PDA

View Full Version : tPF Supreme Court rejects appeal of B&B owner who denied room to same-sex couple



DGUtley
03-19-2019, 12:48 PM
I found this interesting: Supreme Court rejects appeal of B&B owner who denied room to same-sex couple. The U.S. Supreme Court on Monday left in place Hawaii court rulings that found a bed and breakfast owner violated the state’s anti-discrimination law by refusing to rent a room to a lesbian couple. The justices rejected an appeal from Aloha Bed & Breakfast owner Phyllis Young, who argued that she should be allowed to turn away gay couples because of her religious beliefs.

In balancing the state's interest in nondiscriminatory public accommodations against the burden imposed on the freedom of religion (which the court assumed but didn't decide), the court stated: “The freedom of religion does not give businesses a right to violate nondiscrimination laws that protect all individuals from harm, whether on the basis of race, gender, or sexual orientation,” Peter Renn, an attorney who represents the couple, said in a statement. Last year, the Hawaii Supreme Court rejected Young’s appeal of a lower court ruling that ordered her to stop discriminating against same-sex couples.

What do you think is the difference here btw this and the Cake Case? The art/creativity issue? Different Court? These balancing acts of conflicting rights are going to be taking place all over the country.

https://www.usatoday.com/story/news/nation/2019/03/19/court-wont-hear-appeal-b-b-owner-who-denied-room-lesbian-couple/3209681002/

State Appellate court opinion: https://www.lambdalegal.org/sites/default/files/legal-docs/downloads/cervelli_hi_20180223_opinion.pdf

Captdon
03-19-2019, 12:54 PM
The "Cake" case was a public violation of religion. I don't see how renting a room to tow men or two women means anything. Two conflicting rights is one more thing the founders didn't know about.

Common Sense
03-19-2019, 12:54 PM
I wonder if they turned away unmarried straight couples...or did they cherry pick their religious objections.

alexa
03-19-2019, 01:33 PM
The cake case was decided in the baker's favor because the court found that the Colorado Civil Rights Board was "hostile" to his religion.

There's nothing in the decision that affirmed his right to deny service to others.

Tahuyaman
03-19-2019, 01:59 PM
I found this interesting: Supreme Court rejects appeal of B&B owner who denied room to same-sex couple. The U.S. Supreme Court on Monday left in place Hawaii court rulings that found a bed and breakfast owner violated the state’s anti-discrimination law by refusing to rent a room to a lesbian couple. The justices rejected an appeal from Aloha Bed & Breakfast owner Phyllis Young, who argued that she should be allowed to turn away gay couples because of her religious beliefs.

In balancing the state's interest in nondiscriminatory public accommodations against the burden imposed on the freedom of religion (which the court assumed but didn't decide), the court stated: “The freedom of religion does not give businesses a right to violate nondiscrimination laws that protect all individuals from harm, whether on the basis of race, gender, or sexual orientation,” Peter Renn, an attorney who represents the couple, said in a statement. Last year, the Hawaii Supreme Court rejected Young’s appeal of a lower court ruling that ordered her to stop discriminating against same-sex couples.

What do you think is the difference here btw this and the Cake Case? The art/creativity issue? Different Court? These balancing acts of conflicting rights are going to be taking place all over the country.

https://www.usatoday.com/story/news/nation/2019/03/19/court-wont-hear-appeal-b-b-owner-who-denied-room-lesbian-couple/3209681002/

State Appellate court opinion: https://www.lambdalegal.org/sites/default/files/legal-docs/downloads/cervelli_hi_20180223_opinion.pdf
In the bakery case, the baker was asked to violate his religious convictions by creating a customized cake to celebrate a ceremony which violates those convictions. The homosexual couple could have purchased anything that baker had already prepared and had on display for sale.

In this case, the B&B owner wasn't asked to provide anything other than a normal accommodation which was immediately available to anyone.

Common
03-19-2019, 02:32 PM
I wonder if they turned away unmarried straight couples...or did they cherry pick their religious objections.

Thats a good point and thats why they lost, renting a room to two women doesnt vioate or infringe on your religion, what if two single straight women decided to rent a single room with a double bed to save money.

Lummy
03-19-2019, 04:19 PM
An owner of a bar, restaurant, inn or motel should be able to refuse service to anyone for any reason unless the customer has no other choice of a facility but the facility being refused.

I'm old school.

DGUtley
03-19-2019, 04:25 PM
I wonder if they turned away unmarried straight couples...or did they cherry pick their religious objections.

If you read the article or the opinion, it was because of the homosexuality. It wasn't cherry picking.

DGUtley
03-19-2019, 04:26 PM
The cake case was decided in the baker's favor because the court found that the Colorado Civil Rights Board was "hostile" to his religion. There's nothing in the decision that affirmed his right to deny service to others.

That's true, but on the re-do didn't they come at him again and he won?

Lummy
03-19-2019, 04:31 PM
I'm talking about the rights of the property owner, of course, not social engineering or growing case law.

DGUtley
03-19-2019, 04:33 PM
I'm talking about the rights of the property owner, of course, not social engineering or growing case law.

I believe the law is that you can do so for any reason - except for an illegal reason.

Peter1469
03-19-2019, 04:34 PM
I found this interesting: Supreme Court rejects appeal of B&B owner who denied room to same-sex couple. The U.S. Supreme Court on Monday left in place Hawaii court rulings that found a bed and breakfast owner violated the state’s anti-discrimination law by refusing to rent a room to a lesbian couple. The justices rejected an appeal from Aloha Bed & Breakfast owner Phyllis Young, who argued that she should be allowed to turn away gay couples because of her religious beliefs.

In balancing the state's interest in nondiscriminatory public accommodations against the burden imposed on the freedom of religion (which the court assumed but didn't decide), the court stated: “The freedom of religion does not give businesses a right to violate nondiscrimination laws that protect all individuals from harm, whether on the basis of race, gender, or sexual orientation,” Peter Renn, an attorney who represents the couple, said in a statement. Last year, the Hawaii Supreme Court rejected Young’s appeal of a lower court ruling that ordered her to stop discriminating against same-sex couples.

What do you think is the difference here btw this and the Cake Case? The art/creativity issue? Different Court? These balancing acts of conflicting rights are going to be taking place all over the country.

https://www.usatoday.com/story/news/nation/2019/03/19/court-wont-hear-appeal-b-b-owner-who-denied-room-lesbian-couple/3209681002/

State Appellate court opinion: https://www.lambdalegal.org/sites/default/files/legal-docs/downloads/cervelli_hi_20180223_opinion.pdf
In the cake case the local review board did not attempt to balance the competing right and was openly hostile to the religious rights.

Lummy
03-19-2019, 04:35 PM
I believe the law is that you can do so for any reason - except for an illegal reason.

What does that mean?

In other words, the philosophy of the legislature overrules the Bible and individual's property rights.

DGUtley
03-19-2019, 04:36 PM
What does that mean?

You can refuse to serve someone b/c you don't like their tie but not because their Chinese.

Sergeant Gleed
03-19-2019, 04:42 PM
Thus the B&B operator is denied his property ownership AND is forced into involuntary servitude, violating also the Thirteenth Amendment.

Sergeant Gleed
03-19-2019, 04:44 PM
In the cake case the local review board did not attempt to balance the competing right and was openly hostile to the religious rights.
Then there's the fact that nobody argued on Thirteenth Amendment grounds, and yet the 13th clearly forbids compulsory service.

Sergeant Gleed
03-19-2019, 04:47 PM
An owner of a bar, restaurant, inn or motel should be able to refuse service to anyone for any reason unless the customer has no other choice of a facility but the facility being refused.

I'm old school.
That's new school.

In the old school the property owner said "get out", had a shotgun to back it up and nobody objected to his objection...because it was, and still is, nobody's business but the owners.

MisterVeritis
03-19-2019, 04:47 PM
The "Cake" case was a public violation of religion. I don't see how renting a room to tow men or two women means anything. Two conflicting rights is one more thing the founders didn't know about.
Which right is written in the Constitution? When we added an amendment with a boatload of new rights did we take into consideration previously defended rights? How should we evaluate these so called conflicting rights?

Lummy
03-19-2019, 04:50 PM
That's new school.

In the old school the property owner said "get out", had a shotgun to back it up and nobody objected to his objection...because it was, and still is, nobody's business but the owners.

I can understand if there was no other option for a place to stay the night, but not on grounds of race.

Find another motel that doesn't object to your race.

Lummy
03-19-2019, 04:54 PM
You shouldn't be able to come onto my property and dictate who I can and can't like.

That's absurd.

alexa
03-19-2019, 05:02 PM
That's true, but on the re-do didn't they come at him again and he won?

I have no idea. I really didn't pay much attention to the case.

I didn't know there was a redo.

donttread
03-20-2019, 09:44 AM
I found this interesting: Supreme Court rejects appeal of B&B owner who denied room to same-sex couple. The U.S. Supreme Court on Monday left in place Hawaii court rulings that found a bed and breakfast owner violated the state’s anti-discrimination law by refusing to rent a room to a lesbian couple. The justices rejected an appeal from Aloha Bed & Breakfast owner Phyllis Young, who argued that she should be allowed to turn away gay couples because of her religious beliefs.

In balancing the state's interest in nondiscriminatory public accommodations against the burden imposed on the freedom of religion (which the court assumed but didn't decide), the court stated: “The freedom of religion does not give businesses a right to violate nondiscrimination laws that protect all individuals from harm, whether on the basis of race, gender, or sexual orientation,” Peter Renn, an attorney who represents the couple, said in a statement. Last year, the Hawaii Supreme Court rejected Young’s appeal of a lower court ruling that ordered her to stop discriminating against same-sex couples.

What do you think is the difference here btw this and the Cake Case? The art/creativity issue? Different Court? These balancing acts of conflicting rights are going to be taking place all over the country.

https://www.usatoday.com/story/news/nation/2019/03/19/court-wont-hear-appeal-b-b-owner-who-denied-room-lesbian-couple/3209681002/

State Appellate court opinion: https://www.lambdalegal.org/sites/default/files/legal-docs/downloads/cervelli_hi_20180223_opinion.pdf


"Land of the used to be free"

alexa
03-20-2019, 09:55 AM
You shouldn't be able to come onto my property and dictate who I can and can't like.

That's absurd.

You don't have to like them.

DGUtley
03-20-2019, 09:55 AM
Thus the B&B operator is denied his property ownership AND is forced into involuntary servitude, violating also the Thirteenth Amendment.

No. That argument has been rejected by the SCOTUS. Remember, rights are not absolute (according to SCOTUS) and may be infringed for a variety of reasons based on a variety of levels (compelling need, rational basis etc). It is a balancing test. I understand all of the arguments about the strict text of the constitution etc. I am just telling you what the status of the law is.

DGUtley
03-20-2019, 09:57 AM
You don't have to like them.

So true. You don't even have to serve them but you can't refuse to serve them for an illegal reason. Treating people differently in a public accommodation b/c of religion, race, sexual orientation (to name a few) are illegal reasons.

nathanbforrest45
03-20-2019, 10:11 AM
I wonder if they turned away unmarried straight couples...or did they cherry pick their religious objections.

Don't know, why don't you call them and ask?

nathanbforrest45
03-20-2019, 10:13 AM
I wonder if they turned away unmarried straight couples...or did they cherry pick their religious objections.
Cherry picking is an interesting choice of words when it concerns two lesbians in my opinion.

Peter1469
03-20-2019, 06:14 PM
Then there's the fact that nobody argued on Thirteenth Amendment grounds, and yet the 13th clearly forbids compulsory service.
Having a business open to the public is not involuntary service.

Captdon
03-21-2019, 10:38 AM
An owner of a bar, restaurant, inn or motel should be able to refuse service to anyone for any reason unless the customer has no other choice of a facility but the facility being refused.

I'm old school.

You don't have that right and shouldn't. It is discrimination pure and simple.

Captdon
03-21-2019, 10:42 AM
I'm talking about the rights of the property owner, of course, not social engineering or growing case law.

The right to discriminate is not valid.

Captdon
03-21-2019, 10:47 AM
What does that mean?

In other words, the philosophy of the legislature overrules the Bible and individual's property rights.
It isn't the legislature. It is the Constitution.

Captdon
03-21-2019, 10:48 AM
Then there's the fact that nobody argued on Thirteenth Amendment grounds, and yet the 13th clearly forbids compulsory service.

It isn't slavery. Crappy argument.

Cletus
03-21-2019, 10:54 AM
I believe the law is that you can do so for any reason - except for an illegal reason.
There should be no illegal reason.

Captdon
03-21-2019, 10:54 AM
Which right is written in the Constitution? When we added an amendment with a boatload of new rights did we take into consideration previously defended rights? How should we evaluate these so called conflicting rights?


I don't know how religious rights and property rights are to be decided. When I wrote that I didn't know it was about homosexuality. Now that I know that, I don't have an answer. The Court will have to make up something.

Captdon
03-21-2019, 10:56 AM
I can understand if there was no other option for a place to stay the night, but not on grounds of race.

Find another motel that doesn't object to your race.

That's just being two-faced. It's either right or it's wrong.

Cletus
03-21-2019, 10:57 AM
Having a business open to the public is not involuntary service.

Being forced to serve and labor on behalf of others against your will is.

Captdon
03-21-2019, 10:57 AM
You shouldn't be able to come onto my property and dictate who I can and can't like.

That's absurd.

No one gives a damn about who you like or don't like. That isn't what this is about. The 14th Amendment All people must be treated equally. You don't have to like that either.

Cletus
03-21-2019, 10:59 AM
You don't have that right and shouldn't. It is discrimination pure and simple.
And?

It is his business. It is his labor. He should be able to choose for whom he performs it.

Cletus
03-21-2019, 11:01 AM
The right to discriminate is not valid.
Of course it is. You discriminate a hundred times a day. Everyone does. You have things you like and things you don't like.

No one should ever be forced to labor on behalf of another against his will.

Cletus
03-21-2019, 11:01 AM
It isn't the legislature. It is the Constitution.
Where is it in the Constitution?

Captdon
03-21-2019, 11:04 AM
And?

It is his business. It is his labor. He should be able to choose for whom he performs it.

Then he should move to a country that allows it. The 14th Amendment doesn't allow it here. There's a fact.

As for an opinion, you can try to get the Constitution amended.

Captdon
03-21-2019, 11:04 AM
Of course it is. You discriminate a hundred times a day. Everyone does. You have things you like and things you don't like.

No one should ever be forced to labor on behalf of another against his will.

No, I don't. I don't know what you do.

Cletus
03-21-2019, 11:05 AM
No one gives a damn about who you like or don't like. That isn't what this is about. The 14th Amendment All people must be treated equally. You don't have to like that either.

The 14th Amendment doesn't say that.

Captdon
03-21-2019, 11:05 AM
Where is it in the Constitution?

14th Amendment.

Cletus
03-21-2019, 11:06 AM
No, I don't. I don't know what you do.
Are you really pretending you don't discriminate every day?

You should stop and reconsider that claim. It is demonstrably untrue and I suspect you know that.

Cletus
03-21-2019, 11:07 AM
14th Amendment.

No, it isn't.

If you think it is, please show me the clause that says "All people must be treated equally".

Captdon
03-21-2019, 11:10 AM
The 14th Amendment doesn't say that.

Last sentence of Article one. The laws apply to everyone equally. The law says you can't discriminate then the state has to uphold it. Jim Crow is dead.

Captdon
03-21-2019, 11:11 AM
Are you really pretending you don't discriminate every day?

You should stop and reconsider that claim. It is demonstrably untrue and I suspect you know that.

Demonstrate it then.

Captdon
03-21-2019, 11:12 AM
No, it isn't.

If you think it is, please show me the clause that says "All people must be treated equally".

Equal protection under the law. Come on, you know that one.

Cletus
03-21-2019, 11:15 AM
Last sentence of Article one. The laws apply to everyone equally. The law says you can't discriminate then the state has to uphold it. Jim Crow is dead.
No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Maybe you should read it again. It doesn't even come close to saying what you claim. What it says is that the LAW cannot discriminate.

The idea of "protected classes" actually violates the 14th Amendment.

Cletus
03-21-2019, 11:15 AM
Demonstrate it then.
What is your favorite flavor of Ice Cream?

Peter1469
03-21-2019, 11:26 AM
Being forced to serve and labor on behalf of others against your will is.
Then don't open up public accommodations. Start a membership only club.

Cletus
03-21-2019, 11:28 AM
Then don't open up public accommodations. Start a membership only club.

Better idea... get the law and the courts to comply with the Constitution.

alexa
03-21-2019, 11:32 AM
It's funny how the laws and courts get it so wrong all the time and nobody notices except for a few scholars on tpf.

Peter1469
03-21-2019, 11:32 AM
Better idea... get the law and the courts to comply with the Constitution.
I don't think the current SCOTUS would overturn the current law on public accommodations. It would likely be a 9-0 vote, although with many concurring opinions (agreeing on result but not reasoning).

Cletus
03-21-2019, 11:35 AM
I don't think the current SCOTUS would overturn the current law on public accommodations. It would likely be a 9-0 vote, although with many concurring opinions (agreeing on result but not reasoning).

They wouldn't do it because it would not be popular. That doesn't mean it would not be the right thing to do. Public accommodation laws are wrong. No person should ever be forced under threat of penalty, to labor on behalf of another against his will. That goes against the very foundations upon which this country was founded.

Cletus
03-21-2019, 11:37 AM
It's funny how the laws and courts get it so wrong all the time and nobody notices except for a few scholars on tpf.

I don't think it is funny, at all. It just proves there are a lot of weak and stupid people in this country.

DGUtley
03-21-2019, 11:38 AM
They wouldn't do it because it would not be popular. That doesn't mean it would not be the right thing to do. Public accommodation laws are wrong. No person should ever be forced under threat of penalty, to labor on behalf of another against his will. That goes against the very foundations upon which this country was founded.

I disagree and believe you are wrong. Remember, you can refuse to serve someone for any reason, or no reason, just not an illegal reason.

alexa
03-21-2019, 11:40 AM
I don't think it is funny, at all. It just proves there are a lot of weak and stupid people in this country.
Yes, the vast majority of judges in the country are weak and stupid.

How silly of me to think otherwise.

Peter1469
03-21-2019, 11:51 AM
They wouldn't do it because it would not be popular. That doesn't mean it would not be the right thing to do. Public accommodation laws are wrong. No person should ever be forced under threat of penalty, to labor on behalf of another against his will. That goes against the very foundations upon which this country was founded.
It would be 9-0 because it is settled constitutional law.

Cletus
03-21-2019, 11:52 AM
I disagree and believe you are wrong. Remember, you can refuse to serve someone for any reason, or no reason, just not an illegal reason.
I understand the statement, but think it is ridiculous because the legislature or even the courts can decide anything they want is an "illegal reason". Why just race, color, creed, national origin, sex, age, physical or mental disability, and veteran status?

Why not protect left handed people or people with green eyes or people who wear ugly ties? Why should ANYONE receive special protection under the law? That in itself violates both the letter and the spirit of the 14th Amendment. It also negates the concept of freedom of association and if someone is forced against his will to labor on behalf of someone else, it violates the letter of the 13th Amendment and the commonly accepted definition of "involuntary servitude".

Cletus
03-21-2019, 11:54 AM
It would be 9-0 because it is settled constitutional law.
No law is ever truly "settled". Any law can be revisited.

They wouldn't do it because of the potential blowback.

DGUtley
03-21-2019, 11:55 AM
I understand the statement, but think it is ridiculous because the legislature or even the courts can decide anything they want is an "illegal reason". Why just race, color, creed, national origin, sex, age, physical or mental disability, and veteran status? Why not protect left handed people or people with green eyes or people who wear ugly ties? Why should ANYONE receive special protection under the law? That in itself violates both the letter and the spirit of the 14th Amendment. It also negates the concept of freedom of association and if someone is forced against his will to labor on behalf of someone else, it violates the letter of the 13th Amendment and the commonly accepted definition of "involuntary servitude".

All of these issues have been covered by the Courts. I don't have the time to do the research. The 13th was raised a long time ago here and I did the research and posted links to the cases. Respectfully, though well-intentioned, you are mistaken.

Peter1469
03-21-2019, 11:57 AM
No law is ever truly "settled". Any law can be revisited.

They wouldn't do it because of the potential blowback.
Such a case likely would never rise to SCOTUS. There would need to be a circuit split on the issue. There is not.

Tahuyaman
03-21-2019, 12:01 PM
There's a substantial difference in the bakery case and this one. It's been explained several times. If one doesn't get it, they never will. They don't get it because they don't want to.

Captdon
03-21-2019, 12:08 PM
No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Maybe you should read it again. It doesn't even come close to saying what you claim. What it says is that the LAW cannot discriminate.

The idea of "protected classes" actually violates the 14th Amendment.

If you can discriminate against me then the state has to allow it. They can't.

Cletus
03-21-2019, 12:08 PM
All of these issues have been covered by the Courts. I don't have the time to do the research. The 13th was raised a long time ago here and I did the research and posted links to the cases. Respectfully, though well-intentioned, you are mistaken.
I don't believe I am.

Quite often, laws are "settled" on the basis of political expedience and nothing more. You probably know that better than most. the ACA and the stunt Roberts pulled is a great example of that. Public Accommodation laws are another example. Repealing or overturning anti discrimination laws would be political suicide and probably cause a certain amount of public unrest. The fact that the laws should never have been enacted is pretty much irrelevant as far as the courts and the legislatureare concerned. They are not going to make a ruling they are reasonable sure will cause riots in the streets, even if that would be the right thing to do.

Involuntary servitude is generally defined as A condition of compulsory service or labor performed by one person, against his will, for the benefit of another person due to force, threats, intimidation or other similar means of coercion and compulsion directed against him. It has also been ruled (and I can probably find the reference later) that a state of involuntary servitude can exist even if the person in question is paid for his services.

How does that not precisely apply to a shopkeeper, innkeeper, or tradesman forced under threat of retaliation by the state, to perform services or provide accommodation for someone against his will?

Cletus
03-21-2019, 12:11 PM
If you can discriminate against me then the state has to allow it. They can't.
I am not sure what you are saying there.

Unless you fall into one of the protected classes and it can be established that you are being discriminated against because you are a member of one of those classes, people can discriminate against you all they want. They can discriminate against you because they don't like the way you tie your shoes and it is perfectly legal.

Captdon
03-21-2019, 12:11 PM
What is your favorite flavor of Ice Cream?

I don't eat it. If this is where you are headed don't embarrass yourself by comparing two things that are not even similar.

Cletus
03-21-2019, 12:12 PM
Such a case likely would never rise to SCOTUS. There would need to be a circuit split on the issue. There is not.
There is often a difference between "legal" and "right".

Captdon
03-21-2019, 12:12 PM
It's funny how the laws and courts get it so wrong all the time and nobody notices except for a few scholars on tpf.

That would be everyone.

Peter1469
03-21-2019, 12:18 PM
I don't believe I am.

Quite often, laws are "settled" on the basis of political expedience and nothing more. You probably know that better than most. the ACA and the stunt Roberts pulled is a great example of that. Public Accommodation laws are another example. Repealing or overturning anti discrimination laws would be political suicide and probably cause a certain amount of public unrest. The fact that the laws should never have been enacted is pretty much irrelevant as far as the courts and the legislatureare concerned. They are not going to make a ruling they are reasonable sure will cause riots in the streets, even if that would be the right thing to do.

Involuntary servitude is generally defined as A condition of compulsory service or labor performed by one person, against his will, for the benefit of another person due to force, threats, intimidation or other similar means of coercion and compulsion directed against him. It has also been ruled (and I can probably find the reference later) that a state of involuntary servitude can exist even if the person in question is paid for his services.

How does that not precisely apply to a shopkeeper, innkeeper, or tradesman forced under threat of retaliation by the state, to perform services or provide accommodation for someone against his will?
Lock your doors. The government can't force you to keep them open.

Captdon
03-21-2019, 12:19 PM
I am not sure what you are saying there.

Unless you fall into one of the protected classes and it can be established that you are being discriminated against because you are a member of one of those classes, people can discriminate against you all they want. They can discriminate against you because they don't like the way you tie your shoes and it is perfectly legal.

Yes, you can refuse service because of my tie. That's legal. You can't discriminate against me because I'm Catholic. That's illegal.

Captdon
03-21-2019, 12:20 PM
There is often a difference between "legal" and "right".

But, legal wins everytime.

DGUtley
03-21-2019, 12:20 PM
I don't believe I am. Quite often, laws are "settled" on the basis of political expedience and nothing more. You probably know that better than most. the ACA and the stunt Roberts pulled is a great example of that. Public Accommodation laws are another example. Repealing or overturning anti discrimination laws would be political suicide and probably cause a certain amount of public unrest. The fact that the laws should never have been enacted is pretty much irrelevant as far as the courts and the legislatureare concerned. They are not going to make a ruling they are reasonable sure will cause riots in the streets, even if that would be the right thing to do.

Involuntary servitude is generally defined as A condition of compulsory service or labor performed by one person, against his will, for the benefit of another person due to force, threats, intimidation or other similar means of coercion and compulsion directed against him. It has also been ruled (and I can probably find the reference later) that a state of involuntary servitude can exist even if the person in question is paid for his services.
How does that not precisely apply to a shopkeeper, innkeeper, or tradesman forced under threat of retaliation by the state, to perform services or provide accommodation for someone against his will?
I don't believe that public accommodation laws are for political expediency. Even if they were, which they aren't, again, the government would have a compelling governmental interest which would outweigh your right to not serve them. This has all been gone over and rejected. I don't have it in front of me, but it's there in very sound, rational, legal opinions.

Cletus
03-21-2019, 12:21 PM
Lock your doors. The government can't force you to keep them open.
That would be the coward's way.

Thinking like that would have kept us under the thumb of the Crown.

DGUtley
03-21-2019, 12:24 PM
If you want to operate a business in a regulated civilized society, you have to do so within the guidelines of the law. This isn't a free for all.

Cletus
03-21-2019, 12:27 PM
I don't believe that public accommodation laws are for political expediency. Even if they were, which they aren't, again, the government would have a compelling governmental interest which would outweigh your right to not serve them. This has all been gone over and rejected. I don't have it in front of me, but it's there in very sound, rational, legal opinions.
What "compelling governmental interest" would that be?

If a businessman refuses to serve ___________ (insert protected class of your choice) because he just doesn't like them, how is that more egregious than if he does so because someone is wearing an ugly tie? What compelling government interest is there in either case?

I disagree with the idea that any "government interest" can carry more weight than the Constitution.

Cletus
03-21-2019, 12:32 PM
If you want to operate a business in a regulated civilized society, you have to do so within the guidelines of the law. This isn't a free for all.

Just passing a law doesn't make something right or wrong.

Should Americans have the right to freely associate with people of their own choosing?

Should Americans be required under threat of force to perform labor on behalf of others against their will?

These are simple questions with yes or no answers.

DGUtley
03-21-2019, 12:33 PM
What "compelling governmental interest" would that be? If a businessman refuses to serve ___________ (insert protected class of your choice) because he just doesn't like them, how is that more egregious than if he does so because someone tie? What compelling government interest is there in either case? I disagree with the idea that any "government interest" can carry more weight than the Constitution.

You would be wrong. I linked to the opinion in the OP, read it. State Appellate court opinion: https://www.lambdalegal.org/sites/de...23_opinion.pdf (https://www.lambdalegal.org/sites/default/files/legal-docs/downloads/cervelli_hi_20180223_opinion.pdf)

DGUtley
03-21-2019, 12:36 PM
Just passing a law doesn't make something right or wrong. Should Americans have the right to freely associate with people of their own choosing? Should Americans be required under threat of force to perform labor on behalf of others against their will? These are simple questions with yes or no answers.

Yes.
The question is not an accurate description of the facts. The appropriate question would be: Should Americans be required under penalty of fine to adhere to public accommodation laws as a condition of a business license?

Peter1469
03-21-2019, 12:43 PM
That would be the coward's way.

Thinking like that would have kept us under the thumb of the Crown.
Constitutionally you are wrong on this single issue.

Cletus
03-21-2019, 01:48 PM
You would be wrong. I linked to the opinion in the OP, read it. State Appellate court opinion: https://www.lambdalegal.org/sites/de...23_opinion.pdf (https://www.lambdalegal.org/sites/default/files/legal-docs/downloads/cervelli_hi_20180223_opinion.pdf)

The last time I checked, the Constitution was still the Supreme Law of the Land and can't be changed or overridden by some state appellate court.

Cletus
03-21-2019, 01:52 PM
Constitutionally you are wrong on this single issue.
Cite the article which shows me to be wrong, please.

I am not interested in some opinion piece of some judge somewhere. I would like to see it contained in the words of the Constitution, itself.

Cletus
03-21-2019, 01:54 PM
Yes.
The question is not an accurate description of the facts. The appropriate question would be: Should Americans be required under penalty of fine to adhere to public accommodation laws as a condition of a business license?

Actually, I think a better question would be "Should public accommodation laws be allowed to be in effect if they violate the Constitution?"

nathanbforrest45
03-21-2019, 02:52 PM
Forcing me to open my business to all regardless of my personal preference seems to negate the Right To Liberty espoused in the Declaration of Independence. While the Declaration is not the Constitution it is the precepts upon with the Constitution is based. You should have the right to serve or not serve anyone you wish and that goes for that restaurant owner who wouldn't serve conservatives as well. You don't start a business in order to be a slave to all comers.

nathanbforrest45
03-21-2019, 02:57 PM
Equal protection under the law. Come on, you know that one.


What law requires me to serve anybody? There are upscale restaurants that require men to wear a coat and tie in order to be served. Does that not discriminate against those diners who want to wear golf shirts or wife beaters? What about the signs that say, No shirt, no shoes, no service? Does that not discriminate against those who want to go shirtless and barefoot?

nathanbforrest45
03-21-2019, 03:04 PM
I don't eat it. If this is where you are headed don't embarrass yourself by comparing two things that are not even similar.


Oh, man. I thought you were better than that. It doesn't matter if you eat it or not, I am sure you understand the basis for the question. Are you going to tell us you have no favorite TV show, movies, songs, restaurants, automobiles or any thing else? By choosing one over the other you are discriminating against the one you did not choose. If it is two different issues explain the phrase "He has discriminating taste" about some one who shows a preference for the very best?

DGUtley
03-21-2019, 03:47 PM
You can discriminate red tie / blue tie; Buckeye / *ichigan and other non-protected matters; but, you cannot discriminate against a protected class. None of your arguments are constitutionally valid. They have all been rejected.

Peter1469
03-21-2019, 04:31 PM
You can discriminate red tie / blue tie; Buckeye / *ichigan and other non-protected matters; but, you cannot discriminate against a protected class. None of your arguments are constitutionally valid. They have all been rejected.
And that isn't changing in the US. Even a 100% repub court will vote 9-0 to keep the law as it is.

DGUtley
03-21-2019, 04:43 PM
And that isn't changing in the US. Even a 100% repub court will vote 9-0 to keep the law as it is.

As well it should.

Cletus
03-21-2019, 05:06 PM
I don't eat it. If this is where you are headed don't embarrass yourself by comparing two things that are not even similar.

They are identical.

Every day of your life you discriminate hundreds of times. You decide who your friends are going to be. Would you like the state to determine that for you? You decide what colors you like, what foods you eat, what kind of car you drive... Would you like the state to dictate who you should marry because after all, everyone is equal, right? One wife or husband should be as good as any other.

The government has no business deciding for you with whom you should associate or to whom you should offer your labor. If they are FORCING you to work for someone under threat of penalty, that is about as wrong as it gets. That has happened lots of times in the past and it has never ended well. It almost destroyed us as a nation in the 1860s.

My labor and my time are MINE. They do not belong to the state. They have no right to tell me how I have to allocate them.

Cletus
03-21-2019, 05:08 PM
As well it should.
Why?

Be specific. You know I think highly of you and value your opinion, but I cannot wrap my head around the idea that the state effectively owns me and my labor.

Cletus
03-21-2019, 05:09 PM
Forcing me to open my business to all regardless of my personal preference seems to negate the Right To Liberty espoused in the Declaration of Independence. While the Declaration is not the Constitution it is the precepts upon with the Constitution is based. You should have the right to serve or not serve anyone you wish and that goes for that restaurant owner who wouldn't serve conservatives as well. You don't start a business in order to be a slave to all comers.
Absolutely spot on.

Cletus
03-21-2019, 05:10 PM
What law requires me to serve anybody? There are upscale restaurants that require men to wear a coat and tie in order to be served. Does that not discriminate against those diners who want to wear golf shirts or wife beaters? What about the signs that say, No shirt, no shoes, no service? Does that not discriminate against those who want to go shirtless and barefoot?
Of course it does.

Cletus
03-21-2019, 05:14 PM
You can discriminate red tie / blue tie; Buckeye / *ichigan and other non-protected matters; but, you cannot discriminate against a protected class. None of your arguments are constitutionally valid. They have all been rejected.
All that means is they have been rejected. It doesn't justify it.

The primacy of the rights of the individual is the foundation on which this country was built. For what valid reason is that no longer true?

The fact that some judges said so isn't an answer.

Cletus
03-21-2019, 05:14 PM
And that isn't changing in the US. Even a 100% repub court will vote 9-0 to keep the law as it is.
For political reasons.

Peter1469
03-21-2019, 05:29 PM
For political reasons.
Disagreed.

Cletus
03-21-2019, 05:34 PM
Disagreed.
Why do you disagree?

A certain poster on this forum once told me that no law should be passed unless there is a compelling reason to do so. That is one of the most sensible things I have ever heard.

What reason compels the government to strip some people of their basic right to free association and to not be forced to labor on behalf of another against their will? Just saying the Courts said so is not an answer, but it seems to be all I am getting.

Peter1469
03-21-2019, 05:57 PM
Why do you disagree?

A certain poster on this forum once told me that no law should be passed unless there is a compelling reason to do so. That is one of the most sensible things I have ever heard.

What reason compels the government to strip some people of their basic right to free association and to not be forced to labor on behalf of another against their will? Just saying the Courts said so is not an answer, but it seems to be all I am getting.
If DGUtley doesn't beat me to it I will find the relevant case law for the explanations relied on.

Dr. Who
03-21-2019, 06:58 PM
I don't believe I am.

Quite often, laws are "settled" on the basis of political expedience and nothing more. You probably know that better than most. the ACA and the stunt Roberts pulled is a great example of that. Public Accommodation laws are another example. Repealing or overturning anti discrimination laws would be political suicide and probably cause a certain amount of public unrest. The fact that the laws should never have been enacted is pretty much irrelevant as far as the courts and the legislatureare concerned. They are not going to make a ruling they are reasonable sure will cause riots in the streets, even if that would be the right thing to do.

Involuntary servitude is generally defined as A condition of compulsory service or labor performed by one person, against his will, for the benefit of another person due to force, threats, intimidation or other similar means of coercion and compulsion directed against him. It has also been ruled (and I can probably find the reference later) that a state of involuntary servitude can exist even if the person in question is paid for his services.

How does that not precisely apply to a shopkeeper, innkeeper, or tradesman forced under threat of retaliation by the state, to perform services or provide accommodation for someone against his will?
Running a business covered by the public accommodation laws is not a right. It is a voluntarily undertaken relationship between the owner of a business and a municipality (which is subordinate to the state) for the purpose of making money. No one is forced to run such a business - that would be involuntary servitude.

nathanbforrest45
03-21-2019, 09:31 PM
Don't care about what the "law" now states. I am speaking of the original intent of the Constitution and the very concept of individual freedom of assembly. I should have an unfettered right of free association of who ever I wish. The fact that this has been usurped by a court system that no longer believes in these concepts does not negate the fact this is how we should be allowed to live our lives.

Suppose the government finally revokes the 2nd Amendment and moves to disarm all of us. Does that fundamentally change our right of self defense against both a criminal element and an overreaching government?

nathanbforrest45
03-21-2019, 09:33 PM
Running a business covered by the public accommodation laws is not a right. It is a voluntarily undertaken relationship between the owner of a business and a municipality (which is subordinate to the state) for the purpose of making money. No one is forced to run such a business - that would be involuntary servitude.

You are being forced to run such a business, in a manner dictated by that government. I opened my business, not for a municipality but to make money by providing a service some may pay for. I cannot force anyone in the community to do business with me, why should they have the right to force me to chose who I wish to serve?

Dr. Who
03-21-2019, 10:25 PM
You are being forced to run such a business, in a manner dictated by that government. I opened my business, not for a municipality but to make money by providing a service some may pay for. I cannot force anyone in the community to do business with me, why should they have the right to force me to chose who I wish to serve?
No, you are not being forced. You are choosing that kind of enterprise and as with many other enterprises, there is a legal framework in which you have to operate. If you don't like the legal framework, find a different line of business.

If you don't like the law, then you have the option of uniting with likeminded people with a view to changing it. However, it's far more likely that the Constitution would be amended to incorporate the CRA.

Cletus
03-21-2019, 10:28 PM
Running a business covered by the public accommodation laws is not a right. It is a voluntarily undertaken relationship between the owner of a business and a municipality (which is subordinate to the state) for the purpose of making money. No one is forced to run such a business - that would be involuntary servitude.
I am so tired of hearing the same Leftist drivel over and over again. It is bullshit and if you don't know it is bullshit, any attempt to educate you would probably be futile.

You may want to look up what the phrase "pursuit of happiness" meant in 1776. Then look up "unalienable rights" and see what that means. Then, you can take them and put them together and see what you come up with.

Cletus
03-21-2019, 10:33 PM
Don't care about what the "law" now states. I am speaking of the original intent of the Constitution and the very concept of individual freedom of assembly. I should have an unfettered right of free association of who ever I wish. The fact that this has been usurped by a court system that no longer believes in these concepts does not negate the fact this is how we should be allowed to live our lives.

Suppose the government finally revokes the 2nd Amendment and moves to disarm all of us. Does that fundamentally change our right of self defense against both a criminal element and an overreaching government?

Why is this stuff so basic and obvious to some, but for others, you may as well be discussing String Theory? Are people really that ignorant of our history, or are they so indoctrinated they are incapable of thinking for themselves anymore?

Just AnotherPerson
03-21-2019, 10:34 PM
I am so tired of hearing the same Leftist drivel over and over again. It is bull$#@! and if you don't know it is bull$#@!, any attempt to educate you would probably be futile.

You may want to look up what the phrase "pursuit of happiness" meant in 1776. Then look up "unalienable rights" and see what that means. Then,you can take them and put them together and see what you come up with.
You hate it so bad that you spend your every waking moment diving straight into it. Sorry that statement struck me funny. LoL

Dr. Who
03-21-2019, 11:02 PM
I am so tired of hearing the same Leftist drivel over and over again. It is bullshit and if you don't know it is bullshit, any attempt to educate you would probably be futile.

You may want to look up what the phrase "pursuit of happiness" meant in 1776. Then look up "unalienable rights" and see what that means. Then, you can take them and put them together and see what you come up with.

As I suggested to NBF:
"If you don't like the law, then you have the option of uniting with likeminded people with a view to changing it. However, it's far more likely that the Constitution would be amended to incorporate the CRA."

This is 2019, not 1819. Refusal of service for bigoted reasons is no longer tolerable in any nation that wishes to be seen as socially advanced, in contrast to the socially and economically backward nations of the world. What you want would make America into a social pariah among western nations and it would have economic and political consequences.

Cletus
03-21-2019, 11:10 PM
As I suggested to NBF:
"If you don't like the law, then you have the option of uniting with likeminded people with a view to changing it. However, it's far more likely that the Constitution would be amended to incorporate the CRA."

This is 2019, not 1819. Refusal of service for bigoted reasons is no longer tolerable in any nation that wishes to be seen as socially advanced, in contrast to the socially and economically backward nations of the world. What you want would make America into a social pariah among western nations and it would have economic and political consequences.


It doesn't matter whether it is 2019, 1819, or 2525. This country was founded on the idea that the rights of the individual are paramount. People like you would subjugate the rights of the individual in favor of the rule of the mob.

You just don't get it. That is why you will always be a tool for those who would strip us all, including you of your most fundamental rights.

Dr. Who
03-21-2019, 11:20 PM
It doesn't matter whether it is 2019, 1819, or 2525. This country was founded on the idea that the rights of the individual are paramount. People like you would subjugate the rights of the individual in favor of the rule of the mob.

You just don't get it. That is why you will always be a tool for those who would strip us all, including you of your most fundamental rights.
If you don't like the law, then you have the option of uniting with likeminded people with a view to changing it. You can rail against it on this forum and cast aspersions against me, but I'm pretty sure that you know that the Constitution would be far more likely to be amended to incorporate the CRA before the nation would revert to the time where bigotry ruled. The majority of people do not want to live in a new version of the old South Africa.

Tahuyaman
03-21-2019, 11:42 PM
The last time I checked, the Constitution was still the Supreme Law of the Land and can't be changed or overridden by some state appellate court.

It can't be overridden, but it can be misinterpreted as it routinely is.

Cletus
03-22-2019, 12:25 AM
If you don't like the law, then you have the option of uniting with likeminded people with a view to changing it. You can rail against it on this forum and cast aspersions against me, but I'm pretty sure that you know that the Constitution would be far more likely to be amended to incorporate the CRA before the nation would revert to the time where bigotry ruled. The majority of people do not want to live in a new version of the old South Africa.
How you think the Constitution would be amended to read is completely irrelevant. What kind of a country you want to live in is also of absolutely no importance.

What matters is how it DOES read.

Bigotry never "ruled" in this country. It is nonsense like that which makes people go "Oh, here is she is again..." when you show up on a serious thread.

Cletus
03-22-2019, 12:27 AM
It can't be overridden, but it can be misinterpreted as it routinely is.

To be honest, I think a lot of these judges think like Who does and just decide the Constitution says what they want it to say, regardless of how it actually reads. It isn't about misinterpreting it. It is about effectively rewriting it to suit themselves.

Peter1469
03-22-2019, 05:00 AM
I will take a look sometime today for the relevant cases and the current state of the law and hopefully offer an opinion as to whether it is on firm constitutional grounds.

nathanbforrest45
03-22-2019, 06:37 AM
Why is this stuff so basic and obvious to some, but for others, you may as well be discussing String Theory? Are people really that ignorant of our history, or are they so indoctrinated they are incapable of thinking for themselves anymore?
Both.

nathanbforrest45
03-22-2019, 06:43 AM
As I suggested to NBF:
"If you don't like the law, then you have the option of uniting with likeminded people with a view to changing it. However, it's far more likely that the Constitution would be amended to incorporate the CRA."

This is 2019, not 1819. Refusal of service for bigoted reasons is no longer tolerable in any nation that wishes to be seen as socially advanced, in contrast to the socially and economically backward nations of the world. What you want would make America into a social pariah among western nations and it would have economic and political consequences.

Who gives a flying fig what the rest of the world thinks of us? I don't. Because of our initial freedoms, which are being eroded before our very eyes, we became the richest, most advanced nation in the history of the world. We are now coasting on our past successes. Soon we will run out of the past and reap what our future has in store. If it wasn't for the United States 3/4's of the entire would would still be in the Middle Ages. Are we perfect? No, of course not, there is no such thing as "perfect", there is always room for improvement. But reducing us back into serfdom and committing cultural suicide is pure insanity.

DGUtley
03-22-2019, 06:54 AM
"I can explain it to you, but I can't comprehend it for you.” ― Edward I. Koch


25635

donttread
03-22-2019, 09:17 AM
If the B&B owner receives no government assistance , even local tax breaks, then they can do business with whomever they choose. If they have help it would be different.

Cletus
03-22-2019, 09:20 AM
"I can explain it to you, but I can't comprehend it for you.” ― Edward I. Koch

To date, your only "explanation" has been "It is illegal because the law says it is illegal", which of course means absolutely nothing. Congress could pass a law reinstituting slavery or making it legal to hunt and kill people who are left eye dominant and it would be legal to do so until enough people stood up and stopped the nonsense.

What I have asked for is the compelling argument behind the law. What could possibly justify stripping Americans of their inherent right to associate with whomever they choose and not associate with whomever they choose. What compelling reason could justify forcing an American to labor on behalf of another against his will under threat of penalty if he refuses to do so?

I haven't seen any rationale for this law put forth. All I have seen is essentially "That's the way it is".

By the way... I don't need anyone to comprehend anything for me. I just like people to be able to explain their positions rather than just keep spewing meaningless nonsense over and over again.

MisterVeritis
03-22-2019, 09:24 AM
Why is this stuff so basic and obvious to some, but for others, you may as well be discussing String Theory? Are people really that ignorant of our history, or are they so indoctrinated they are incapable of thinking for themselves anymore?
String theory. Everytime I see that phrase I positively vibrate!

DGUtley
03-22-2019, 09:34 AM
To date, your only "explanation" has been "It is illegal because the law says it is illegal", which of course means absolutely nothing. Congress could pass a law reinstituting slavery or making it legal to hunt and kill people who are left eye dominant and it would be legal to do so until enough people stood up and stopped the nonsense. What I have asked for is the compelling argument behind the law. What could possibly justify stripping Americans of their inherent right to associate with whomever they choose and not associate with whomever they choose. What compelling reason could justify forcing an American to labor on behalf of another against his will under threat of penalty if he refuses to do so? I haven't seen any rationale for this law put forth. All I have seen is essentially "That's the way it is". By the way... I don't need anyone to comprehend anything for me. I just like people to be able to explain their positions rather than just keep spewing meaningless nonsense over and over again.

Actually, it means everything - the law is what the law is. Congress would have to change the constitution to reinstitute slavery. Regardless, I've asked you to read the opinion, did you do that? It discusses the notion of compelling reason. I really can't give you 200 years of jurisprudence in an internet blog response. I'm sorry. I think we covered the 13th Amendment issue previously. Maybe it wasn't you, but we went into it previously.

MisterVeritis
03-22-2019, 09:53 AM
Yes.
The question is not an accurate description of the facts. The appropriate question would be: Should Americans be required under penalty of fine to adhere to public accommodation laws as a condition of a business license?
Why should the state have the authority to license a business?

Cletus
03-22-2019, 09:59 AM
Who gives a flying fig what the rest of the world thinks of us? I don't. Because of our initial freedoms, which are being eroded before our very eyes, we became the richest, most advanced nation in the history of the world. We are now coasting on our past successes. Soon we will run out of the past and reap what our future has in store. If it wasn't for the United States 3/4's of the entire would would still be in the Middle Ages. Are we perfect? No, of course not, there is no such thing as "perfect", there is always room for improvement. But reducing us back into serfdom and committing cultural suicide is pure insanity.

Well spoken.

Who won't understand it, but it was well said.

Cletus
03-22-2019, 10:05 AM
Actually, it means everything - the law is what the law is. Congress would have to change the constitution to reinstitute slavery.

No, it wouldn't. It could pass the law and then someone would have to challenge it and it would have to work its way through the courts until it hit the Supreme Court. That process could take years, during which slavery would again be legal. After all, it would be the law.


Regardless, I've asked you to read the opinion, did you do that? It discusses the notion of compelling reason.

I didn't see it. I'll go back and look.


I think we covered the 13th Amendment issue previously. Maybe it wasn't you, but we went into it previously.

The 13th Amendment says what it says. The opinion of some political appointee judge can't change it.

Cletus
03-22-2019, 10:07 AM
Why should the state have the authority to license a business?

It shouldn't.

DGUtley
03-22-2019, 10:21 AM
Actually, it should and does. For example, the state has police power through the 10th Amendment of the US Constitution -- which gives the states the powers not delegated to the US. That gives the state the power to establish and enforce laws protecting the welfare, safety and health of the public -- the right to regulate businesses. An individual's right to engage in a chosen business or profession is not absolute; a state may act pursuant to its police powers to regulate or prohibit a business or profession so long as its actions are necessary for the public welfare. State ex rel. Clark v. Brown (1965), 1 Ohio St.2d 121, 30 O.O.2d 478, 205 N.E.2d 377; (https://1.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=1965116091&pubNum=578&originatingDoc=I682fd615d3bf11d99439b076ef9ec4de&refType=RP&originationContext=document&transitionType=DocumentItem&contextData=(sc.Search))Great Atlantic & Pacific Tea Co. v. Grosjean (1937), 301 U.S. 412, 57 S.Ct. 772, 81 L.Ed. 1193; (https://1.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=1937122699&pubNum=708&originatingDoc=I682fd615d3bf11d99439b076ef9ec4de&refType=RP&originationContext=document&transitionType=DocumentItem&contextData=(sc.Search))Murphy v. California (1912), 225 U.S. 623, 32 S.Ct. 697, 56 L.Ed. 1229. (https://1.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=1912100462&pubNum=708&originatingDoc=I682fd615d3bf11d99439b076ef9ec4de&refType=RP&originationContext=document&transitionType=DocumentItem&contextData=(sc.Search)) Regulation of the practice of medicine is necessary to protect public health and safety. See Hawker v. New York (1898), 170 U.S. 189, 18 S.Ct. 573, 42 L.Ed. 1002 (https://1.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=1898145940&pubNum=0000708&originatingDoc=I682fd615d3bf11d99439b076ef9ec4de&refType=RP&originationContext=document&transitionType=DocumentItem&contextData=(sc.Search)) (upheld statute prohibiting convicted felon from practicing medicine because physician “should be one who may safely be trusted”); [/URL][URL="https://1.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=1889180005&pubNum=0000708&originatingDoc=I682fd615d3bf11d99439b076ef9ec4de&refType=RP&originationContext=document&transitionType=DocumentItem&contextData=(sc.Search)"]Dent v. W. Virginia (1889), 129 U.S. 114, 9 S.Ct. 231, 32 L.Ed. 623 (https://1.next.westlaw.com/Link/RelatedInformation/Flag?documentGuid=If23570b59cc111d9bdd1cfdd544ca3a 4&transitionType=InlineKeyCiteFlags&originationContext=docHeaderFlag&contextData=(sc.Search)) (upheld state's right under its police powers to require that physicians be licensed); Nesmith v. State (1920), 101 Ohio St. 158, 128 N.E. 57 (https://1.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=1920135043&pubNum=0000577&originatingDoc=I682fd615d3bf11d99439b076ef9ec4de&refType=RP&originationContext=document&transitionType=DocumentItem&contextData=(sc.Search)) (predecessor to R.C. Chapter 4731 upheld as constitutional as being within the state's police power and necessary for the regulation of public health).

Cletus
03-22-2019, 10:27 AM
"... so long as its actions are necessary for the public welfare".

The state should be required to demonstrate that its actions are "necessary for the public welfare" in every single instance.

DGUtley
03-22-2019, 10:31 AM
"... so long as its actions are necessary for the public welfare". The state should be required to demonstrate that its actions "necessary for the public welfare" in every single instance.

That was 30 seconds on Westlaw.

I don't think that's the law. The state has the power and therefore (I believe) the law is presumed constitutionally valid and it's incumbent on the citizen to prove otherwise. The burden is on the challenger.

Cletus
03-22-2019, 10:34 AM
The burden should ALWAYS be on the state.

DGUtley
03-22-2019, 10:40 AM
The burden should ALWAYS be on the state.

No. If the state exercises legitimate power, the burden is always on the one challenging it - I believe.

Captdon
03-22-2019, 10:54 AM
Actually, I think a better question would be "Should public accommodation laws be allowed to be in effect if they violate the Constitution?"

Free association appears nowhere in the Constitution. That's what you are talking about. The answer is no, you can't choose your customers without a valid treason that applies to everyone.The business license is a great example. If the state gives you a license to have a business they can't allow you to use it to discriminate. If they allow you to deduct expenses from your taxes they cannot allow it either.

The point is you aren't going to be allowed to do it. Nothing you are told is going to change what you think so you'll have to live with it.

Captdon
03-22-2019, 10:58 AM
What law requires me to serve anybody? There are upscale restaurants that require men to wear a coat and tie in order to be served. Does that not discriminate against those diners who want to wear golf shirts or wife beaters? What about the signs that say, No shirt, no shoes, no service? Does that not discriminate against those who want to go shirtless and barefoot?

Someone mentioned that if you want certain rules, start a club.
All of your examples apply to everyone. You are trying to deflect. The right to do any of the things you mention are not Constitutional rights. If you say only white people have to wear a tie, you are discriminating against white people. Whites are not a protected class so that argument fails.

Captdon
03-22-2019, 11:01 AM
Oh, man. I thought you were better than that. It doesn't matter if you eat it or not, I am sure you understand the basis for the question. Are you going to tell us you have no favorite TV show, movies, songs, restaurants, automobiles or any thing else? By choosing one over the other you are discriminating against the one you did not choose. If it is two different issues explain the phrase "He has discriminating taste" about some one who shows a preference for the very best?

I thought you both were better than that. You are using a cartoon argument. If you don't know the difference I feel sorry for you but I don't know how to change you. You fight your fight and I'll fight mine.

Captdon
03-22-2019, 11:04 AM
Why do you disagree?

A certain poster on this forum once told me that no law should be passed unless there is a compelling reason to do so. That is one of the most sensible things I have ever heard.

What reason compels the government to strip some people of their basic right to free association and to not be forced to labor on behalf of another against their will? Just saying the Courts said so is not an answer, but it seems to be all I am getting.

Show me where you have the right to free association in the Constitution.

Captdon
03-22-2019, 11:08 AM
No, you are not being forced. You are choosing that kind of enterprise and as with many other enterprises, there is a legal framework in which you have to operate. If you don't like the legal framework, find a different line of business.

If you don't like the law, then you have the option of uniting with likeminded people with a view to changing it. However, it's far more likely that the Constitution would be amended to incorporate the CRA.

Every business has regulations and laws that have to be followed. You can't operate a business with unsafe conditions. You have to pay FICA taxes. You have to do any number of things. Not discriminating is one of them.

Captdon
03-22-2019, 11:13 AM
Why is this stuff so basic and obvious to some, but for others, you may as well be discussing String Theory? Are people really that ignorant of our history, or are they so indoctrinated they are incapable of thinking for themselves anymore?

I'm not ignorant of our history and I don;t need you to do my thinking. I do believe you need help treading the Constitution. Freedom of assembly has nothing to do with business. You ought to know that. If not, you should read the document.

It is really odd that people will say something is in the Constitution and it isn't. It is such a short document. It even provides for changing it.

Captdon
03-22-2019, 11:18 AM
Why should the state have the authority to license a business?

They have the right ot do anything that isn't covered by the Constitution. Come on,you know that.The state could tax you 100% of your pay if it chose to.


The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Cletus
03-22-2019, 11:30 AM
Free association appears nowhere in the Constitution.


I guess you have never heard of unenumerated rights.


That's what you are talking about. The answer is no, you can't choose your customers without a valid treason that applies to everyone.

Okay, here is the question that no one on this forum has yet to answer... Why not? It is YOUR business. It doesn't belong to the state. It is YOUR labor. It doesn't belong to the state.

Answer that question and don't give me the standard "Because it is the law" nonsense. Tell me WHY.

I'll bet you can't give me a reason to strip someone of a most basic right in order to benefit someone else, but by all means, please try.


The business license is a great example. If the state gives you a license to have a business they can't allow you to use it to discriminate. If they allow you to deduct expenses from your taxes they cannot allow it either.

That is meaningless gobbledygook.


The point is you aren't going to be allowed to do it. Nothing you are told is going to change what you think so you'll have to live with it.

More weasel talk. So far, no one has given me any reason to change my mind. Just saying "It's the law" is nothing. Anything can be made law. Tell me why the law is RIGHT.

Cletus
03-22-2019, 11:32 AM
I'm not ignorant of our history and I don;t need you to do my thinking. I do believe you need help treading the Constitution. Freedom of assembly has nothing to do with business. You ought to know that. If not, you should read the document.

It is really odd that people will say something is in the Constitution and it isn't. It is such a short document. It even provides for changing it.

I never said anything about "freedom of assembly". Why would you claim I did?

DGUtley
03-22-2019, 12:38 PM
It is RIGHT because we as a society have to associate amongst ourselves and have collectively decided it is RIGHT. The police power is a power of the governed through the government, reserved thereto through the Constitution's 10th Amendment. The people collectively through their representatives have enacted valid laws (remember that police power) governing our interactions and businesses' obligations to transact business. As society and as we have evolved, those laws have changed through the valid exercise of the police power. We have evolved to the point where it is no longer permissible to discriminate against certain protected classes. There are times where I may disagree that a law is RIGHT but I can accept and acknowledge the validity of same through the police powers of the state.

donttread
03-22-2019, 12:45 PM
Every business has regulations and laws that have to be followed. You can't operate a business with unsafe conditions. You have to pay FICA taxes. You have to do any number of things. Not discriminating is one of them.



The non-discrimination clause is not related to customers

Cletus
03-22-2019, 01:14 PM
It is RIGHT because we as a society have to associate amongst ourselves and have collectively decided it is RIGHT. The police power is a power of the governed through the government, reserved thereto through the Constitution's 10th Amendment. The people collectively through their representatives have enacted valid laws (remember that police power) governing our interactions and businesses' obligations to transact business. As society and as we have evolved, those laws have changed through the valid exercise of the police power. We have evolved to the point where it is no longer permissible to discriminate against certain protected classes. There are times where I may disagree that a law is RIGHT but I can accept and acknowledge the validity of same through the police powers of the state.


Okay, we are just going to have to disagree on this. I acknowledge it is the law, but I contend that the law is wrong and that the rights of the individual should always trump the will of the mob. When we reach the point when a man cannot choose not to labor on behalf of another against his will or associate only with the people of his choice, we have lost some our most basic freedoms and created a huge crack in the very foundation of our system of government and tossed away the ideals upon which this country was founded.

It is a shameful thing.

MisterVeritis
03-22-2019, 01:25 PM
Actually, it should and does. For example, the state has police power through the 10th Amendment of the US Constitution -- which gives the states the powers not delegated to the US. That gives the state the power to establish and enforce laws protecting the welfare, safety and health of the public -- the right to regulate businesses. An individual's right to engage in a chosen business or profession is not absolute; a state may act pursuant to its police powers to regulate or prohibit a business or profession so long as its actions are necessary for the public welfare. State ex rel. Clark v. Brown (1965), 1 Ohio St.2d 121, 30 O.O.2d 478, 205 N.E.2d 377; (https://1.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=1965116091&pubNum=578&originatingDoc=I682fd615d3bf11d99439b076ef9ec4de&refType=RP&originationContext=document&transitionType=DocumentItem&contextData=(sc.Search))Great Atlantic & Pacific Tea Co. v. Grosjean (1937), 301 U.S. 412, 57 S.Ct. 772, 81 L.Ed. 1193; (https://1.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=1937122699&pubNum=708&originatingDoc=I682fd615d3bf11d99439b076ef9ec4de&refType=RP&originationContext=document&transitionType=DocumentItem&contextData=(sc.Search))Murphy v. California (1912), 225 U.S. 623, 32 S.Ct. 697, 56 L.Ed. 1229. (https://1.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=1912100462&pubNum=708&originatingDoc=I682fd615d3bf11d99439b076ef9ec4de&refType=RP&originationContext=document&transitionType=DocumentItem&contextData=(sc.Search)) Regulation of the practice of medicine is necessary to protect public health and safety. See Hawker v. New York (1898), 170 U.S. 189, 18 S.Ct. 573, 42 L.Ed. 1002 (https://1.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=1898145940&pubNum=0000708&originatingDoc=I682fd615d3bf11d99439b076ef9ec4de&refType=RP&originationContext=document&transitionType=DocumentItem&contextData=(sc.Search)) (upheld statute prohibiting convicted felon from practicing medicine because physician “should be one who may safely be trusted”); Dent v. W. Virginia (1889), 129 U.S. 114, 9 S.Ct. 231, 32 L.Ed. 623 (https://1.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=1889180005&pubNum=0000708&originatingDoc=I682fd615d3bf11d99439b076ef9ec4de&refType=RP&originationContext=document&transitionType=DocumentItem&contextData=(sc.Search)) (upheld state's right under its police powers to require that physicians be licensed); Nesmith v. State (1920), 101 Ohio St. 158, 128 N.E. 57 (https://1.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=1920135043&pubNum=0000577&originatingDoc=I682fd615d3bf11d99439b076ef9ec4de&refType=RP&originationContext=document&transitionType=DocumentItem&contextData=(sc.Search)) (predecessor to R.C. Chapter 4731 upheld as constitutional as being within the state's police power and necessary for the regulation of public health).
You are saying what is. I am asking about what ought to be. All sovereignty resides in the people. We give some of it up to the State and to the Federal government. Why should I have to get permission from my city, county, and state, to start a business?

Let the state make necessary laws and enforce them. It is not necessary to tax me through yet another fee or license because I want to start and run a business.

MisterVeritis
03-22-2019, 01:27 PM
Free association appears nowhere in the Constitution. That's what you are talking about. The answer is no, you can't choose your customers without a valid treason that applies to everyone.The business license is a great example. If the state gives you a license to have a business they can't allow you to use it to discriminate. If they allow you to deduct expenses from your taxes they cannot allow it either.

The point is you aren't going to be allowed to do it. Nothing you are told is going to change what you think so you'll have to live with it.
Why should the city, county and State have any say in my starting a business?

MisterVeritis
03-22-2019, 01:29 PM
Someone mentioned that if you want certain rules, start a club.
All of your examples apply to everyone. You are trying to deflect. The right to do any of the things you mention are not Constitutional rights. If you say only white people have to wear a tie, you are discriminating against white people. Whites are not a protected class so that argument fails.
You are making the point that we are no longer equal before the law. As one author wrote, we are all equal but some are more equal than others.

MisterVeritis
03-22-2019, 01:32 PM
You can discriminate red tie / blue tie; Buckeye / *ichigan and other non-protected matters; but, you cannot discriminate against a protected class. None of your arguments are constitutionally valid. They have all been rejected.
I appreciate your explanation that the Constitution means nothing. We are no longer equal before the law.

MisterVeritis
03-22-2019, 01:34 PM
And that isn't changing in the US. Even a 100% repub court will vote 9-0 to keep the law as it is.
This is one reason why the nation will fail. Even when the right people have power nothing changes. The nation is allowed to move in one direction only, from more liberty to less liberty. From Constitutional republicanism to marxist socialism.

MisterVeritis
03-22-2019, 01:35 PM
As well it should.
You err. This thinking is why we are in the danger we are in.

Cletus
03-22-2019, 01:35 PM
You are saying what is. I am asking about what ought to be. All sovereignty resides in the people. We give some of it up to the State and to the Federal government. Why should I have to get permission from my city, county, and state, to start a business?

Let the state make necessary laws and enforce them. It is not necessary to tax me through yet another fee or license because I want to start and run a business.

Huzzah!

Well said.

MisterVeritis
03-22-2019, 01:38 PM
Running a business covered by the public accommodation laws is not a right. It is a voluntarily undertaken relationship between the owner of a business and a municipality (which is subordinate to the state) for the purpose of making money. No one is forced to run such a business - that would be involuntary servitude.
You and our lawyer friends have tossed the very idea of liberty on its head. I have a right to life, liberty and property. Those rights mean little if the State can compel me, against my will, to do as it wishes rather than as I wish.

MisterVeritis
03-22-2019, 01:47 PM
Free association appears nowhere in the Constitution. That's what you are talking about. The answer is no, you can't choose your customers without a valid treason that applies to everyone.The business license is a great example. If the state gives you a license to have a business they can't allow you to use it to discriminate. If they allow you to deduct expenses from your taxes they cannot allow it either.

The point is you aren't going to be allowed to do it. Nothing you are told is going to change what you think so you'll have to live with it.
The Constitution places limits on the Government. It is a grant of authority from the people and the States to the Federal government. If the power is not granted then its exercise by the federal government is unconstitutional.

I wonder if the State Constitutions shouldn't also be considered a grant of sovereignty from people to the State. The State should not have the power to grant or deny the person the right to start and run a business.

MisterVeritis
03-22-2019, 01:51 PM
Show me where you have the right to free association in the Constitution.
I offer you the opportunity to review the tenth amendment.

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

MisterVeritis
03-22-2019, 01:53 PM
I'm not ignorant of our history and I don't need you to do my thinking. I do believe you need help treading the Constitution. Freedom of assembly has nothing to do with business. You ought to know that. If not, you should read the document.

It is really odd that people will say something is in the Constitution and it isn't. It is such a short document. It even provides for changing it.
You should be more cautious.

MisterVeritis
03-22-2019, 01:56 PM
Why should the state have the authority to license a business?

They have the right ot do anything that isn't covered by the Constitution. Come on,you know that.The state could tax you 100% of your pay if it chose to.
No. States have Constitutions as well. Many things are simply assumed to be acceptable.

We have the right to alter, abolish, rebel and overthrow, any government that is no longer beneficial.

Peter1469
03-22-2019, 05:58 PM
If the B&B owner receives no government assistance , even local tax breaks, then they can do business with whomever they choose. If they have help it would be different.
Got a case citation for that? You could check out: Smith, 494 US 872 (1990)

Peter1469
03-22-2019, 06:01 PM
That was 30 seconds on Westlaw.

I don't think that's the law. The state has the power and therefore (I believe) the law is presumed constitutionally valid and it's incumbent on the citizen to prove otherwise. The burden is on the challenger.
The Founders never questioned corporate law. It exited after the signing of the Constitution exactly as it was prior to the signing of the Constitution.

Peter1469
03-22-2019, 06:05 PM
You are saying what is. I am asking about what ought to be. All sovereignty resides in the people. We give some of it up to the State and to the Federal government. Why should I have to get permission from my city, county, and state, to start a business?

Let the state make necessary laws and enforce them. It is not necessary to tax me through yet another fee or license because I want to start and run a business.
Sovereignty in the sense of statehood most certainly does not rest with individuals. Under the US Constitution, the feds have only the enumerated powers in Art. 1, sec. 8. States have power to regulate life, health, and safety issues. The remaining things in life are left to individuals, but all of those do not create a sovereign in the political sense of the word.

Peter1469
03-22-2019, 06:07 PM
Why should the city, county and State have any say in my starting a business?
Never in US history have states not regulated businesses. At the time of the Founding, some regulations on corporations were much stricter than they are today.

Peter1469
03-22-2019, 06:08 PM
This is one reason why the nation will fail. Even when the right people have power nothing changes. The nation is allowed to move in one direction only, from more liberty to less liberty. From Constitutional republicanism to marxist socialism.
I don't believe that.

Chris
03-22-2019, 06:16 PM
I don't believe that.

Right, it doesn't have to be that way.

Cletus
03-22-2019, 06:34 PM
I don't believe that.

Whether it will move toward Marxist Socialism, I can't say, although it does seem likely. He is absolutely correct is saying we are moving in one direction, only... "from more liberty to less liberty".

Cletus
03-22-2019, 06:36 PM
Right, it doesn't have to be that way.
It may not have to, but it is happening.

What is most tragic is that it is happening with the consent and in some cases, even the urging of the unwashed masses.

Chris
03-22-2019, 07:08 PM
It may not have to, but it is happening.

What is most tragic is that it is happening with the consent and in some cases, even the urging of the unwashed masses.


I agree it is happening.

MisterVeritis
03-22-2019, 07:11 PM
Sovereignty in the sense of statehood most certainly does not rest with individuals. Under the US Constitution, the feds have only the enumerated powers in Art. 1, sec. 8. States have power to regulate life, health, and safety issues. The remaining things in life are left to individuals, but all of those do not create a sovereign in the political sense of the word.
Then we will always be doomed. If the consent of the government is irrelevant then we shall always have tyranny.

If the people are not the source of sovereignty then liberty does not exist. Nor do rights.

MisterVeritis
03-22-2019, 07:12 PM
Never in US history have states not regulated businesses. At the time of the Founding, some regulations on corporations were much stricter than they are today.
I am not arguing about what is. I am discussing what should be.

MisterVeritis
03-22-2019, 07:13 PM
This is one reason why the nation will fail. Even when the right people have power nothing changes. The nation is allowed to move in one direction only, from more liberty to less liberty. From Constitutional republicanism to Marxist socialism.

I don't believe that.
What examples can you point to assuage my concern?

MisterVeritis
03-22-2019, 07:14 PM
This is one reason why the nation will fail. Even when the right people have power nothing changes. The nation is allowed to move in one direction only, from more liberty to less liberty. From Constitutional republicanism to Marxist socialism.

Right, it doesn't have to be that way.
Can you give me any examples of Republicans rolling back the massive administrative State?

MisterVeritis
03-22-2019, 07:17 PM
It is RIGHT because we as a society have to associate amongst ourselves and have collectively decided it is RIGHT. The police power is a power of the governed through the government, reserved thereto through the Constitution's 10th Amendment. The people collectively through their representatives have enacted valid laws (remember that police power) governing our interactions and businesses' obligations to transact business. As society and as we have evolved, those laws have changed through the valid exercise of the police power. We have evolved to the point where it is no longer permissible to discriminate against certain protected classes. There are times where I may disagree that a law is RIGHT but I can accept and acknowledge the validity of same through the police powers of the state.
That is not what happened.

It is time to review state Constitutions.

Chris
03-22-2019, 08:15 PM
Whether it will move toward Marxist Socialism, I can't say, although it does seem likely. He is absolutely correct is saying we are moving in one direction, only... "from more liberty to less liberty".

Totalitarianism--be it Marxist Socialism or State Capitalism: centralized authority, mass of men, nothing in between.

Chris
03-22-2019, 08:19 PM
This is one reason why the nation will fail. Even when the right people have power nothing changes. The nation is allowed to move in one direction only, from more liberty to less liberty. From Constitutional republicanism to marxist socialism.


This is one reason why the nation will fail. Even when the right people have power nothing changes. The nation is allowed to move in one direction only, from more liberty to less liberty. From Constitutional republicanism to Marxist socialism.

Can you give me any examples of Republicans rolling back the massive administrative State?


There are no right people. No one or elite few should ever have so much power.

MisterVeritis
03-22-2019, 09:35 PM
There are no right people. No one or elite few should ever have so much power.
This is absolute nonsense. The right people are the ones who are Constitutional Conservatives.

Peter1469
03-23-2019, 05:43 AM
The issue that has everyone worked up is the rights of business owners to “be left alone” (from the state) (this phrase combines a couple of Constitutional rights) versus public accommodation laws which prevent discrimination against certain classes of people and the disabled. The OP offered the B&B case from Hawaii where a B&B denied service to a lesbian couple. The trial court and the appeals court ruled in favor of the plaintiffs.

The complaint was based off a Hawaii state statute covering unlawful discriminatory practices in places of public accommodation. Public accommodation included hotels and transitory housing (as opposed to long term housing). The B&B owner relied on a separate Hawaii state statute that allowed business located inside the owner’s personal home to be exempt from some requirements in state law (That law referred to long term housing). The B&B owner also relied on the Constitutional rights of free expression of religion and the various clauses that suggest a right to privacy / freedom of association.

There was no question that the only reason the couple were denied the room was because of their sexual orientation. The B&B said as much. Another critical set of facts relate to the B&B’s business practices. It advertised itself on all of the free travel websites and some critical pay travel websites. Those adverts suggest that the B&B was open to all who can pay. (The case goes into detail.)

So the trial court and appellate court had to balance competing rights. The nondiscrimination rights emit from the BoR, the 14th Amendment, and the 1964 Civil Rights Act. That created protected classes of people: race, sex, color, religion, national origin, and disability. State laws add age, sex, sexual orientation, and gender identity. These conflict with the Constitutional rights to freedom of association, the general right to be left alone from the state, the right of intimate association, and religious rights.

In the OP, the court concluded that despite the fact the B&B was the owner’s home (typical for B&Bs) the B&B was a place of public accommodation and not subject to the exemption cited to by the defense for two reasons: first it meets the statutory definition which includes several factors that you can see in the case; second the courts looked at the B&B’s marketing and the way it presented itself to the public. No way this place was not a place of public accommodation based on both factors. The Appeals court relied on a SCOTUS case in deciding for the lesbians.

Employment Division v. Smith, 494 US 872 (1990). This was a case where two state employees (drug rehab workers) got busted for smoking peyote. They were fired from their state jobs and denied unemployment compensation because they were fired for a crime (smoking the peyote). The two ex-employees sued relying among other things the Constitutional free exercise of religion. The case reached SCOTUS. SCOTUS held that the right to the free exercise of religion does not relieve an individual of the obligation to comply with valid neutral laws of general applicability. That is the important part for the OP’s case.


So why does a place of public accommodation take rights away from the owner in favor of potential customers? As we have seen in recent discussion on the forum in most cases we are faced with conflicting Constitutional rights. One side has valid rights at issue. The other side does as well. So courts have to balance those competing rights.

I think from the two cases discussed above (B&B and Smith) state that neutral general laws that apply to everyone can trump other constitutional rights in places of public accommodation. Solution, do not get in a business associated with places of public accommodation. Start a private club.

I realize that some will not be concerned with the state of constitutional law in the US and instead want to know "what should be" as opposed to what is. That is a valid concern. It is very tempting to want the side of free association, freedom of religious expression, etc. to prevail. That is my personal preference.

Yet, we live in a very large and diverse society. At some point, even the most die hard individualist has to accept that valid rights are going to conflict. When that happens the courts typically get involved to resolve the legal issues. At least for public accommodations, I think SCOTUS and Hawaii got it right. However, I would like to see certain changes to law and regulations that could alter the outcome of the OP's case.

I have long said here that small business and large business should be regulated by two separate codes. This would be beneficial in many ways to include eliminating the opportunity of large businesses to lobby Congress for business regulations that harm their small business competitors and to allow our small, closely held businesses to take actions that large profit focused businesses cannot.

In other words, a small business code can say that small closely held businesses can decide to not serve people for religions reasons, or other reasons. B&Bs are not hotels. A good B&B is an personal experience- the owners make and serve meals and often eat with their guests. They are available to discuss locale attractions or just to talk about whatever. So for the State to demand a B&B owner to accept guests that they morally are opposed to seems to fail the balancing act between to legitimate rights based on the facts of the case at hand. A Marriott should not be allowed to discriminate on the basis of sexual orientation, but a B&B should- based on what I said above.

If you read this far, thanks.

DGUtley
03-23-2019, 07:09 AM
Peter, thanks for taking the time to do this. Dave.

Chris
03-23-2019, 08:08 AM
This is absolute nonsense. The right people are the ones who are Constitutional Conservatives.

What have they done to stop the centralization of power?

Chris
03-23-2019, 08:16 AM
The issue that has everyone worked up is the rights of business owners to “be left alone” (from the state) (this phrase combines a couple of Constitutional rights) versus public accommodation laws which prevent discrimination against certain classes of people and the disabled. The OP offered the B&B case from Hawaii where a B&B denied service to a lesbian couple. The trial court and the appeals court ruled in favor of the plaintiffs.

The complaint was based off a Hawaii state statute covering unlawful discriminatory practices in places of public accommodation. Public accommodation included hotels and transitory housing (as opposed to long term housing). The B&B owner relied on a separate Hawaii state statute that allowed business located inside the owner’s personal home to be exempt from some requirements in state law (That law referred to long term housing). The B&B owner also relied on the Constitutional rights of free expression of religion and the various clauses that suggest a right to privacy / freedom of association.

There was no question that the only reason the couple were denied the room was because of their sexual orientation. The B&B said as much. Another critical set of facts relate to the B&B’s business practices. It advertised itself on all of the free travel websites and some critical pay travel websites. Those adverts suggest that the B&B was open to all who can pay. (The case goes into detail.)

So the trial court and appellate court had to balance competing rights. The nondiscrimination rights emit from the BoR, the 14th Amendment, and the 1964 Civil Rights Act. That created protected classes of people: race, sex, color, religion, national origin, and disability. State laws add age, sex, sexual orientation, and gender identity. These conflict with the Constitutional rights to freedom of association, the general right to be left alone from the state, the right of intimate association, and religious rights.

In the OP, the court concluded that despite the fact the B&B was the owner’s home (typical for B&Bs) the B&B was a place of public accommodation and not subject to the exemption cited to by the defense for two reasons: first it meets the statutory definition which includes several factors that you can see in the case; second the courts looked at the B&B’s marketing and the way it presented itself to the public. No way this place was not a place of public accommodation based on both factors. The Appeals court relied on a SCOTUS case in deciding for the lesbians.

Employment Division v. Smith, 494 US 872 (1990). This was a case where two state employees (drug rehab workers) got busted for smoking peyote. They were fired from their state jobs and denied unemployment compensation because they were fired for a crime (smoking the peyote). The two ex-employees sued relying among other things the Constitutional free exercise of religion. The case reached SCOTUS. SCOTUS held that the right to the free exercise of religion does not relieve an individual of the obligation to comply with valid neutral laws of general applicability. That is the important part for the OP’s case.


So why does a place of public accommodation take rights away from the owner in favor of potential customers? As we have seen in recent discussion on the forum in most cases we are faced with conflicting Constitutional rights. One side has valid rights at issue. The other side does as well. So courts have to balance those competing rights.

I think from the two cases discussed above (B&B and Smith) state that neutral general laws that apply to everyone can trump other constitutional rights in places of public accommodation. Solution, do not get in a business associated with places of public accommodation. Start a private club.

I realize that some will not be concerned with the state of constitutional law in the US and instead want to know "what should be" as opposed to what is. That is a valid concern. It is very tempting to want the side of free association, freedom of religious expression, etc. to prevail. That is my personal preference.

Yet, we live in a very large and diverse society. At some point, even the most die hard individualist has to accept that valid rights are going to conflict. When that happens the courts typically get involved to resolve the legal issues. At least for public accommodations, I think SCOTUS and Hawaii got it right. However, I would like to see certain changes to law and regulations that could alter the outcome of the OP's case.

I have long said here that small business and large business should be regulated by two separate codes. This would be beneficial in many ways to include eliminating the opportunity of large businesses to lobby Congress for business regulations that harm their small business competitors and to allow our small, closely held businesses to take actions that large profit focused businesses cannot.

In other words, a small business code can say that small closely held businesses can decide to not serve people for religions reasons, or other reasons. B&Bs are not hotels. A good B&B is an personal experience- the owners make and serve meals and often eat with their guests. They are available to discuss locale attractions or just to talk about whatever. So for the State to demand a B&B owner to accept guests that they morally are opposed to seems to fail the balancing act between to legitimate rights based on the facts of the case at hand. A Marriott should not be allowed to discriminate on the basis of sexual orientation, but a B&B should- based on what I said above.

If you read this far, thanks.


A conflict of rights should never happen, I believe. So how does this arice? Well, you have a case of natural rights, freedom of expression, association, etc, versus rights awarded by positive law in public accommodation.

Peter1469
03-23-2019, 08:31 AM
A conflict of rights should never happen, I believe. So how does this arice? Well, you have a case of natural rights, freedom of expression, association, etc, versus rights awarded by positive law in public accommodation.
Easy, and it occurs all the time.

The gay cake case for example.

Chris
03-23-2019, 08:40 AM
Easy, and it occurs all the time.

The gay cake case for example.

Another case of natural vs positive rights.

Peter1469
03-23-2019, 08:40 AM
Another case of natural vs positive rights.
And a conflict between rights as I noted several times.

Chris
03-23-2019, 08:49 AM
And a conflict between rights as I noted several times.

Agree but they different types of rights. Natural we are born with, positive man makes. Natural rights don't conflict but positive rights do because man is incapable of designing a system of rights.

Here's another case: Chick-fil-A banned from opening at San Antonio airport, council members cite LGBTQ issues (https://www.usatoday.com/story/money/2019/03/22/chick-fil-ban-texas-council-bars-chain-airport-lgbtq-past/3247437002/).

Cletus
03-23-2019, 09:54 AM
Pete, you mentioned a conflict of rights (good post, by the way). I don't think there is. There is and never has been a "right" to the labor of another. No one has a right to demand you labor on their behalf. There is no conflict of rights. There is a conflict between rights and laws.

In such cases, rights should always prevail. If a person does not want to labor on behalf of another, his reason for not wanting to do so should be completely irrelevant. Whatever the reason, the end result is the same. He doesn't want to perform labor for that person. THAT should be the only thing that matters. Saying "You should start a private club" isn't the answer. It is like putting a band aid on a sucking chest wound. Besides, even a private club is not going to get away with refusing membership to someone in a protected class. Even if they could, it is not right that they should have to.

I think any businessman who refuses someone service based on the color of his skin or his religion or any of the proscribed reasons is a fool and a poor businessman. However, people should have a right to be a fool ad it should not be up to the state to make sure they make good business decisions. The state has an interest, i would even say a compelling interest to make sure certain safety and sanitation practices are in effect in a place of public accommodation, but that is where their reach should end. Who the business services or doesn't service for whatever reason is none of their damned business and their attempt to infringe on the rights of the business owner by dictating that is wrong.

People need to stand up to the state and tell them they done bowing before them and obeying laws that infringe on their most basic rights. We are doing it here in New Mexico regarding infringements on the Second Amendment. It is way past time to start doing it for other infringements, as well.

Captdon
03-23-2019, 10:17 AM
I guess you have never heard of unenumerated rights.



Okay, here is the question that no one on this forum has yet to answer... Why not? It is YOUR business. It doesn't belong to the state. It is YOUR labor. It doesn't belong to the state.

Answer that question and don't give me the standard "Because it is the law" nonsense. Tell me WHY.

I'll bet you can't give me a reason to strip someone of a most basic right in order to benefit someone else, but by all means, please try.



That is meaningless gobbledygook.



More weasel talk. So far, no one has given me any reason to change my mind. Just saying "It's the law" is nothing. Anything can be made law. Tell me why the law is RIGHT.

You are hung up on the law being right. There is no answer to that. You can only give your opinion and that means nothing.

The states can pretty much do as they wants. Read the Constitution. You don't have the rights you think you do. You can't hunt without a license. You can't do a lot of things without a license. You don't have to like them; you have to obey them. You can't define unenumerated rights.

Your so-called rights are just what you think, not what is real. Now, you keep repeating the same nonsense and I don't intend to debate someone who can't understand what rights he has.

Captdon
03-23-2019, 10:20 AM
The non-discrimination clause is not related to customers

It is all about customers. They are the only ones you discriminate against.

Captdon
03-23-2019, 10:22 AM
Why should the city, county and State have any say in my starting a business?

Ask your elected officials. Maybe they shouldn't. Change your state Constitution.

Captdon
03-23-2019, 10:23 AM
I never said anything about "freedom of assembly". Why would you claim I did?

If you didn't, I apologize. You're still asking a question that you can't answer.

Captdon
03-23-2019, 10:24 AM
You are saying what is. I am asking about what ought to be. All sovereignty resides in the people. We give some of it up to the State and to the Federal government. Why should I have to get permission from my city, county, and state, to start a business?

Let the state make necessary laws and enforce them. It is not necessary to tax me through yet another fee or license because I want to start and run a business.

Contact your state legislature and tell them what you don't want.

Captdon
03-23-2019, 10:26 AM
You are making the point that we are no longer equal before the law. As one author wrote, we are all equal but some are more equal than others.

This isn't about equal before the law. All have to obey every law. You are getting desperate now. That's pitiful.

Captdon
03-23-2019, 10:28 AM
You and our lawyer friends have tossed the very idea of liberty on its head. I have a right to life, liberty and property. Those rights mean little if the State can compel me, against my will, to do as it wishes rather than as I wish.

The 5th Amendment further protects property, by stating: “No person shall be … deprived of life, liberty, or property, without due process of law; nor shall privateproperty be taken for public use, without just compensation.”

Captdon
03-23-2019, 10:29 AM
I offer you the opportunity to review the tenth amendment.

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

You run in circles long enough you fall on your ass. You are on your ass.

Captdon
03-23-2019, 10:30 AM
You should be more cautious.

Of what? You?

MisterVeritis
03-23-2019, 11:02 AM
What have they done to stop the centralization of power?
Are you having that much difficulty following the conversation? Is a nap in order?

MisterVeritis
03-23-2019, 11:06 AM
You are hung up on the law being right. There is no answer to that. You can only give your opinion and that means nothing.

The states can pretty much do as they wants. Read the Constitution. You don't have the rights you think you do. You can't hunt without a license. You can't do a lot of things without a license. You don't have to like them; you have to obey them. You can't define unenumerated rights.

Your so-called rights are just what you think, not what is real. Now, you keep repeating the same nonsense and I don't intend to debate someone who can't understand what rights he has.
The Constitution does not give States rights. The States granted the Federal government authority to do a few, limited things.

You have it backward.

Chris
03-23-2019, 11:12 AM
This is one reason why the nation will fail. Even when the right people have power nothing changes. The nation is allowed to move in one direction only, from more liberty to less liberty. From Constitutional republicanism to marxist socialism.


This is one reason why the nation will fail. Even when the right people have power nothing changes. The nation is allowed to move in one direction only, from more liberty to less liberty. From Constitutional republicanism to Marxist socialism.

Can you give me any examples of Republicans rolling back the massive administrative State?


There are no right people. No one or elite few should ever have so much power.


This is absolute nonsense. The right people are the ones who are Constitutional Conservatives.


What have they done to stop the centralization of power?


Are you having that much difficulty following the conversation? Is a nap in order?


Seems I am following the discussion but you have once again failed to answer a simple question and defend your position.

MisterVeritis
03-23-2019, 11:14 AM
Actually, it should and does. For example, the state has police power through the 10th Amendment of the US Constitution -- which gives the states the powers not delegated to the US. That gives the state the power to establish and enforce laws protecting the welfare, safety and health of the public -- the right to regulate businesses. An individual's right to engage in a chosen business or profession is not absolute; a state may act pursuant to its police powers to regulate or prohibit a business or profession so long as its actions are necessary for the public welfare. State ex rel. Clark v. Brown (1965), 1 Ohio St.2d 121, 30 O.O.2d 478, 205 N.E.2d 377; (https://1.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=1965116091&pubNum=578&originatingDoc=I682fd615d3bf11d99439b076ef9ec4de&refType=RP&originationContext=document&transitionType=DocumentItem&contextData=(sc.Search))Great Atlantic & Pacific Tea Co. v. Grosjean (1937), 301 U.S. 412, 57 S.Ct. 772, 81 L.Ed. 1193; (https://1.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=1937122699&pubNum=708&originatingDoc=I682fd615d3bf11d99439b076ef9ec4de&refType=RP&originationContext=document&transitionType=DocumentItem&contextData=(sc.Search))Murphy v. California (1912), 225 U.S. 623, 32 S.Ct. 697, 56 L.Ed. 1229. (https://1.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=1912100462&pubNum=708&originatingDoc=I682fd615d3bf11d99439b076ef9ec4de&refType=RP&originationContext=document&transitionType=DocumentItem&contextData=(sc.Search)) Regulation of the practice of medicine is necessary to protect public health and safety. See Hawker v. New York (1898), 170 U.S. 189, 18 S.Ct. 573, 42 L.Ed. 1002 (https://1.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=1898145940&pubNum=0000708&originatingDoc=I682fd615d3bf11d99439b076ef9ec4de&refType=RP&originationContext=document&transitionType=DocumentItem&contextData=(sc.Search)) (upheld statute prohibiting convicted felon from practicing medicine because physician “should be one who may safely be trusted”); Dent v. W. Virginia (1889), 129 U.S. 114, 9 S.Ct. 231, 32 L.Ed. 623 (https://1.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=1889180005&pubNum=0000708&originatingDoc=I682fd615d3bf11d99439b076ef9ec4de&refType=RP&originationContext=document&transitionType=DocumentItem&contextData=(sc.Search)) (upheld state's right under its police powers to require that physicians be licensed); Nesmith v. State (1920), 101 Ohio St. 158, 128 N.E. 57 (https://1.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=1920135043&pubNum=0000577&originatingDoc=I682fd615d3bf11d99439b076ef9ec4de&refType=RP&originationContext=document&transitionType=DocumentItem&contextData=(sc.Search)) (predecessor to R.C. Chapter 4731 upheld as constitutional as being within the state's police power and necessary for the regulation of public health).
Dave, I want to correct an error.

The States do not have police powers because of anything written in the Constitution. The States created the Federal government. The Federal government did NOT create the states. The Constitution does not give the States anything. The Tenth Amendment explicitly says powers NOT delegated to the Federal government belong to the States or to the people. The Tenth doesn't grant powers, it preserves the powers that already existed.

Why should the states have any authority to license a business? In my opinion, States should not have that authority. The right to start and operate a business is an individual right.

MisterVeritis
03-23-2019, 11:23 AM
Why should the city, county and State have any say in my starting a business?

Never in US history have states not regulated businesses. At the time of the Founding, some regulations on corporations were much stricter than they are today.
Starting and running a business is an individual right.

At the time of the founding, all states allowed slavery. To use the example that a thing, a wrong thing, has been in common practice for a long time does not make that wrong thing any less wrong.

MisterVeritis
03-23-2019, 11:30 AM
Sovereignty in the sense of statehood most certainly does not rest with individuals. Under the US Constitution, the feds have only the enumerated powers in Art. 1, sec. 8. States have power to regulate life, health, and safety issues. The remaining things in life are left to individuals, but all of those do not create a sovereign in the political sense of the word.
Sovereignty is the full right and power of a body over itself. Why does a woman have a "right to choose?" Where does our power to choose come from if not from our existence, if not from our full right and power over ourselves?

People gather together to accomplish things jointly they are unable to do individually. People grant some sovereignty to that joint organization. The power, and sovereignty, resides in the individual people.

States should pass necessary and needful laws. The states should have almost no power to interfere with an individual's rights.

MisterVeritis
03-23-2019, 11:32 AM
Then we will always be doomed. If the consent of the governmented is irrelevant then we shall always have tyranny.

If the people are not the source of sovereignty then liberty does not exist. Nor do rights.

MisterVeritis
03-23-2019, 11:34 AM
Why should the city, county and State have any say in my starting a business?

Ask your elected officials. Maybe they shouldn't. Change your state Constitution.
If you have no interest in participating kindly go elsewhere.

MisterVeritis
03-23-2019, 11:35 AM
Seems I am following the discussion but you have once again failed to answer a simple question and defend your position.
You may have followed it but you clearly did not understand it. I cannot help you.

Chris
03-23-2019, 11:39 AM
You may have followed it but you clearly did not understand it. I cannot help you.


The thought of asking you for help is patently absurd.

Chris
03-23-2019, 11:45 AM
It seems, on a general level here, that discussion is caught up whether we should discuss what is versus what ought to be. Both are legitimate views, and can be said to be right, but as such begs the question of how do we get from what is to what ought to be. The answer is not simply repeating declarations of what is or what ought to be but a developing a reasonable plan to get there. We can't go back but we might, reasonably, assuming we once had what ought to be, look to the past for how we lost it, and gain insight how to return to and preserve what ought to be.

Problem-solving 101.

MisterVeritis
03-23-2019, 11:47 AM
The thought of asking you for help is patently absurd.
You need someone's help. You can read but you do not understand. It is that simple.

Peter1469
03-23-2019, 12:54 PM
Why should the city, county and State have any say in my starting a business?

Starting and running a business is an individual right.

At the time of the founding, all states allowed slavery. To use the example that a thing, a wrong thing, has been in common practice for a long time does not make that wrong thing any less wrong.
A couple of restrictions on corporations at the Founding were that corporations were chartered for a specific purpose (i.e. no conglomerates) and for a specific period of time, usually 25 years.

Cletus
03-23-2019, 12:58 PM
I don't intend to debate someone who can't understand what rights he has.

That is probably a good thing. If you start debating with yourself in public, people will look at you funny.

Cletus
03-23-2019, 01:01 PM
It seems, on a general level here, that discussion is caught up whether we should discuss what is versus what ought to be. Both are legitimate views, and can be said to be right, but as such begs the question of how do we get from what is to what ought to be. The answer is not simply repeating declarations of what is or what ought to be but a developing a reasonable plan to get there. We can't go back but we might, reasonably, assuming we once had what ought to be, look to the past for how we lost it, and gain insight how to return to and preserve what ought to be.

Problem-solving 101.

All true.