Spin-off: The AZ Bill, Rights, and Inclusion/Exclusion

[i_another]

In his original thread, VoT sought clarity regarding the constitutionality of Arizona Senate Bill 1062 (PDF copy). The activity in that thread quickly shifted to a discussion concerning the nature and propriety of homosexuality. That is unsurprising because we're human, and human beings love to exercise their reason by wrestling with complicated ideas. So in this thread I hope to create an opportunity for a discussion that allows for a more direct consideration of homosexuality within the context of Arizona's proposed legislation. To that end, we may want to think about the following questions:

• Is this an issue about rights?
• If so, what rights are at stake and why are they to be considered "rights"?
• To what extent can a political community legitimately use the law to distinguish between acceptable and unacceptable human characteristics, behaviors, etc.?
• Is a law like SB 1062 acceptable on any grounds, or is it patently and thoroughly unjust?

I'm new here and I probably missed out on numerous discussions about this or similar topics. Still, I thought I'd invite some discourse, just in case some of you want to exercise your minds and typin' fingers.

What say you?

[artisticsolution]

Hi I,

I am not really good with legal mumbo jumbo. Tom (Tbeiter) is your man for that. I think you 2 would be able to communicate well. He is organizes his thoughts in a similar manner. I think you would like philosophizing with him very much.

What I like to do with cases such as this is to change things slightly and see if they still hold water with our constitution. So often people get confused about what freedom means for all. They only can see what freedom means for them.

That being said, I wonder how the law would read to the masses if they replaced the thought of 'homosexual' with the thought of denying access to any other group...for example...say religion? What if, with this bill, I choose to not let Christians, Mormons, Catholics, Jews etc, into my place of business because I think they are cults and their doctrines go against my religion? That is not too far of a stretch because alot of Christians I know think the Mormon church is a cult...not to mention their are always prejudice going on for Jews everywhere to this day. Doesn't our constitution say we can't be denied from going into public places because of our religion?

My point is...this law has the potential to break the laws of our constitution and harm our freedom in the guise of allowing for more freedom. In other words, I think the law is designed to say, "I get more freedom than you."

[henry quirk]

Quite apart from the cock-eyed laws that exist on federal, state, regional, and municipal levels, consider the following:


-A gay, atheist print shop owner refuses to print up 1000 pamphlets ordered by a local Baptist church...the proposed text of the pamphlets starkly proclaims homosex a sin and declares homosexuals will burn in hell.

Is the print shop owner right or wrong?

Why?


-A straight, Catholic print shop owner refuses to print up 1000 pamphlets ordered by a local LGBT advocacy group...the proposed text of the pamphlets starkly proclaims the group's support of gay marriage.

Is the print shop owner right or wrong?

Why?

[henry quirk]

Gays

*shrug*

Go do your thing and leave me be to do mine.

[i_another]

Hi I,

I am not really good with legal mumbo jumbo. Tom (Tbeiter) is your man for that. I think you 2 would be able to communicate well. He is organizes his thoughts in a similar manner. I think you would like philosophizing with him very much.

What I like to do with cases such as this is to change things slightly and see if they still hold water with our constitution. So often people get confused about what freedom means for all. They only can see what freedom means for them.

That being said, I wonder how the law would read to the masses if they replaced the thought of 'homosexual' with the thought of denying access to any other group...for example...say religion? What if, with this bill, I choose to not let Christians, Mormons, Catholics, Jews etc, into my place of business because I think they are cults and their doctrines go against my religion? That is not too far of a stretch because alot of Christians I know think the Mormon church is a cult...not to mention their are always prejudice going on for Jews everywhere to this day. Doesn't our constitution say we can't be denied from going into public places because of our religion?

My point is...this law has the potential to break the laws of our constitution and harm our freedom in the guise of allowing for more freedom. In other words, I think the law is designed to say, "I get more freedom than you."

Cheers, AS. I'm not a legal scholar by training, but I'll look forward to reading some of Tom's thoughts in the future.

Your point of substituting a particular religious sect with homosexuality is well taken; however, I think what's at stake in this sort of dispute is the question of rights. Whether explicit or implicit, the demand being made by those opposed to SB 1062 is that homosexuals, Christians, Jews, and other customers recognizable by their affiliation with a particular group, have a right to certain products or services, and that their right entitles them to compel private business owners to enter into contractual arrangements (i.e., transactions) against their will.

My own sympathies tend to lie with the business owners. I'm just not convinced that those in favor of coercing business owners into transactions have presented a persuasive argument in favor of a demanding clientele. Several years ago, a man named Heath Campbell visited a local bakery in the township of Holland, NJ, and requested an icing-inscribed cake for his youngest son's third birthday. His son's legal name is Adolf Hitler Campbell. The baker refused to make the cake on the grounds that the fulfillment of such a transaction offended his sensibilities. Whether or not the baker was Jewish, I think, makes little difference. To the extent that a business owner declines to enter into a business contract with a prospective customer, I think the right of the owner trumps the alleged right of the customer.

Such a denial of service may be an inconvenience, but I strain to see how it constitutes an injustice.

[artisticsolution]

Hi i,

So a child goes without a birthday cake because his name offends a baker's sensibilities?! LOL This is what I mean...People are so cruel to one another that we would even need a law like this is an abomination. Can a child help what his parents name him? Should he be punished for the sins of the parents? The baker used poor judgement and hurt a child.


But it does me no injury for my neighbor to say there are twenty gods or no God. It neither picks my pocket nor breaks my leg.
-Thomas Jefferson, Notes on Virginia, 1782

As for private businesses...are they really? If they sell to the public, then I would not call them private. Suppose hospitals refused service? Suppose Grocery stores refused service? Suppose churches refused services? all over a petty thing such as sexual orientation. Homosexuality neither picks my pockets nor breaks my legs. But being refused services could cost me money and physically harm me as well. Suppose I had to drive miles away to go grocery shopping...the cost to fill up a tank of gas is a factor. Suppose I was denied services at a hospital? That could cost a life.

I think the important thing here is equality. Are we equal in the eyes of the law or are some of us not as worthy as others? Our constitution says we are all equal. Religious freedom is there for all, but it does not trump equality. They go hand in hand. Jesus fellowshipped with whores...his sensibilities never got 'offended.'

If a person wants to be offended over a petty thought that comes from his religion, then he should too practice the other teachings that are so often overlooked...like love thy neighbor. It's funny how no one ever stands up for that doctrine when their sensibilities are "offended."

which brings me to the fact that rarely does a religion teach thou shall punish, usually that is reserved for God's judgement in religious doctrine. Why don't they rally around that teaching for a while...would be refreshing.

I think if there is a religious reason a business owner can't do business with a sinner, then the business owner should not be in business as his whole clientele are sinners.

[i_another]

AS,

I like that you quoted Thomas Jefferson. He’s one of my favorite founders to read, even though I don’t always agree with him. Interestingly, the quote you provide comes from his Notes on the State of Virginia, in which he advances an argument in favor of religious freedom. The immediate preceding quote reads, “But it does me no injury for my neighbor to say there are twenty gods, or no god.” The immediate subsequent line reads, “The legitimate powers of government extend to such acts only as are injurious to others.” You claim that denial of service is injurious to those who have been denied, but that’s not necessarily the case; nor do I believe it is the same manner of injury that Jefferson had in mind in the quote you shared.

Men like Jefferson tended to be advocates of the notion of natural rights, which emphasizes what some modern scholars refer to as negative liberty, i.e., the freedom to pursue one’s goals within the bounds of [oftentimes Lockean] reason. Breaking a man’s leg and robbing him represent clear and direct infringements on his natural right to life and property. An owner’s decision, however, not to sell his wares or services to a prospective customer doesn’t constitute the same or even a similar attack on the latter’s natural rights. That is because the prospective customer has no natural right to another man’s labor or property, except if and when the owner consents to enter into a voluntary agreement with the customer, whether charitable or transactional. The theory of natural rights guarantees every man the liberty to self-preservation while simultaneously prohibiting him from transgressing the natural rights of his neighbors. The world of natural rights can indeed be one beset by the hardship of nature’s lottery, but it accepts these hardships as payment for securing the greatest latitude possible with respect to man’s perfect freedom and natural equality.

In short, being declined access to another man’s labor and property may result in certain hardships, but no more so than the hardships that would have been faced had the owner and his shop never existed in the first place. The burden still remains on the customer to demonstrate that he is in some way justly entitled to another man’s goods and services, even when the owner of those goods and services prefers not to sell them.

[artisticsolution]

Hi i,

i:The immediate preceding quote reads, “But it does me no injury for my neighbor to say there are twenty gods, or no god.” The immediate subsequent line reads, “The legitimate powers of government extend to such acts only as are injurious to others.” You claim that denial of service is injurious to those who have been denied, but that’s not necessarily the case; nor do I believe it is the same manner of injury that Jefferson had in mind in the quote you shared.

AS: What you appear to be saying is that 'injury' to business owners is less than that of their customers. The quote from Jefferson was a little insight into his thought process about such matters of religious freedom and I think betrays his overall thinking process when weighing difficult concepts. It is an "If this/Then this" style of a way to discern between what is the best option taking into consideration all end results and/or consequences.

I think we can both agree that we want the most freedom for the most amount of people. we have nondiscrimination laws for a reason, and that reason is precisely because we can't trust people to do the right thing. When businesses discriminate they take away someone's right to pursue life, liberty and happiness. Religion does not trump equality.

We do not live in a perfect world, we have to pick and choose how to wield freedom to benefit the most people. We have already been down that road where we allowed businesses to discriminate and it did not allow for the most freedom for all. Remember when black people were turned away from hospitals only to die on the street? Remember when real estate agents steered them to 'certain neighborhoods'? Remember when schools would not teach the children and buses would not allow them to sit in the front. Hell, even here in Las Vegas...there was a time when Sammy Davis Jr could perform in a hotel/ casino but not sleep or eat in one!

This is the same type of discrimination....and it harms people far worse than harming someone's 'sensibilities'. The majority are helped by anti discrimination laws. And if there is no magic wand of perfect freedom for all...shouldn't we go for freedom for most?

i:The world of natural rights can indeed be one beset by the hardship of nature’s lottery, but it accepts these hardships as payment for securing the greatest latitude possible with respect to man’s perfect freedom and natural equality.

AS: Until nature comes for you. Which is why we have moved out of caves. Shouldn't we continue strive for excellence?

[i_another]

AS,

Apologies for the delayed response. My schedule is packed and I’m unskilled when it comes to tackling multiple projects at once!

I appreciate the general sense of your argument, which points toward excellence and social harmony. Despite the comments I’ve made in this thread, please don’t think that I have no interest in these things. Rather, I am for the moment simply adopting and emphasizing a position from the standpoint of freedom. The different opinions expressed here are simply evidence of the age-old tension between order and liberty. Order is desirable; liberty is desirable. Yet they often seem to pull in opposite directions.

With respect to the idea of rights, it seems we may have hit an impasse (which is fine). Your position that a denial of goods or services constitutes an unjust interference with a person’s ability to exercise his rights of life and liberty is increasingly common among modern theorists who focus on individual agency. I’m simply not persuaded by that argument. I think it wrongly interprets the arbitrary structures of society (e.g., restaurants, movie theatres, hotels, etc.) as being essential ingredients for life, liberty, and happiness. My assumption is that life, liberty, and happiness were (and are) obtainable even in the uncultivated state of nature. Now, as you implied earlier it’s true that untamed nature threatens these things; but I cannot discern any reason that we are entitled to the most polished versions of these rights via the property and labor of others in civil society. To make such a demand inches us closer toward the end of the spectrum occupied by slavery, and it establishes a new principle that places theoretical constraints on the shop owner whose decision to withhold service is not founded on bigotry. Neither the nudist nor the expletive-abusing customer causes injury, for example. Is the shop owner therefore morally obligated to serve them? Do his offended sensibilities again take a backseat to the demands of others?

Some may argue that being offended by public nudity and expletives is an irrational emotion, but it is much harder to accuse the man who takes offense to such things of being a simple bigot. And once we agree that such a man is not simply a bigot, we begin to reconsider the proper bounds of his rights as a free and equal being who just so happens to be a shop owner.

[artisticsolution]

Thank you for that thoughtful reply. That was the first time I have understood a conservative point of view about such issues. It makes sense to me...at least as a reasonable account of emotions that liberty vs. order may bring us to think about.

Yes, I can see how it is a complex idea of where to begin to discern who, how, when, and why gets liberty vs. order, since we all can't have it our way all of the time.

I think it is important, when dividing our 'rights' to pursue our dream of the constitution, that we consider a broader sense of what it is to be human. You mention nature, and it's hardships, and the fact that we can pursue happiness even when we are in dire circumstances. And you are right about that, but I still think if it is in our power to overcome dire circumstances, whatever they be, it is the morally right thing to do.

In fact, it is in our 'Nature' to the 'right' thing. We spend alot of money making sure 'nature' does not ruin us. i.e. fire and rescue, hospitals, schools, insurance, charity..,etc. There is a sense of balance and fair play I think we can all agree with...and it is universal. People from all walks of life usually raise their children in similar ways. Both impart similar morals. Most of us believe it is right teach our kids to share, to be kind, to not lie, steal or cheat or kill on another. I feel that we as humans are a part of nature. You speak of nature being all about hardship, well that is not entirely true. Nature has balance. With hardship there is relief. There are wheat fields for food, beauty for entertainment, love for happiness. And all of that free for the taking.

What I cant understand is, when it comes to liberty, and the complex decisions of who gets what when and how, why would you support the minority getting more liberties than the majority? The shop owner is not fettered in anyway by being fair. He is welcome to not be a shop owner if he can't be impartial.

My point is, in this complex idea of nature and balance, whether it is Nature or Human Nature, there is always going to be hardships. However, Nature is a balance of bad and good. Disaster such as drought is replaced with bountiful harvests from year to year. Why not look to Nature's idea of balance instead of all hardship when it comes to our liberty?

The shop owner is but one individual, his client base are the masses. Does it seem fair and balanced to you to give the shop owner all the freedom?

If it is one or the other, I still choose freedom for the masses. It makes more sense.

[i_another]

Ditto your sentiments regarding this conversation. I'm glad my first extend discussion here was so enjoyable! I'm don't naturally take offense to opinions that differ from my own, and I really enjoy hearing others' perspectives on issues; but it can be very difficult to find someone who's similarly disposed. I seem to have lucked out with you, though.

My reason for posting now is just to say that I may not have time to respond for another few days. I don't know that I'll have very much left to say, anyway, but I'm sure I can think of a few concluding points. So stay tuned.

[Kayla]

no one (except assholes) have a problem with businesses not being able to discriminate on the basis of race

how is discrimination on the basis of sexual orientation any different?

[i_another]

What I cant understand is, when it comes to liberty, and the complex decisions of who gets what when and how, why would you support the minority getting more liberties than the majority? The shop owner is not fettered in anyway by being fair. He is welcome to not be a shop owner if he can't be impartial.

Well, I don’t view the liberty to deny one’s goods and services to others to be a minority right since I hold that this is a right owed to everyone who is, could be, or wants to be a shop owner. Assuming for the moment that the right to petition the government is a natural right, we can see that it isn’t exercised very often by a majority of the population; yet we don’t call the right to petition the government a specifically minority right on account of who happens to be exercising it at any given time. It is available to all and at all times.

On a related note, I do like that you’ve insisted on making a distinction between individual happiness and the common good. In my opinion, this is one of the most vexing questions in political philosophy. It’s simply not clear whether both of these things can coincide for any extended period of time, if at all.

no one (except assholes) have a problem with businesses not being able to discriminate on the basis of race

how is discrimination on the basis of sexual orientation any different?

Hi, Kayla.

I don’t agree that only assholes discriminate on the basis of race. While I suspect that it’s far more likely that conscious bigotry operates in such cases, it’s also quite possible that some people were simply raised in a family or community environment that promoted racist ideas. For those folks, racism was habituated and not necessarily rationalized. In fact, there are numerous remarkable accounts from the late-nineteenth century describing how some formerly racist Southerners in the U.S. made a positive about-face in terms of their opinions of black Americans.

I mention this not only to address your first comment, but also to illustrate my general approach to the question of discrimination. In recent years, there has been an unfortunate trend in which proponents of gay marriage and related issues refuse to engage constructively with their opponents, often denigrating them from the get-go as homophobic bigots. This forecloses any opportunity for reasoned discourse. I disagree with many people about many things, but I don’t render that disagreement as evidence that my opponents are necessarily dangerous lunatics.

That said, my response to your question is this: Even if homoerotic feelings are in part genetically driven inclinations, the activities constituting homosexuality are freely chosen. Discrimination on the basis of race or skin color seems to be less defensible because they are fixed and amoral features. However, homosexuality—and more specifically, the homosexual lifestyle—is a conscious and voluntary decision in the same way that gambling, gourmondism, and bestiality are conscious and voluntary decisions. Like the homosexual, the gambler, the gourmand, and the erotic zoophile are likely impelled toward their activities by some combination of genetic material that inclines them, more so than others, toward the thrill of taking risks, the pleasures of food, and the eroticism of bestiality. But despite the existence of internal impulses, human beings nonetheless make moral judgments about the conscious behavior and voluntary activities of others; and whether or not we agree with their conclusions, we can, I think, acknowledge that their discriminatory attitudes operate within a sphere of greater legitimacy than those who discriminate on the basis of race and skin color.

[Kayla]

For those folks, racism was habituated and not necessarily rationalized.

never met a racist who was not an asshole in all the major indicators of assholiness (is that a word? it should be)

In fact, there are numerous remarkable accounts from the late-nineteenth century describing how some formerly racist Southerners in the U.S. made a positive about-face in terms of their opinions of black Americans.

there are also numerous remarkable accounts of assholes ceasing to be assholes - i am not sure what point you are trying to establish here

In recent years, there has been an unfortunate trend in which proponents of gay marriage and related issues refuse to engage constructively with their opponents, often denigrating them from the get-go as homophobic bigots. This forecloses any opportunity for reasoned discourse.

what reasoned discourse

there are several major arguments against homosexuality

1. it causes AIDS - demonstrably counterfactual
2. it is "unnatural" - a non sequitor
3. god forbids it - limited evidence for that, and meaningless in the absence of some sort of reason why god forbids it
4. anal sex is unhealthy - not all homosexuals engage in it, it is not unhealthy if a number of simple precautions are followed (eg use lots of lube, do not have unprotected anal sex with complete strangers) - and straight people can also engage in anal sex

did i miss any?

what reasoned discourse is possible here?

Even if homoerotic feelings are in part genetically driven inclinations, the activities constituting homosexuality are freely chosen.

one can freely choose the music one listens too, clothes one wears etc - is it ok to discriminate against say, jews, because they freely choose to wear yurmulkas (sp?)

Discrimination on the basis of race or skin color seems to be less defensible because they are fixed and amoral features.

really

whether i am seen as white or black depends on what i do with my hair and how much time i spend in the sun

since i can control these things - it is ok to discriminate against me using this reasoning


in a number of studies the perception of race changed depending on how a person in a photo was described - e,g, unemployed, criminal etc - i can provide references if you like

However, homosexuality—and more specifically, the homosexual lifestyle

honey what have they been telling you about homosexual lifestyle - let me tell you its not all drug fueled orgies and fabulous clothes (or combat boots and manly clothes for the lady homosexuals)

there are also endless farm chores, endless negotiating with children as to how much spongebob square pants they are allowed to watch, and an occasional two hundred mile drive to get a $2 tractor part that is only available two hundred miles away

[/quote]

[artisticsolution]

On a related note, I do like that you’ve insisted on making a distinction between individual happiness and the common good. In my opinion, this is one of the most vexing questions in political philosophy. It’s simply not clear whether both of these things can coincide for any extended period of time, if at all.

Thanks i,

I agree wholeheartedly....and it's only going to be more difficult as the population grows. Can you imagine a business owner/farmer getting to decide who eats and who doesn't? It just wouldn't make sense from a practical point of view.

I think a government by the people and for the people is the best way to solve the problem of overpopulation. Just in the sense that the majority rules by voting and then we live for a while under that rule...if we don't like it...we can always make changes in the next election. But if we have laws that go against what the majority want, then we will see our government over thrown time after time with the type of coups you see all over the world when unfairness rears its ugly head.

I am just speaking on practicality as when there is a coup, the only people who get liberty are the ones in charge...I think.