Friday, April 3, 2015

Just A Few Clarifying Thoughts -- On "Status" Compared To "Conduct" -- Under US Constitutional Law

Throughout my posts this week, I've highlighted what I see as the importance of being an open, welcoming force -- in any debate that concerns public policy.

As I reflect on it though, I may have been too opaque in my use of legalese/shorthand. So here is a bit more, on what status vs. conduct implies (at least to my mind).

Throughout the evolution of our constitutional law, jurists have pointed out that choosing to act (or "conduct", if you will) is very different than simply "being." That is, being possessed of an immutable "status" (i.e., little or no conduct).

And so, historically, the choice -- the "conduct" of refusing to serve someone, based on genuinely held religious beliefs, has been limited to churches, members of the clergy, and their closely affiliated not for profit counterparts. When the Supremes decided Hobby Lobby, they held for the first time that a for profit business, if closely held by people of strong, shared religious convictions, could refuse service, based on first amendment protected religious freedom. Whether I think that wise is immaterial. It is the state of the law, now.

On the other hand, the Supremes have long held that if one (even a devoutly religious one) chooses to avail oneself of the deepest capital markets on the planet, and the most robust free economy on the planet, and thus make often vast profits while doing so -- the same free and open market rules must apply to all. That is, my status as LGBT cannot lawfully prevent me from being able to ask you to bake me a cake, if you want to sell your cakes to the public, and use jurisdictional means to do so.

And so, when you hear that these newly enlarged, "weaponized" RFRA laws, in Georgia, North Carolina, Indiana and Arkansas simply protect first amendment "free exercise of religion" rights, well that is. . . just false. [And it matters greatly that in many of the other states with older non-weaponized RFRA laws (like Illinois, for example), a pre-existing state wide law already protects LGBT status from being any lawful basis for discrimination.]

The weaponized versions attempt (unconstitutionally, I think) to place the first amendment "free exercise" rights above and over the fourteenth amendment's promise of equality -- and beyond the reach of the Commerce Clause, and all others. That is, the proponents of these laws believe that they should literally have their cake, and eat it to. They think that they are entitled to the freest capital markets, and full participation therein -- but also think they should not have to offer that full and free participation to people who. . . offend them, simply by choosing to love someone they don't countenance -- or in a way they don't feel comfortable with.

So, as I've predicted, should any of these weaponized laws reach the Supremes un-amended, they will be stricken -- on the grounds that for profit businesses open to the public must serve all members of the public -- not just those whose status they prefer. Here endeth the sermon -- but the trend is now away from the these wrong-headed weaponized RFRA bills.

So I ask you, dear readers, to think -- should someone's status be a reason -- ever -- to refuse them service, at a for profit public establishment? I think not. And I think the founders would have said the same. It is unfortunate that Justice Scalia thinks otherwise, in Hobby Lobby. But that too will evolve in time. . . . Onward.

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