The loathsome characters are the unbelievers and the moderate religious who voted for 8. For them, it wasn’t a smiting-prevention measure; their motive was the pure and simple desire to meddle with other people’s lives.

Meddlesomeness, I emphasize, and not hatred. I don’t think that the majority of the majority in Prop 8 hates gays, any more than I thinkthat other majorities hate smokers, or gamblers, or gun enthusiasts, or 20-year-olds who want a beer, or people who like to wear their pants at the latitude of the acetabulum. In all of these cases, I submit, the attitude of the majority could be expressed as: “Other people don’t live the way I do. They should.”

Xopher @247:

You can sit there and say how you THINK it SHOULD be, but the above (and I may have some details wrong–mythago?) is settled law.

Indeed. I wasn’t aware of the whole matter of public accommodation… a quick Googling points to USC 42.126(III) §12181(7) (I’m sure I mangled the citation format). Pardon my ignorance!

The law defines it. When the law doesn’t define it adequately, the courts decide, and that makes new law. That’s how it works in the United States of America.

I hope that’s not how it works in the United States of America. This process, to me, leaves out a critical feedback loop to the people, and gives far too much power to the courts. (Really, it leaves Constitutional amendment as the only final option for the people to indicate what should be law.) I would much prefer the courts be restricted to (1) making judgments in cases not addressed by current law; and (2) ruling on the (C/c)onstitutionality of current law, but from a much more limited (originalist? constructionist? I don’t know the terms) position. Essentially, I think judicial precedent is given too much weight compared to legislation. <shrug> This is probably where you tell me, “Yak on all you want about how you’d like things to be, this is how things are,” so… I guess I’ll just leave it at that.

mythago @249:

Oooh, I’m getting called a bigot and a racist, now! I’m on a roll!

I’ll ignore the inflammatory specifics of your question, and answer the underlying, broader query: I hadn’t yet sufficiently generalized my opinion about (what I now know is) the whole ‘public accommodation’ thing – I was working specific-to-general. As I said, IANAL, so if there’s a standard lawyering approach to constructing arguments, I’ve never been exposed to it.

Having thought about my view some more, though, I think Greg’s point about me trying to hide behind the process was close, but not quite accurate. The real problem in my thinking is an attempt to hide from historical reality by placing too much trust in an abstraction/idealization of the process. In theory, (ignoring public accommodation law for a moment) if a business discriminated in a fashion deemed immoral by other customers, those customers would in return boycott that business and the business would have to weight the potential… ‘punitive’, I guess… lost business because of its choice to discriminate. In reality, either most people won’t feel strongly enough about it to boycott even if they found the discrimination distasteful, and the business’s lost revenue will be negligble; or if the discriminatory company has a disproportionate market presence, the customers may not have a choice to take their business elsewhere.

Ok. My nice, clean view of the system is all dingy with reality now. I’mma go chew on it for a while. Thanks all for the really engaging discussion!

I believe that a fully private-sector entity (in most cases an individual or a business, either of which excludes most churches) should be permitted to withhold goods or services from anyone they choose, on whatever grounds – that it is not the government’s place to regulate such refusals.

Then Proposition 8 is irrelevant to your position. You believe that a restaurant should be able to exclude black patrons from sitting at the lunch counter, and the government should butt out. Okay, why not simply explain that, instead of fussing about the government picking on churches?

It also means you can’t rent out your space for anything EXCEPT a gay wedding.

I meant

It also means you can’t rent out your space for practically any purpose, but refuse to rent it for a gay wedding.

Rereading it I saw that it was ambiguous.

You may believe that, but it’s not the law. If a business provides a public accommodation (that is, something generally available to the public), it must be equally available to everyone without regard to the various protected categories. In California, that includes sexual orientation. That means you can’t have a restaurant open to the public and then say “we don’t serve your kind here” when gay people want to eat. It also means you can’t rent out your space for anything EXCEPT a gay wedding.

If your space is available only for members of your church, you don’t have to let anyone use it for a gay wedding. But if you rent it out, it’s a public accommodation and you’re subject to the laws that govern businesses in general. You don’t get to cite “objections of conscience” for not renting it to gays, or blacks, or Jews, or any other group you hate.

You can sit there and say how you THINK it SHOULD be, but the above (and I may have some details wrong–mythago?) is settled law.

You’re right… people’s definitions of ‘harm’ all differ to some extent or another. And, when it comes to making law based on perceptions of harm, how do we select which definition is ‘correct’? Should we just go with yours?

The law defines it. When the law doesn’t define it adequately, the courts decide, and that makes new law. That’s how it works in the United States of America.

The definition of harm as “society is too permissive and that might make my daughter decide to do things that my religion says will keep her out of the highest level of the Celestial Kingdom” is just flat-out bullshit, and is virtually guaranteed to be laughed out of any court whose justices aren’t ALL appointed by Mitt Romney, or Mormonsführer Monson.

Lessee, variety of responses here, which first…

An Eric @237:

Okeydokey, I was ignorant of that particular point of judicial precedent – thank you for making it quite clear! (And yes, actually, YBAL matters to me – I consider your explanation as being authoritative.) Insofar as the 14th Amendment applies the BoR to the states, please explain… what implication does A-XIV have on whether or not law founded on religious morals is (C/c)onstitutional if it’s properly passed via established processes?

mythago @217:

What you and Peter are talking about are situations where churches have tried to have it both ways – to act in the secular business world, but claiming they don’t have to follow the rules that apply to secular businesses.

Certainly, in such cases the churches should be challenged, and held to the appropriate laws. But what I took Peter to mean, and what I intended to speak to, are cases where religious citizens, or private, for-profit businesses owned/operated by religious citizens, are sued after refusing to provide a service based on an objection of conscience. I believe that a fully private-sector entity (in most cases an individual or a business, either of which excludes most churches) should be permitted to withhold goods or services from anyone they choose, on whatever grounds – that it is not the government’s place to regulate such refusals. (If the refusal is viewed as immoral or objectionable by others, they will punish the individual or company appropriately by choosing not to do business with them.) On the other hand, I have no problem whatsoever with equal rights laws that apply to state-owned or state-operated entities. (Entities that receive state funding or state subsidies are a murky area, and I’d have to look closer at those sorts of cases in order to determine where I stand. This subtopic is much too broad for me to try to address here.)

Greg @various:

I have to say, I’m rather amused by your quick leap to the assumption that I must be a knee-jerk, frothing-at-the-mouth, anti-gay bigot. In actuality, I think a lot of religious conservatives get far too worked up over the whole matter. I do, though, think that heterosexual pairings should be given some sort of preferential cultural status over homosexual pairings – on the other hand, identical legal status makes good sense to me, in terms of things like visitation and inheritance rights, etc.

(Now, anticipating what I expect to be rapidly rising blood pressure on the part of Scalzi or others at my having said that, allow me to present my refinement of the ‘zomg teh gayz can’t haev teh kidz’ argument. Consider a (very much hypothetical) research study where 500 women and 500 men between the ages of 23 and 35 are paired off, male/female, and instructed to copulate, unprotected. The number of resulting pregnancies are recorded. The experiment is then repeated with 1000 men, all paired man/man; and 1000 women, all paired woman/woman. Again, the number of resulting pregnancies are recorded. The first experiment would, I expect, yield a pregnancy rate on the order of 20-30% or so. The second and third, 0% each. (Hermaphroditism or some other biological abnormality could conceivably result in a non-zero pregnancy count for the latter two experiments – I would consider such a result an outlier.) This fundamental biological fact, to my mind, represents a valid starting point, if nothing else, for considering that opposite-sex and same-sex relationships merit distinction from one another on some level. I expect that many reading this will disagree, and I fully anticipate a smackdown of some kind from Scalzi and his Fish O’ Flayin’™.)

You haven’t shown how gay marriages HARM you or anyone else in any measurable way.

Granted, though such was actually never my intent. I’m not trying to convince anyone here that they should be against homosexual marriage; just that if the majority votes that it should be banned, then it should be banned. You accuse me of ‘hiding behind the process’ so that I can avoid admitting that I support something that you see as abhorrent. I would argue that having an established process is vital for peacefully deciding what the composition of the law should be when those on conflicting sides of an issue are heavily emotionally involved in its outcome – for example, when one or both sides believe that the stance of the other is ‘abhorrent’. The process we have in the U.S., at its essence, results in laws being decided by how many voices are speaking on either side of a question, regardless of their emotional volume. I far prefer it to a hypothetical system where the side wins that shouts the loudest.

WHat definition of harm are you using? Something measurable or something vacuous?

Are ‘measurable’ and ‘vacuous’ antonyms? Must everything of significance be measurable? Please measure for me how much you hate bigots, to three significant figures. Please describe how vacuous love is, since it cannot be measured.

I’m being snarky here, but I’m doing so to make a point. You’re right… people’s definitions of ‘harm’ all differ to some extent or another. And, when it comes to making law based on perceptions of harm, how do we select which definition is ‘correct’? Should we just go with yours? Okay… but then it’s not democracy, is it?

I’ll reiterate what I think I said before – every citizen in a democracy must expect to be dissatisfied at times with the outcome of the process, sometimes even quite strongly. But, at least you do get a say in the process, and if you can persuade enough fellow citizens to see things your way, the law can be changed.

Churchill: “Democracy is the worst form of government, except for all those other forms that have been tried from time to time.”

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John: Thank you for graciously allowing such long comments – I know I’m really wordy, but I prefer to write out my arguments in as detailed a fashion as I can.

A couple of notes on the Prop. 8 battle:

1. I don’t have figures, but I have to believe that the No side outspent the Yes side by a considerable margin. I saw way more No ads on TV than Yes ads. I conclude that gut-level homophobia is more widespread than indicated by this vote.

2. One of the No ads compared Prop. 8 to various instances of legal discrimination in California history, starting with the Japanese interment camps and working through various Jim Crow-type laws that used to be in force. This makes it highly ironic that the black and Hispanic vote was instrumental in passing 8.

You smell a hypocrite; I smell a raging partisan: one whose theology insists that Republicans, neocons, or whatever you want to call them, are solely responsible for the world’s woes, and who assumes that anyone who dissents from the smallest article of his faith must be just as fanatical for the other side, and deserving of the faggot and the stake.

And the rape analogy is a pretty sorry one. Here’s a better: The neocons pulled the trigger, but the D’s who voted for the resolution drove the car. When they found themselves busted, they swore that they had no idea…

Fabricated intent? It was clear to me, thousands of miles from D.C. and reading the local daily and a few news blogs, that Bush et al. were throwing every imaginable charge at Saddam Hussein and hoping that something would stick. They tried proving an al-Quaeda connection, they tried WMD’s, they tried atrocities against Kurds and southern Sunnis… It was very reminiscent of the runup to the Gulf War; all they lacked was another bogus nurse with a tearful account of Republican Guards yanking babies out of incubators.

Thousands of miles from D.C., my bullshit detector was going off. For the people in the Senate, whose job it is to understand these things, it should’ve been doing likewise. Yet you claim that a hatful of veteran politicos were honestly deceived by the adminstration’s falsehoods.

Obviously, I don’t have access to documents or recordings in which Democrats declare that they’re going to vote for the resolution despite its flimsy rationale because they’re afraid of getting into hot water if the war proves popular. But I know that the administration’s stories smelled deeply false to me, even at my distance from things; and I know that politicians who oppose popular wars get punished– see, for example, A. Lincoln, whose congressional career foundered on his opposition to the Mexican War. In view of that knowledge, I find it a lot easier to believe that a great many Senate D’s are cowardly self-serving trimmers than that they were wide-eyed innocent victims of evil neoconservative deceivers.

Naw, forget it…I’m an ugly old man who as of today walks with a cane. But you are the wind beneath my wings.

Greg…you already know I think you’re the best, right? Thanks.

But that in no way excuses the D’s who pretended to believe the LIES