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Certain classes are protected from discrimination in the United States.

The intersection of the right to freedom of speech and being free from discrimination is getting more attention due to some recent cases

Jonathan and Elaine Huguenin, the owners of Elane Photography, who argued that they shouldn't be forced to create images that tell "a positive and approving" story about a ceremony they find objectionable.

Mr. Phillips [...] wrote that his refusal to bake cakes for same-sex weddings is not motivated by a "hatred of gays" but rather "a desire to live my life in obedience to [God] and His Word."

Ms. Stutzman countersued Washington in August, claiming the U.S. and state constitutions protect her from being forced to perform actions contrary to her "religious beliefs and her conscience."

Can the government compel you (if you run a business) to perform work for protected classes that you objec to on first amendment grounds? (For example, could a Jewish bakery be forced to bake an Adolf Hitler cake?)

  • National Origins would possibility be the protected class for the example above. I am aware that the first amendment has limits, I am just wondering if they overrule protected class legislation. – user1873 Dec 9 '13 at 7:41
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    That's the problem with the word freedom. Denying someone service based on how they were born is discrimination. Denying someone the ability to deny service to another is discrimination. Is it discrimination to deny someone the freedom to discriminate? – Ross Drew Dec 9 '13 at 14:44
  • I will refer you to my answer to a similar question (rather than answering this one directly). politics.stackexchange.com/questions/1200/… Basically, the U.S. government can't force you do say/do something in this kind of situation. It can only prevent you from saying/doing the "wrong" thing. – Tom Au Dec 9 '13 at 14:46
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    user1873, The crux of your question seemed somewhat circular to me. "Can the government restrict things they are prohibited from restricting you from." I was only suggesting focusing on the specific case, as in: "how was the government able to restrict this <specific right>?" – Robert Cartaino Dec 9 '13 at 17:53
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    Your Jewish bakery example is disingenuous. A Jewish bakery cannot refuse to sell me, a goy, a cake. But I can't force them to make a Hitler cake. If you're in the business of photographing weddings, then you can't refuse to photograph a wedding without legitimate reason such as scheduling conflicts. – Chris Cudmore Dec 12 '13 at 21:47
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While Bobson gave an excellent answer, I am going to step out and give a slightly different one, bearing in mind the exct wording of the question

The constitutionality of the principle of government forcing businesses to not discriminate against protected minorities was established during the legal challenges to the Civil Rights Act of 1964. The act forced business owners to serve black customers, despite whatever personal views they had on the matter, and the supreme court found that it was constitutional. This is the answer to the question as asked. i.e. whether 'business owners can be forced to work for protected classes'.

My understanding is that there is a slightly different take on the 'gay weddings' question - namely that the objection is to the work performed, not the customer it is performed for. The business might claim that they will not do work for gay weddings, whether the customer is gay or straight (while perhaps agreeing to do other work for customers of any sexual orientation), and that this is more akin to a restaurant owner declining to serve fried fish to any kind of customer than to a restaurant refusing to serve a coloured person. This matter has yet to be decided by the courts.

  • A very good distinction, and almost certainly what it's going to hinge on. "I don't do that type of event" seems like a perfectly reasonable thing to say, even if it's referring to a discriminatory class (DJ saying "I don't do Bar Mitzvah parties", for instance). However, the level of involvement matters too - if the bakery won't produce a cake for the event, even if they don't need to attend, that's very different from the band which is being asked to play music during it. – Bobson Dec 9 '13 at 22:35
  • +1 This an interesting way to frame the argument, and why I was specifically interested in creative work. For certain professions I could understand, but for ohers the argument seems weak (aranging flowers, decorating a cake). Are there more SCOTUS decisions than those listed under the protected classes? – user1873 Dec 9 '13 at 22:54
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Simply put, this is exactly the question that Elaine Photography is going to decide. And, until the court actively overrules the lower court decision, the answer is, in theory "Yes, they can."

The facts of the case are simple enough - when the religious right to "practice the free exercise thereof" conflicts with the rules required of a place of public accommodation, which "right" wins?

As a pastor who fears being compelled to perform same-sex marriages, I certainly hope I won't be forced to compromise my beliefs - but I am also aware of the incident in which a Louisiana Justice of the Peace was fired for simply requesting that an interracial couple go to another JP for their wedding. While one will probably make the case that there is a difference between an officer of the court and a pastor, one should remember that in my home state of Virginia, wedding officiants of any type are acting as officers of the court. When I got my license to perform wedding ceremonies, I had to take an oath to the state.

Am I nervous? Heck yeah.

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    JP's are very different than pastors. Though I agree that I can see at least 4 JotSC voting to compel clergy to perform them... I think immediately following that vote they should all be hung for treason for failure to uphold the constitution that they pledged to do. – SoylentGray Dec 12 '13 at 22:21
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    @Chad - JotSCs at one time or another voted for Dredd vs Scott, for the claim that human right to life can be trumped by convenience, and for the fact that forcing me to enter into a business transaction I don't wish to enter is fully legal. If your line of thinking held, most SCOTUSes would be called David Carradine – user4012 Dec 14 '13 at 4:41
  • @DVK - I Think that if we did that then perhaps we would not have some many 5-4 votes on what should be a straight 9 vote smack down of congress and the president that signed the legislation. – SoylentGray Dec 14 '13 at 4:43
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    The supreme court justices have long ago given up any semblance of upholding the Constitution. Each of them is only their to push their own personal political agendas. ALL 9 OF THEM. They have no interest in upholding the Constitution and the only reason the Constitution is even relevant in their rulings is to be used as a means to twist its words into justifying the justice's own personal political agenda. So saying they pledged to uphold the Constitution is meaningless. A supreme court justice is just another political appointee lackey who doesn't have the cajones to do their job. – Dunk Dec 16 '13 at 21:08
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The rights / protected classes you are talking about are equal protection issues, which fall under the 14th Amendment. (Summarized as equal protection under the law). The Supreme Court decided in 1883 that the Civil Rights Act of 1875, which prohibited private businesses from discriminating against African Americans was unconstitutional because "The Fourteenth Amendment ... is prohibitory upon the States ... Individual invasion of individual rights is not the subject matter of the amendment" -Civil Rights Cases, 109 U.S. 3 (1883)

The Civil Rights Act of 1964 ultimately achieved what the 1875 Act could not. This Act used the Legislative power to control interstate commerce to regulate businesses as oppose to the Equal Protection Clause of the 14th Amendment, and was upheld by the Supreme Court. Congress may only use the Commerce Clause when there is a significant impact upon interstate commerce.

The decision was again reaffirmed recently in the United States v. Morrison, 529 U.S. 598 (2000). This case challenged the validity of 42 U.S.C.S. § 13981, which was a law Congress enacted that provided a federal civil remedy for the victims of gender-motivated violence. A woman that was attacked wanted the civil remedy due to her for this. The attacker did not want to pay and appealed, alleging that Congress didn't have the right to enact such a law. The Court of Appeals for the Fourth Circuit declared the law unconstitutional. They found that there was no substantial influence on commerce, so Congress could not use the commerce clause, and they also could not use the Fourteenth Amendment because of the precedent the Court established in the Civil Rights Act of 1875. The Supreme Court reviewed the case and affirmed the decision of the Fourth District.

Therefore the 14th Amendment still doesn't apply unless the conduct is considered a state action. To be a state action one of the following criteria must apply:

  • The individual is employed by the government and acting as a government officer. In other words if the individual is acting in an official capacity, whether or not the conduct is authorized by law. (Gov't Officer Exception)
  • If the individual/business is performing a function that has been traditionally done exclusively by the government. (Public Function Excception)
  • If the government has expressly authorized, encouraged, or facilitated the unconstitutional conduct. (Entanglement Exception)

The only Amendment that applies directly to the people is the 13th Amendment, which outlaws the practice of slavery throughout the United States.

  • I believe you omit a significant piece of information, which is that the constitutionality of restricting the ability of private businesses to discriminate against customers was UPHELD during the challenges against the 1964 Civil Rights act, reversing the earlier decisions with regard to the 1875 Civil Rights act. – DJClayworth Dec 10 '13 at 14:28
  • Someone visiting this site and reading this answer might be interested to know what United States v. Morrison was about. I'm certainly interested in it. A brief summary of that might strengthen your answer. – Sam I am says Reinstate Monica Dec 10 '13 at 20:10
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    @DJClayworth Sorry about that, I didn't get a chance to get to that. The 1964 Civil Rights Act was indeed upheld, but only because Congress has the authority to regulate interstate commerce. The decisions that the Court made regarding the 1875 version were never reversed. The Fourteenth Amendment is still only applicable to the government. Which leads me to the next point. – pAvEmEnT Dec 11 '13 at 13:21
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    @SamIam The United States v. Morrison was in regards to 42 U.S.C.S. § 13981, which was a law Congress enacted that provided a federal civil remedy for the victims of gender-motivated violence. – pAvEmEnT Dec 11 '13 at 13:28
  • A woman that was attacked wanted the civil remedy due to her for this. The attacker did not want to pay and appealed, alleging that Congress didn't have the right to enact such a law.The Court of Appeals for the Fourth Circuit declared the law unconstitutional. They found that there was no substantial influence on commerce, so Congress could not use the commerce clause, and they also could not use the Fourteenth Amendment because of the precedent the Court established in the Civil Rights Act of 1875. The Supreme Court reviewed the case and affirmed the decision of the Fourth District. – pAvEmEnT Dec 11 '13 at 14:05
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The government can't force a business to act, but they can punish them for not acting. The threat of punishments (which may range from fines, to having to pay damages, up to being arrested or forced to shut down) may compel the business to act (in the sense of "apply pressure to act"), but it's always the option of the owner to accept those punishments instead of changing their behavior.

As to the question of whether the government can punish a business which refuses service to a protected class based on a religious position, that's still an open question, and will vary state-by-state. For example, in California there's a state Civil Rights called the Unruh Civil Rights Act which prohibits arbitrary discrimination.

Until it gets to the Supreme Court, there's no way to provide a more definitive answer.

  • +1, but doesn't threat of punishment get included in "compelling"? – user4012 Dec 9 '13 at 17:59
  • @DVK - Possibly. It depends on whether you read compelling as having successfully forced the action or not. I'll clarify the wording a bit. – Bobson Dec 9 '13 at 18:24
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    how is punishing someone for not acting not the same as forcing them to act? if you get a fine for driving fast, that is govt forcing you to drive slowly – amphibient Dec 16 '13 at 15:56
  • @amphibient - See Civil Disobedience for the best example. Effectively, the government can't actually make someone perform their service, short of getting someone to stand there and physically move the owner/operator through the motions. There's always the option for them to refuse. – Bobson Dec 16 '13 at 16:48
  • @Bobson but that would mean slavery doesn't violate the involuntary servitude clause because you can't force someone to pick cotton if all you do is punish them after the fact by whipping them. – Readin Jan 3 '18 at 4:00

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