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Comment by umvi | Hacker News Reader

I don't think the business owner should be able to turn away clients because of the clients' sexual orientation. However, I do not think the business owner should be forced to make content they find immoral, either.

If we generalize this problem, it basically distills down to: If you are a web designer and a <protected class> commissions you to make a website glorifying <something you personally find to be immoral>, are you allowed to refuse the job on grounds that you don't want to use your skills to promote something you personally find immoral (though you would be happy to make them other content you don't object to)? Or should you be forced by law to make the website in order to not discriminate against <protected class>?

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If a business owner discriminates on the basis of sex, ethnicity, race, or religion, Americans consider it a big deal if not a constitutional problem.

But a gay business owner cannot discriminate against the very religious groups who seek to exclude gay people from their institutions or services. Gay people do not even galvanize around such political positions as, say, banning Christian marriage or Christian adoption, or supporting the firing of Christian employees.

So you are saying a gay web designer should not be able to refuse a job from a fundamentalist Christian wanting a fundamentalist Christian website (the content of which the gay web designer objects to)?

That's already the law, and in a way which is permanent enough not to imagine other scenarios of what "ought" be.

Deciding this question is what the court case is about. So it's debateable if it's already the law.

The question before the court is the opposite one you are thinking of. Whether people can discriminate against Christians is not under debate.

The protection of rights as per sexual orientation and the protection of rights as per religious affiliation are siblings in the Civil Rights Act; they're two of the (equal) protected classes.

Any conclusions drawn by the Court in this case will be readily extrapolable to religious affiliation. Web designers don't have to do a "We're gay and we love it" site because it offends their religious beliefs? Then other web designers don't have to do a "This is our Catholic church" site because Catholicism offends their Protestant beliefs.

(IANAL, but this would, perhaps, be a good argument for the defendants to bring).

It’s not in any way a constitutional problem.

> But a gay business owner cannot discriminate against the very religious groups who seek to exclude gay people from their institutions or services

It's illegal to refuse service to a Christian on the grounds of his religion but it's not illegal for a painter to refuse to paint a mural if he finds its message (which may be religious) revolting.

I think the specific action is relevant here. It's overly reductive to call it "glorifying something you personally find to be immoral." The question is closer to, "Is it discrimination to refuse to make a work that portrays a protected class positively?"

A third solution: if, in doing a thing, you feel you absolutely must discriminate against a protected class, then don’t do that thing for anyone. Discrimination prevented and speech not compelled.

The problem is, how many jobs can you name that couldn't be used to discriminate against a protected class? I think the previous commenter's point is correct.

This is a First Amendment case, which means it’s specifically about jobs that count as “speech”. It’s very unambiguously illegal for a plumber or an accountant to have a “no gay clients” policy.

That said — even within this case, that argument falls flat. The crux of the defense is “it’s not that I wouldn’t take on gay clients, I just won't make a wedding website for them.” Cool, so just don’t make wedding websites. There are plenty of other kinds of websites people will pay you to make. Leave the wedding sites to designers who won’t discriminate against gay people.

I think the legal system ought to prioritize principles over practicality.

We could replace the first amendment with "just don't say anything controversial". We could replace the right to privacy with "just don't have anything you want to hide".

It's important to define our rights and freedoms. The question of whether we want customers to be able to compell speech is an important one.

Another important question is whether we want businesses to be able to discriminate against people.

Again, my suggestion — wherein she can’t make wedding websites for anyone — doesn’t compel speech. But if I had to abandon practicality, I would say she should be forced to make the website.

Let's say I make a Christian dating website. In its sign-up terms it asks one to certify that one is indeed a Christian before joining. According to you, I should not even be allowed to create this website because it discriminates Christians from non-Christians. If I don't discriminate, then the website has no reason to exist as its entire purpose was to bring Christian singles together. Congratulations, you have successfully disenfranchised an entire group of religious people that simply want to meet others like them.

Now change things around and pretend the dating website was for LGBTQ+ people. Do you see how you cannot possibly implement your proposal in a non-discriminatory way? Freedom of association is a thing because humans want to associate with like humans. This has been the case for all of human history. That doesn't automatically ascribe evil intent to anyone--whether a Christian on my hypothetical Christian dating website or an LGBTQ+ person on an LGBTQ+ dating website. Each group simply wants to associate with one another.

The beautiful thing about the United States is that people have fifty states from which to choose. If you favor one type of association move to states that generally believe those things. If you favor another, move to those states. Having the federal government dictate that all states will favor associations only between certain approved groups is a recipe for discord.

There are dating sites like you describe — eHarmony, BlackPeopleMeet, JDate, Grindr, etc — and even though they don’t require you to belong to that group, it turns out that most people voluntarily associate that way anyway! Even though there’s nothing mandating it, people just don’t seem to want to sign up for dating sites made for other groups.

We’ve also tried allowing these sorts of de jure discriminatory policies. The end result was businesses with signs that said things like “No Negroes” and “Jews Not Allowed”. The solution isn’t to tell people to move to a place where businesses can’t discriminate like that; it’s to make that discrimination illegal everywhere.

No, it doesn't work that way.

No mater what kind of website (forum, web app, social network, wedding, etc..) she probably doesn't want to make a certain type of content.

It is the same for any person. There is a topic for each of us that we want no part of 'supporting' even if we have no problem serving people who do support it.

Making a website collecting donations for Trump. Making a website supporting Israel. Making a website for a pride parade. Making a website supporting/condemning Hong Kong/BLM/OWS movements.

Doesn't mater what you put for X, everyone has limits on what they are comfortable supporting. That is a separate issue from who you provide service to.

Right. I won't make a Nazi website for anyone.

If I just make Nazi websites for black people, and refuse to make a Nazi website for some people, it isn't the Nazi website - it is the person that I disagree with.

This still isn't the same though. It would be more like if I own a pancake shop and I make pancakes in the shape of a man and a woman kissing. Then a gay couple walks in and orders pancakes in the shape of two men kissing and I refuse on the grounds that it is not on the menu because I object to the content. I tell them they are free to buy pancakes of a man and a woman kissing if they so choose. How is that discrimination? They aren't being asked to leave, and they are free to buy the heterosexual kissing pancakes if they want to, just like everyone else. I am not refusing the client, just their particular bespoke request.

This is a highly contrived example, but it could be about anything, not just sexual orientation. A black guy walks into a white guy's barber shop and asks for a bespoke African haircut. The white barber refuses on the grounds that he doesn't think he would do a good job since he has never done one before and doesn't intend to learn how to do those types of haircuts. The barber doesn't tell the black guy to leave, but he tells him to pick a different haircut. Is this discrimination? Should the barber be compelled to perform the haircut he doesn't want to do against his will? What if he then does a bad job? Is that a hate crime?

The issue with these analogies is that while the creation of the wedding website is indeed a bespoke request, "wedding website" in general is a pretty well-defined category. And the thing about weddings is that you're usually in the market for your own. It's not like a gay couple would be fine to get a website for a straight wedding instead — if you won't design a website for a gay wedding, you are excluding those clients.

Is the barber analogy apt? Not really. White and Black haircuts are generally considered different "categories", and offering one does not generally confer an expectation to offer the other.

Is the pancake analogy apt? Not really. A pancake of "people kissing" is substitutable. It might not be the first choice for a gay couple, but there's no intrinsic reason they couldn't get a pancake with a flower on it instead. Now, if you were offering portraits of couples kissing, and you refused to do gay couples, that would be analogous — they're not going to get a portrait of a different couple, so this policy essentially means you don't accept gay customers.

In my opinion, the lesser of two evils in this case is not compelling business owners to perform services they object to. The US has a capitalist economy - if there is money to be made building gay wedding websites, then someone will almost certainly fill that niche and out-compete those who don't.

Going the compulsory route is going to lead to decreased religious freedoms and increased social discord between the secular and religious demographics of the country, IMO.

We've been down that road before. The Jim Crow south is a perfect example of what happens if you don't compel business owners to not discriminate. It doesn't prevent social discord, it just hides it — in the words of MLK, "a negative peace which is the absence of tension" rather than "a positive peace which is the presence of justice".

Anyway, in my original reply to you I mentioned a solution that prevents discrimination without compelling speech. If you feel you must discriminate in providing a service, then you can't provide that service.

I disagree this is the same road as Jim Crow. Jim Crow was refusing service based on color of skin. This is refusing service based on type of service.

> Anyway, in my original reply to you I mentioned a solution that prevents discrimination without compelling speech. If you feel you must discriminate in providing a service, then you can't provide that service.

In my opinion, that solution is a slippery slope that will quickly infringe on religious freedom. Soon: "Pastors/priests/bishops/etc. are no longer allowed to perform weddings unless they also perform gay weddings (against their beliefs). After all, if you feel you must discriminate in providing a service, then you can't provide that service."

So then you'd have lots of pastors refusing to perform any marriages to avoid doing something against their beliefs, which, in turn, would vindicate all the people opposed to gay marriage who were worried gay marriage would "infringe on the religious sanctity of marriage". Religious freedom down, social discord up.

No, this is absolutely refusing service based on a protected characteristic. The service is "designing a wedding website", and the policy is "we won't do that for gay couples".

There's an alternate scenario, of course. Soon: "web designers across the nation refuse to make wedding websites for same-sex couples". Religious freedom up, social discord also up. I'm not sure why you think it's only a one-way street; allowing religion to be used as a pretext to discriminate against marginalized groups is also surefire way to divide people.

It seems like we're rapidly approaching a point at which further debate is fruitless, so let me clearly state my position here: where religious freedom and equal protection clash, I am staunchly in favor of subordinating the former to the latter.

Your position is quite clear, I'm just saying I (and others) disagree with that position. For me, where religious freedom and equal protection clash, I tend to err on the side of religious freedom. If some jewish web designer is only interested in making websites for jewish weddings, I think they should have that right, even if it means turning away christian couples, gay couples, and other couples of protected status who want a non-jewish wedding website created. If some gay web designer is only interested in making gay wedding websites, they should similarly have that right without being compelled to create religious wedding websites.

I'm pretty sure the issue is that they won't make a wedding website for a gay couple. In your example they would still serve them, just not the exact product that you want.

Making a website for a gay couple and a straight couple requires the same sets of skills...

In both of your examples, the set of skills is different.

Baking a cake for a gay couple and a straight couple... same skills...

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