone daring enough to take the challenge if it means being on FOX and CNN for 10 mins.

    Their whine is it’s mostly likely going to be the bottom-of-the-barrel, just squeaked by the Bar, no-name no-talent fameseeker….. you know, not somebody who’s gonna win the case for them. They want an A-lister and are shocked, SHOCKED the A-listers want nothing to do with them. You are entitled to legal representation – nowhere is it written you are entitled to the best or even above adequate.




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  32. Another Mike says:

    @Lenoxus:

    ie, my bakery has the right to refuse this because all bakeries have the obligation to do so, because homosexuality is sinful.

    The way I would state it is that all bakeries that consider homosexual marriages sinful have the right to refuse to participate in them. It is called the right to freely exercise one’s religion. I don’t know whether the courts concern themselves with sin, but they do with religious freedom.

    Incidentally, the Catholic church does not consider homosexuality sinful. It is just an attraction to another person of the same sex.




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  33. Jenos Idanian #13 says:

    @C. Clavin: sorry, Cliffy, that depends on which version of Hillary’s story you’re buying into. You obviously prefer the latest, self-serving account. I prefer the earlier one, when the rapist wanted a female attorney, and the prosecutor called her and asked her to do it as a favor to him.

    Don’t blame me if Your Hero keeps spinning out multiple, conflicting versions…




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  34. Jenos Idanian #13 says:

    @OzarkHillbilly: Then limit the review to just their civil clients, then. Obviously all of them are fine, upstanding people and corporations, I’m sure, to have passed these law firms’ rigorous moral standards…




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  35. C. Clavin says:

    @Jenos Idanian #13:
    You are the most mendacious commenter on this site…so the version you prefer is bound to be the lie.
    Especially since Hillary and Benghazi made you out to be such a colossal friggin’ fool.
    As HL said…you are axe-grinding.
    Go away, troll.




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  36. Rafer Janders says:

    @Another Mike:

    The way I would state it is that all bakeries that consider homosexual marriages sinful have the right to refuse to participate in them.

    How exactly does a bakery participate in a marriage? It may, at best, provide a cake for the wedding reception, but that is, essentially, a party, and do they also consider gay parties sinful?

    I’ve been to many, many weddings, and while I recall a part in the wedding ceremony for the minister/priest/judge etc., and for the bride and groom, and for the best man and maid of honor, etc., in none of them do I recall a baker playing an official part in solemnizing the vows…..




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  37. Rafer Janders says:

    @Another Mike:

    The way I would state it is that all bakeries that consider homosexual marriages sinful have the right to refuse to participate in them. It is called the right to freely exercise one’s religion

    So, in your America, a Christian baker that considers Jews sinful in and of themselves, because he believes they have rejected Christ, has the right to refuse all service to Jews? He can, in fact, put up a “No Jews Allowed” sign outside, just to save everyone some time?




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  38. C. Clavin says:

    @Another Mike:
    If you don’t like obeying the laws that apply to businesses then you have the religious freedom to not be in business.
    In this country private business gets all kinds of help from the Government…property laws, a monetary system, police safety, roads that deliver customers and goods, schools that educate workers, telecom infrastructure, copyright and patent laws, tax benefits for business expenses and employee health care, legal shields for proprietors, and a bunch more too numerous to list. No one is forcing anyone into business, no one is forcing anyone to take advantage of those benefits, no one is forcing anyone to do so in a state with non-discrimination laws or in the United States to begin with. If it’s against your religious beliefs to serve all customers equally then you should not be in business. Period.




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  39. Rafer Janders says:

    @michael reynolds:

    The firms certainly have the right to refuse clients, but I’m with Doug in being a bit concerned that unpopular causes not be starved of representation. Even a Nazi deserves a lawyer.

    The issue isn’t whether anti-marriage advocates deserve a lawyer — there are plenty of lawyers in America willing to go to court to deny gays and lesbians the right to marriage.

    The issue is whether they deserve the highest level, top-flight representation, lawyers from Harvard and Yale and Chicago who’ve clerked for the Supreme Court and were AUSAs at Justice and now are partners at Davis Polk and O’Melveny and Cravath. And the answer to that is no — they “deserve” those lawyers only insofar as they are (a) able to pay for them and (b) able to attract them to their cause. That’s how the legal market works.




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  40. Rafer Janders says:

    @Another Mike:

    Incidentally, the Catholic church does not consider homosexuality sinful. It is just an attraction to another person of the same sex.

    The Church does, however, consider divorce sinful. And yet I’ve never heard of a case where a baker or florist has refused to provide services to a wedding reception where the bride and/or groom are on their second or third marriages….which leads me to believe it’s not the sinfulness, but the gayness, that’s the real objection.




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  41. Another Mike says:

    @Rafer Janders:

    So, in your America, a Christian baker that considers Jews sinful in and of themselves, because he believes they have rejected Christ, has the right to refuse all service to Jews?

    So now Jew is just like homosexual marriage? That’s your argument? You will have to argue that one with somebody else.




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  42. Another Mike says:

    @Rafer Janders:

    I’ve never heard of a case where a baker or florist has refused to provide services to a wedding reception where the bride and/or groom are on their second or third marriages

    Which, of course, means that there has never been one, right?




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  43. Barry says:

    @C. Clavin: Well, from Wikipedia: “In 2000, Alabama became the last state to adapt its laws to the Supreme Court’s decision, when 60% of voters endorsed a ballot initiative that removed anti-miscegenation language from the state constitution.[17]”

    This likely means that some attorney for the state of Alabama was doing so right up until then.




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  44. HarvardLaw92 says:

    @Another Mike:

    From the standpoint of a fundamentalist, why wouldn’t they be? For that matter, the Christian bible clearly denotes divorce as a sin. It denotes MANY sins, so why should these bakers be excused their hypocrisy for focusing on certain sins while ignoring a multitude of others?

    You’re sidestepping the broader point. They are using “sin” as a rationalization for “those people are icky and I do not like them. ”

    Short version? They’re hypocrites.




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  45. Another Mike says:

    @C. Clavin:

    If it’s against your religious beliefs to serve all customers equally then you should not be in business.

    So you do not allow freedom of religion and freedom of association in your world? Ok, there have been a lot of people like that, most of them not in this country and now dead.




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  46. Barry says:

    @Lenoxus: “…ie, my bakery has the right to refuse this because all bakeries have the obligation to do so, because homosexuality is sinful.”

    They don’t want to go there:

    Somebody recently posted 10 Biblical reasons for bakers to refuse to bake a wedding cake. The reasons included divorce (in 90-odd% of cases), and the man being in the military.

    The other side could cross-examine the baker, to show that the baker flouted his professed beliefs.




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  47. Barry says:

    @HarvardLaw92: “Bork has always struck me as a prime example of the tortured libertarian who is drawn to originalism because it best serves his libertarian leanings. He’s his own worst enemy.”

    All that he is or ever was was a right-wing wh*reson with pretentions to being an intellectual.




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  48. HarvardLaw92 says:

    @Barry:

    My cross would consist of a litany of sins and questioning to the defendant as to whether he/she denies service to those who commit those sins as well. The inevitable product of that, given an exhaustive enough list, will be instances where they do not.

    Which is why these defenses should fail – they hinge on the professed belief of the person asserting them. When I can (and would) demonstrate that he/she doesn’t believe in their own defense, that defense becomes unavailable to them, and then they have no defense.

    It’s window dressing for bigotry, and that is never difficult to unmask. You win a case against a bigot by convincing the jury that the defendant is a bigot.




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  49. Barry says:

    @Another Mike: “The way I would state it is that all bakeries that consider homosexual marriages sinful have the right to refuse to participate in them. It is called the right to freely exercise one’s religion. I don’t know whether the courts concern themselves with sin, but they do with religious freedom.”

    I haven’t seen any arguments by the right for ‘religious freedom’ which are not also arguments against the CRA.

    And I haven’t seen any occasions where the right defended liberals’ religious freedoms.




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  50. James Pearce says:

    @Another Mike:

    The way I would state it is that all bakeries that consider homosexual marriages sinful have the right to refuse to participate in them.

    That’s nice from a certain point of view, but can’t you see the obvious pitfalls in such a design?

    Right now I’m reasonably sure I can walk into any bakery, pay them in US currency, and they will provide me with the baked goods I order.

    But go with the “right to refuse” set-up and my reasonable expectation is that I can walk into any bakery, offer them US currency, and they may refuse -based on their arbitrary judgement of my sinfulness- to serve me. I cannot see how this is preferable.

    Wouldn’t it be better if my baker’s opinion of my lifestyle factored NOT AT ALL in our commercial interactions? Wouldn’t it be better if they kept that kind of thing to themselves?




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  51. Rafer Janders says:

    @Another Mike:

    So now Jew is just like homosexual marriage? That’s your argument? You will have to argue that one with somebody else.

    If you’re a conservative Christian, being a Jew should be much, much worse than being gay, because Jews deny the very divinity of Christ, whereas gays and lesbians just engage in some sexual behavior that is not even mentioned in the New Testament and is only obliquely if at all condemned in the Old Testament (along with such other sins as wearing linen-cotton blends and indulging in fried clams on the Boardwalk).

    Your’e the one arguing religious belief, so answer the question — if a Christian baker believes that Jews are inherently sinful because they don’t accept Jesus as the Messiah, does that baker have the right to put up a “No Jews Allowed” sign on his front door? Yes or no?




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  52. Barry says:

    @Another Mike: “So now Jew is just like homosexual marriage? That’s your argument? You will have to argue that one with somebody else.”

    Please stop lying. The issue as you framed it was one of ‘religious freedom’. That standard, both the stated and real versions, applies just as much.




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  53. Barry says:

    @Another Mike: “So you do not allow freedom of religion and freedom of association in your world? Ok, there have been a lot of people like that, most of them not in this country and now dead.”

    Yup – ‘religious freedom’, as defined by the right, is the right of right-wingers to void the law as they please.




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  54. Another Mike says:

    @Rafer Janders:

    in none of them do I recall a baker playing an official part in solemnizing the vows…..

    But that is really not the argument anyone is making now, is it? A religious baker is harmed by being forced to bake a cake for an event he believes should not and cannot really exist. He sees himself as forced to be an accessary to sin. This is what freedom of religion protects against. It is also what freedom of association guarantees us. It is not about whether you or the majority even think his beliefs are silly.




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  55. SKI says:

    Everyone deserves a lawyer.

    Not all legal arguments deserve a lawyer.

    If Client insists their lawyer make a frivolous argument, their lawyer has an obligation to withdraw from representing them. The broad legal community has determined that the “clients” that are opposing SSM are relying on legal arguments that are frivolous and amount to asserting that recent SCOTUS precedent was wrong. Hence why the refusal to represent is not akin to refusing to provide a criminal defense (it is NEVER a frivolous legal argument to insist the prosecution prove its case beyond a reasonable doubt).




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  56. HarvardLaw92 says:

    @Another Mike:

    He isn’t being harmed. He’s being offended, and these laws are empowering being offended as a defense against violating public accommodation laws. That’s bad in and of itself, but you are sidestepping the larger issue.

    YOU may consider it unreasonable to deny service to Jews, but it’s unavoidable that these laws empower SOMEONE to deny service to Jews (or divorcees, or those wearing blended fabrics, or those who eat shellfish, et al ad infinitum.) You don’t get a “these laws are ok to the extent that I agree with them” pass. The test becomes what the most extreme person will be able to justify using these laws – and if you support these laws you must by association be held to support how they will be used by extremists.

    Because they will be used in that manner.




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  57. C. Clavin says:

    @Another Mike:
    Sure…you are free to practice your religion…but business is not a religion. If you cannot reconcile your faith and the law…then practice your faith in a manner that is not in conflict with the law. In other words don’t be in business. No one is forcing you to bake a friggin’ wedding cake. Be a plain ol’ baker that doesn’t cater. But if you are advertising to cater weddings then you have to cater weddings for everyone no matter your religious beliefs. It’s simply unreasonable to decide you are only going to cater weddings for straight white people. This isn’t that hard to understand.




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  58. Rafer Janders says:

    @Another Mike:

    But that is really not the argument anyone is making now, is it?

    Yes, it is. You said the baker was being forced to participate in a gay wedding — but he’s not, because the cake is not part of the wedding ceremony. He’s being “forced” to participate in a gay wedding reception, which is not the marriage itself, it’s just a party that follows the ceremony and is neither intrinsic nor necessary to the actual ceremony itself. Party, no party, cake, no cake, the marriage is still the marriage.

    Basically, the objection is that he doesn’t want to bake a cake for a party where two gay people celebrate having gotten married — but by the time the party is held, the marriage is already finalized.




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  59. DrDaveT says:

    @Rafer Janders:

    gays and lesbians just engage in some sexual behavior that is not even mentioned in the New Testament and is only obliquely if at all condemned in the Old Testament

    Rafer, I’m firmly on your side of this discussion, but this is factually incorrect. The Old Testament (specifically the Torah, or Books of Moses) is quite explicit in its condemnation of homosexual acts, including prescription of penalties to be applied. It’s one of the few violations of the law that gets the extra condemnatory tag that is usually translated as “abomination”.




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  60. An Interested Party says:

    The way I would state it is that all bakeries that consider homosexual marriages sinful have the right to refuse to participate in them. It is called the right to freely exercise one’s religion. I don’t know whether the courts concern themselves with sin, but they do with religious freedom.

    The same religious arguments were used to justify Jim Crow laws…they were wrong then too…

    Incidentally, the Catholic church does not consider homosexuality sinful. It is just an attraction to another person of the same sex.

    In other words, you’re fine to be who you are, just make sure you’re completely celibate…talk about unnatural…




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  61. grumpy realist says:

    @Another Mike: It’s called Public Accomodation law. Please look it up.




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  62. Another Mike says:

    @HarvardLaw92:

    He isn’t being harmed. He’s being offended

    I would say that you have it reversed. The gay couple is the one being offended. The baker is being forced to be complicit in something condemned by his faith, and that represents a significant harm. Even if the gay couple is said to suffer harm, it is a very minor harm.

    Sometimes businesses don’t have what I am looking for, so I go someplace else. It is just a normal thing in life. To argue that if one can refuse one thing, then one can refuse anything, is a fallacy.

    Because a Jewish gay couple comes in to buy a wedding cake and I refuse, does not mean I can refuse to sell them a birthday cake.




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  63. C. Clavin says:

    @Another Mike:

    The baker is being forced to be complicit

    Jesus-gawd, Mike, the baker isn’t being forced to do anything. If he doesn’t want to cater weddings he doesn’t have to cater weddings. If he wishes to cater weddings then he has to cater all weddings. Why is this so friggin’ hard for you to understand?




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  64. Grewgills says:

    @Another Mike:
    None of the extant cases involve a baker being asked to participate in the ceremony. Every extant case is about a baker being asked to bake a cake for the reception. If you are arguing simply for the hypothetical that religious bakers not be forced to solemnize a gay wedding, then I think the case is rare enough to not be worried about.




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  65. Grewgills says:

    @HarvardLaw92:

    It’s window dressing for bigotry, and that is never difficult to unmask.

    and that is the heart of all of the supposedly religiously based bigotry ever




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  66. Rafer Janders says:

    @Another Mike:

    Because a Jewish gay couple comes in to buy a wedding cake and I refuse, does not mean I can refuse to sell them a birthday cake.

    If you’re arguing religious freedom, then sure it does. Under the views that you yourself have espoused, you believe that you, as a conservative Christian, don’t want to associate with people such as Jews who deny the divinity of Christ, and so you can refuse to sell them a birthday cake. Just because they’re Jewish.

    That’s what you’re claiming. Either own it or not, but stop weaseling around the issue.




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  67. Rafer Janders says:

    @Another Mike:

    Sometimes businesses don’t have what I am looking for, so I go someplace else.

    But the baker does have what the gay couple is looking for — it has cake. They don’t need to go someplace else.




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  68. grumpy realist says:

    @Another Mike: Look–if you don’t want to sell cake to everyone who walks through the door, don’t open a cake-selling business. It’s called being a professional, rather than a narcissistic bastard who can’t bear to be polite to other people.

    I supposed you’d be perfectly on board with the Ultra-Orthodox men who refuse to sit next to women in airplanes and make a big stink until someone gives up and moves?




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  69. KM says:

    @Another Mike:

    I would say that you have it reversed. The gay couple is the one being offended. The baker is being forced to be complicit in something condemned by his faith, and that represents a significant harm. Even if the gay couple is said to suffer harm, it is a very minor harm.

    Uh, no. Your basis for “significant harm” is on an immeasurable and intangible scale – namely, faith and theological repercussions. That is not for the courts to decide but rather any deity in question. You might try to argue loss of “freedom” but since that freedom is religious in nature, it goes right back to the consequences of the loss of it affect their spiritual life, not their pocketbook. You have no way of proving the amount of harm done if any as so your assertion of “significant” is dubious at best. And trust me, you do NOT want the government in a position to determine just how valid a belief is in terms of your soul – that way lies madness.

    The couple on the other hand have a concrete and measurable loss in terms of economic and physical goods ie the time, money, services and materials they have spent finding the baker, let alone not obtaining the cake and having to start again. The loss is on their side; any economic loss the baker has is self-inflicted by the refusal of the paying customer. This can be quantified (dollar amounts, invoices, etc) and presented to the court as hard evidence. Judges vastly prefer hard evidence to wishy-washy ethereal claims.




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  70. Another Mike says:

    @Rafer Janders:

    That’s what you’re claiming. Either own it or not, but stop weaseling around the issue.

    There is no general license to discriminate based upon religious freedom. Discrimination by race or religion or ethnic origin is serious business, but baking a cake is a trivial matter of almost no importance. It is an ordinary run-of-the-mill thing for a consumer to try another store if the store you visited cannot supply what you want. It’s called life. Even if one argues that a store had an implied contract to serve you due to the fact that they are open to the public, a refusal is a simple breach of contract amounting in virtually no damages. What, so you had to go to another store. Some damages.




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  71. Rafer Janders says:

    @Another Mike:

    There is no general license to discriminate based upon religious freedom.

    Bingo!

    But don’t tell me, tell Another Mike, who’s been arguing exactly the opposite in this thread….




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  72. Rafer Janders says:

    @Another Mike:

    but baking a cake is a trivial matter of almost no importance.

    And yet earlier you claimed that

    The baker is being forced to be complicit in something condemned by his faith, and that represents a significant harm.

    So is baking a cake a trivial matter of almost no importance, or a significant harm that imperils one’s faith? Because you seem to be arguing both, either or neither, depending on whichever is most convenient for you at that moment.




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  73. Rafer Janders says:

    @Another Mike:

    It is an ordinary run-of-the-mill thing for a consumer to try another store if the store you visited cannot supply what you want.

    Once again, the store CAN supply what the consumer wants. It is deliberately choosing not to.




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  74. grumpy realist says:

    @Another Mike: If it’s such a goddamn trivial thing, then why is the baker having such a snit fit about it?

    I also wonder about the intelligence of someone who can’t come up with a better excuse: “Sorry, but I’m incredibly busy that week. Here’s a list of other bakers in the neighborhood who probably can take care of you.” But no, you have to drag out the “it’s against my religion” excuse.

    What these clowns want is the ability to refuse service to someone else and make it loud and clear that they find the person a nasty icky gay.




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  75. DrDaveT says:

    @Another Mike:

    There is no general license to discriminate based upon religious freedom.

    And yet here you are, working overtime to create and/or defend such a general license. Why is that?

    If I’m a gay Christian, and my religion requires me to get my wedding cake from a Christian baker, whose silly religious beliefs have precedence?




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  76. Another Mike says:

    @Rafer Janders:

    It is deliberately choosing not to.

    Yes, and the couple is choosing not to go to a store that will supply what they want. And their plan is to use the law as a sword to strike the store down for not supporting your intolerant agenda.




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  77. SKI says:

    @Another Mike:

    Discrimination by race or religion or ethnic origin is serious business, but baking a cake is a trivial matter of almost no importance.

    The underlying legal principal, however, doesn’t change depending on whether YOU view the good or service as or import or not.

    Is a bakery less important than a hot dog stand?

    Or a counter at Woolworth’s?

    Or the Heart of Atlanta motel?

    The law doesn’t differentiate between whether Another Mike thinks the sought out good or service is important. It cares about the underlying principal.

    We already decided that we don’t let businesses that are generally open to the public discriminate against potential customers based on bigotry. Now the question being asked, at its essence is: do we let businesses that are generally open to the public discriminate against potential customers based on the business owner’s bigotry if that bigotry is driven by religious beliefs?




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  78. Jenos Idanian #13 says:

    I can’t believe I missed this before:

    For these firms, the bottom line depends quite substantially on high-profile clients and large companies that are very conscious of their own public images and the causes that they are deemed to be lending support to. When a law firm that they are paying hundreds of thousands of dollars a year, if not more, suddenly takes up a case defending a law that is likely offensive to their employees, consumers, and shareholders, their likely reaction is going to be to look for another law firm that can provide the same services without the taint of being an advocate for a socially unpopular cause.

    So, big corporations can throw their financial weight around enough to make sure that unpopular social causes can’t get the best legal representation, and this is a good thing? This is a thing that liberals celebrate?




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  79. Rafer Janders says:

    @Another Mike:

    And their plan is to use the law as a sword to strike the store down for not supporting your intolerant agenda.

    Yes, when will heterosexual Protestants get a fair shake in this country?!?!




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  80. Rafer Janders says:

    @Another Mike:

    And their plan is to use the law as a sword to strike the store down for not supporting your intolerant agenda.

    But the store, if it does not want to be struck down, can just bake the cake, can’t it? Since baking a cake is, as I have been assured, a trivial matter of almost no importance.




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  81. grumpy realist says:

    @Jenos Idanian #13: We’re just pointing out that what’s sauce for the goose is sauce for the gander as well.

    Just sayin’.




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  82. Another Mike says:

    @DrDaveT:

    And yet here you are, working overtime to create and/or defend such a general license.

    Not so. A general license would be to allow someone to refuse to serve, for instance, blacks, Jews, or Latinos, and even gays, because one claims it is against one’s religion. If that is what you think I am arguing for then you are seriously mistaken.

    Good luck in court with your gay Christian and Christian baker case. The baker has two Millennia and more of religious tradition to fall back upon, and you have a flimsy example thought up in a feeble attempt to make a point.




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  83. Rafer Janders says:

    @Another Mike:

    If that is what you think I am arguing for then you are seriously mistaken.

    That is, in fact, exactly what you are arguing for — but you’re just not bright enough to understand it.




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  84. Another Mike says:

    @Rafer Janders:

    So is baking a cake a trivial matter of almost no importance, or a significant harm that imperils one’s faith?

    It is a trivial matter to the gay couple viewed as consumers, because some other baker can always make their cake, but for the baker it is a serious violation of their religious faith to be complicit in a marriage between people of the same sex. I am not saying than the gay couple does not consider the cake an important part of their wedding celebration. I am saying that there are other places that make wedding cakes, and there is no need to try to force a baker who does not want to do it due to religious objections to do it. Unless the couple makes the case that the bakery is the only one in the whole area that makes wedding cakes, I will just view the couple as intolerant anti-religious bigots for forcing the issue.




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  85. grumpy realist says:

    @Another Mike: Dude–the same argument could be made by people who don’t want to make cakes for interracial couples.

    And as said–if you can’t find a graceful way to plead too much work, you have no brains at all. Are you really interested in “not participating” or are you insisting on your right to scream out at them “NO GAYZ ALLOWED!!!”

    Also–it’s one thing if only one baker in the area refuses. What if all refuse?




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  86. James Pearce says:

    @Another Mike:

    The baker has two Millennia and more of religious tradition to fall back upon, and you have a flimsy example thought up in a feeble attempt to make a point.

    The baker has two millennia of Christian disagreement to fall back on. I bet if you asked a hundred different Christians if you’d go to hell for baking a gay cake, you’d get a hundred different answers.




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  87. James Pearce says:

    @Another Mike:

    for the baker it is a serious violation of their religious faith to be complicit in a marriage between people of the same sex.

    I keep hearing this stuff and let me just say once and for all…..no, it is not. By Christians’ own account, Jesus died for our sins. He forgives murderers, rapists, and drunks, but he won’t forgive a devout baker for the sin of baking an evil cake?

    The argument is totally absurd, even in it’s “good faith” iteration. It’s straight up BS.

    These guys don’t want to bake cakes for gays because they are right wing Christians engaging in peaceful protest against something they oppose.




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  88. Gromitt Gunn says:

    On a more pleasant note – it is pretty obvious that the anti-SSM side realizes they’ve lost when the only argument even they feel like making is over who bakes the cake.




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  89. Another Mike says:

    @Rafer Janders:

    That is, in fact, exactly what you are arguing for — but you’re just not bright enough to understand it.

    Of course, I guess that is the final argument.




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  90. An Interested Party says:

    Unless the couple makes the case that the bakery is the only one in the whole area that makes wedding cakes, I will just view the couple as intolerant anti-religious bigots for forcing the issue.

    Ahh, so if the baker is a raging white racist and the couple is black, they are intolerant anti-racist bigots who are forcing the issue…once again, just as religion was used in the past to justify racism, it is now being used to justify homophobia…there certainly are bigots in this discussion, but they aren’t the people you think they are…




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  91. DrDaveT says:

    @Another Mike:

    A general license would be to allow someone to refuse to serve, for instance, blacks, Jews, or Latinos, and even gays, because one claims it is against one’s religion. If that is what you think I am arguing for then you are seriously mistaken.

    I hate to break it to you, but that is exactly what you are arguing for — because there is no way to draw the legal line you want to draw, between “reasonable religious principles like mine” and totally whacked insane bigotry based on bizarre religious views. The law does not take any stance on which religious views are plausible and which are paranoid delusional fantasies.

    Good luck in court with your gay Christian and Christian baker case. The baker has two Millennia and more of religious tradition to fall back upon

    You’re saying that a Christian who wants to have a Christian bake the cake for his wedding reception has no tradition to fall back on? Really? (Setting aside the fact that “wedding cake” as a tradition is nowhere near two millenia old, and that refusing to do business with certain subclasses of sinners is even newer than wedding cakes. Our Lord was far less discriminating than you.)




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  92. An Interested Party says:

    Our Lord was far less discriminating than you.

    Humph, far less discriminating than many of today’s Christians…




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  93. wr says:

    @Another Mike: “A general license would be to allow someone to refuse to serve, for instance, blacks, Jews, or Latinos, and even gays, because one claims it is against one’s religion. If that is what you think I am arguing for then you are seriously mistaken.”

    We get that. You’re saying it’s discrimination UNLESS it’s practiced by people you agree with against people you disapprove of. Then it’s freedom. But anyone else who tries is a bigot.




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  94. Jenos Idanian #13 says:

    @grumpy realist: So Citizens United is terrible, unless it helps you. Got it.




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  95. Ebenezer_Arvigenius says:

    I am not saying than the gay couple does not consider the cake an important part of their wedding celebration. I am saying that there are other places that make wedding cakes, and there is no need to try to force a baker who does not want to do it due to religious objections to do it.

    Well in that case there is no problem at all. The baker can just subcontract it to one of the many available bakeries. After all he is getting paid for his service so there are funds available and no iteration of any public accommodation law requires him to provide the service in person. It just binds his company not to refuse their services.




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  96. anjin-san says:

    @Another Mike:

    for the baker it is a serious violation of their religious faith to be complicit in a marriage between people of the same sex.

    Yet these same bakers seem to have no problem being complicit in second, third, fourth, marriages, and so on.

    I will speculate that Jesus would find cheery picking the Bible in order to discriminate against people you don’t approve of to be more troubling from a spiritual standpoint than baking a cake for two people who love each other.




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  97. C. Clavin says:

    @anjin-san:
    I got $20 says that baker had pre-marital sex.




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  98. grumpy realist says:

    @Jenos Idanian #13: What the eff does Citizen’s United have to do with this?

    Don’t try to explain. I’m sure you’ll come up with some contorted reason with about as much logic as Another Mike’s “Help Help I’m being Oppressed” rambles..




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  99. @C. Clavin:

    Ahhhh yes, we wouldn’t be here if it weren’t for “government” and you’ll damn well do as we say, or you can simply watch while government grants boons and booty to those it favors.

    Well, there’s a fine “F” you very much!

    How about this reality check:

    This Nation is founded in LIBERTY. Not YOUR liberty. Actually not even MY liberty. Just LIBERTY.

    Now you don’t like bakers having liberty to decline to create a wedding cake for a same sex wedding reception and say, “well, you didn’t build that bakery, the government did, by making roads, and commerce, and life possible.”

    You would be under Jefferson’s microscope in seconds. What kind of pernicious virulent insect of oppression is this bug? He’d write those very words in his journal as he sought to understand the inbred toady-ism your words ooze.

    Your laundry list of things created by private action and co-opted by government force and taxation and outright theft (a la “net neutrality”) is a refreshing reminder of the personality that arrives at the end of a project or a battle and seeks to obtain credit by pushing their way in front of the nearest cameras.

    You want a war, apparently. If you think that Americans will tolerate being driven into a sub-class, ineligible to pursue careers, professions and profits (oh horrors, not profits), because they do not share your preferred views, I think you do not understand the strength of feeling to be engendered.

    http://jimsjustsayin.blogspot.com/2015/04/the-world-upside-down.html




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